The Law Society of Ontario’s Assessment of Capacity in Relation to Mental Illness: A Critical Analysis
by
David Andrew LeMesurier
A thesis submitted in conformity with the requirements for the degree of Master of Laws Faculty of Law University of Toronto
© Copyright by David Andrew LeMesurier 2020 The Law Society of Ontario’s Assessment of Capacity in Relation to Mental Illness: A Critical Analysis
David Andrew LeMesurier
Master of Laws
Faculty of Law University of Toronto
2020 Abstract
Over the past 20 years, a number of studies across the globe have found that mental health issues—including substance abuse, depression, anxiety, and other forms of psychopathology— are especially acute in the legal profession. The Law Society of Ontario (“Law Society”), the regulator of the legal professions in the province, has a role to play in addressing these issues, particularly due to its statutory jurisdiction over the capacity of lawyers and paralegals
(“licensees”). In this paper, I review in depth the Law Society’s current approach to licensee capacity concerns in its applications before the Law Society Tribunal. My critical examination of the current coercive processes is informed by their impacts on the autonomy interests of licensees. Ultimately, I argue that in light of these impacts, the Law Society’s authority with respect to licensee capacity must be strictly and narrowly interpreted, to the greatest benefit of the individuals at issue.
ii Acknowledgments
First and foremost, I would like to thank my SJD Advisor, Michaël Lessard, and my Supervisor, Professor Trudo Lemmens, both of whom provided a great deal of appreciated feedback on my initial drafts. Their assistance was invaluable and certainly improved the quality of my research and writing. I also learned so much from my fellow LLM students and would be remiss if I did not acknowledge their contribution (in particular, Ines Horn).
Secondly, I would like to thank my family: Mom, Dad, Emily, Mike and Ian. Whether you were reading through my rough material, asking for updates, or just making me laugh, you were always there for me.
Third, I could not have completed this draft without the support of my roommate Kathleen (and, by extension, Alysa). It’s difficult to overemphasize how comforting it was to come home to such a loving, kind, and supportive friend every night while I was working on this project.
Finally, I was incredibly lucky to be able to take a leave of absence from the Law Society of Ontario while I completed my LLM. I am so grateful to my colleagues, who not only taught me everything I know about professional regulation, but also encouraged and supported me while I wrote this thesis. To A.K., Alex, Amanda, Amrita, Anna, Ayman, Bill, Cheryl, Danielle, Deborah, Elaine, Elizabeth, Holly, Ian, Kristina, Joshua, Leslie, Natasha, Owen, Rhoda, Sue, Suzanne, Tanus, Tushar and all the other incredible employees at the LSO (both past and present), thank you so much.
iii Table of Contents
ACKNOWLEDGMENTS ...... III TABLE OF CONTENTS ...... IV LIST OF APPENDICES ...... V INTRODUCTION ...... 1 PART I: STATUTORY CONTEXT ...... 8 REGULATORY JURISDICTIONS ...... 9 Conduct Proceedings ...... 9 Capacity Proceedings ...... 10 INVESTIGATIONS AND APPROVALS ...... 10 APPLICATIONS BEFORE THE TRIBUNAL ...... 12 STRUCTURE OF PROCEEDINGS ...... 13 PART II: LEGISLATIVE AND POLICY DEVELOPMENT RE JURISDICTION OVER CAPACITY ...... 14 LEGISLATIVE DEVELOPMENTS ...... 14 POLICY DEVELOPMENTS ...... 21 PART III: TRANSPARENCY IN CAPACITY PROCEEDINGS ...... 23 INITIAL APPROACH AND CALLS FOR CHANGE ...... 23 THE 2006 CAPACITY POLICY ...... 24 TRIBUNAL RESPONSE TO 2006 CAPACITY POLICY ...... 25 CURRENT APPROACH TO TRANSPARENCY ...... 30 PART IV: CAPACITY APPLICATIONS ...... 32 THE MEANING AND TREATMENT OF SECTION 37(1) ...... 32 The presence of a physical or mental illness, other infirmity, or addiction to or excessive use of alcohol or drugs ...... 36 (1) Treatment of ‘Mental Illness’ and ‘Incapacitated’ in Other Legal Contexts ...... 37 (2) ‘Incapacitated’ Adopts a Medical Frame and Requires Evidence ...... 40 (3) Drawing on Human Rights Law ...... 41 The licensee is incapable of meeting any of his or her obligations as a licensee ...... 51 (1) Interlocutory Proceedings ...... 54 (2) ‘Significant Threat’ in the Criminal Context ...... 55 A nexus between the previous two clauses ...... 58 COMPELLING MEDICAL ASSESSMENT PURSUANT TO SECTION 39(1) ...... 60 PART V: CAPACITY ISSUES IN CONDUCT APPLICATIONS ...... 63 COMPLETE DEFENCE TO MISCONDUCT OR CONDUCT UNBECOMING ...... 64 MITIGATING CIRCUMSTANCE ...... 68 CONCLUSION ...... 78
iv List of Appendices
APPENDIX A: Table Analyzing Law Society Tribunal Conduct Orders from 2007 – 2019
APPENDIX B: Table of Conduct Decisions Addressing Capacity Issues from 2007 – 2019
v The Law Society of Ontario’s Assessment of Capacity in Relation to Mental Illness: A Critical Analysis
David Andrew LeMesurier1
INTRODUCTION
Like many others before me, I walked into law school with confidence and a little apprehension. While apprehensive about my prospects in a completely new setting with a suddenly much more competitive group of students, as I ran through the rain and into the Weldon Law Building in Halifax, Nova Scotia on the first day of orientation, I was also confident that, based on my academic experiences to date, if I set my mind to it, I would be able to excel in this new environment.
As my first year of law school progressed, however, doubts began to take hold with increasing strength. I started to feel more and more like an imposter in a setting where I had previously thrived. I found the law alienating, and I felt like the dumbest person in the room. Slowly but surely, I began to withdraw, and feelings that had plagued me my whole life—that I was not interesting, smart, or good enough—came to a head. By the start of my second semester, I found it harder and harder to get out of bed, until I just stopped trying. Any time I did go out, I expended so much energy maintaining the façade I’d cultivated for years of a happy, optimistic, and approachable person, that I was left feeling even more defeated when I was alone again. I stopped going to most classes, disabled my social media accounts, and started thinking that dropping out of school was not enough; maybe no longer existing would be better.
Luckily, while I was falling further and further away from reality, even though I felt that nobody was paying attention or cared, they were, and they did. In particular, my girlfriend at the time saw the signs that I was struggling and pushed me to get the help I so desperately needed. I felt like a child again: my mother literally had to drive to Halifax, force me to make an appointment
1 The author is currently employed as an Associate Discipline Counsel at the Law Society of Ontario, where he has worked since 2016. The views expressed in this paper are his own and not necessarily those of his employer.
1 with the Dalhousie Health & Wellness Centre, and take me to it. If she had not done so, I’m confident I would not have gone, and without that appointment, I would not have been diagnosed with depression.
Over the next six months, I tried three different medications and multiple different doses before I found the combination that worked for me. Each time I thought something was effective, I would plateau and start to slide back into my previous thoughts and feelings. Somehow, with significant support from my family and friends, I made it through the first year of law school and then spent most of the summer both ensuring that I was mentally stable and deciding whether, now that I was starting to see more clearly and rationally again, law school was what I actually wanted to do.
It turns out that it was, and I finished my degree as planned. Today, I’m working as a lawyer, and in faithfully taking my medication every day, I feel better than I ever have before. While my mental illness has not gone away, I have learned how to manage it and to recognize the signs that I may need to tweak my dosage or take some time to recharge. Overall, I am extremely lucky that I had those around me who were able to see what I was feeling before I did, and who took the initiative to help me when I would not help myself.
Soon after my breakdown, I realized that I was not alone in how I was feeling, either as an individual, or as a lawyer. In fact, in any given year, one in five people in Canada experiences a mental health problem or illness, representing approximately 6.7 million people.2 For context, approximately 1.4 million people have heart disease, and approximately 2.2 million people have type 2 diabetes.3
Despite its prevalence, only one-in-three people who experiences a mental health problem or illness report that they have sought and received services and treatment.4 This is likely due to the
2 Mental Health Commission of Canada, “Making the Case for Investing in Mental Health in Canada” (2012) at 1, online (pdf):
2 fact that there is also significant stigma associated with mental illness.5 For example, according to a 2008 survey by the Canadian Medical Association, 46% of Canadians think people use the term mental illness as an excuse for bad behaviour, 42% are unsure whether they would socialize with a friend who has a mental illness, and 27% would be fearful of being around someone who suffers from serious mental illness.6 The Supreme Court of Canada (“SCC”) has also consistently acknowledged this stigma. In R v Swain, the Court noted, “[t]here is no question but that the mentally ill in our society have suffered from historical disadvantage, have been negatively stereotyped and are generally subject to social prejudice.”7 Similar sentiments were echoed by the SCC in both Battlefords and District Co-operative Ltd v Gibbs and Eldridge v BC (AG).8
Notwithstanding these already stark figures in the general population, members of the legal professions may be at an even greater risk for depression, anxiety, and suicide.9 Over the past 20 years, a number of studies across the globe have found that mental health issues are especially
5 See Brenda Major & Laurie T O’Brien, “The social psychology of stigma” (2005) 56 Annu Rev Psychol 393, which defines stigma as follows: “[P]eople who are stigmatizes have (or are believed to have) an attribute that marks them as different and leads them to be devalued in the eyes of others. […] Importantly, stigma is relationship- and context- specific; it does not reside in the person but in a social context” (395). See also Bernice A Pescosolido, “The Public Stigma of Mental Illness: What Do We Think; What Do We Know; What Can We Prove?” (2013) 54:1 Journal of Health and Social Behaviour 1. Stigma is also closely associated with ableism, which is defined in Law Commission of Ontario, “Advancing Equality for Persons with Disabilities Through Law, Policy and Practice: A Draft Framework” (2012) at 3, online (pdf):
3 acute in the legal professions.10 For example, in the Canadian context, lawyer Megan Seto noted in 2012 that “20% of the entire legal profession suffers from clinically significant levels of substance abuse, depression, anxiety or some other form of psychopathology.”11 A 2018 Canadian study by University of Toronto researchers Jonathan Koltai, Scott Schieman, and Ronit Dinovitzer reached equally concerning results, noting that higher-status lawyers in large firms report more depression than lower-status lawyers.12 Finally, a 2019 study by the provincial regulator of more than 2,500 lawyers in Québec revealed that 42% of the women and 39% of the men surveyed experienced psychological distress, including anxiety, sleeping difficulties, and concentration problems.13 These studies and findings represent but a few examples of the emerging research.
10 For an international perspective, see the following studies from the United States and Australia: WW Eaton, JC Anthony and R Garrison, “Occupations and the prevalence of major depressive disorders” (1990) 32:11 Journal of Occupational Medicine 1079; Patrick J Schiltz, “On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession” (1999) 52 Van L Rev 871; The Law Society of Western Australia, “Report on Psychological Distress and Depression in the Legal Profession” (2011), online:
4 The Law Society of Ontario (“Law Society”),14 the regulator of the legal professions in the province,15 has a role to play in addressing these issues. To date, the Law Society has taken some action, including by establishing a Mental Health Strategy Task Force to articulate its approach to mental health and addiction issues16 and by identifying mental health initiatives as a strategic priority for the 2015-19 governing term.17 These laudable actions are not, however, the focus of this paper. Rather, I concentrate on the coercive powers associated with licensee mental health that are embedded in the Law Society Act (“LSA”),18 the Law Society’s governing statute.
Over time, the Law Society has acquired new statutory powers to address mental illness impacting a licensee’s ability to practice law or provide legal services. In particular, section 37(1) of the LSA defines “incapacitated” as follows: “A licensee is incapacitated for the purposes of this Act if, by reason of physical or mental illness, other infirmity or addiction to or excessive use of alcohol or drugs, he or she is incapable of meeting any of his or her obligations as a licensee.”19
The Law Society has the power to initiate capacity applications before the Law Society Tribunal (“Tribunal”) to determine whether a licensee is or was incapacitated,20 and the ability to request
14 Formerly known as the Law Society of Upper Canada. See Law Society of Ontario, “History of the Law Society” (4 March 2020), online:
5 that a licensee be compelled to be examined by one or more physicians or psychologists.21 Finally, capacity issues can and do arise in the context of conduct applications addressing a licensee’s alleged failure(s) to fulfill their professional obligations in any number of ways.22
In this paper, I review the Law Society’s current approach to licensee mental illness in both conduct and capacity applications before the Tribunal. My critical examination of the current coercive processes is informed by their impacts on the autonomy interests of licensees. In particular, if the Tribunal finds that a licensee is or was incapacitated for the purposes of the LSA, or that their mental illness impacted their ability to fulfill their professional obligations, it has statutory authority to require the licensee to obtain or continue treatment or counselling, including testing and treatment for addiction to or excessive use of alcohol or drugs, or to participate in other programs to improve their health.23 In many cases, licensees are compelled to undergo treatment and are suspended from practice until they demonstrate their current capacity to provide legal services. While such action is designed to protect the public, it clearly impacts a licensee’s autonomy to make their own medical choices, with consequences for their ability to work in their chosen profession if they refuse.24 In light of the significant impact that such actions can have on the autonomy of licensees, I argue that the Law Society’s authority must be strictly and narrowly interpreted, to the greatest benefit of the licensee at issue. As a licensee
21 Ibid at s 39(1). 22 Ibid at s 34(1). 23 Ibid at ss 35(1)5 and 40(1)2. 24 As noted by the SCC in Carter v Canada (Attorney General), 2015 SCC 5 at para 67, “[t]he law has long protected patient autonomy in medical decision-making. In AC v Manitoba (Director of Child and Family Services), 2009 SCC 30 […] a majority of this Court, per Abella J (the dissent not disagreeing on this point), endorsed the “tenacious relevance in our legal system of the principle that competent individuals are—and should be—free to make decisions about their bodily integrity” (para 39). This right to “decide one’s own fate” entitled adults to direct the course of their own medical care (para 40): it is this principle that underlies the concept of “informed consent” and is protected by s. 7’s guarantee of liberty and security of the person (para 100).” See also Malette v Shulman, 1990 CanLII 6868 (ONCA). This calls to mind the tension between what Jennifer A. Chandler refers to as rights-based legalism and medical paternalism. She succinctly describes the tension as follows: “Holders of the “paternalistic” view argue that autonomy and dignity are eroded by severe mental illness, and are restored by treatment. The civil libertarian view points to the harm done to liberty and dignity in forcing treatment on an unwilling person, and asks how we can justify the infringement for people declared to be mentally ill when we do not treat others in that way, regardless of whether we agree with their decisions to refuse treatment: see “Mental Health and Disability in Canadian Law: Evolving Concepts, Concerns and Responses” in Jennifer A Chandler & Colleen M Flood, eds, Law and Mind: Mental Health Law and Policy in Canada (Toronto: LexisNexis Canada, 2016) at 16—17. See also Sophie Nunnelley, “Coercive Care in Civil Mental Health Law: An Autonomy Lens” (2015) Munk School of Global Affairs, University of Toronto, Comparative Program on Health and Society (CPHS) – Working Paper Series 2014-2015.
6 experiencing mental health issues myself who also works as Associate Discipline Counsel at the Law Society, I am acutely aware of the need in these processes to balance individual licensee interests with the regulator’s duty to protect the public interest, and am mindful of this tension in advancing these arguments.
This paper is broken down into five parts. In Part I, I provide the statutory context necessary to understand the proceeding discussion of the Law Society’s current approach to capacity issues in its coercive processes. In Parts II and III, I outline the Law Society’s approach to capacity since its inception, highlighting the major changes in legislation and policy with respect to the definition of ‘incapacitated’ and the transparency of capacity proceedings. In Part IV, I analyze the Law Society’s jurisdiction over licensee capacity in depth, outlining the ways in which these processes currently operate and how they ought to operate. Finally, in Part V, I address the prevalence of capacity issues arising in the context of conduct applications and describe how they are addressed by the Tribunal. Ultimately, I offer a detailed analysis of the Law Society’s current coercive processes with respect to licensee capacity, identifying limitations that need to be addressed.
7 PART I: STATUTORY CONTEXT
The Law Society was founded in 1797,25 and its power then and now is derived from the LSA, a statute in which the legislature delegated certain authority to the legal profession. The Law Society stands independent of the government’s direct control and is the regulatory body for a self-governing profession.26
The functions of the Law Society are to ensure that (a) all persons who practise law or provide legal services in Ontario meet standards of learning, professional competence, and professional conduct that are appropriate for the legal services they provide; and (b) the standards of learning, professional competence, and professional conduct for the provision of a particular legal service in a particular area of law apply equally to persons who practise law and persons who provide legal services in Ontario.27 In carrying out these functions, the Law Society must also consider a number of enumerated principles, including its duties to protect the public interest and to act in a timely, open, and efficient manner.28
25 See Christopher Moore, The Law Society of Upper Canada and Ontario’s Lawyers, 1797-1997 (Toronto: University of Toronto Press, 1997) at 15. 26 Today, benchers remain responsible for governing the affairs of the Law Society. While various Ministers and Attorney’s General are benchers by virtue of their office, and the Lieutenant Governor in Council may appoint eight persons who are not licensees, the vast majority of benchers are elected lawyers and paralegals licensed to practice law or provide legal services in Ontario. In total, forty lawyers and five paralegals are elected: see LSA, supra note 15 at ss 10, 12(1)—(2), 15(1), 16(1) and 23(1). All benchers sit for terms of four years: see By-Law 3, supra note 16 at s 3. For more information about lawyer and paralegal elections, as well as honorary benchers and benchers by virtue of their office, see By-Law 3 at Parts I—II.1. See also, for judicial confirmation of the Law Society’s self-governing status, AG Can v Law Society of BC, [1982] 2 SCR 307 at 318 and 336; MacDonald Estate v Martin, [1990] 3 SCR 1235 at 1244; Pearlman v Manitoba Law Society Judicial Committee, [1991] 2 SCR 869 at 886—887 [Pearlman]; Law Society of New Brunswick v Ryan, 2003 SCC 20 at para 36 [Ryan]; Green v Law Society of Manitoba, 2017 SCC 20 at para 25 [Green]; and Law Society of British Columbia v Trinity Western University, 2018 SCC 32 at paras 34 and 37 [TWU-BC]. 27 LSA, supra note 15 at s 4.1. 28 Ibid at s 4.2. The Law Society’s duty to protect the public interest has been consistently reinforced by the SCC over the past 30 years: see e.g. Pearlman, supra note 26 at 887; Edwards v Law Society of Upper Canada [LSUC], 2001 SCC 80 at para 14; Green, supra note 26 at paras 3 and 28; Groia v LSUC, 2018 SCC 27 at para 114; TWU- BC, supra note 26 at para 33; Trinity Western University v LSUC, 2018 SCC 33 at para 16. See also Gavin MacKenzie, “Law Society Discipline Proceedings” (1992) 11 Advocates’ Soc J No 2 3 at 3; and Alice Woolley & Amy Salyzyn, “Protecting the Public Interest: Law Society Decision-Making After Trinity Western University” (2019) 97 Can Bar Rev 70 at para 2.
