Bar exam violation: Law Society of Ontario pursues claim as affected candidates left outside to look inside
On May 25, 2022, after months of investigation, the Law Society of Ontario (“OSL”) announcement that he filed suit against Aamer Chaudhry and NCA Exam Guru (“the Defendants”) for their alleged role in breaching and distributing confidential exam materials to license applicants. The Declaration of complaint posted online as part of the LSO’s announcement seeks general damages and an injunction requiring the defendants to return and destroy any confidential material in their possession. At the time of writing this article, the defendants have not filed a statement of defense. They made a public statement, discussed below, and filed a request for clarification.
The LSO is the gatekeeper for anyone wishing to become a lawyer in Ontario. It regulates and licenses all lawyers and paralegals in the province. The most common way to become a licensed lawyer in Ontario is to attend an Ontario law school, take the bar exam a few months after graduation, do a 10-month internship with a law firm of lawyers and then to attend the call of the bar ceremony where you are seated. in a hot, crowded room with 500 other contestants, waiting for your name to be called so they could briefly walk across the stage and shake a few hands.
There are other routes to becoming a lawyer in Ontario. You could attend a non-Ontario law school,1 clerk at one of the courts instead of articling, or take the law practice program at Metropolitan University of Toronto’s Lincoln Alexander School of Law. However, one constant among all applicants is the bar exam. To practice in Ontario, you must pass the bar exam, which consists of two one-day multiple-choice tests – one test for lawyer-related law (think litigation) and one for lawyer-related law (think to transactional work).
Because the bar exam is universal for all candidates, there are a number of tutoring services that offer to help candidates prepare for the exam. One of the best known tutoring services was offered by Mr. Chaudhry2 and his company, NCA Exam Guru. NCA Exam Guru is a professional tutoring service which, according to its website, helps candidates “convert their legal qualifications and take the NCA exam in Canada”, as well as offering assistance in preparing for the barrister exams and lawyers administered by the LSO.
Since every candidate must pass the bar exam, the LSO prioritizes security and integrity. To take the licensing exams, all examinees must sign a Candidate Agreement – a contract between the examinee and the LSO prohibiting any form of dissemination, copying, or disclosure of exam content. Also, before COVID-19, when the bar exam was administered in person, there were rules about the types of pens or pencils you could bring to exams and the size and opacity of the Ziploc bag in which you could bring your supplies and have lunch. At the end of the exam, all open book materials given to you by the LSO and authorized to bring to the exams had to be left behind for the LSO to destroy.
Imagine the LSO’s shock and embarrassment when, in March 2022, it learned from evidence “strongly” indicating that candidates had somehow had access to questions and answers for the November 2021 session of the bar exam.
Applicants who have taken and passed the November session – and who were originally qualified for licensure in Ontario – have been advised by the LSO that “the Law Society is evaluating their exams and that their eligibility to be admitted to the bar stands pending this assessment.3
As a result of the alleged breach, the LSO abruptly postponed the March 2022 exam to April 2022, disrupting the scheduled testing date for all candidates. The LSO also promised to investigate the source of the breach and take all necessary steps to hold responsible parties accountable.4
In April, to give itself more time to investigate the breach and prevent further misconduct, the LSO also postponed the summer exam sessions from the scheduled June date to July 2022, and moved the exam from its previously online format (adopted in response to COVID-19) back in person.
The last-minute changes sparked protests from license applicants who were due to take the summer exams. In a open letter addressed to the LSO, the students underlined their “frustration and disappointment” with the abrupt change:
“By changing these dates with such minimal notice, the LSO has disrupted important plans made by countless future lawyers. This disruption not only impacts the individual lives of license applicants, but undermines the LSO’s role as an effective, transparent and fair regulator, responsive to the needs of those it regulates.
The letter included signatures from more than 500 Ontario law students and licensing applicants pleading with the LSO to offer a seat on the exam on the original schedule.
