Law Society Rule 2-69.1 provides for the publication of summaries of credentials hearing panel decisions on applications for enrolment in articles, call and admission and reinstatement.
For the full text of hearing panel decisions, visit the Hearing reports section of the Law Society website.
ARUN MOHAN (formerly APPLICANT 5)
Bencher review: November 23, 2012 and May 24, 2013 (review of costs and time for re-application)
Benchers: Art Vertlieb, QC, Chair, Kathryn Berge, QC, Tom Fellhauer, Miriam Kresivo, QC, Jan Lindsay, QC, Bill Maclagan and Claude Richmond
Reports issued: February 7 (2013 LSBC 05) and May 24, 2013 (2013 LSBC 12)
Counsel: Jason Twa for the Law Society; Henry Wood, QC for Arun Mohan
In March 2012, a credentials hearing was held regarding the application of Arun Mohan for enrolment in the Law Society admission program. The hearing was ordered as a result of a history of cheating and plagiarism during undergraduate studies and law school. The decision of the majority of the hearing panel was to allow Mohan’s enrolment. However, the chair of the hearing panel would have rejected the application (credentials hearing report: 2012 LSBC 24; Benchers’ Bulletin summary: 2012 No. 3 Fall).
The Credentials Committee sought a review of the hearing panel decision to determine whether the majority erred in the proper application of the burden of proof as to Mohan’s good character, repute and fitness to be enrolled as an articled student, specifically in reference to the evidence relating to his 2000 sociology honours thesis.
Mohan claimed that he prepared two versions of this thesis, a plagiarized version and a non-plagiarized one. He claimed that he submitted the non-plagiarized thesis for grading, but accidentally submitted the plagiarized one for archival purposes.
Mohan was unable to find a copy of his thesis in 2005, apparently due to documents being thrown out during a family move; however, six years later he found what he alleged to be a copy after searching boxes and garbage bags left over from the move.
The issue on review was whether Mohan was sufficiently rehabilitated from his “admitted history of academic fraud and deception” to now be of good character and repute and fit for admission to the bar.
Written evidence showed that Mohan had engaged in significant efforts that spoke to his rehabilitation. The review panel considered a strong recommendation from Mohan’s law professor who had employed Mohan as compelling evidence of his current good character.
However, any recent dishonesty or deception would speak against Mohan’s rehabilitation. Therefore, it was imperative that the review panel determine whether Mohan had been honest about the events surrounding his thesis in his sworn evidence at the hearing.
Regrettably, the hearing panel did not make a finding on Mohan’s credibility and did not state whether they believed his evidence. In fact, the hearing panel majority referred to serious concerns about Mohan’s evidence.
It was found that the hearing panel also erred in stating that there was no evidence before them inconsistent with Mohan’s evidence. There was important circumstantial evidence before them that needed to be analyzed and considered regarding Mohan’s version of events.
Even if it could be said that the hearing panel implicitly made a finding of credibility, they did not state their reasons for such a conclusion in accordance with the preponderance of probabilities. In the review panel’s view, failure to make such a central finding was an error in law.
Although the conduct in question took place in 1999 and 2000, the applicant’s explanations were given in 2012 under oath. His sworn statements to the hearing panel directly speak to the issue of good character, repute and fitness.
The hearing panel majority failed to examine the consistency of Mohan’s evidence with the circumstantial evidence. The panel was obliged to weigh all of the relevant evidence and make a finding of fact. It was not entitled to deference where it had failed to do so.
Mohan’s elaborate explanation about the thesis demonstrated that he did not discharge the onus of proof that he is now of good character and repute and is fit to become a barrister and a solicitor of the Supreme Court. It bears noting that, in the opinion of the minority on the hearing panel, Mohan’s “evidence on this serious issue defies credulity.”
The review panel ordered that the decision of the hearing panel be set aside and the application was rejected.
Time for re-application
The Benchers reviewed submissions on an abridgement of the time for re-application, and agreed to Mohan’s request that the two-year disqualification period be reduced by seven months.
The Benchers reviewed submissions on costs and noted that the onus is on an applicant in a credentials hearing, whereas that onus is on the Law Society in a disciplinary hearing. The Benchers were of the view that that onus would also apply when asking the Benchers on a review to reduce costs.
While noting the significant differences between credentials and discipline hearings, the Benchers applied the factors set out in Law Society of BC v. Racette. The Benchers rejected the submission that the matters in question were not serious because they were “historical” in nature. The evidence of Mohan under oath at the hearing was clearly not historical, and he had also not disclosed his complete financial circumstances. Further, while the outcome of the hearing was calamitous for the applicant, there is no range of outcomes in a credentials hearing. The Benchers found no reason to vary from the normal tariff application.
Mohan had not disputed the amounts of $3,672 with respect to the hearing and $7,099.12 with respect to the review. Mohan was entitled to credit for the $2,500 that he posted as security for costs. The difference is $8,271.12.
The Benchers ordered that:
1. the time for re-application be abridged by seven months; and
2. Mohan pay $8,271.12 in costs.
Pursuant to Rule 2-69.2(2), as the application was rejected, the publication does not identify the applicant.
Mohan has appealed the decision of the Benchers on review to the BC Court of Appeal.
|Editor's note: A subsequent decision has resulted in Applicant 5 being identified; see the Winter 2013 Benchers' Bulletin.|