8 Regulatory Jurisdictions
The mandate of the Law Society has broadened dramatically since its inception. It now regulates both lawyers and paralegals and has the power to enact By-Laws and Rules29 specifying professional standards and requirements. It also has jurisdiction over licensing,30 conduct,31 capacity,32 professional competence,33 and reinstatement.34 Furthermore, in order to fulfill its regulation of these varied jurisdictions, the Law Society has significant tools at its disposal. Among other powers, it can commence and conduct investigations into licensees and their practices;35 commence and prosecute conduct, capacity, or competence applications before the Tribunal;36 audit a licensee’s financial records;37 and apply to the Superior Court of Justice for an order for search and seizure,38 a freezing order,39 or a trusteeship order.40
For the purposes of this paper, I will focus on licensee mental health issues raised in both capacity and conduct applications. As such, these processes merit further consideration.
Conduct Proceedings
The Law Society’s jurisdiction over licensee conduct41 concerns professional misconduct or conduct unbecoming a licensee, both of which are defined in the Rules of Professional Conduct (“Rules”) for lawyers.42 The main difference between the two is whether the prohibited conduct happened in a licensee’s personal or professional capacity: ‘Professional misconduct’ refers to
29 LSA, supra note 15 at ss 62(0.1) and 62(0.1)10. See also Law Society of Ontario, Rules of Professional Conduct, Toronto: LSO, 2000 [Rules]; and Law Society of Ontario, Paralegal Rules of Conduct, Toronto: LSO, 2007 [Paralegal Rules]. 30 Ibid at s 27(1). 31 Ibid at s 33. 32 Ibid at s 37(1). 33 Ibid at s 41. 34 Ibid at s 49.42(1). 35 Ibid at ss 49.3(1)—(4) and 42(1)—(2). 36 Ibid at ss 34(1), 38(1) and 43(1). 37 Ibid at ss 49.2(1)—(2). 38 Ibid at s 49.10(1). 39 Ibid at s 49.46. 40 Ibid at s 49.47(1). 41 Ibid at s 33. 42 Supra note 29 at s 1.1-1.
9 conduct in a licensee’s professional capacity that tends to bring discredit upon the legal profession43 whereas ‘conduct unbecoming’ refers to conduct, including in a licensee’s personal or private capacity, that tends to bring discredit upon the legal profession.44
Professional misconduct involves a breach of the requirements enumerated in the Rules, the By- laws and/or the LSA. Conversely, conduct unbecoming may concern any number of actions, provided they tend to bring discredit upon the legal profession.
Capacity Proceedings
The Law Society’s jurisdiction over licensee capacity is outlined in the LSA at section 37(1), which defines “incapacitated” for the purpose of Law Society proceedings.45 While this paper does not consider the Law Society’s jurisdiction over competence, it is important to understand that ‘capacity’ and ‘competence’ are separate in the Law Society context, and not merely synonymous with one another. The current definition of ‘professional competence’ in the LSA concerns deficiencies in the licensee’s knowledge or quality of service and not their mental faculties.46
Investigations and Approvals
In conduct and capacity matters, the Law Society may initiate an investigation into a licensee if it receives information suggesting that they may have engaged in professional misconduct and/or conduct unbecoming a licensee in the former case, or may be, or may have been, incapacitated in the latter. In many cases, such information comes in the form of a complaint about the licensee,
43 Ibid. 44 Ibid. 45 Supra note 15. 46 Ibid at s 41.
10 which may concern their professional conduct,47 or directly raise issues about their capacity.48 However, no such complaint is necessary to initiate an investigation.49
If an employee of the Law Society holding an office prescribed by the By-Laws50 has a reasonable suspicion that a licensee engaged in professional misconduct, conduct unbecoming, or may be or may have been incapacitated, the person conducting the investigation may also exercise a series of powers outlined at sections 49.3(2) and (4) of the LSA.51 These powers include the ability for an investigator to attend at a licensee’s office and/or require them to produce documents, whether or not they are privileged or confidential.52
After conducting an investigation, the Law Society may determine that there are reasonable grounds for believing that a licensee engaged in professional misconduct and/or conduct unbecoming or may be or may have been incapacitated. In order to apply to the Tribunal for determination of these issues, the Law Society must first seek and obtain authorization to do so from the Proceedings Authorization Committee (“PAC”), a panel of six persons appointed by Convocation, consisting of elected and appointed benchers.53
47 See e.g. LSUC v Cadogan, 2009 ONLSHP 42 at para 10 [Cadogan 2009]; LSUC v Morgan, 2013 ONLSHP 44 at para 2 [Morgan]; LSUC v Mercury, 2014 ONLSTH 236 at para 3 [Mercury]; and Law Society of Ontario [LSO] v Stewart, 2019 ONLSTH 118 at para 2 [Stewart]. 48 See e.g. LSUC v Singer, 2008 ONLSHP 69 at paras 1 and 4 [Singer], wherein the panel noted that the lawyer actually self-reported his substance abuse problem, acknowledging that it affected his ability to provide an effective defence to two of his clients 49 See, e.g. Statton, Re, 2003 CanLII 48012 (ON LST) at para 17; LSUC v Burdet, 2014 ONLSTH 215 at para 27 [Burdet]; LSO v Isaac, 2018 ONLSTH 125 at para 128; and LSUC v Peterson, 2013 ONLSHP 13 at paras 35—36. 50 See Law Society of Ontario, By-Law 11, Regulation of Conduct, Capacity and Professional Competence (1 May 2007) at s 23 [By-Law 11]. 51 Supra note 15. There are accordingly two thresholds: one to commence an investigation, and another to access investigatory powers. The ’information suggesting’ threshold is a low one. A letter of complaint is enough, and, indeed, there is no requirement that the source of the information be a complainant. Similarly, ‘reasonable suspicion’ is not a high standard. These powers can be exercised together or independently. If the Law Society has information that suggests professional misconduct and also leads to a reasonable suspicion, it can commence an investigation and immediately authorize the use of the s 49.3(2) powers. Given that these powers affect only a very minor interest of licensees (i.e. it cannot affect their ability to practice), neither the LSA nor procedural fairness require an opportunity for them to make submissions before an authorization decision is made, and the Tribunal has repeatedly noted that it ought not to sit in the place of the Executive Director or her delegate to determine whether it would have authorized the investigation: see LSUC v Dmello, 2012 ONLSHP 93 at paras 51 and 58, rev’d in part on other grounds 2015 ONSC 5841; LSUC v Cusack, 2016 ONLSTH 7 at paras 37, 53, 60—62 and 66, aff’d 2018 ONLSTA 7 [Cusack 2018]; Cusack 2018 at para 40; LSO v Kay, 2018 ONLSTH 144 at para 89; and LSO v Hosseini, 2019 ONLSTH 43 at para 41. 52 See LSA, supra note 15 at ss 49.8(1). 53 See ibid at ss 34(1) and 38(1). If the PAC is satisfied that there are ‘reasonable grounds for believing’ that the licensee has committed professional misconduct or conduct unbecoming or may be or may have been
11 Applications before the Tribunal
If PAC authorization is obtained, a Notice of Application outlining the Law Society’s allegations may be served on the licensee and issued by the Tribunal.54 Absent withdrawal of the allegations by the Law Society,55 a hearing will then proceed before the Tribunal addressing the allegations. The standard of proof in Law Society proceedings is on a balance of probabilities.56
Conduct and capacity applications have been addressed by the Tribunal since 2013. The Tribunal is an internal but independent body with a full-time chair who is not one of the Law Society’s benchers.57 The Tribunal consists of two divisions: the Hearing Division and the Appeal Division.58
The Tribunal follows the Rules of Practice and Procedure (“Tribunal Rules”) in all of its proceedings.59 The most recent iteration of the Tribunal Rules passed Convocation on November 29, 2019,60 and they have applied to all proceedings since January 1, 2020.61
incapacitated, it must authorize the Law Society to apply to the Tribunal: see By-Law 11, supra note 50 at ss 44(2) and 51(2)—(3). ‘Reasonable grounds to believe’ was defined by the SCC in Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para 114. See also LSUC v Sullivan, 2008 ONLSHP 83 at para 38; and LSUC v Lesieur, 2016 ONLSTH 173 at para 12. 54 See LSA, ibid. 55 See Law Society Tribunal, Rules of Practice and Procedure, Toronto: LSO, 2020 at s 3.3(3) [Tribunal Rules]. 56 See LSUC v Neinstein, [2007] OJ No 958 (QL) at paras 54—56; FH v McDougall, 2008 SCC 53 at paras 26 and 40; and LSUC v Chin, 2017 ONLSTA 20 at paras 20 and 22. 57 See LSA, supra note 15 at s 49.20.1(1). 58 See ibid at s 49.20.1(2). Notices of Application are adjudicated before the Hearing Division. The Appeal Division hears appeals from the orders of the Hearing Division. Thereafter, parties can appeal to the Divisional Court: s 49.38. The Hearing Division consists of the chair and at least three persons appointed by Convocation, including a non-licensee and an elected bencher: ss 49.21(2)—(3). The Appeal Division consists of the chair and at least five persons appointed by Convocation, including at least one non-licensee and one elected bencher: ss 49.29(2)—(3). Members sit for terms not exceeding four years: ss 49.21(4) and 49.29(4). Matters are heard before panels of one, three, or five members, as outlined in O Reg 167/07. Note that prior to 2013, applications were addressed by the Hearing Panel and the Appeal Panel, which were established in 1998: see Law Society Amendment Act, RSO 1998, c 21 [LSAA 1998] at ss 49.21(1) and 49.29(1). While these Panels formed part of a ‘Tribunal’, it was chaired by a bencher, rather than an independent full-time chair. As such, it was not considered independent, as the Tribunal is today. Earlier proceedings were heard by the Discipline Committee, and, before that, Convocation as a whole. 59 Supra note 55. 60 See Law Society of Ontario, “November 2019 Convocation: Update” (4 March 2020), online:
12 Structure of Proceedings
There are two stages to conduct proceedings before the Tribunal: finding and penalty.62 During finding, the panel must determine whether the licensee committed professional misconduct and/or conduct unbecoming in accordance with some or all of the Law Society’s allegations. If the Law Society is successful in proving any of its allegations, the penalty stage will proceed. During penalty, the panel addresses what can be understood as ‘sentencing’, as evidence and submissions are made by both parties about the appropriate disposition. In such circumstances, the panel must make one or more of the orders enumerated at section 35(1) of the LSA, which can include orders that the licensee obtain or continue treatment or counselling, including testing and treatment for addiction to or excessive use of alcohol or drugs, or other programs to improve their health (“Remedial Terms”).63
Capacity proceedings follow a similar trajectory. There are two stages: finding and order. During finding, the panel must determine whether the licensee is or was incapacitated within the meaning of the LSA. At times, during this stage, the Law Society may bring a motion pursuant to section 39(1) of the LSA for an order requiring the licensee who is the subject of the application to be examined by one or more physicians or psychologists.64 If the Law Society is successful in establishing current or past incapacity, the order stage will proceed. During this stage, the parties address what order is appropriate in light of the concerns about the licensee’s capacity and the prognosis for recovery. In such circumstances, the panel must make one or more of the orders enumerated at section 40(1) of the LSA, which can also include the Remedial Terms.65
62 LSUC v Desjardins, 2016 ONLSTH 79 at para 12. 63 Dispositions in Law Society conduct proceedings are largely confined to fines, reprimands, licence suspensions, permission to surrender, or revocation. However other orders are also available: see LSA, supra note 15 at s 35(1) for a complete list of available orders. Reprimands are defined as “a public expression of the profession’s denunciation of the lawyer’s conduct intended to deter further misconduct by the lawyer and within the profession as a whole”: LSUC v Tinianov, 2016 ONLSTH 91 at para 37. Permission to surrender or revocation both result in a licensee losing their licence to practice law or provide legal services. The distinction between the two dispositions was described by the panels in Nova Scotia Barristers’ Society v Steele, 1995 NSBS 8 (frequently cited by the Tribunal); and LSUC v Flumian, 2015 ONLSTH 162 at paras 6—7 [Flumian 2015]. 64 Supra note 15. This provision is discussed further in Part IV. 65 See ibid at s 40(1)2.
13 PART II: LEGISLATIVE AND POLICY DEVELOPMENT RE JURISDICTION OVER CAPACITY
Law Society regulation has undergone significant changes over the past 100 years, during which its jurisdiction over capacity has grown. It is important to understand this history, as it demonstrates the Law Society’s past pitfalls with respect to licensee mental health issues and underscores the need to avoid them in the future.
Legislative Developments
In earlier iterations of the LSA, the capacity of licensees was only tangentially addressed. In versions of the statute from 1914, 1927, and 1937—all nearly identical in their content— ‘capacity’ was only used when addressing students-at-law and not barristers and solicitors.66 For example, section 42(1) of the 1937 statute stated:
The benchers may make such rules as they consider necessary for conducting the examination of persons applying to be admitted as solicitors, touching the articles and service, and the certificates required to be produced by them before their admission, and as to the fitness and capacity of such persons to act as solicitors.67
Another reference to ‘fitness to practice’ appeared in each statute when they addressed the powers of the benchers to suspend, disbar, or expel lawyers or students; again, however, this language was only used with reference to students. For example, section 44 of the 1937 statute stated:
Where a barrister, solicitor, or student-at-law is found by the benchers, after due inquiry by a committee of their number or otherwise, guilty of professional misconduct, or of conduct unbecoming a barrister, solicitor, or student-at-law, the benchers […] may refuse either absolutely or for a limited period to admit such student to the usual examinations, or to grant him the certificate of fitness necessary to enable him to be admitted to practice.68
66 Law Society Act, RSO 1914, c 158 [LSA 1914]; Law Society Act, RSO 1927, c 192 [LSA 1927]; Law Society Act, RSO 1937, c 221 [LSA 1937]. 67 LSA 1937, ibid at ss 42(1) [Emphasis added]. See also, LSA 1914, ibid at s 44, and LSA 1927, ibid at ss 42(1). 68 LSA, 1937, ibid at s 45 [Emphasis added].
14 In both cases, the legislature was using ‘capacity’ in a general rather than specific sense: i.e., ‘capacity’ as a synonym for competence to perform the tasks required of a legal professional, rather than the mental capacity to understand and appreciate. Explicit language addressing the mental capacity of lawyers to practice was only added to the legislation in 1950, though the reasons for doing so were not noted. Section 45(1) of the mid-century version of the LSA stated:
Where a barrister or solicitor has been declared certified or found to be mentally incompetent or mentally ill pursuant to the relevant statutes in that behalf, or has failed to pay any fee payable by him to the Society within one year of the date prescribed for the payment thereof, the benchers may, in the case of a barrister, suspend him from practising as a barrister for such time as they may deem proper and may, in the case of a solicitor, resolve that he should be suspended from practising for a period to be named in the resolution.69
On its face, this wording gave the Law Society the power to suspend a lawyer’s licence based on the mere presence of a mental illness alone. Unlike the modern version of the statute, this section did not require a lawyer’s mental illness to have impacted their practice in any way prior to giving the Law Society the power to intervene. Given that, as will be discussed later in this paper, capacity proceedings and any resulting reasons for decision were not held in or made public until after a policy change in 2006, it is not possible to determine whether licensees with mental illness were actually being suspended from practice based on the mere existence of a condition at that time. However, the fact that it was possible is of concern, as it likely exacerbated already-existing stigma surrounding mental illness by implying that its mere existence rendered individuals’ incapable of fulfilling their professional obligations.
While this discrepancy was partially addressed by a set of amendments to the LSA in 1970, it was not completely rectified at that time. The 1970 amendments expanded the definition of incapacity to include physical illnesses as well as addiction to alcohol or drugs, and imported language noting that a lawyer could be suspended if their condition meant that they were “incapable of practising law”. Nevertheless, a lawyer could still be suspended on the presence of a condition alone. Furthermore, it was only in circumstances involving mental illness that the mere presence was sufficient, such that those lawyers with a mental illness were subject to a different standard than their colleagues experiencing a physical illness or addiction. In its entirety, section 35 of the 1970 LSA read as follows:
69 Law Society Act, RSO 1950, c 200 at ss 45(1).
15 If a member has been found pursuant to any Act to be mentally incompetent or mentally ill, or has been found after due inquiry by a committee of Convocation incapable of practising law as a barrister and solicitor by reason of age, physical or mental illness including addiction to alcohol or drugs, or any other cause, Convocation may by order limit or suspend his rights and privileges as a member for such time and on such terms as it considers proper in the circumstances.70
This section remained unchanged until 1998, when the Legislative Assembly of Ontario adopted Bill 53, An Act to amend the Law Society Act (“Bill 53”).71 Bill 53 proposed a definition of ‘incapacitated’ for the purposes of Law Society proceedings. In particular, while it preserved the ability to make a finding of incapacity based on the operation of another Act, it clarified that, if the Law Society were going to do so, the licensee must have been found to be “incapacitated”, and not merely “mentally ill”, as the statute had previously allowed. While this may seem like only a semantic change, as I will discuss later in this paper, findings of ‘incapacity’ in other contexts are based on specific statutorily enumerated grounds that extend beyond the existence of a mental illness alone.72 This change therefore ensured that the Law Society would not make findings of incapacity based on the mere existence of a mental illness, which in theory provided greater safeguards for lawyers while also helping to avoid reinforcing stigmas.
The proposed amendments also ensured that the Law Society had more remedial powers to address capacity concerns in the profession, including the ability to impose medical treatment or counselling as a condition of Tribunal orders. Finally, the Bill proposed allowing the Law Society to specifically commence capacity applications, rather than addressing such issues in the context of conduct proceedings, as it had been doing.73
Each of these changes were highlighted by the government in presenting the Bill. During the second reading of Bill 53, the Attorney General of Ontario Charles Harnick described the changes to the statute’s capacity provisions as follows: “[T]he amendments clarify the definition of “incapacity” and permit the law society to issue remedial orders for treatment or counselling
70 Law Society Act, RSO 1970, c 238, s 35 [Emphasis added] [LSA 1970]. 71 The statute instituting these changes was the LSAA 1998, supra note 58. 72 See below at page 37. 73 LSAA 1998, supra note 55 at s 38(1). See below at ‘Policy Developments’ for a more fulsome discussion.
16 for lawyers suffering from a mental illness, alcohol or drug abuse. This will strengthen the law society’s power to improve standards and, again, protect the public.”74
Member John L Parker also emphasized the remedial and non-punitive nature of the proposed amendments, and the fact that the bill facilitated the imposition of medical treatment on a lawyer as a condition of a capacity order:
The emphasis of the reforms in this legislation is on prevention and remediation, to prevent misconduct by members of the legal profession by […] direct[ing] members of the practising bar to help, assistance, [and] remediation […] that’s required from time to time in the course of their practice to get them back on track. […]
The law society is given a broader power and broader authority to make remedial orders as appropriate, such as treatment or counselling or working under the supervision of another lawyer.75
During the parliamentary debate, the only concerns raised regarding the proposed capacity provisions were from the Information and Privacy Commissioner of Ontario, who took issue with the new provisions allowing the Law Society to compel a lawyer to undergo a medical examination. The Privacy Commissioner recommended that the then Hearing Panel be required to have reasonable and probable grounds before ordering a medical or psychological examination to determine a member’s capacity.76
Bill 53 ultimately passed,77 and other than a semantic amendment in 2006 to accommodate the inclusion of paralegals within the Law Society’s regulatory scope,78 the sections of the LSA addressing licensee capacity have remained largely unchanged ever since. As such, in addressing
74 “Bill 53, An Act to Amend the Law Society Act”, 2nd reading, Legislative Assembly of Ontario Debates, 36-2 (7 October 1998), online:
17 the substance of the amendments included in Bill 53, I will refer to the language of the current iteration of the LSA, as it is most relevant for the purposes of this paper.
