Emily Chow is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.
In March, the Law Society of Ontario (LSO) announced that it would cancel its March 2022 licensing examinations, citing information that “strongly indicat[ed] that examination content [had] been improperly accessed by some candidates” and evidence of “potential involvement of third parties in this activity.” With 3 days notice, students were left scrambling. Licensing examinations would also no longer be online but re-adapted to in-person sittings. In an open letter with over 500 signatures, students and lawyers from across the country called for the exams to go ahead as scheduled, citing interruptions to articling terms, travel plans, or plans to write exams in other jurisdictions.
The circumstances prompting this decision have since come to light. On May 25th, 2022, the LSO announced that it had commenced legal action against NCA Exam Guru, an exam prep company lead by Aamer Chaudhry. In its Statement of Claim, the LSO alleges that NCA Exam Guru disseminated documents containing answers to the November 2021 barrister examinations and was consequently forced to cancel the March 2022 online examinations.
The Statement of Claim highlights the significant expenses, stress, and inconvenience caused by the disruption, and calls for NCA Exam Guru to be liable for breaches of confidence, conspiracy, breach of contract, and copyright infringement. The LSO also seeks an injunction prohibiting NCA Exam Guru from further possessing, using, communicating, or distributing examination content, and for NCA Exam Guru to disgorge all profits earned (directly or indirectly) as a result of the infringement of the LSO’s copyrights.
How are LSO examinations protected? Firstly, test takers must agree to a Candidate Agreement, which provides that candidates must not engage in any form of dishonesty, fraud, cheating, misrepresentation, or other conduct related to the examination. This encompasses a wide scope of actions, including “memorization for subsequent transcription or dissemination.” Furthermore, the Candidate Agreement specifies that all examination content and materials are the exclusive property of the LSO, are protected by copyright, and are subject to the law of copyright in Canada.
It is unknown how exactly NCA Exam Guru obtained examination content. Nevertheless, “they had actual and constructive knowledge that it was imparted in breach of confidence” and may have engaged in similar conduct to other previous LSO examinations. According to this article on Law.com, candidates who wrote earlier exams are delayed in being called to the bar, pending the outcome of further ongoing investigations.
As of April 7, the barrister and solicitor exams were moved again from June to July. Teresa Donnelly, Treasurer of the LSO, noted in the LSO’s announcement that “regardless of our efforts, we know that this decision has affected many candidates … I am truly sorry for those that are experiencing these impacts.” This significant change to exam timelines emphasizes how copyright can be abstract, as one’s study guide can quickly become a breach of confidence with widespread ramifications to past and present bar exam takers.