The claim against Aamer Chaudhry and NCA Exam Guru
The Declaration of complaint alleges that Mr. Chaudhry and representatives of NCA Exam Guru improperly obtained and distributed answers to the November 2021 Lawyer Exam to clients enrolled in his course. The documents were reportedly distributed via email, Skype and WhatsApp messaging services. The statement of claim points out that Mr. Chaudhry allegedly “encouraged his clients to use the fraudulent documents [on the examination].” The statement further alleges that the defendants “engaged in similar conduct in connection with other LSO licensing exams,” but continue to investigate these allegations. This may seem to suggest that there has been misuse of exam content in other exam sittings.
The LSO is seeking damages for breach of trust, conspiracy, inducing breach of contract, and copyright infringement, as well as an order requiring Mr. Chaudhry and his associates to return all of the exam content. The LSO also seeks damages for disgorgement of all profits derived (directly or indirectly) from the alleged copyright infringement, as well as punitive and aggravated damages in the amount of $100,000. The breach of trust and conspiracy allegations are discussed in more detail below.
Interestingly, the statement pleads that the candidates themselves suffered costs, inconvenience and stress, but refrains from making a claim on behalf of these candidates.5 It is unclear what role, if any, the innocent license applicants who have been affected by the defendants’ alleged actions will play in the proceedings.
A. Breach of Trust
The LSO alleges that Mr. Chaudhry and his associates committed the tort of breach of trust. Breach of confidence is a cause of action that provides legal relief for the misuse of information provided in confidence, which is then subjected to unauthorized use. A breach of trust complaint requires the plaintiff to demonstrate that the trustee misused the information to the detriment of the trustee.6 In particular, it is a unique cause of action which may give rise to remedies at law or in equity.
In Lake Minerals Ltd. vs. International Corona Resources Ltd. (“Mineral Lake”),seven the Supreme Court of Canada has set out the elements of the tort of breach of trust:
(1) the information must have the necessary quality of trust about it;
(2) the information must have been communicated in circumstances involving an obligation of confidentiality; and
(3) there must have been an unauthorized use of that information to the detriment of the party who disclosed it.8
In this case, the LSO asserts that the exam content in question has a “necessary quality of trust in it” because past exam questions or exam answers are not provided to anyone and the candidate’s agreement provides that all exam content is confidential. The claim concedes that while it is unclear how the defendants accessed the content of the review, the defendants knew that the content had been disclosed in breach of confidentiality.
Finally, the use of the exam content was not authorized and was done to the detriment of the LSO. The candidate agreement explicitly prohibits any form of dissemination or copying of the exam content and any misappropriation naturally undermines the integrity of the LSO and the bar exam, harming the LSO and the legal profession as a whole. together.
The LSO alleges that Mr. Chaudhry and his associates are responsible for conspiracy. A criminal association complaint can be based on two grounds:
- First, there may be a conspiracy to injure, where persons act in concert with the predominant purpose of causing harm to the plaintiff and as a result actual harm is suffered by the plaintiff.
- Second, there may be a conspiracy of unlawful acts, requiring persons, in concert, to engage in unlawful conduct towards the plaintiff in a manner likely to cause and result in injury to the plaintiff.9 To constitute unlawful conduct for the purposes of the second ground, the conduct must be “injurious in law, whether or not actionable in private law”.ten The offense will not have occurred if only one of the persons engaged in illegal conduct.11
In this case, the LSO relies on the second ground, namely that Mr. Chaudhry, NCA Exam Guru, and “other persons” associated with NCA Exam Guru acted in concert to obtain the content of the exam. and distribute the content to its customers. The complaint further alleges that certain contestants entered into this agreement by virtue of the acceptance and, in some cases, the use of the content. The alleged illegal means include “obtaining, disseminating and using the [exam content]” in violation of the LSO Applicant Agreement signed by all license applicants.
If the claim’s breach of confidentiality fails, the conspiracy claim may succeed under another wrongdoing set forth in the claim. For example, since the LSO also alleges copyright infringement and incites breach of contract, either of these allegations may be an “unlawful act” sufficient to ground the conspiracy allegation.
Response from Mr. Chaudhry
In response to the allegations, Mr. Chaudhry issued a statement denying the allegations, stating: “the allegations made by the Law Society are unproven and we will vigorously defend [the claim] if necessary in court.