Unlike its predecessor statutes, the 1998 LSA and its successors do not, on their face, treat mental illness differently than physical illness or addiction issues. This change in approach is at least partially explained by the legislature’s remedial focus, which demonstrates a more nuanced understanding of mental illness as a disease requiring treatment and rehabilitation rather than punishment. In all cases, the statute specifies that the presence of these concerns alone is insufficient to meet the definition of ‘incapacitated’; they must, in addition, render a licensee “incapable of meeting any of his or her obligations as a licensee.”79
The section 37(1) definition is also followed by a number of subsections that further clarify its intended scope. While this was not discussed by the legislature when these amendments were passed, I argue that sections 37(4) – (6) mirror the language and process included at section 17 of the Ontario Human Rights Code (“OHRC”), which addresses the duty to accommodate disability to the point of undue hardship. My opinion is that the LSA subsections are similarly intended to specify that a licensee ought not to be found ‘incapacitated’ unless their condition cannot be accommodated by the Law Society short of undue hardship.80
To make this point clear, I will briefly review the relevant sections of the OHRC. Pursuant to section 6, self-governing professions are one of the spheres of activity in which individuals are protected from discrimination.81 Section 17 addresses disability and direct discrimination, which refers to a rule or standard which, on its face, differentiates between individuals based on a prohibited ground.82 However, the OHRC includes a defence for self-governing professions
79 See LSA, supra note 15 at s 37(1). 80 Human Rights Code, RSO 1990, c H19 [OHRC]. 81 Ibid at s 6 states: “Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.” 82 Ibid. See also Ontario (Human Rights Commission) v Simpsons Sears Ltd, [1985] 2 SCR 536 [O’Malley] at para 18: “Direct discrimination occurs in this connection where an employer adopts a practice or rule which on its face discriminates on a prohibited ground. For example, “No Catholics or no women or no blacks employed here.””
18 directly discriminating on the grounds of disability, which is outlined in sections 17(1) and (2).83 These subsections note that the rights of a person with a disability are not infringed if they are incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right, provided their disability cannot be accommodated short of undue hardship.
Section 37(1) of the LSA explicitly treats those with “physical or mental illness, other infirmity or addiction to or excessive use of alcohol or drugs” differently than other licensees, in that it potentially subjects them to an additional regulatory mechanism. An individual with these concerns may also have a disability for the purposes of the OHRC.84 In these circumstances, the LSA is explicitly treating those with a disability differently than all other licensees, such that the provision is arguably prima facie directly discriminatory.85
The language used by the legislature in sections 37(4) – (6) of the LSA is similar in structure to section 17(2) of the OHRC. The LSA subsections specify that a finding of incapacity cannot be justified if “through compliance with a continuing course of treatment or the continuing use of an assistive device, the licensee is capable of meeting his or her obligations.”86 Nevertheless, the LSA also clarifies that, even if such concerns can be managed, if the licensee has “not complied with the continuing course of treatment or used the assistive device on one or more occasions in the year preceding the commencement of the application”, a finding of incapacity may still be made.87 In other words, the Law Society must accommodate a licensee if appropriate treatment will manage capacity concerns, but if the licensee is unwilling or unable to comply with such
83 In Ontario Nurses’ Association v Orillia Soldiers Memorial Hospital, 42 OR (3d) 692, the Ontario Court of Appeal noted that section 11 of the OHRC applies to cases of adverse effects disability discrimination and section 17 applies to cases of direct disability discrimination. 84 A more comprehensive discussion about the ground of ‘disability’ and what does and does not fall within its ambit can be found in this paper infra at Part IV. 85 The prima facie test as originally conceived by the SCC in O’Malley, supra note 82, involved demonstrating that a standard “imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force” (para 18). In Moore v British Columbia (Education), 2012 SCC 61 at para 33, the SCC established a three-stage test for establishing a prima facie case: (1) the claimant belongs to a Code-identified group; (2) the claimant experienced adverse treatment; and (3) the protected characteristic was a factor in the adverse impact. This test was subsequently affirmed in Stewart v Elk Valley Coal Corp, 2017 SCC 30 at para 24. 86 LSA, supra note 15 at ss 37(4). 87 Ibid at s 37(6)(b).
19 treatment, allowing them to continue practising without restriction would amount to undue hardship.
These legislative developments demonstrate that, over time, the Law Society’s jurisdiction over licensee capacity has grown. As it has grown, however, the legislature has imposed limits. In particular, successive amendments to the LSA ensured that licensees cannot be found ‘incapacitated’ due to the existence of a mental illness alone, and that any mental illness impacting a licensee’s ability to practise ought to be accommodated to the point of undue hardship. However, while these changes to the definition of ‘incapacitated’ constrained the Law Society, the development of its remedial powers expanded its influence over licensee autonomy by bestowing a paternalistic ability to impose medical treatment as a condition of resuming or continuing practice. While the ability to practice is a privilege and not a right,88 and a licensee’s personal autonomy must be balanced with the Law Society’s duty to protect the public interest, this is nevertheless a significant incursion into an individual’s ability to make decisions about their own healthcare and to work in their chosen profession. Furthermore, it seems to allow the Law Society to employ a “best interests” test rejected elsewhere in mental health jurisprudence.89 We need to acknowledge these realities when considering how the Law Society’s powers ought to be exercised.
88 See e.g. Mussani v College of Physicians and Surgeons of Ontario, 226 DLR (4th) 511 at paras 65 and 142, aff’d 74 OR (3d) 1 (ONCA); LSUC v Hoskinson, 2008 ONLSHP 55 at para 22; LSUC v Cho, 2017 ONLSTH 48 at para 18; LSUC v Ronen, 2018 ONLSTH 89 at para 22; LSO v Deonarain, 2019 ONLSTH 89 at para 46; and LSO v Conroy Jr, 2019 ONLSTH 44 at para 19. 89 For example, although raised in a different setting, see Fleming v Reid, 4 OR (3d) 74 at VI [Fleming v Reid], wherein the SCC stated: “But, in my respectful view, it is incumbent on the legislature to bear in mind that, as a general proposition, psychiatric patients are entitled to make competent decisions and exercise their right to self- determination in accordance with their own standards and values and not necessarily in the manner others may believe to be in the patients’ best interests.” Furthermore, the majority of the SCC noted in Starson v Swayze, 2003 SCC 32 at para 76 [Starson v Swayze]: “The legislative mandate of the Board is to adjudicate solely upon a patient’s capacity. The Board’s conception of the patient’s best interests is irrelevant to that determination. As the reviewing judge observed, “[a] competent patient has the absolute entitlement to make decisions that any reasonable person would deem foolish.”” It then went on to cite the reasons of Quinn J. in Koch (Re) (1997), 1997 CanLII 12138 (ON SC) that “[t]he dignity of the individual is at stake” (para 76).
20 Policy Developments
As I discuss in more detail below,90 disciplinary proceedings against licensees were presumptively held in the absence of the public until 1986. During the early days of public disciplinary hearings, questions of potential licensee incapacity were dealt with in conduct applications rather than as a separate matter.91
In 1990, the Special Committee on Discipline Procedures (“the DP Committee”) investigated whether it was appropriate to address capacity concerns in the context of conduct proceedings. In its final report, the DP Committee proposed a model wherein capacity issues would instead be addressed separately by a three-member Fitness to Practice Panel with powers to compel medical examinations, to institute a number of practice oversights, and to suspend licensees in certain circumstances.92
In recommending this new approach, the DP Committee acknowledged that issues of capacity demanded a more remedial touch, noting (albeit not in these terms) that protecting the public needed to be appropriately balanced with the individual rights of licensees:
The current practice of treating questions of incapacity as matters to be dealt with in the discipline stream is no longer acceptable or appropriate. The goal of the proposals outlined above is to create a new process whereby questions of a member’s capacity to practise law are treated exactly as that, and not as a matter for discipline. […] The responsibility of the Society to protect the public is here coupled with the Society’s obligation to locate those members demonstrating an incapacity to carry on the practice of law due to some form of infirmity. Further, those dispositions available to a Fitness to Practice Panel are meant to afford the Panel flexibility and creativity in assisting a member found to be working under an incapacity.93
On May 31, 1991, the Special Committee on Reforms Implementation (“RI Committee”), which had been struck to address this and other recommendations of the DP Committee,
90 See below at Part III. 91 See Ontario, Law Society of Upper Canada, Special Committee on Discipline Procedures, “Final Report”, Minutes of Convocation, (12 October 1990) at 18, online:
21 submitted a detailed proposal regarding licensee capacity, adopting much of the proposed new approach.94 In the report’s introduction, the RI Committee noted that its findings and recommendations were “predicated on the assumption that the Law Society’s interest in a member’s capacity is limited to protecting the member’s clients and the public, and that intervention on the basis of incapacity should be narrowly designed to achieve those purposes.”95 The RI Committee here acknowledges that the Law Society does not have unfettered discretion to probe a licensee’s mental health, suggesting that (though again, not in these terms), given the potentially profound impact on the individual autonomy of the licensee, the Law Society should only intervene if it is necessary to protect the public interest.
The RI Committee also introduced a working definition of incapacity which focused on a licensee’s quality of service to their clients. While the description was longer than the current definition of ‘incapacitated’ contained in the LSA, in essence it addressed the same concerns. The focus of the provision was, as noted in the report’s discussion of purposes, on protecting the public when a licensee is unable to fulfill their professional obligations.
While this new approach was approved, the legislative changes necessary to implement it were not made until 1998. Both the DP Committee Report and the RI Committee Report appear to have acted as blueprints for the legislative powers eventually outlined in LSAA 1998, highlighting that the Law Society and not the legislature was largely responsible for the development of a new approach to mental health in the profession.
94 Ontario, Law Society of Upper Canada, Special Committee on Reforms Implementation, “Report”, Minutes of Convocation, (31 May 1991) at 67 and 75—79, online:
22 PART III: TRANSPARENCY IN CAPACITY PROCEEDINGS
Despite the sensitive and personal nature of mental health concerns, the Tribunal has, over time, become increasingly resistant to procedures in capacity applications that may impact the transparency of proceedings by limiting the public’s ability to attend or review the record. While I do not intend to provide an exhaustive account of the merits and limitations of open hearings more generally, I will briefly review those policies and decisions that have specifically addressed these issues, as they demonstrate how far the pendulum has swung. Ultimately, I argue that, while the privacy interests of licensees ought to be respected, they must also be balanced with the fundamental importance of transparent proceedings to maintaining public confidence in the Law Society’s ability to regulate the professions in the public interest.
Initial Approach and Calls for Change
For much of the Law Society’s history, disciplinary proceedings against licensees were presumptively held in camera, meaning that they were not open to the public, nor were public reasons for decision released.96 This changed in February 1986, when Convocation reconsidered its policy and determined that disciplinary hearings should be presumptively held in public, subject to certain enumerated exceptions.97
As noted above, capacity concerns were, at that time, addressed in the context of disciplinary proceedings. When the RI Committee recommended in its final report that the Law Society change this practice, it also addressed the transparency of the proposed capacity proceedings. The report specified that any hearing held with respect to a licensee’s capacity to practise should be presumptively held in camera, unless the licensee requested otherwise and the panel was
96 The exception to this was when a lawyer who was the subject of the proceeding requested a public hearing: see Law Society of Ontario, “Chronology” (7 February 2020), online:
23 satisfied that the interests of any person affected or the public interest did not outweigh the desirability of disclosure.98 This recommendation was adopted, such that information about how capacity concerns were addressed in the early days of the Law Society’s new approach is unavailable.
The 2006 Capacity Policy
The practice of holding capacity proceedings in camera continued until 2006. In May of that year, the Professional Development, Competence and Admissions Committee, and the Professional Regulation Committee jointly moved before Convocation that it rescind its current transparency policy regarding capacity proceedings, recommending that capacity proceedings be presumptively held in public moving forward (“the 2006 Capacity Policy”).99
Despite the likely significant impact such a policy change would have on the privacy interests of licensees, very little attention was paid to this issue. The following three reasons were offered in support of the 2006 Capacity Policy, each of which is primarily concerned with administrative efficiency and regulatory legitimacy: (i) the division between presumptively public conduct proceedings and presumptively private capacity proceedings made it difficult for panels to address circumstances in which the two overlapped in a single application; (ii) continued governmental support for self-regulation depends on maintaining public confidence in the regulator, which is undermined when proceedings are conducted behind closed doors; and (iii) transparency and fairness are increased when proceedings are held in public.100
On June 22, 2006, after a short discussion on the report’s content and purposes, the motion carried.101 The 2006 Capacity Policy has been in effect ever since.
98 Ibid. 99 Ontario, Law Society of Upper Canada, Professional Development, Competence and Admissions Committee & Professional Regulation Committee, “Joint Report”, Minutes of Convocation, (25 May 2006) at 179, online:
24 This policy is more broadly consistent with the open court principle, which has been routinely recognized by the SCC as fundamental. For example, in AB v Bragg Communications Inc, the SCC noted, “[t]he open court principle requires that court proceedings presumptively be open and accessible to the public and to the media. This principle has been described as a ‘hallmark of a democratic society’ […] and is inextricably tied to freedom of expression.”102
Tribunal Response to 2006 Capacity Policy
At first, the Tribunal demonstrated a resistance to the 2006 Capacity Policy. In Resetar and MacLaurin, two capacity decisions released shortly thereafter, hearings nevertheless proceeded in camera.103
One major reason for this inconsistency is likely the disparity between the 2006 Capacity Policy and then rule 3.06(1)(b) of the Tribunal Rules. Whereas the former promoted openness is all but the rarest circumstances, the latter set a relatively low bar to proceed in the absence of the public. Then rule 3.06(1)(b) held that hearings could be held in camera if the member demonstrated that there were intimate personal matters that may be disclosed at the hearing that were of such a nature that the interests of the licensee affected or the public interest outweighed the desirability of adhering to the openness principle. This test exclusively foregrounded licensee interests, and, given the nature of capacity proceedings and the role that personal health information plays therein, it is difficult to imagine any application where the licensee would not prefer non- disclosure.
In Resetar, the panel found that then rule 3.06(1)(b) had been met “on the basis of the intimate personal details contained in Dr. Wilkie’s report and the Document Brief.”104 In MacLaurin, while the Law Society submitted that the hearing should be open to the public, the panel held that “the intimate personal matters [contained in Dr. Ramshaw’s report] were of enough significance that the hearing should be held in the absence of the public.”105 Neither decision
102 2012 SCC 46 at para 11 [Bragg]. See also Vancouver Sun (Re), 2004 SCC 43 at para 23. 103 See LSUC v Resetar, 2007 ONLSHP 71 [Resetar]; and LSUC v MacLaurin, 2008 ONLSHP 124 [MacLaurin]. 104 Ibid at para 3. 105 Supra note 103 at para 5.
25 addressed the 2006 Capacity Policy, nor did the latter case explain what distinguished it from the two other capacity applications that proceeded in public between the Resetar and MacLaurin decisions.106
However, as the 2006 Capacity Policy settled, panels adopted it. While the Resetar and MacLaurin decisions set a very low bar for in camera orders, the later Chu, Xynnis, and Lyon decisions set an extremely high bar.107
In Chu, the then Hearing Panel rejected a motion to proceed in the absence of the public. In doing so, it noted, after specifically addressing the 2006 Capacity Policy, “transparency of proceeding[s] serves as an aid to better understanding all of the Law Society’s regulatory proceedings.”108 The panel also outlined the benefits of such a process to licensees: “[A]ny member of the public reviewing these medical reports will find rising in themselves compassion and understanding as opposed to ridicule and a desire to disparage the lawyer.”109
In Xynnis, the then Appeal Panel considered when a publication ban should be issued in Law Society proceedings. The panel noted that “[i]t is a basic principle that proceedings of courts and administrative tribunals should be open to the public” and that “[t]he right to public information about court and tribunal proceedings falls within the right to freedom of expression guaranteed by s. 2(b) of the [Charter].”110 The panel further noted that “[o]penness is particularly important for the [Tribunal] as part of a self-governing profession. Proceedings must be transparent so that members of the public and the profession are aware of and can have confidence in the impartial and fair resolution of issues that come before us.”111 With these fundamental values in mind, the panel then addressed publication bans, non-public documents, closed hearings,112 privileged information,113 and other types of personal information,114 ultimately concluding that to disrupt
106 See LSUC v Chu, 2008 ONLSHP 11 [Chu]; and Singer, supra note 48. 107 Ibid; 2014 ONLSAP 9 [Xynnis]; and 2014 ONLSHP 1 [Lyon 2014]. 108 Ibid at para 6. 109 Ibid at para 5. 110 Supra note 107 at para 10. 111 Ibid at para 12. 112 Ibid at paras 22—29. 113 Ibid at paras 35—38. 114 Ibid at paras 40—46.
26 full transparency, the party seeking one of the above orders must establish the following: (i) that an order is necessary to prevent a serious risk to the administration of justice because reasonable alternative measures will not do so; and (ii) that the benefits outweigh the effects on the right to free expression and the efficacy of the administration of justice.115
With respect to capacity applications, the panel noted that the stigma associated with mental illness is not sufficient to override the presumptive openness of Tribunal proceedings “absent evidence of specific harm and a tie between that harm and the administration of justice.”116 Further, in Lyon, in which the Law Society was seeking a motion order under section 39(1) of the LSA to compel the licensee to attend a medical assessment, the panel stated that, in capacity proceedings, “no further orders should be made excluding the public.”117 In so holding, it further noted,
The openness of court and tribunal proceedings, […] is a constitutional principle […]. Even in capacity hearings, which deal with sensitive information, particular circumstances must exist to override that principle and impose a publication ban, to find that documents will not be public, or to close a hearing to the public […]. The public is entitled to know about how the Law Society and its tribunals address issues of lawyer regulation in the public interest unless there is an important countervailing principle that outweighs openness. […]
The fact that the case relates to medical and personal information about the Lawyer is not sufficient to displace the presumption of openness. To accept this submission would be in effect to return to the pre- 2006 presumption, from which Convocation expressly departed […]. This would not be consistent with the Charter or the duty of the Law Society Tribunal to be transparent about the regulation of licensees in the public interest. 118
As noted by the then Appeal Panel in Xynnis, “[t]he closer the facts sought to be shielded come to the core of the issues before the Tribunal and the actions of the parties to the proceeding, the harder it will be to justify restrictions on openness.”119 Given the nature of capacity proceedings, it is hard to imagine a case where the licensee’s health will not be central to the determination,
115 Ibid at para 32. This test drew significantly from the principles espoused by the SCC in Dagenais v Canadian Broadcasting Corporation, [1994] 3 SCR 835; R v Mentuck, 2001 SCC 76; and Bragg, supra note 102. 116 Ibid at paras 43—44. See also LSUC v Farant, 2014 ONLSTH 201 at paras 13—27 [Farant]; and Burdet, supra note 49 at para 19, wherein the panel followed Xynnis and refused to receive certain medical evidence in the absence of the public. 117 Lyon 2014, supra note 107 at para 15. 118 Ibid at paras 15 and 17. 119 Supra note 107 at para 45.
27 suggesting it will only be in extremely rare cases where orders impacting full transparency are or should be made.
Chu, Xynnis, and Lyon pushed the Tribunal into an era of more complete transparency. Since these forceful decisions, only two publicly available capacity applications have proceeded partially or completely in camera: Bishop and Luke.120 However, in Topham, DaSilva and Bagnall, although no formal in camera order was made, the panel’s reasons are completely void of any review of the evidence grounding its decisions, such that in effect the hearings were held in camera.121
In Bishop, all doctors’ reports and other professional reports were received in the absence of the public. The panel held that “the desirability of avoiding disclosure outweighs the public interest in open hearings.”122 It did not elaborate as to why this was so. Despite receiving these materials in the absence of the public, however, the panel did refer to the evidence grounding its finding of incapacity in general terms, noting that a licensed psychiatrist who assessed the lawyer was of the opinion that she had “a major mental illness that is amenable to treatment, but is prone to relapses when non-compliance with treatment occurs.”123 The panel further explained that, based on the expert evidence, “the Lawyer’s inappropriate conduct is causally connected to and explained by her underlying mental illness.”124
In Luke, a medical report and certain details in two affidavits were made ‘not public.’ The panel noted that “the risk to Ms. Luke if it is public, confirmed by the medical practitioner in a public affidavit, outweighs the public interest in open proceedings.”125 No further analysis was offered justifying the decision, nor were any substantial details provided which demonstrated why the LSA definition of ‘incapacitated’ was met.
120 LSUC v Bishop, 2014 ONLSTH 118 [Bishop]; and LSUC v Luke, 2017 ONLSTH 144 [Luke]. 121 See LSUC v Topham, 2017 ONLSTH 39 [Topham]; LSUC v DaSilva, 2017 ONLSTH 139 [DaSilva]; and LSUC v Bagnall, 2019 ONLSTH 110 [Bagnall]. 122 Ibid at para 5. 123 Ibid at para 12. 124 Ibid at para 17. 125 Luke, supra note 120 at para 3.
28 This lack of detail is also present in the Bagnall case, wherein the reasons for decision are three paragraphs long, and conclude that “both parties […] made submissions […] to demonstrate that the licensee has been and continues to be incapable of meeting her obligations.” No explanation of how or why section 37(1) was satisfied was provided.
These results may stem from the holding in Xynnis that,
[P]rior to considering publication bans or closed hearings, adjudicators and parties should always consider whether privacy interests can be addressed through careful drafting. […] In such circumstances, the media or others have access to the Tribunal file, including any personal information, but information is not disseminated in the easily accessible form of reasons and orders.126
However, this piece of the Xynnis ruling, if interpreted in this way, would be inconsistent with the general philosophy of transparency outlined in the rest of the decision. Many members of the public likely do not know that they can access the complete Tribunal file. Additionally, forcing the public to seek out and pay for access to the Tribunal file to determine the basis for a licensee’s suspension is inconsistent with the openness principle.127
While I believe the practice of tailoring reasons could help to more appropriately balance licensee privacy with transparency, this is not achieved if reasons are void of meaningful analysis. Even if the panel avoids reference to intimate personal details, the public and the licensee ought to know the principled reasons why the section 37(1) definition was met in the circumstances, including the major symptoms and prognosis for recovery. Such a practice would protect licensees by ensuring that panels explicitly spell out their rationale, allowing meaningful review if their decisions are based on stereotype or otherwise inconsistent with the statutory scheme. Additionally, it would inform the public by making it clear why an order is or is not required and how any risk is being managed moving forward. Finally, it would assist future panels by developing the jurisprudence in a meaningful way.
126 Supra note 107 at para 19. 127 While members of the public can review closed files in-person at the Tribunal office in Toronto free of charge, any photocopies cost 50 cents per page, and an electronic copy of a file costs $80. See Law Society Tribunal, “Accessing Tribunal Files” (24 February 2020), online:
29 A good example of this balance can be seen in Bishop, where the panel, while avoiding specific references to the medical evidence, still explained in general terms why and how section 37(1) was met. As noted in Xynnis, “the Tribunal should be even more reluctant to place restrictions on the openness of reasons and orders than on evidence and submissions. The explanation for a decision is critical to showing the public how the Tribunal administers justice and how the Law Society regulates its members. The nature of an order is essential to the public’s understanding.”128
In contrast, abdicating the adjudicative role by providing sparse reasons—as in Luke or Bagnall, for example—does little to advance the jurisprudence, which is in dire need of meaningful development. It could also lead the public to engage in stereotypes about the exact nature of a licensee’s mental illness and its influence on their practice, potentially adversely impacting them and their reputation down the line.
Current Approach to Transparency
Despite the above-noted anomalies, the vast majority of the capacity proceedings since the 2006 Capacity Policy have proceeded in public. Additionally, in the new Tribunal Rules, the principles established in Xynnis have been codified, solidifying the more stringent test established therein, and minimizing the circumstances in which panels will be able to justifiably receive evidence in the absence of the public.129
In these Tribunal Rules, the transparency of proceedings in general (and capacity proceedings in particular) is addressed by Rule 13. It establishes a presumption of openness and notes that the Tribunal may only make a not public order, non-disclosure order, or publication ban if the test established in Xynnis is met.130
Capacity proceedings are addressed by rule 13.4, which states, in its entirety:
128 Supra note 107 at para 26. 129 Tribunal Rules, supra note 55 at s 13. 130 Ibid at ss 13.2(1) and 13.3. This adopts the test as established in Xynnis, supra note 107.
30 In applying Rule 13.3 to a request for a not public order, non-disclosure order or publication ban in a capacity proceeding, a panel shall consider:
(a) that a central issue in capacity proceedings is the licensee’s health; (b) the nature and impact on the public of any of the licensee’s actions that led to the proceeding; (c) any stigma related to the nature of the licensee’s health issues; (d) the possible impact of disclosure on the licensee’s or others’ health; and (e) any other relevant factor.131
What these policy developments, cases, and the Tribunal Rules demonstrate is that licensees will be hard-pressed to protect their private health information in the face of a Law Society capacity proceeding.132 While the Tribunal Rules, read in isolation, may suggest that the Tribunal is unconstrained in its ability to consider relevant factors in the context of capacity proceedings— potentially signifying that a licensee could override the openness principle in myriad ways—the case law sets a high bar for departing from openness, in that the potential harm caused by disclosure of personal health information about the licensee must extend beyond private embarrassment and be on grounds other than the very real stigma faced by those experiencing mental illness.
131 Ibid. 132 See e.g. LSO v Sheps, 2020 ONLSTH 81, which was decided under the current Tribunal Rules, and wherein the panel refused a request that a medical report be made not public, but-for limited redactions.
31 PART IV: CAPACITY APPLICATIONS
The Meaning and Treatment of Section 37(1)133
Like the criminal regime established to address accused who are found not guilty on account of mental disorder (“NCRMD”), the capacity regime in Law Society proceedings has twin goals: (i) to provide licensees who are suffering with fair treatment rather than punishment, and (ii) to protect the public.134
While the Law Society cannot restrict a licensee’s liberty in capacity applications, it is often asking the Tribunal to compel treatment and/or restrict their ability to earn an income in their chosen profession, which are nevertheless significant consequences.135 As such, capacity orders should not be made without clear and convincing evidence that the licensee suffers from a condition that directly impacts their ability to practice.
Based on a plain reading of section 37(1) of the LSA, three sub-clauses are imbedded in the definition of ‘incapacitated’: (i) the presence of a physical or mental illness, other infirmity, or addiction to or excessive use of alcohol or drugs; (ii) the licensee is incapable of meeting any of his or her obligations as a licensee; and (iii) there is a nexus between the previous two clauses.136 In theory, absent evidence establishing each of the above sub-clauses, a licensee is not ‘incapacitated’ for the purposes of the LSA, and the Hearing Division does not have jurisdiction to issue any order.
133 As noted in the introduction, section 37(1) of the LSA, supra note 15, states: “A licensee is incapacitated for the purposes of this Act if, by reason of physical or mental illness, other infirmity or addiction to or excessive use of alcohol or drugs, he or she is incapable of meeting any of his or her obligations as a licensee.” 134 See Winko v British Columbia (Forensic Psychiatric Institute), [1999] 2 SCR 625 para 20 [Winko] for a discussion of the twin goals of the NCRMD regime. The twin goals of the capacity regime in the regulatory context was discussed by the panel in Lyon, which noted that these twin goals “ensure that there is a mechanism to protect the public when a licensee cannot meet his or her obligations for medical reasons [and] recognize that when actions which would otherwise constitute professional misconduct result from illness or addiction, in some cases it may not be appropriate to treat them as wrongdoing”: see Lyon 2014, supra note 107 at para 22. 135 See e.g. Igbinosun v LSUC, 2008 CanLII 36158 (ON SCDC) at para 43, aff’d 2009 ONCA 484, which in turn cited the decision of the SCC in Kane v University of British Columbia, [1980] 1 SCR 1105 at 1113. 136 An incredibly good example of a case which addresses each of these criteria is Morgan, supra note 47.
32 While a finding of incapacity involves a holistic consideration of these sub-clauses, including how they interact with each other and relate to the overall finding of incapacity, I will address each of them individually, as they all contribute something unique to the analysis. In doing so, I will refer to the jurisprudence relevant to each section, where appropriate. In accordance with my overall thesis, I will also be focusing on mental illness rather than physical illness or addictions as a form of incapacity.
As a preliminary matter, however, a general overview of the capacity jurisprudence is helpful. First of all, since the 2006 Capacity Policy was made, only 28 publicly available capacity applications are available.137 Additionally, the vast majority of the reported capacity proceedings involve licensee mental illness. In total, twenty-three decisions involved mental illness,138 six involved addiction issues,139 four involved unspecified issues,140 three involved physical issues,141 and one involved excessive use of alcohol or drugs.142
Is there a similar overrepresentation in the complaints that are made to the Law Society with respect to capacity concerns? If so, why might that be the case? If not, are addiction or physical- based concerns more frequently screened out prior to hearing? While satisfactory answers to
137 See Resetar, supra note 103; Chu, supra note 106; Singer, supra note 48; MacLaurin, supra note 103; Cadogan 2009, supra note 47; LSUC v Castellano, 2013 ONLSHP 11 [Castellano]; LSUC v Argiris, 2013 ONLSHP 17 [Argiris]; Morgan, supra note 47; LSUC v McCusker 2013 ONLSHP 53 [McCusker]; LSUC v Borden, 2014 ONLSHP 2 [Borden]; Bishop, supra note 120; LSUC v Jefferies, 2014 ONLSTH 164 [Jefferies]; Mercury, supra note 47; LSUC v Lyon, 2015 ONLSTH 15 [Lyon 2015]; LSUC v Nobili, 2015 ONLSTH 43 [Nobili 2015]; LSUC v Forget, 2015 ONLSTH 118 [Forget]; LSUC v Sandberg, 2016 ONLSTH 144 [Sandberg(1)]; LSUC v Von Smith- Bauder, 2016 ONLSTH 179 [Von Smith-Bauder]; Topham, supra note 121; Luke, supra note 120; DaSilva, supra note 121; LSO v Bazov, 2018 ONLSTH 154 [Bazov]; LSO v Doucet, 2019 ONLSTH 65 [Doucet]; LSO v Bogue, 2019 ONLSTH 107 [Bogue 2019]; Bagnall, supra note 121; Stewart, supra note 47; LSO v Mahoney, 2019 ONLSTH 126 [Mahoney]; and LSO v Lever, 2019 ONLSTH 140 [Lever]. 138 Resetar, ibid; Chu, ibid; MacLaurin, ibid; Cadogan 2009, ibid; Castellano, ibid; Argiris, ibid; Morgan, ibid; McCusker, ibid; Borden, ibid; Bishop, ibid; Jefferies, ibid; Mercury, ibid; Lyon, ibid; Nobili 2015, ibid; Forget, ibid; Sandberg(1), ibid; Von Smith-Bauder, ibid; Bazov, ibid; Doucet, ibid; Bogue 2019, ibid; Stewart, ibid; Mahoney, ibid; Lever, ibid. 139Singer, supra note 48; Morgan, ibid; McCusker, ibid; Von Smith-Bauder, ibid; Doucet, ibid; and Stewart, ibid. Note that while addiction is increasingly seen as a mental illness, it is considered as a separate concern in Law Society proceedings 140 Topham, supra note 121; Luke, supra note 120; DaSilva, supra note 121; and Bagnall, supra note 121. 141 Cadogan 2009, supra note 47; Borden, supra note 137; and Sandberg(1), supra note 137. 142 Sandberg(1), ibid. Note that some of the cases involved licensees who were experiencing more than one of the above-noted issues at once. This is referred to as ‘co-morbidity’, which is defined as, “the fact that people who have a disease or condition also have one or more other diseases or conditions”: see Cambridge Dictionary, “Comorbidity” (7 February 2020), online:
33 these questions would involve reviewing information that is not available on the public record, this significant overrepresentation certainly raises concern.
Secondly, findings of incapacity were made in all but one of these cases143 and in all but two of them,144 an order specifying the terms and conditions that the licensee needed to meet in order to continue or resume practice followed the panel’s finding. In thirteen cases, the licensee was suspended until a number of specified conditions were met.145 These conditions always included a requirement that, prior to resuming practice, the licensee provide medical evidence to the Law Society indicating that they were no longer incapable of fulfilling their professional obligations. In eight cases, the licensee was permitted to continue practising, provided they commenced or continued treatment moving forward.146 In a further four cases, the licensee was given permission to surrender their licence to practise law or to provide legal services.147 This data
143 In the sole proceeding where incapacity was not found, the panel proceeded to hear the Law Society’s concurrent conduct application and ultimately revoked the lawyer’s licence to practise law: Lyon 2015, supra note 137. In thirteen cases, the panel made findings of previous and current incapacity: Chu, supra note 106; Cadogan 2009, supra note 47; Castellano, supra note 137; Argiris, supra note 137; McCusker, supra note 137; Borden, supra note 137; Mercury, supra note 47; Von Smith-Bauder, supra note 137; Luke, supra note 120; Bazov, supra note 137; Doucet, supra note 137; Bogue 2019, supra note 137; and Bagnall, supra note 121. In nine cases, the panel made findings of previous but not current incapacity: Singer, supra note 48; Morgan, supra note 47; Bishop, supra note 120; Forget, supra note 137; Sandberg(1), supra note 137; DaSilva, supra note 121; Stewart, supra note 47; Mahoney, supra note 137; and Lever, supra note 137. In five cases, the panel made findings of current but not previous incapacity: Resetar, supra note 103; MacLaurin, supra note 103; Jefferies, supra note 137; Nobili 2015, supra note 137; and Topham, supra note 121. 144 In both Nobili 2015, ibid and DaSilva, ibid, the licensees provided undertakings to the Law Society, alleviating the need for a panel’s order. In Nobili, the licensee undertook not to resume practice until he had provided medical evidence to the Law Society that demonstrated he was no longer incapable of meeting his obligations (para 29). In DaSilva, the licensee undertook to continue his medical treatment for a period of two years (para 1). 145 Resetar, supra note 103; Chu, supra note 106; MacLaurin, supra note 103; Cadogan 2009, supra note 47; Castellano, supra note 137; Jefferies, supra note 137; Mercury, supra note 47; Topham, supra note 121; Luke, supra note 120; Bazov, supra note 137; Doucet, supra note 137; Bagnall, supra note 121; and LSO v Bogue, 2020 ONLSTH 21 [Bogue 2020]. 146 Singer, supra note 48; Morgan, supra note 47; Bishop, supra note 120; Forget, supra note 137; Sandberg(1), supra note 137; Stewart, supra note 47; Mahoney, supra note 137; and Lever, supra note 137. 147 Argiris, supra note 137; McCusker, supra note 137 Borden, supra note 137; and Von Smith-Bauder, supra note 137. In addition, in Bogue 2020, supra note 145 at para 13, the Law Society sought an order that the lawyer’s licence be revoked, which was rejected. I note that resolutions in accordance with the Tribunal’s orders in the former decisions and the Law Society’s request in the latter should be used extremely sparingly. While the LSA, supra note 15 specifies that, pursuant to s 35(1)2, a licensee may be granted permission to surrender their licence if the Hearing Division determines that they have committed professional misconduct and/or conduct unbecoming, a comparable provision is not included under s 40, which addresses the available orders in capacity applications. Even though s 40(1)6 notes that the Hearing Division may make “[a]ny other order that [it] considers appropriate” upon a finding of incapacity, and s 40(2) notes that “[t]he failure of subsection (1) to specifically mention an order that is provided for elsewhere in this Act does not prevent an order of that kind from being made under paragraph 6 of subsection (1)”, the legislature nevertheless expressly excluded permission to surrender and other orders
34 speaks directly to the impact findings of incapacity can have on a licensee’s autonomy to make their own medical decisions while working in their chosen profession, highlighting the importance of an appropriately rigorous analysis before such findings are made.
Finally, in every single case—including the one application that was dismissed—the parties provided medical evidence to the panel from a doctor or specialist.148 In the vast majority of these cases, this evidence consisted of a medical report and/or oral evidence from the doctor.149 At times, both parties have presented medical evidence to the Tribunal from their own respective experts.150 Such evidence has only ever been questioned by a panel in a single dissenting opinion.151 As I will explain in further detail below, it is integral that panel’s demand cogent medical evidence in capacity applications, as this will ensure that licensees are only found ‘incapacitated’ in the clearest of cases. However, there is also the concern that panels are not appropriately equipped to meaningfully interpret this evidence, which must also be considered.
With this overview in mind, I now turn to a consideration of the three subclauses embedded in section 37(1) of the LSA.
permanently taking away a licensee’s ability to practice law or provide legal services (i.e. revocation), suggesting their use in such contexts should be limited. 148 I.e. a forensic psychologist, a psychiatrist, a forensic psychiatrist, a neurologist, a neuropsychologist, an addiction specialist, a medical practitioner, or a family physician. 149 The exceptions are Topham, supra note 121, in which the Tribunal relied on a letter from the licensee’s physician rather than a medical report; and Nobili 2015, supra note 137, in which the licensee conceded incapacity, dispensing with the necessity of medical evidence. In a few other cases, it is also unclear whether a medical report was prepared: see Mercury, supra note 47; and Bagnall, supra note 121. 150 Chu, supra note 106 at paras 15—16; Singer, supra note 48 at paras 5—7; Morgan, supra note 47 at paras 4—5; and DaSilva, supra note 121 at para 1. 151 See Chu, supra note 106. This dissenting opinion is notable for two reasons. First of all, Gary Lloyd Gottlieb raised the issue of self-reporting: “I am very skeptical of information provided by Mr. Chu and I am very skeptical of the conclusions in the reports that were based to a great extent on information that was provided by Mr. Chu. I was not at all persuaded by these reports that Mr. Chu was incapacitated during the time the various transactions occurred or that he is incapacitated now” (para 2). Secondly, he questioned the connection between the alleged medical disorder and dishonest conduct: “It really defies credibility to believe that somebody who is allegedly overwhelmed by stress and incapacitated by stress would have the ability to engage in such transactions involving fraud. It would be difficult to believe, even if no fraud had taken place, that an incapacitated person could handle so many transactions involving so many parties and so many properties” (para 5).
35 The presence of a physical or mental illness, other infirmity, or addiction to or excessive use of alcohol or drugs
It is unclear what degree of infirmity must be shown in order to satisfy this criterion. In theory, many medical issues, however slight, could impact a licensee’s ability to meet their professional obligations as a licensee. Yet, did the legislature intend for any medical issue to fall within the ambit of this section? The legislative debates regarding LSAA 1998 are of little specific assistance on this topic. While Mr. Parker spoke to the broad power delegated to the Law Society in adjudicating capacity applications and issuing remedial orders,152 no member of the Legislative Assembly spoke to the specific level of infirmity that needed to be demonstrated to meet this criterion.
I argue that, while the relevant mental issues are already narrowed in section 37(1) by the fact that they must also impact a licensee’s ability to fulfill their professional obligations, the initial clause similarly plays a circumscribing role in the analysis. In particular, the seemingly broad definition of ‘mental illness’ is constricted by the fact that is it ultimately one criterion for a finding that a licensee is ‘incapacitated’, which is generally more narrowly interpreted in Canadian law. Furthermore, both ‘mental illness’ and ‘incapacitated’ adopt a medical frame, highlighting the need for strong medical corroboration. Finally, an analysis of human rights law jurisprudence assists in identifying what the Law Society must demonstrate to satisfy this initial criterion.
Overall, ‘incapacitated’ in the LSA must mean more than just the presence of any mental infirmity, no matter the severity, even if it impacts on a licensee’s practice. Given the interpretation of this term in other areas of law, and the respect that ought to be shown for the personal autonomy of all licensees, a finding that a licensee is ‘incapacitated’ should not be made unless there is evidence of mental illness of sufficient severity and persistence. Panels should expect cogent medical evidence demonstrating a serious and debilitating condition prior to making a finding of incapacity.
152 Bill 53, supra note 74 (Hon John L Parker).
36 (1) Treatment of ‘Mental Illness’ and ‘Incapacitated’ in Other Legal Contexts
‘Mental illness’ is generally very broadly defined, encompassing a range of issues. For example, in 2012 the Mental Health Commission of Canada defined the phrase ‘mental health problems and illnesses’ as follows:
There are many different kinds of mental health problems and illnesses. They range from anxiety and depressive disorders through to schizophrenia and bipolar disorder, and are often associated with a formal medical diagnosis. The type, intensity, recurrence, and duration of symptoms of mental health problems and illnesses can vary widely from person to person, as well as by the type of problem or illness.153
However, this broad conception is constricted in the regulatory context by the term ‘incapacitated’, which is more narrowly construed definitionally, and also in Canadian law. The Oxford English Dictionary refers to ‘incapacity’ as “[w]ant of capacity; inability, powerlessness; incompetence, natural disqualification; incapability.”154 The Law Dictionary similarly refers to ‘incapacity’ as “[w]ant of capacity; want of power or ability to take or dispose; want of legal ability to act.”155 These definitions clearly refer to states that completely relieve individuals of their ability to function, and not merely those that may impact them in some lesser way.
Elements of these definitions are reflected in the treatment of capacity concerns in Canadian law. As noted by Professor Louis Charland, “[q]uestions of capacity sometimes extend to other contexts, such as capacity to stand trial in a court of law, and the ability to make decisions that
153 Mental Health Commission of Canada, “Making the Case for Investing in Mental Health in Canada” (26 February 2020), online (pdf):
37 relate to personal care.”156 In each of these contexts—criminal law and healthcare—it is necessary to meet a fairly high bar to justify findings of incapacity. Overall, these sections associate an inability to understand or appreciate with being incapable.
In the criminal context, for example, “[w]hen behaviour can be ascribed to a disease or illness, there is the tendency to withdraw it from the domain of moral judgment and blame.”157 As noted by the Manitoba Court of Queen’s Bench in R v Adamo, “[p]unishment must be proportionate to the moral blameworthiness of the offender. An offender impelled to commit a crime by mental illness is not a free actor; his or her moral blameworthiness is necessarily lesser than that of a person who freely chooses to commit a crime.”158
To that end, the Criminal Code (“Code”) notes that an accused may be found unfit to stand trial,159 or NCRMD.160 “Unfit to stand trial” is defined in the Code as,
[U]nable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to
(a) Understand the nature or object of the proceedings, (b) Understand the possible consequences of the proceedings, or (c) Communicate with counsel.161
Section 16(1) sets out the “defence”162 of NCRMD as follows: “No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered that person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.”163
156 Louis C Charland, “Decision-Making Capacity” (21 September 2015), online: The Stanford Encyclopedia of Philosophy < plato.stanford.edu/archives/fall2015/entries/decision-capacity/>. See also Nunnelley, supra note 24 at 4, wherein she similarly noted, “legal capacity is a threshold requirement for legal standing in many areas of life in Canada. A person’s legal ability to sign a contract, make a will, open a bank account, instruct a lawyer or […] make medical decisions, in each case turns on some definition of legal capacity.” 157 Chandler, supra note 24 at 9. 158 2013 MBQB 225 at para 34. 159 RSC 1985, c C-46 at s 672.31 [Code]. 160 Ibid at s 672.34. 161 Ibid at s 2 [Emphasis added]. 162 Note that the legal test outlined in section 16(1) is not a true defence, in that it does not result in an acquittal: see Winko, supra note 134 at para 32. 163 Code, supra note 159 [Emphasis added].
38 While neither of these sections specifically use the term ‘incapacitated’, it is implied in their definitions, with section 16 actually using the term ‘incapable’ in describing NCRMD.
In the mental healthcare context, section 1 of Ontario’s Health Care Consent Act, 1996 (“HCCA”) notes that ‘incapable’ means mentally incapable and that ‘incapacity’ has a corresponding meaning.164 Mirroring language from the criminal context, section 4(1) of the HCCA notes that a person is capable with respect to treatment, admission to a care facility, or a personal assistance service “if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, […] and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”165
Findings of incapacity can also have a significant impact on an individual’s personal autonomy. For example, in considering section 4(1) of the HCCA, the majority of the SCC in Starson v Swayze noted that “[u]nwanted findings of incapacity severely infringe upon a person’s right to self-determination”, and that “[t]he [Consent and Capacity Board] must avoid the error of equating the presence of mental disorder with incapacity.”166 The SCC went on to approvingly cite a report authored by Professor D N Weisstub in 1990, which stated: “The tendency to conflate mental illness with lack of capacity […] has deep historical roots, and even though changes have occurred in the law over the past twenty years, attitudes and beliefs have been slow to change. For this reason, it is particularly important that autonomy and self-determination be given priority when assessing individuals in this group.”167
The Code deals with incapacity for the purposes of standing trial or making findings of guilt, and the HCCA deals with incapacity for the purposes of potential involuntary admission and/or treatment. Accordingly, both likely set a higher bar for findings of incapacity than in the regulatory context. Nevertheless, this analysis tells us something about the significance of the term ‘incapacitated’, and the embedded respect for personal autonomy that its use signals.
164 SO 1996, c 2, Sched A at s 1. 165 Ibid at s 4(1) [Emphasis added]. 166 Supra note 89 at paras 75 and 77. 167 Ibid at para 77.
39 Section 37(1) of the LSA could have been entitled ‘Health and Addiction Issues’. This would have encouraged a broader interpretation, suggesting that the presence of any mental illness, no matter how slight, justified the Law Society’s intervention, provided it also impacted a licensee’s ability to fulfill their professional obligations. However, the legislature chose instead to use the term ‘incapacitated’, which is consistently understood to set a higher bar. This must mean something in this context, and I suggest that it narrows the nature of infirmity that is sufficient to satisfy this initial criterion.
(2) ‘Incapacitated’ Adopts a Medical Frame and Requires Evidence
It is also clear in reviewing their treatment in other legal contexts that both ‘mental illness’ and ‘incapacitated’ adopt a medical frame. With respect to ‘mental illness’, as Professor Jennifer Chandler notes, “[t]he terms “mental illness” or “mental disorder” adopt a medical frame, and direct the attention to the need for medical treatment.”168 The legal tests in the criminal and healthcare contexts similarly confirm the medical focus of the analysis to determine capacity in other legal settings. Accordingly, in using the term ‘incapacitated’ in the Law Society context, the provincial legislature, while perhaps setting a comparatively lower evidentiary and legal bar given the different possible consequences, arguably intended for this criterion to be supported by medical evidence.
In the criminal context, the defense of NCRMD is largely dependent on medical evidence. “Mental disorder” was previously referred to as “insanity from a disease of the mind”, and caselaw developed addressing that term. Despite the change in terminology, however, the legal test remains the same because in the Code, “mental disorder” is defined as “disease of the mind”.169 One of the leading cases regarding the interpretation of “disease of the mind” is R v Parks.170 In his reasons, then Chief Justice Lamer approvingly cited the Ontario Court of Appeal (“ONCA”) judgment of Martin J.A. in Rabey v The Queen, wherein he noted that “[“disease of
168 Chandler, supra note 24 at 4. 169 Supra note 159 at section 2. In Cooper v R, [1980] 1 SCR 1149 at 1159 [Cooper], the court held that a “disease of the mind” embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion.” 170 [1992] 2 SCR 871 [Parks].
40 the mind”] contains a substantial medical component”, and that this component involves “medical opinion as to how the mental condition in question is viewed or characterized medically” and “should reflect the state of medical knowledge at a given time.”171 As further cited by Justice LaForest in his concurring judgment, “[t]he evidence of medical witnesses with respect to the cause, nature and symptoms of the abnormal medical condition from which the accused is alleged to suffer, and how the condition is viewed and characterized from the medical point of view is highly relevant to the judicial determination.”172
Similarly, even a cursory review of recent decisions from the Ontario Consent and Capacity Board makes it abundantly clear that any finding of incapacity in that context is dependent on medical evidence, and that its existence or absence is integral.173 The same evidentiary support is therefore clearly required in the Law Society context as well, a context which similarly requires a finding of ‘incapacity’.
(3) Drawing on Human Rights Law
While developed in a different context, human rights jurisprudence addressing the scope of the ground of ‘disability’ in the OHRC provides helpful guidance about the distinction I am making between those infirmities that are and are not sufficient to fall within the scope of section 37(1) of the LSA, and what evidence is required to support a finding. It is a helpful comparator because, while the term ‘disability’ is broader than the term ‘mental illness’, they are related: decision-makers have repeatedly held that mental illnesses fall within the ambit of the term ‘disability’, and ought to be afforded the same degree of protection as physical disabilities.174 Additionally, as I’ve previously noted in this paper, the sections of the LSA addressing licensee capacity appear to mirror the OHRCs process with respect to the duty to accommodate short of undue hardship, inviting further comparison.
171 37 CCC (2d) 461 [Rabey], aff’d in [1980] 2 SCR 513, cited in ibid at para 9. 172 Rabey, ibid, cited in Parks, ibid at para 44. 173 See e.g. MF (Re), 2019 CanLII 126720 (ON CCB) at para 12; MS (Re), 2019 CanLII 92315 (ON CCB) at para 18; and VP (Re), 2019 CanLII 110030 (ON CCB) at paras 10—11. 174 See Fleming v Reid, supra note 89 at IV; Moore v Canada (Attorney General), 2005 FC 13 at para 33; Ottawa (City) v Ottawa-Carlton Public Employees’ Union, Local 503, 221 OAC 224 (Ont. Div. Ct) at paras 22 and 52— 54; Budd v 783720 Ontario Inc., 2015 HRTO 825 at para 194; and Campbell v Paradigm Sports Inc., 2017 HRTO 1683 at para 114.
41 Accordingly, I argue—with reference to human rights jurisprudence—that only mental infirmities that can be demonstrated through medical evidence to be of sufficient severity and persistence fall within the ambit of the term ‘mental illness’ for the purpose of Law Society capacity proceedings. If the autonomy of licensees, including their right to make their own medical decisions, is to be respected, it should not be too easily overridden.
In drafting the OHRC, the legislature carefully outlined the circumstances in which a claim of discrimination can be raised. To that end, the Human Rights Tribunal of Ontario (“HRTO”) and other tribunals empowered to consider claims of discrimination do not have general authority to deal with allegations of unfairness.175 In order to be discriminatory in the legal sense, a valid complaint will consist of (1) discrimination, connected to a (2) prohibited ground, within a (3) protected sphere. Each of these elements must be present for a matter to fall within the jurisdiction of the OHRC. This helps to ensure that ‘discrimination’ as a concept retains normative significance. If every distinction was discriminatory, ‘discrimination’ would have no real meaning.
One of the protected grounds is ‘disability’, which has been consistently interpreted quite broadly, in light of the OHRC’s remedial purpose and quasi-constitutional status.176 Its breadth is clear just from reading the definition included in the OHRC, which states, in part:
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language, [and/or]
(d) a mental disorder.177
175 See e.g. Forde v Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para 17; Szabo v Office of a Member of Parliament of Canada, 2011 HRTO 2201 at para 2; Badvi v Voyageur Transportation, 2011 HRTO 1319 at para 6; Levesque v College of Dental Hygienists, 2018 HRTO 597 at para 5; and Pourostad v Law Society of Ontario, 2019 HRTO 130 at para 10. 176 See e.g. Insurance Corp of British Columbia v Heerspink, [1982] 2 SCR 145 at 158; Winnipeg School Division No. 1 v Cranton, [1985] 2 SCR 150 at 156; O’Malley, supra note 82 at para 12; Canadian National Railway v Canada (Human Rights Commission), [1987] 1 SCR 1114 at 1134; and British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employee’s Union (BCGSEU), [1999] 3 SCR 3 at para 44. 177 Supra note 80 at s 10(1).
42 In particular, both real and perceived disabilities fall within the ambit of the ground, and the SCC has explicitly noted that our conceptions of disability should not be strictly confined to its bio- medical basis but should also consider its social construction. For example, in Granovsky v Canada (Minister of Employment and Immigration), the Court stated, “[i]t is therefore useful to keep distinct the component of disability that may be said to be located in an individual, namely the aspects of physical or mental impairment, and functional limitation, and on the other hand […] the socially constructed handicap that is not located in the individual at all but in the society in which the individual is obliged to go about his or her everyday tasks.”178
Even in this context, however, as I will explain below, some of the jurisprudence has established limits as to what falls within the ambit of the ground of ‘disability’, and therefore what attracts the OHRC’s protection.179 In particular, some courts have noted that only severe and persistent infirmities are sufficient to fall within the ambit of the ground.
If limits to the scope of disability, in the context of a rights-granting statute like the OHRC, are appropriate, then limits to the scope of ‘mental illness’ are certainly suitable in Law Society proceedings, which can have the effect of interfering with an individual’s right to make their own medical decisions. Unlike the human rights context, where the onus is on the claimant to prove the existence of a disability within the meaning of the OHRC with the ultimate result that they may be entitled to a remedy, in the Law Society context, the onus is on the regulator to prove the existence of a mental illness within the meaning of the LSA, with the ultimate result that the licensee may be disentitled from practicing and/or compelled to commence or continue medical treatment. These potentially invasive consequences on licensees suggest that section 37(1) should be read narrowly and in a way that is most favourable to licensee autonomy interests. As such, an interpretation of the term ‘mental illness’ in the Law Society context that is at least as
178 2000 SCC 28 at 724 [Granovsky]. See also Quebec v Boisbriand, [2000] 2 SCR 665 at paras 77—80 [Boisbriand]. 179 Note that some scholars have vehemently challenged attempts to narrow the interpretation of the OHRC’s protection, arguing that it has the effect of making it more difficult for claimants, undermining the remedial purposes of human rights law: see e.g. Denise Réaume, “Defending the Human Rights Codes from the Charter” (2012) 9 JL & Equality 67 at 75; and Benjamin Oliphant, “Prima Facie Discrimination: Is Tranchemontagne Consistent with the Supreme Court of Canada’s Human Rights Code Jurisprudence” (2012) 9 JL & Equality 33
43 narrowly construed as the most limiting interpretations of the term ‘disability’ in the human rights context is appropriate.
The human rights jurisprudence across Canada is not unanimous as to whether demonstrating a diagnosis is necessary or sufficient to fall within the ambit of the ground of ‘disability’. On one hand, in Nova Scotia Liquor Corporation v Nova Scotia, the Nova Scotia Court of Appeal rejected the assertion that a mental disability could only be found if there is a medical diagnosis and expert evidence.180 The Court noted that “[a]lthough a confirmed medical diagnosis of a recognized mental disorder will certainly assist”, it is not strictly necessary.181 A similar result was reached by the Canadian Human Rights Tribunal in Mellon v Human Resources Development Canada, wherein it held that even mental health disabilities that may be experienced as minor, with no permanent manifestation, may fall within the ambit of protection.182
On the other hand, in Crowley v Liquor Control Board of Ontario, the HRTO held that a bare assertion by a claimant of stress and other symptoms, such as anxiety or depression, is insufficient evidence to fall within the ambit of the ground.183 In so holding, the HRTO noted that “there needs to be a diagnosis of some recognized mental disability, or at least a working diagnosis or articulation of clinically significant symptoms, from a health professional in a report or some other source of evidence that has specificity and substance.”184 This is consistent with more recent HRTO decisions noting that bare allegations of discrimination that are unsupported by anything beyond mere speculation are insufficient.185
180 Nova Scotia Liquor Corporation v Nova Scotia (Board of Inquiry), 2016 NSCA 28 at para 69. 181 Ibid at para 70. 182 2006 CHRT 3 at para 88. See also Wali v Jace Holdings Ltd, 2012 BCHRT 389 at para 82. 183 2011 HRTO 1429 at paras 57—62 [Crowley], citing both Dow v Summit Logistics, 2006 BCHRT 159; and Re Skytrain and CUPE, Local 700 (Olsen), (2009) 99 CLAS 4. Other decisions have similarly found that bare assertions of stress are insufficient to ground a disability claim: Matheson v School District No. 53 (Okanagan Similkameen), 2009 BCHRT 112 at para 14; Halfacree v Canada (Attorney General), 2014 FC 360 at para 37, aff’d 2015 FCA 98; Galuego v Spectrum Health Care, 2015 HRTO 62 at para 29; Canada (Attorney General) v Gatien, 2016 FCA 3 at para 48; Esposito v Peel (Regional Municipality), 2017 HRTO 456 at para 22 [Esposito]; and Wehrstedt v F Janzen Drug Limited, 2017 HRTO 657 at para 8. 184 Crowley, ibid at para 63 [Emphasis added]. This decision was more recently followed by the Ontario Superior Court of Justice in Simcoe Condominium Corporation No. 89 v Dominelli, 2015 ONSC 36661 at para 43. 185 See Visic v Law Society of Upper Canada, 2012 HRTO 1642 at para 66; Caster v Hearthstone Community Services Ltd, 2013 HRTO 111 at paras 39—41; Corpus v Toronto Police Services, 2013 HRTO 1141 at para 29; and Esposito, supra note 183 at para 24.
44 A more nuanced path was forged by the Newfoundland Court of Appeal (“NLCA”) in Newfoundland (Human Rights Commission) v Health Care Corp of St. John’s (“Evans”), wherein it took somewhat of a hybrid position, noting that simply demonstrating a diagnosis is insufficient to fall within the ambit of the ground of ‘disability’. As an example, the Court noted that “[w]hiplash, which was one of the injuries the Commission maintained proves the complainant had a disability, […] can range from a very mild, slightly irritating, transitory injury to a severe, highly debilitating one.”186
In other words, it is the level of impairment and not the diagnosis that is relevant.187 To that end, the NLCA concluded that only conditions with a certain measure of severity, permanence, and persistence are sufficient to fall within the ambit of the ground of ‘disability’.188 It is these circumstances, and not merely the presence of a diagnosis, which must be demonstrated.
This judgment has been fairly widely adopted. In Syncrude Canada Ltd v Saunders, for example, the Alberta Court of Queen’s Bench (“ABQB”) applied the decision, noting, “[a] transient illness which may result in an employee accessing available sick leave will not ordinarily constitute a disability, though it may […] [demonstrate] a frailty of health which may result in a disability.”189 In determining whether a condition is sufficiently severe, the focus should be on
186 2003 NLCA 13 at para 31. 187 See e.g. Saadati, supra note 8 at paras 29—31. While this is a tort case, its differentiation of a diagnosis on one hand and symptoms and effects on the other is helpful. This is also consistent with the Task Force’s conclusion in its Final Report, supra note 16 at 15 that “[d]iagnosis of a mental illness or addiction [is different than] impairment resulting from a diagnosis. They do not necessarily go together and a person may be receiving treatment or be under medical care such that there is no, or only minimal, impairment. In addition, in some cases the diagnosis might not explain the behaviour at all” [Emphasis in original]. See especially, Matt King & Joshua May, “Moral Responsibility and Mental Capacity: a Call for Nuance” (2018) 11 Neuroethics 11 at 12: “Different disorders operate quite differently, and even within a given disorder, its symptoms don’t always have a singular effect on capacities relevant to responsibility.” 188 Evans, supra note 186 at paras 32 and 35. In so stating, the NLCA was relying on the British Columbia Council of Human Rights decision in Nahal v Globe Foundry Ltd, [1993] 21 CHRR D/13, which is supported by the Ontario Board of Inquiry decision in Ouimette v Lily Cups Ltd (1990), 12 CHRR D/19 [Ouimette] and the British Columbia Human Rights Commission decision in DeJong v Horlacher Holding Ltd (1989), 10 CHRR D/6283. Notably, in the Ouimette decision, the Board also cited the United States Court of Appeals in Forissi v Bowen, 794 F 2d 931. 189 2015 ABQB 237 at para 57—58 [Syncrude]. See Newfoundland and Labrador (Minister of Justice) v Critch, 2004 NLSCTD 133 at paras 24 and 27, aff’d 2007 NLCA 10, wherein the court established a three-part test for determining the existence of a disability: (1) the disability must arise out of a person’s physical limitation, an illness, a social constraint and/or a combination of each of these factors; (2) the illness or condition must be persistent and ongoing; and (3) there should be some significant limitation on the person’s ability to function normally. See also Hall v Seetharamdoo (2006), 57 CHRR D/322 (NS Bd of Inq) at para 29; and Richards v
45 whether it is something suffered by most people from time to time or whether it interferes with an individual’s ability to participate fully in society.190 Only the latter of these is consistent with the purpose of human rights law.191
Overall, these decisions seem grounded in the belief that decision-makers should be careful not to dilute the normative strength of human rights protection by extending the interpretation of ‘disability’ too far. As noted by the late Professor Dianne Pothier, “it is important that perceptions of disability not be so elastic as to lose the connection to challenging able-bodied norms […]. To enable [non-disabled] to ride on the disability band-wagon would distort the objectives underlying the protections against disability discrimination.”192 To accept even the barest of evidentiary records as sufficient to come within the ambit of the ground, absent exceptional surrounding circumstances that warrant doing so, is to trivialize the experience of disability, which could undermine public, institutional, and governmental support for the project of substantive equality in the long run.
While the Evans approach may not be appropriate in the human rights context in light of the broad conception of disability outlined by the SCC in both Granovsky and Boisbriand, it is very helpful in the Law Society context. In light of the autonomy interests involved, the Law Society ought to be held to a high bar in proving that a licensee suffers from a ‘mental illness.’ Provided
Shirley’s Haven Personal Care Home, [2019] NLHRBID No 4 at paras 10—11. This line of jurisprudence is also consistent with Boyce v New Westminister (City), (1994) 24 CHRR D/441, which was subsequently applied in Rogal v Dalgliesh, 2000 BCHRT 22 at para 19. Contra: McLean v DY 4 Systems, 2010 HRTO 1107 at para 54, though the panel does note at para 51 that “minor and transitory illness[es]” are excluded from the Code’s protection. 190 See New Brunswick (Human Rights Commission) v Griffin’s Pub Ltd, 2005 NBQB 403 at para 16; City of Mississauga, Transit Department and Amalgamated Transit Union, Local 1572, [2005] OLAA No 328 at paras 27—28; and Winpak Ltd v Communications Energy and Paperworkers Union of Canada, [2006] MGAD No 41 at para 104. 191 The Evans approach is at least tangentially consistent with the SCC’s holding in Boisbriand, supra note 178, where, although the court defined the scope of ‘disability’ quite generously, it also noted that personal characteristics or normal ailments ought to be excluded from the scope of the predecessor term for ‘disability’, ‘handicap’ (para 82). See also, Ouimette, supra note 188, which found that it would be wrong to include the flu within the meaning of ‘handicap’, as it would undermine “the high purpose otherwise achieved by the interpretation provision in protecting those who are actually or perceived to be materially impaired through illness.” 192 Dianne Pothier, “Tackling Disability Discrimination at Work: Toward a Systemic Approach” (2010) 4:1 McGill JL & Health 17 at para 14.
46 that ‘permanence’ is not a required criterion,193 the Evans approach offers relatively clear criteria for the Tribunal to consider when assessing the Law Society’s evidence. In the Law Society context, stretching the definitional confines of ‘mental illness’ or ‘incapacitated’ too far would not only undermine their normative strength, but could also have the consequence of bringing large swaths of licensees with only minor mental health issues within the ambit of section 37(1) of the LSA. Given the potential rights-infringing consequences of a finding of incapacity, this should be avoided.
As to what kind of evidence must be provided to demonstrate that a claimant falls within the ambit of the term ‘mental illness’, the human rights jurisprudence is again helpful. It seems settled in that area that determining whether a claimant falls within the ambit of the ground of ‘disability’ includes both subjective and objective components. Such a dual-focus ought to be and is equally applicable in the context of Law Society capacity proceedings, though for distinct reasons.
Putting weight in an individual’s subjective experience is consistent with a socio-political approach to disability in that it refuses to silence those with infirmities in favour of hearing from physicians alone. According to this model, individuals are not only disabled by their impairments but rather by “the disabling barriers [they] face in society.”194 It includes a focus on changing the
193 Although some mental illnesses can be chronic, others are acute, situational, and episodic. For example, studies have found that approximately 40 to 50% of individuals who experience a first episode of depression do not suffer another one: see S M Monroe & K L Harkness, “Is depression a chronic mental illness?” (2012) 42 Psychological Medicine 899 at 899—900. Such an approach is also more consistent with recent jurisprudence in the criminal realm recognizing that transitory mental illnesses can, in appropriate circumstances, impact an individual’s criminal responsibility. While the court in Cooper, supra note 169 explicitly excluded “transitory mental states such as hysteria or concussion” from the ambit of its definition of ‘disease of the mind,’ in R v Bouchard-Lebrun, 2011 SCC 58 at paras 60 and 70 onward, the SCC adopted a more holistic approach to the determination of the term, noting, in part: “[the term] is flexible enough to apply to any mental condition that, according to medical science in its current or future state, is indicative of a disorder that impairs the human mind or its functioning, and the recognition of which is compatible with the policy considerations that underlie the defence” (para 60). As noted in R v Alexander, 2015 BCCA 484 at para 64, “the definition of disease of the mind must now be interpreted in light of the holistic approach and the mere fact that a mental state is transitory does not automatically mean it cannot be characterized as mental disorder automatism.” See also, for the American approach, American Bar Association, “Formal Opinion 03-429: Obligations with Respect to Mentally Impaired Lawyers in the Firm” (11 June 2003) at 3, online (pdf): Standing Committee on Ethics and Professional Responsibility
47 environment to meet the needs of those with disabilities and not the other way around.195 It recognizes that requiring diagnostic corroboration before accepting the validity of an individual’s account can delegitimize lived experience and consequently silence individuals in discussions regarding their own medical care. Accordingly, the Ontario Human Rights Commission (“Commission”) has suggested that decision-makers ought to consider how people subjectively define their own experiences and needs in the human rights process,196 and adjudicators have done so in practice.197
In the Law Society context, the subjective evidence of licensees is equally relevant, though for different reasons. When confronted with an allegation of incapacity, licensees can speak to their lived experience of mental illness, and how they balance their health needs with their professional obligations. What may seem objectively grave if limited to a bare clinical assessment may be contextualized and mitigated by a licensee’s explanations. In the Law Society capacity context, adjudicators have, therefore, at times, considered the subjective evidence of licensees addressing their circumstances and should do so as a matter of course.198
Despite the importance of a claimant’s subjective experiences in the human rights context, however, objective medical corroboration is generally expected. This is more consistent with a bio-medical model of disability, which focuses on the medical basis for a claimant’s functional impairments.199 As noted by the ABQB in Syncrude, “[t]here is no magic in the term “disability.” It is meaningless, in a legal sense, unless supported by medical evidence which allows the Court to determine its legal significance. […] [T]here are multiple variables associated with the
195 Pothier, supra note 192 at para 11. See also Boisbriand, supra note 178 at paras 77 and 79; and Granovsky, supra note 178 at 724. 196 Ontario Human Rights Commission, “Policy on Preventing discrimination based on Mental health disabilities and addictions” (18 June 2014) at 12, online (pdf):
48 concept of disability, which variables must be supported by objective evidence in order to define the nature and vocational impact of it.”200 To that end, the Commission has recognized that it may be reasonable to “seek out some objective information about the person’s disability or related needs [including] […] information […] from a third-party, such as a medical professional.”201
As with subjective evidence, and consistent with the medical frame to ‘mental illness’ and ‘capacity’ discussed above, objective evidence is equally relevant in the Law Society context. Indeed, such objective evidence has been presented in every single capacity application since 2006.202 However, it is again relevant for different reasons than in the human rights context. Whereas in applications under the OHRC, insisting on objective evidence could result in the HRTO denying an individual’s claim and restricting the scope of protection—such that some have criticized approaches that place too strong an emphasis on its presentation—in the Law Society context, demanding objective evidence actually functions to protect licensees from arbitrary or unreasonable limits on their ability to practice.
The sole case in which the medical evidence presented by the Law Society was found to be insufficient is instructive as to the importance of objective evidence, and the role it plays in protecting licensees in Law Society proceedings. In Lyon, the only medical evidence before the panel was a report prepared by Dr. Jeffry McMaster, a psychiatrist at the Centre for Addiction and Mental Health.203 Dr. McMaster was retained by the Law Society to review the licensee’s correspondence and to give an opinion as to whether it raised a potential concern regarding his capacity.204 While Dr. McMaster determined that the information he reviewed raised the potential of a psychotic illness such as delusional disorder or a personality disorder, he noted that a full psychiatric assessment was required to make a firm diagnosis.205
200 Supra note 189 at para 70. See also Evans, supra note 186; Crowley, supra note 183. 201 Commission Policy, supra note 196 at 12. 202 See above at page 35. 203 Lyon 2015, supra note 137. 204 Ibid at para 78. 205 Ibid at para 79.
49 In finding this evidence insufficient to meet the definition of ‘incapacitated’, the panel noted that “[t]here may be some limited circumstances in which a finding of incapacity may be made in the absence of medical opinion evidence to that effect. However, to justify a finding of incapacity, the party seeking such a finding must show on a balance of probabilities that for medical reasons, the licensee is incapable of fulfilling some or all of his or her obligations as a licensee.”206
Consistent with Evans, the panel noted that a firm diagnosis is not always necessary to ground a finding of incapacity.207 Nevertheless, it held that, given it “[had] no experience in psychiatry”,208 it would be inappropriate to make a finding in the absence of direct medical evidence from a qualified healthcare provider as to the licensee’s functional impairments and their impact on his practice.209
I agree with this analysis, and further note that, in order to justify a finding of incapacity, such evidence should demonstrate a mental illness of sufficient severity and persistence. The Tribunal requires this evidence to conduct a fair assessment and, if a finding that a licensee is ‘incapacitated’ is appropriate, to craft an order that will properly protect the public interest.210 Expecting and requiring such evidence will also ensure that the terms ‘mental illness’ and ‘incapacitated’ are not diluted beyond recognition, and that the autonomy of licensees is appropriately safeguarded in the Law Society’s regulatory processes.
206 Ibid at para 82 [Emphasis in original]. 207 Ibid at para 82. See also LSUC v Rosenthal, 2012 ONLSAP 25 at para 41 [Rosenthal]; LSUC v Molson, 2015 ONLSTA 20 at paras 26—27 [Molson]; LSUC v Cuddy, 2016 ONLSTH 154 at para 26; and Barreau de l’Ontario c Wansome, 2020 ONLSTH 53 at paras 24 and 26. 208 Lyon 2015, ibid at para 87. 209 Ibid at para 82. 210 See e.g. LSUC v Kelly, 2010 ONLSHP 15, partially rev’d on other grounds 2014 ONLSTA 16 [Kelly] and 2015 ONSC 886 [Kelly 2015], wherein the panel noted, “[t]he Lawyer has testified at the Hearing that he had suffered from depression for most of his life and at times it was so severe that he was unable to practise. The Panel did not disbelieve him but had no independent evidence to assess the full impact of his illness” (para 9) [emphasis in original].
50 The licensee is incapable of meeting any of his or her obligations as a licensee
This second criterion ensures that no mental illness, no matter its severity, is in-itself a sufficient reason to find a licensee ‘incapacitated’. It must also impact their ability to fulfill their professional obligations.
It is unclear on the face of section 37(1) of the LSA whether the Law Society must demonstrate the ways in which a licensee has failed to meet his or her obligations, or if the risk of this happening alone is sufficient to satisfy this criterion. On one hand, given the potential impact of a finding of incapacity on a licensee, a higher threshold requiring the Law Society to demonstrate how they have failed to meet their professional obligations to date seems appropriate. However, requiring the Law Society to await a demonstrated incidence in which a licensee’s mental illness impacts their practice (and therefore the public) seems contrary to the legislature’s intent in enacting the capacity provisions in the LSA, which was to prevent misconduct before it happened by expanding the Law Society’s access to more preventative remedial tools. An approach dependent on demonstrated impacts would force the Law Society to be reactive rather than proactive, to the likely detriment of the public.
Based on its history, however, if the Law Society is not careful about ensuring the risk is probable and not remote, it may be vulnerable to restricting or suspending licensees based on the existence of a mental illness alone. As noted by the SCC in Starson v Swayze, this would be an error.211 Similarly, the Law Society may be vulnerable to acting on the basis of stereotypes and stigma rather than facts. For example, the SCC has repeatedly stated that it is inappropriate to presume people experiencing mental illness are dangerous. As noted in Swain, “[w]hile past violent conduct and previous mental disorder may indicate a greater possibility of future dangerous conduct, this will not necessarily be so.”212 This holding was echoed by the Court in Winko, wherein it noted that “the mentally ill have long been subject to negative stereotyping and social prejudice in our society based on an assumption of dangerousness.”213 In rejecting this
211 Supra note 89 at paras 75 and 77. 212 Supra note 7 at para 35. 213 Supra note 134 at para 35. See also Heather Stuart, “Violence and Mental Illness: An Overview” (2003) 2 Journal of World Psychology 12.
51 assumption, the SCC held that “[a]s the stereotype of the “mad criminal” has been undermined by research, we have learned that only a few mental disorders are associated with increased rates of violent behaviour.”214 While in the regulatory context we are not strictly concerned with violent behaviour, the same conclusions withstand scrutiny if we substitute professional misconduct: we should not be assuming that licensees cannot serve their clients based on the presence of mental illness alone.
Relatedly, the Law Society ought to avoid viewing those with mental illness with suspicion on account of their illnesses alone. Absent evidence supporting this view, it is indicative of stereotypical thinking that is not equally applied to those experiencing a physical illness.215 For example, if a licensee has mononucleosis, which is associated with extreme fatigue, it is unlikely that the Law Society would bring a capacity application, even if that licensee were unable, on account of their physical illness, of fulfilling their professional obligations. Rather, the Law Society would likely trust the licensee to make appropriate decisions about their practising status and accept representations from them to that effect at face value.
In contrast, there have been circumstances where the Law Society has not treated licensees experiencing mental illness in the same way.216 For example, consider LSUC v Sandberg, a case wherein the Law Society brought two motions: one asking that the lawyer attend a medical assessment and another asking that he be interlocutorily suspended until the conclusion of the
214 Ibid at para 37. 215 As noted by Klingen Len, “an attorney suffering from […] a mental illness is not necessarily unable to practice law effectively. Neither the courts nor the bar examiners have ever been able to prove that fitness to practice is directly related to an absence of mental illness […]. Many attorneys with emotional problems are effective, sometimes excellent, attorneys; many with no diagnosable mental disorders are disciplined for misconduct”: see Klingen Len, “The Mentally Ill Attorney” (2002) 27:1 Nova L Rev 157. See also Tomusiak, supra note 13, who notes “[i]n our well-meaning efforts to encourage others to reach out, we often lapse into coercive, shaming and paternalistic language and strategies that assume lawyers with mental health conditions are inherently more of a practice risk, less self-aware and less competent than others. […] Your condition may or may not affect your ability to practise law. If it does, then you’re bound by the same rules as everyone else and will need to address that. If it doesn’t, then you can be just as good a lawyer as those who happen to be blessed with optimal health.” 216 For an illuminating discussion about how we, as a society, project arbitrary meanings and value judgements onto some traits and not others (in this case, mental but not physical illness), see Julia Serano, Excluded: Making Feminist and Queer Movements More Inclusive (Seal Press: Berkeley California, 2013) at 169—173 and 182— 183. Serano notes, “[w]e are taught that certain types of people and ways of being are normal and respectable (and therefore unmarked), while others are deemed abnormal and unrespectable (and therefore marked). From the earliest of ages, we internalize these cultural beliefs and learn to employ them in an unconscious manner” (173).
52 ongoing proceedings.217 While there was no evidence that the licensee had committed professional misconduct, and he was consenting to the release of his medical records and to an independent medical examination, the Law Society sought to suspend his licence pending a final determination of his capacity.218 In rejecting this request, the panel held, “[t]here is no suggestion or allegation of misconduct here. There is no basis to believe that Mr. Sandberg cannot be “trusted” to abide by temporary restrictions on his practice, either pursuant to an undertaking or by order of the Tribunal.”219
Similarly, in LSUC v Nobili, the licensee, upon experiencing capacity concerns, changed his practicing status to retired or not working, voluntarily ceased the practice of law, and began treatment.220 Mr. Nobili also provided a written undertaking indicating that he would not practise until he had provided medical evidence that satisfied the Law Society that he was no longer incapable of meeting his obligations.221 Nevertheless, the Law Society brought a capacity application seeking to have the licensee formally suspended from practice, noting that he could in theory change back to an active practising status at any time.222 In rejecting the Law Society’s request, the panel highlighted the fact that those with mental illness should not be treated with suspicion on the basis of their condition alone: “We are not prepared to infer that the presence of depression or any other mental illness alone renders a licensee’s ability to make and abide by an undertaking suspect.”223 In so finding, the panel implicitly accepted Mr. Nobili’s argument that anything more coercive or punitive than the undertaking already offered presumed that his word “is not worthy of acceptance and that this constitutes a “double standard” due to a mental disability.”224
Ultimately, determining whether a licensee experiencing mental illness poses a risk to the public is not a simple matter, and will require a careful examination of the facts in each case. Absent a
217 2016 ONLSTH 75 [Sandberg(2)]. 218 Ibid at paras 20 and 22. 219 Ibid at para 23. 220 2014 ONLSTH 122 at para 6 [Nobili 2014]. 221 Nobili 2015, supra note 137 at para 29. 222 Ibid at para 10. 223 Ibid at para 34. 224 Ibid at para 29. Note, the result would likely have been different if the licensee did not accept his own incapacity, as Mr. Nobili did in this case: see LSUC v Adega, 2014 ONLSTH 141 at paras 10, 13 and 18 [Adega].
53 demonstrated impact, how sufficient must the risk be to satisfy this criterion? In making this assessment, the Tribunal can draw from the following sources: (1) the jurisprudence with respect to the Hearing Division’s power to make an interlocutory order restricting or suspending a licensee’s ability to practice law or provide legal services, pending completion of the Law Society’s ongoing investigation(s); and (2) the criminal law jurisprudence with respect to ‘significant threat’ in the Review Board process.
(1) Interlocutory Proceedings
Section 49.27 of the LSA allows the Hearing Division of the Tribunal to make an order suspending or restricting a licensee’s ability to practice on an interlocutory basis in certain circumstances. As noted in section 49.27(2), the Hearing Division shall not do so “unless there are reasonable grounds for believing that there is a significant risk of harm to members of the public, or to the public interest in the administration of justice if the order is not made and that making the order is likely to reduce the risk.”225
The required risk assessment was addressed by the panel in LSUC v Ejidike.226 The panel noted that section 49.27(2) specified two types of potential harm: “The first is potential harm to members of the public, whether clients, adverse parties or others. The second is potential harm to the public interest in the administration of justice.”227 The potential harm does not need to be severe or substantial harm, but it does need to be to members of the public or to the public interest.228 In addressing the requisite level of risk that such harm may occur, the panel noted, “[t]he question is not whether the potential harm will occur or will probably occur. The question is whether there is a serious risk that the potential harm will occur if an order is not made. An
225 Supra note 15 [Emphasis added]. 226 2016 ONLSTH 69 [Ejidike]. 227 Ibid at para 51. As noted by the Tribunal in LSUC v Borkovich, 2015 ONLSTH 36 at para 24, the public interest in the administration of justice “is a broad and flexible concept that cannot be precisely defined.” The assessment is case specific and focuses on how the alleged transgressions impact on the public interest. Anything that harms public confidence in the administration of justice will tend to harm the public interest in the administration of justice. 228 Ejidike, ibid at paras 52 and 55.
54 order may not be made to address potential harm that is merely theoretically possible or that is very unlikely to occur.”229
The Tribunal has considered the following non-exhaustive factors when deciding if there is harm to the public if the licensee continues to practise law or provide legal services: whether there are allegations respecting the lawyer’s honesty or integrity; whether the alleged misconduct is related to the licensee’s practice; the nature of any media coverage identifying the person as a licensee; the extent and nature of the licensee’s cooperation with the Law Society; any medical evidence; whether the alleged misconduct is disputed and the strength of the licensee’s evidence in response; and the impact that a lengthy suspension might present, particularly in cases where such a suspension might exceed any potential disciplinary penalty imposed.230
(2) ‘Significant Threat’ in the Criminal Context
The jurisprudence with respect to ‘significant threat’ in the criminal context was developed by provincial Review Boards established pursuant to section 672.36 of the Code.231 These Review Boards are responsible for assessing accused who have been found NCRMD. In such circumstances, three dispositions are available to the Board: if the accused is not a significant threat to the public, (i) an absolute discharge; or, if the accused remains a significant threat, (ii) a conditional discharge or (iii) a detention order detaining the accused in custody in hospital.232 ‘Significant threat to the safety of the public’ is defined as “a risk of serious physical or psychological harm to members of the public –including any victim of or witness to the offence,
229 Ibid at para 53. See also LSUC v Houlahan, 2017 ONLSTH 38 at para 26; and LSUC v Zaitzeff, 2017 ONLSTH 41 at para 15. 230 LSUC v Vijaya, 2018 ONLSTH 42 at para 28. 231 See also Winko, supra note 134 at paras 24—25 for further information about the Review Board process. Note, however, that in 2014, Parliament amended the wording of s 672.54 of the Code, supra note 159: see Not Criminally Responsible Reform Act, SC 2014 c 6 at s 9. While s 672.54 previous noted that the Review Board shall order the “least onerous and least restrictive” disposition, it now states that the Review Board shall order the disposition that is “necessary and appropriate in the circumstances.” Despite this change, however, many scholars argue that the Review Board must still order the least onerous and least restrictive disposition—particularly in light of the SCC’s interpretation of “appropriate” in both Penetanguishene Mental Health Centre v Ontario (Attorney General), 2004 SCC 20 at paras 24, 48, 51, 53, and 56; and Pinet v St. Thomas Psychiatric Hospital, 2004 SCC 21 at para 3: see e.g. Anita Szigeti & Erin Dann, ““Holding the Not Criminally Responsible, Responsible”: Federal Government Introduces Bill C-14: the NCR Reform Act” (2014) 35:1 For the Defence 18 at 22—23. 232 Code, ibid at 672.54.
55 or any person under the age of 18 years—resulting from conduct that is criminal in nature but not necessarily violent.”233
While it would clearly be inappropriate to adopt this definition wholesale into the regulatory context, the jurisprudence addressing its scope assesses how a risk ought to be identified, and it is these discussions which are more immediately relevant.
In Winko, the SCC held that a “significant threat to the safety of the public” means a “real risk of physical or psychological harm.”234 It further noted that the threat must be tangible and not speculative, and that there must be a high risk of serious and not trivial harm, concluding that “a miniscule risk of a grave harm will not suffice. Similarly, a high risk of trivial harm will not meet the threshold.”235
In Carrick (Re), the ONCA succinctly described this holding as follows: “An [NCRMD] accused is not to be detained on the basis of mere speculation. The Board must be satisfied as to both the existence and gravity of the risk of physical or psychological harm posed by the appellant in order to deny him an absolute discharge.”236 In many ways, this corresponds to the definition of ‘significant threat’ outlined by the panel in Ejidike, above.
While section 37(1) does not specify that a capacity order cannot be made unless there are reasonable grounds for believing that there is a significant risk of harm, it is sensible to read this requirement into the legislation. Absent such an interpretation and engagement with a proper risk analysis, the Tribunal is liable to suspend licensees on the presence of a mental illness alone, even if it is unlikely to seriously impact their ability to fulfill their professional obligations.
Based on this jurisprudence in both the Law Society and criminal contexts, I argue that, in light of the regulator’s public interest mandate, if it can demonstrate that a licensee’s mental illness has already resulted in their committing professional misconduct or raises reasonable grounds to
233 Ibid at s 672.5401. 234 Supra note 134 at para 62. 235 Ibid at para 57. See also Wall (Re), 2017 ONCA 713 at paras 26—27. 236 2015 ONCA 866 at para 17.
56 believe that they have done so, that is sufficient to satisfy this arm of the test.237 On the other hand, if the Law Society initiates a capacity application based on the risk of harm alone, it must demonstrate a high risk that the licensee will engage in behaviour that rises to the level of professional misconduct if their licence is not restricted.238 Just as the conduct or activity creating the risk in the Review Board context must be criminal in nature, the conduct or activity creating the risk in the Law Society context must be such that it would be considered professional misconduct.239 The risk must be tangible and not speculative,240 and should demonstrate a high risk of serious harm to the public interest.
For example, if the Law Society is only able to demonstrate that the licensee, if allowed to continue practising, may provide sloppy work to their clients, this is likely not enough to satisfy this arm of the test. In contrast, if the Law Society can demonstrate that the licensee, if allowed to continue practising, will likely be unable to respond to their client or the Law Society in a timely manner, for example, this is likely satisfactory. The difference here is that the former example outlines a low risk of trivial harm, whereas the second outlines a high risk of serious harm.
Panels should consider both the probability of the harm occurring, and the degree of the harm. If the probability of the harm is remote, and the harm envisioned would be unlikely to rise to the level of professional misconduct, it is probably insufficient. The role of the Law Society’s coercive proceedings is not to police workmanship that, while not perfect, is not so bad as to
237 Indeed, many of the capacity applications since 2006 were cases in which the licensee’s mental illness had already resulted in their committing conduct that likely rose to the level of professional misconduct: see Chu, supra note 106; Singer, supra note 48; Cadogan 2009, supra note 47; Castellano, supra note 137; Argiris, supra note 137; Morgan, supra note 47; McCusker, supra note 137; Borden, supra note 137; Bishop, supra note 120; Jefferies, supra note 137; Mercury, supra note 47; Bazov, supra note 137; Doucet, supra note 137; Bogue 2019, supra note 137; Stewart, supra note 47; Lever, supra note 137. 238 Some of the capacity applications since 2006 were cases where the licensee’s mental illness had not yet resulted in their committing conduct that likely rose to the level of professional misconduct, requiring the panel to assess whether the evidence presented demonstrated a sufficient risk that this would occur absent intervention: see Nobili 2015, supra note 137; Forget, supra note 137; Sandberg(1), supra note 137; Topham, supra note 121; and Mahoney, supra note 137. 239 If any conduct that impacted but did not contravene professional standards was enough to satisfy this criterion, a licensee who never committed and was not at risk of committing professional misconduct could be suspended by way of a capacity application, even though their behaviour could not form the basis of a conduct application. Such a discrepancy would be unfair and should be avoided. 240 I.e. it must be based on evidence.
57 constitute professional misconduct. Such behaviour is better addressed through more remedial processes, such as practice reviews241 and spot audits.242 To suspend a licensee on the risk that they may provide mediocre but not professionally unacceptable work would be too low a standard.243 This can be quite common, even in the absence of any diagnosable mental illness.
A nexus between the previous two clauses
Section 37(1) notes that, in order to be found incapacitated, the licensee must be incapable of meeting their obligations as a licensee by reason of physical or mental illness, other infirmity or addiction to or excessive use of alcohol or drugs. This suggests that, absent a nexus, the licensee is not incapacitated.
This is reminiscent of the need for claimants in the human rights context to establish a nexus between the ground of discrimination and the adverse treatment experienced in order to establish a prima facie case.244 However, while the nexus in that context does not need to be “causal”,245 in the context of section 37(1), the Law Society needs to prove that the licensee’s mental illness caused their inability to fulfill their professional obligations. If a licensee’s mental illness contributed to but did not cause their commission of professional misconduct and/or conduct unbecoming, it is more appropriate to address their mental health issues through the conduct stream at the penalty stage rather than in the capacity stream.246
241 A practice review is a review of a licensee’s professional business by the Law Society. Further information about practice reviews can be found here: LSA, supra note 15 at ss 42(1)—(9); and By-Law 11, supra note 50 at ss 27(1) –37(8). 242 The Law Society’s power to audit a licensee’s financial records is outlined in LSA, ibid at ss 49.2(1)—(2)(c). See also LSUC v Mbaegbu, 2017 ONLSTH 201 at paras 5—6, which discusses the ‘practice audit’ program, which is unique to paralegals and combines the type of evaluation that lawyers undergo in practice reviews and in spot audits. 243 See e.g. Bogue 2019, supra note 137 which considers the risk of harm at para 27: “Even if we accept that the Lawyer’s illness did not, or would not manifest itself in all cases, the possibility that the Lawyer may be able to meet some of his obligations some of the time is not sufficient reason for us to conclude that the public interest would be protected by determining that he has the capacity to continue to practise law.” 244 See above at note 184. 245 Peel Law Association et al v Pieters, 2013 ONCA 396 at paras 59—60; Vancouver Area Network of Drug Users v British Columbia Human Rights Tribunal, 2015 BCSC 534 at paras 59—60, rev’d 2018 BCCA 132 [VANDU] (though court agreed on nature of connection required), leave to appeal to SCC refused, [2018] SCCA No. 226; Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc, 2015 SCC 39 at paras 49—52; First Nations Child and Family Caring Society v Canada, 2016 CHRT 2 at para 25; and VANDU, above at paras 62—64. 246 This is further discussed below at Part V.
58 For example, this is the approach generally accepted by the American Bar Association in the United States, albeit with respect to establishing mental impairment as a mitigating factor in cases of professional misconduct. Lawyers Kristy N Bernard & Matthew L Gibson describe the need to establish a causal nexus as,
[E]ither a “but, for” test, or a threshold of “clear and convincing evidence.” For example, the ABA characterizes mental impairment in mitigation as the “assum[ption] that, but for his mental impairment, the lawyer would be able to comply with the requirements of all of the Model Rules.” […] The “clear and convincing evidence” standard operates in much the same fashion, requiring the evidence presented to clearly establish a causal relationship to the mental impairment.247
Typically, this causal nexus is demonstrated through medical evidence and testimony provided by doctors and the lawyer themselves, speaking directly to their mental illness and its impact on their ability to practice.248
The need for such a nexus in Law Society proceedings has been acknowledged in some of the capacity applications since 2006, though not always in these terms.249 While there has been no discussion in these decisions as to whether the connection needs to be the causal or sole factor, or merely a factor, in light of the wording of section 37(1), I argue that a causal nexus is in fact required.
In establishing this causal link, panelists should ensure they are not assuming its presence due to their own stereotypical assumptions about people with mental illnesses. As noted by author and activist Julia Serano in her discussion of marked/unmarked traits:250
People commonly assume that if anything bad happens to someone who has a marked trait, that the marked trait must somehow be an underlying factor or cause of that unfortunate circumstance. […] [W]hen we are
247 Kristy N Bernard & Matthew L Gibson, “Professional Misconduct by Mentally Impaired Attorneys: Is There a Better Way to Treat an Old Problem” (2004) 14:4 Geo J Leg Ethics 619 at 624—625. See also re professional misconduct in Australia, which also utilizes a causal connection standard, Paula Baron & Lillian Corbin “Lawyers, mental illness, admission and misconduct” (2019) 22:1-2 Legal Ethics 28 at 39 and 47. 248 Ibid at 624. 249 See Chu, supra note 106 at para 34; Cadogan 2009, supra note 47 at para 22; Castellano, supra note 137 at paras 8—9; Morgan, supra note 47 at paras 27 and 29; McCusker, supra note 137 at para 71; Borden, supra note 137 at para 13; Jefferies, supra note 137 at para 4; Mercury, supra note 47 at para 4; Forget, supra note 137 at para 15; Sandberg(1), supra note 137 at para 20; Von Smith-Bauder, supra note 137 at para 12; Bazov, supra note 137 at para 15; Doucet, supra note 137 at paras 14—15; Bogue 2019, supra note 137 at para 28; Stewart, supra note 47 at para 72; Mahoney, supra note 137 at para 19; and Lever, supra note 137 at para 2. 250 Supra note 216.
59 marked, people view us (and the specific marked trait we possess) as inherently suspect. Therefore, it is not surprising that people would literally suspect that the marked trait caused the unfortunate situation. In any case, this tendency to blame all of one’s failing on the marked trait puts a lot of pressure on marked individuals. After all, if we do make a mistake or fail in any way, it will reflect poorly on other people who share the same marked trait. In effect, we will be viewed as a “detriment” to our kind.
If, however, we are perfect, and lead happy and successful lives untainted by controversy or complications, […] they will likely view our success as occurring despite our marked trait(s), and they may even claim that we are a “credit” to our kind.251
Accordingly, it is important to ensure through evidence that the impact on a licensee’s professional obligations is actually connected to their mental illness. Otherwise, the Tribunal will be labelling a licensee as incapacitated based on assumptions about people with mental illness, which, rather than protecting the public, reinforces stigmas and stereotypes.
Compelling Medical Assessment Pursuant to Section 39(1)
Section 39(1) of the LSA was added to the legislation pursuant to Bill 53 and the LSAA 1998. In its current iteration, it reads as follows: “If an application is made under section 38, the Hearing Division may, on motion by a party to the application or on its own motion, make an order requiring the licensee who is the subject of the application to be examined by one or more physicians or psychologists.”252
The purposes of ordering such an examination are:
(a) to assess whether the licensee is or has been incapacitated; (b) to assess the extent of any incapacity and the prognosis for recovery; and (c) to assist in the determination of any other medical or psychological issue in the application.253
251 Ibid at 182—183. 252 LSA, supra note 15. 253 Ibid at s 38(3).
60 Since 2007, the Law Society has brought 11 such motions.254 In all but one of these cases, the requested motion was granted.255 The leading case addressing the test to be applied in considering whether to grant such a motion is Lyon.
In Lyon, the panel acknowledged that such an order “is a significant step that impacts the licensee’s autonomy, dignity and privacy” and that, as such, they “cannot be made lightly, or without carefully considering whether there is sufficient evidence and strong grounds to support them.”256 Nevertheless, the panel similarly noted that being potentially subject to such an order is one of the consequences of being a regulated professional. In order to access the many privileges associated with being a lawyer or paralegal, licensees must be willing to accept the consequences that accompany them.257
Accepting these consequences should not mean, however, that the Law Society is granted unfettered access to this provision. Rather, such an order should only be made by the Tribunal if (i) the Law Society has demonstrated through reliable evidence that there are reasonable grounds to believe that the licensee may be incapacitated;258 and (ii) the proposed independent medical examination will provide significant additional assistance, in light of the existing evidence, in deciding the case.259 If these conditions are met, the panel’s order must be strictly confined to the purposes enumerated in section 39(3).260 Finally, the ordered assessment can only be performed by a physician or psychologist, and requires the licensee to attend, be examined, and answer questions.261
254 LSUC v MacLaurin, 2007 ONLSHP 75; Lyon 2014, supra note 107; Nobili 2014, supra note 220; Adega, supra note 224; Sandberg(2), supra note 217; LSUC v May, 2016 ONLSTH 126 [May]; LSUC v Hathaway, 2017 ONLSTH 106; LSUC v Mahoney, 2017 ONLSTH 202; LSUC v Bogue, 2017 ONLSTH 215 [Bogue 2017]; LSUC v Mahoney, 2017 ONLSTH 221; and LSO v White, 2019 ONLSTH 138 [White]. 255 In Nobili 2014, ibid, the motion was dismissed. The panel determined that, given that the licensee conceded that he was incapacitated, and in light of the orders available to the panel hearing the capacity application, a medical assessment would not be of significant additional assistance (para 83). 256Lyon 2014, supra note 107 at para 24. 257 Ibid at para 25. 258 In ibid at para 27, the panel noted that, as a standard, ‘reasonable grounds to believe’ is by necessity lower than ‘balance of probabilities’: “We agree with the Law Society that it need not be demonstrated on a balance of probabilities that the licensee is, in fact, incapacitated, only that there are reasonable grounds to believe this might be the case. Indeed, if incapacity has been demonstrated, there would be no need for a s. 39 order.” 259 Ibid at paras 27—29. 260 Ibid at para 39. 261 Ibid. Note, however, that the panel also stated, “[r]equiring consent [to the treatment physician or psychologist to conduct interviews with collateral sources] does not fall within an examination or response to questions.” While it
61 Generally, the need for the assessment is demonstrated through objective medical evidence,262 the observations of the Law Society investigator,263 or other third-party evidence.264 At times, the panel has also considered the subjective evidence of the licensee.265
While the panel in Lyon also stated that Tribunal orders may specify the kind of psychological or physical testing that is required,266 I question this conclusion in light of the SCC’s holding in Mazzei v British Columbia (Director of Adult Forensic Psychiatric Services).267 The central question in that case was the scope of the Review Board’s power to make conditions related to the provision of medical treatment in orders either conditionally discharging an accused or ordering their detention in hospital.268 In its order detaining the accused, the Board directed the hospital to reconsider the current treatment plan and to explore new options.269 The hospital argued that this was beyond the scope of what the Review Board could order. The SCC upheld the order but concluded that, while Review Boards have the power to impose binding conditions regarding or supervising medical treatment, they “cannot exceed this authority by actually imposing a particular course of treatment, or by requiring authorities to administer that treatment. Such an exercise would constitute interference with the authority and responsibility of
would not be improper for the psychiatrist to speak with those who know the licensee in preparing their opinion, the licensee cannot be required to give consent to do so. A similar conclusion was reached by the panel in Barreau de l’Ontario c LaVictoire, 2018 ONLSTH 153 at para 13, wherein it held that while the Law Society may ask a licensee to provide consent to speak with their physician directly, it is not professional misconduct if they refuse to do so. 262 In Lyon 2014, supra note 107 at para 32, the Law Society presented a documentary review of the licensee’s correspondence, conducted by Dr. Jeffry McMaster, a psychiatrist. In May, supra note 254 at para 9, the Law Society presented a letter from the lawyer’s family physician expressing concern about the state of the lawyer’s mental health. In White, supra note 254 at paras 2, 17, and 19, the Law Society also presented a documentary review of the licensee’s correspondence conducted by Dr. Jeffry McMaster. 263 Adega, supra note 224 at para 4; Sandberg(2), supra note 217 at para 5; and Bogue 2017, supra note 254 at para 18. 264 In Lyon 2014, supra note 107 at para 35, the Law Society presented a transcript of the lawyer’s appearance before the Ontario Court of Justice. In Adega, ibid at para 6, the Law Society presented the complaint of one of the lawyer’s clients which indicated that he told her he could not continue to assist her due to his physical and emotional health (para 6). 265 Nobili 2014, supra note 220 at para 6; Mahoney, supra note 137 at paras 18—19; Bogue 2017, supra note 254 at paras 27—28; and White, supra note 254 at para 14. 266 Lyon 2014, supra note 107 at para 39 267 2006 SCC 7. 268 Ibid at para 1. 269 Ibid at para 4.
62 hospital authorities to provide medical services to persons in their custody according to their view of what is appropriate and effective.”270
Similarly, in the context of section 39(1), while the Tribunal has the authority to order testing to assess whether a licensee is or has been incapacitated, what is the best means of conducting this assessment is ultimately a clinical decision best left to the treating physician or psychologist.
Overall, as with capacity applications more broadly, the Tribunal must ensure that section 39(1) motion orders are only made on the basis of sufficient evidence demonstrating a risk that the licensee is or was incapacitated. To accept less would demonstrate too little respect for a licensee’s autonomy.
PART V: CAPACITY ISSUES IN CONDUCT APPLICATIONS
Licensee capacity concerns can also be relevant in conduct applications. In fact, in approximately 30% of the conduct applications between 2007 and 2019, the licensee’s capacity was raised during at least one stage of the proceeding, either as a complete defence to allegations of misconduct, or as a mitigating circumstance during penalty.271 When broken down on a year- to-year basis, capacity concerns have been raised in at least 21% of all cases in any given year, and in as many as 42%.272
An even closer review of these cases also demonstrates that, of the capacity concerns raised during conduct proceedings, mental illness is by far the most common, arising in approximately 61% of cases. In contrast, licensees have raised physical illnesses in approximately 19% of cases, and addiction issues in approximately 8.5% of cases.273
270 Ibid at paras 7, 30, 33—34 and 37. 271 See Appendices A and B for a complete review of this information. While these findings are concerning, they are lower than the statistics touted by Seto, supra note 11 at 18, who relied on data from the Canadian Bar Association which suggested that 40 to 75% of all disciplinary actions are against lawyers who are chemically dependent or mentally ill. However, it is unclear whether the cases reviewed at Appendices A and B accurately reflect all of the cases that proceeded in Ontario between 2007 and 2019, as some may not be publicly available. Similarly, I am limited by what was mentioned in the public reasons for decision. Mental, physical, or addictions issues that were raised in cases but not mentioned in the decision are not captured in these tables. 272 See Appendices A and B for a complete review of this information 273 See Appendices A and B for a complete review of this information.
63 In order to comprehensively address the treatment of licensee capacity concerns in conduct applications, I will review the Tribunal jurisprudence, both with respect to when a mental illness may constitute a complete defence to allegations of professional misconduct and/or conduct unbecoming and when it can be taken into account as a mitigating circumstance regarding penalty.
Complete Defence to Misconduct or Conduct Unbecoming
Originally, in order to successfully establish mental illness as a complete defence to allegations, licensees had to meet the criminal standard for NCRMD. For example, in Re Herbert Sterling Stewart, the Discipline Committee directly applied the previous test for insanity in the Code to the licensee before them,274 and this was later formalized as the standard for licensees to meet in regulatory proceedings by the panel in LSUC v Cox.275 This test was only ever applied by the Tribunal in a handful of cases,276 and was only successful on one occasion.277
This changed in Vader, wherein the panel rejected the Cox test, holding that it set the bar too high for establishing a complete defence based on pervasive mental health issues.278 In particular, the panel noted that the Cox test was inconsistent with the definition of ‘incapacitated’ outlined in the LSA and that a licensee who recognizes their professional obligations and knows that failing to fulfill them is wrong may still be unable to do so on account of their mental
274 This decision is unreported, but is referenced in both LSUC v Vader, 2013 ONLSHP 8 at para 35 [Vader]; and LSUC v Luzius, 2013 ONLSHP 193 at para 41 [Luzius]. 275 2007 ONLSHP 40 at para 70 (unreported) [Cox]. The panel held that the onus was on the member to prove on a balance of probabilities that by reason of mental disorder, he or she did not appreciate the nature and quality of his or her actions or did not have the capacity to know that they were wrong. 276 See e.g. LSUC v Simpson, 2008 ONLSHP 62 at para 16 [Simpson]; LSUC v Chojnacki, 2010 ONLSHP 74 at para 21; LSUC v Wysocky, 2011 ONLSHP 189 at para 69 [Wysocky]; LSUC v Newbury, 2013 ONLSHP 36 at para 25; and LSUC v Novak, 2014 ONLSHP 19 at paras 123-124. Note: application of the test was also attempted and rejected in LSUC v Wong, 2011 ONLSHP 90, and in Novak, above, while the Tribunal applied the test, it also stated that it had recently been reformulated. 277 Simpson, ibid. In accepting the licensee’s defence, the panel held: “We are cognizant that it is a rare case in which stress, anxiety, and mental illness will furnish a complete defence to allegations of professional misconduct. However, this is a most unusual case in which detailed expert evidence proved that Mr. Simpson’s mental abilities were seriously compromised” (para 16) [emphasis in original]. 278 Supra note 274 at paras 44—45.
64 illness.279 Accordingly, if a licensee presents evidence that would be sufficient to establish that they are ‘incapacitated’ for the purposes of the LSA, they should not be found to have committed professional misconduct and/or conduct unbecoming.
The panel in Vader reformulated the test, noting that where a licensee establishes a “nexus between the existence of a real, not fanciful, mental illness, however established”280 and their failure to fulfill their professional obligations, it may constitute a complete defence to allegations.281 In outlining this new test, the panel referenced the “high incidence of mental illness and other related problems found in legal service providers”, noting that these issues were now recognized as being at rates higher than the general population.282 The panel was also clear that mental health concerns should play a more prominent role in the finding stage of conduct proceedings, as “[c]onsideration of the existence of mental health issues only as factors in the penalty phase […] is ill-conceived, being based on outdated principles predating but expressed in the Cox decision.”283
In light of the differences between the criminal law and professional disciplinary proceeding, this lower standard is certainly appropriate for Law Society matters. As later stated by the panel in Stewart, the Cox test “did not directly address the public interest and public protection principles that underlie the purpose of professional regulation.”284 The main purpose of professional disciplinary proceedings is not necessarily to punish licensees, but rather to encourage their future compliance with the regulatory system.285 If a licensee’s behaviour is wholly explained by
279 Ibid at paras 43—44 and 47. See also Luzius, supra note 274 at para 49, with further notes, “mental illness can render a professional unable to act even though they may still be sufficiently conscious of their circumstances so as to be able to appreciate the nature and quality of their actions.” 280 Note that, as in the capacity context, the nexus must be causal: see LSUC v Khan, 2018 ONLSTH 35 at para 98. 281 Vader, supra note 274 at para 47. Note that Wong, supra note 13 at para 11, incorrectly noted that a complete defence is still established according to the Cox test. While the remainder of the article is helpful, this piece of it should be discounted. 282 Ibid at para 54. 283 Ibid at para 58. 284 Stewart, supra note 47 at para 19. 285 See e.g. Bolton v Law Society, [1994] 1 WLR 512 at para 15 [Bolton]: “It is important that there should be full understanding of the reasons why the Tribunal makes orders which might otherwise seem harsh. There is, in some of these orders, a punitive element: a penalty may be visited on a solicitor who has fallen below the standards required of his profession in order to punish him for what he has done and to deter any other solicitor tempted to behave in the same way. Those are traditional objects of punishment. But often the order is not punitive in intention.” Rather, these orders are primarily intended to discourage repetition of misconduct and to maintain public confidence in the integrity of the legal profession. See also LSUC v Harris, 2011 ONLSHP 190 at para 48;
65 their mental illness, the focus ought to be on rehabilitation, rather than instituting more punitive measures like reprimands and/or suspensions, for example, which may do little to prevent future misconduct. Similarly, in applying the Cox test, the Tribunal never considered the Law Society’s human rights obligations, including the duty to accommodate licensee disability to the point of undue hardship.286
Despite the appropriateness of this lower standard, however, I take issue with (i) the panel’s application of this test to the facts in the Vader case itself; and (ii) the Tribunal’s practice of dismissing conduct applications when a licensee successfully mounts a defence in accordance with the Vader test.
Regarding the first issue, there was simply insufficient evidence on the record in Vader to support the panel’s finding that the defence as articulated had been established. While the panel stated that “the threshold to be met by a licensee to rely on the defence of mental health is very high”,287 it nevertheless found that the defence had been established despite the fact that there was “no medical evidence to corroborate [the licensee’s testimony], nor any diagnosis of the nature of the disability.”288 In fact, the only medical evidence available was a doctor’s note, which read, in its entirety, “[the licensee] has been struggling with a significant psychiatric illness.”289
Just as panels in capacity applications should and do expect cogent medical evidence demonstrating a serious and debilitating condition that prevents a licensee from fulfilling their professional obligations, so should panels in conduct applications require such evidence to
LSUC v Kelly, 2012 ONLSHP 68 at para 40; and LSUC v Osborne, 2015 ONLSTH 25 at para 16, rev’d on other grounds 2015 ONLSTA 23; and MacKenzie, supra note 28. See, in particular LSUC v Kazman, 2008 ONLSAP 7 at paras 73—76, aff’d 2011 ONSC 3008. 286 Stewart, supra note 47 at para 19. While a complete consideration of the Law Society’s duty to accommodate licensee disability is beyond the scope of this particular paper, it is addressed in some capacity in the following Tribunal decisions: LSUC v Adams, 2018 ONLSTH 20 at paras 56—66 [Adams]; LSO v Burtt, 2018 ONLSTH 63 at paras 62—63 and 82—107; LSO v Khan, 2018 ONLSTH 131 at paras 51—66 [Khan]; and LSO v Kerr, 2019 ONLSTH 86 at paras 35—40. 287 Supra note 274 at para 30. 288 Ibid at para 8. 289 Ibid at para 10.
66 establish the defence of mental incapacity.290 In circumstances where the only available evidence of mental illness is the licensee’s own, panels should provide an adjournment to allow the licensee time to obtain the necessary third-party evidence unless there are compelling reasons to do otherwise. In fact, panels have done this is a number of cases.291 If, after providing an adjournment, the licensee still fails to provide objective third-party evidence, panels will need to determine on the facts of the case before them whether this supports an adverse inference with respect to the availability of such evidence.
Regarding the second issue, if a licensee successfully argues that, due to their mental illness, they are unable to fulfill their professional obligations, then they are or were incapacitated within the meaning of the LSA. In such circumstances, the licensee should not be found to have committed professional misconduct and/or conduct unbecoming. However, being precluded from making a conduct finding in these rare cases should not lead to a dismissal of the application altogether. Ending the inquiry after determining that a licensee is or was incapacitated fails to fulfill the twin goals of the Law Society’s capacity regime: it neither protects the public nor assists licensees in getting the support they may want or need to prevent problems in the future. While a licensee’s autonomy interests demand that findings of incapacity not be made lightly, once such findings are made, the powers available to the Law Society are appropriate in light of its public interest mandate.
A sounder approach would be to convert the proceedings into a capacity application.292 This would allow the Tribunal to include within the terms of its order requirements that a licensee obtain or continue medical treatment, counselling, or other programs to improve their health in
290 For an example of a case that followed the lower standard established in Vader, but in circumstances where there was a proper evidentiary record to do so, see Luzius, supra note 274 at paras 34 and onward. The justification for requiring objective evidence in these cases is the same as in capacity applications. While in the context of a conduct application, when a licensee raises evidence that they say rises to the level of a complete defence, the panel is essentially determining whether a licensee is or is not incapacitated. Such a determination should only be made if a high evidentiary bar is met. 291 See e.g. LSUC v Flumian, 2013 ONLSHP 92 at para 23 [Flumian 2013]; LSUC v Barker, 2014 ONLSTH 72 at paras 26 and 38; LSUC v Hartwick, 2014 ONLSTH 170 at paras 8—9; LSUC v Harry, 2014 ONLSTH 173 at para 3 [Harry]; LSUC v Bereznick, 2015 ONLSTH 10 at paras 4—5; LSUC v Novak, 2014 ONLSTH 237 at paras 13— 14; LSUC v Raytek, 2016 ONLSTH 190 at para 3; LSO v Gillespie, 2018 ONLSTH 164; LSO v Bien, 2019 ONLSTH 103 at paras 5 and 31 [Bien]; and LSO v Morhan, 2019 ONLSTH 149 at para 18. 292 Support for conversion can be found in the following Tribunal decisions: Bien, ibid at para 7; Stewart, supra note 47 at para 44; and Lever, supra note 137 at para 26.
67 the appropriate circumstances, as well as the ability to monitor their capacity moving forward.293 Pursuant to rule 14.3 of the Tribunal Rules, a panel assigned to a conduct application may deal with matters that would otherwise have to be the subject of a capacity application and may make any order referred to in section 40 of the LSA, provided they have the consent of the parties. I would take this further, as the consent of the parties should not be necessary for the Tribunal to make orders needed to appropriately protect the public interest.
Mitigating Circumstance
Before evaluating the jurisprudence addressing this issue, I will start by outlining the sentencing regime in Law Society conduct proceedings. This overview will contextualize the discussion to follow.
There is no codification of the sentencing principles and objectives relevant in Law Society conduct proceedings. Rather, they have been developed by the Tribunal over time. In this jurisprudence, proportionality has been identified as fundamental,294 parity has been centralized,295 and penalties are individualized. In fulfilling these principles, the Tribunal must also consider the following objectives, which were outlined by the panel in LSUC v Strug: (i) specific deterrence; (ii) general deterrence; (iii) rehabilitation, restitution, and improving the
293 Such an order would not be possible without converting the proceedings, as, pursuant to subsection 35(1) of the LSA, supra note 15, the Hearing Division can only include the above-noted terms in an order if it determines that the licensee committed professional misconduct and/or conduct unbecoming a licensee. If these allegations are dismissed, the panel has no jurisdiction to consider any remedies. 294 While the Tribunal rarely uses the term ‘proportionality’, both the gravity of the misconduct and/or conduct unbecoming and the degree of responsibility of the licensee are integral to sentencing in Law Society disciplinary proceedings: see e.g. LSUC v Bharadwaj, 2007 ONLSHP 86 at para 47; LSUC v Dadepo, 2009 ONLSHP 43 at para 29; LSUC v Vizentzatos, 2013 ONLSHP 147 at para 26; LSUC v Robinson, 2013 ONLSAP 18 at para 72 [Robinson]; LSUC v Bradley, 2014 ONLSHP 33 at para 34; LSUC v Brooks, 2015 ONLSTH 87 at para 158; and LSUC v Gregoropoulos, 2016 ONLSTH 148 at para 13. 295 See especially College of Physicians and Surgeons of Ontario v Peirovy, 2018 ONCA 420 at para 80: “[I]t is well settled that consistency in sentencing is as important in professional bodies as in the criminal court, and that consideration should be given to disciplinary penalties imposed in similar cases.” See also LSUC v Neinstein, 2008 CanLII 48142 at para 15, rev’d on other grounds 2010 ONCA 193; LSUC v Silver, 2011 ONLSHP 32 at para 7; LSUC v Kotsakis, 2013 ONLSHP 169 at para 20; LSUC v Berns, 2014 ONLSHP 15 at para 40; LSUC v Raytek, 2015 ONLSTH 30 at para 19; LSUC v Sengbusch, 2015 ONLSTH 47 at para 15; LSUC v Mandell, 2015 ONLSTH 66 at para 7; LSUC v Eversley, 2015 ONLSTH 136 at para 64; LSUC v Fleming, 2016 ONLSTH 133 at para 4; LSUC v Okpala, 2017 ONLSTH 204 at para 29; and LSO v Kerr, 2018 ONLSTH 65 at para 8.
68 competence of a particular licensee; and (iv) maintaining public confidence in the legal profession.296
Further to sentence individualization, the Tribunal has repeatedly noted that sentencing in Law Society disciplinary proceedings should not be mechanical or formulaic.297 A non-exhaustive list of factors was outlined by the panel in LSUC v Aguirre:298
(a) the existence or absence of a prior disciplinary record;299 (b) the existence or absence of remorse, acceptance of responsibility or an understanding of the effect of the misconduct on others;300 (c) whether the member has since complied with his/her obligations by responding to or otherwise co- operating with the Society;301 (d) the extent and duration of the misconduct; (e) the potential impact of the member’s misconduct upon others. […] (f) whether the member has admitted misconduct, and obviated the necessity of its proof;302 (g) whether there are extenuating circumstances (medical, family-related or others) that might explain, in whole or in part, the misconduct; and
296 2008 ONLSHP 88 at paras 3—7 [Strug]. 297 See e.g. LSUC v Yat, 2007 ONLSHP 43 at para 124: “[T]here can be no matrix or chart matching specific misconduct with a specific penalty. The appropriate penalty must be determined for each case taking into account its own specific circumstances.” See also LSUC v Trainer, 2011 ONLSHP 186 at para 1; LSUC v Kaminer, 2013 ONLSHP 126 at para 5; LSUC v Akioyamen, 2014 ONLSTH 57 at para 18; LSUC v Gavris, 2015 ONLSTH 144 at para 40; LSUC v Desjardins, 2016 ONLSTH 197 at para 20; and LSUC v Khan, 2017 ONLSTH 83 at para 48. 298 2007 ONLSHP 46 at para 12 [Aguirre]. The Tribunal has also considered the following factors in various cases: character evidence (see e.g. Bolton, supra note 285 at para 16; LSUC v Hunter, 2007 ONLSHP 27 at para 56; LSUC v Verbeek, 2007 ONLSHP 123; LSUC v Dakin, 2008 ONLSHP 79 at para 10; LSO v Claxton, 2018 ONLSTH 75 at para 15; and LSO v Zopf, 2019 ONLSTH 144 at para 56); the particular needs of sole practitioners (see e.g. LSUC v Jemmott, 2008 ONLSHP 61 at para 9; LSUC v Newbury, 2012 ONLSHP 75 at para 13; LSUC v Ogunniyi, 2013 ONLSHP 90 at para 56; and LSUC v Zaretsky, 2013 ONLSHP 157 at para 26); the particular difficulties faced by racialized licensees (see e.g. Robinson, supra note 294 at paras 33, 40, 44, 46, 55 and 59—68 and LSUC v Shah, 2016 ONLSTH 36 at para 59); and systemic discrimination (see e.g. LSUC v Hamalengwa, 2010 ONLSAP 13 at paras 32—34 and 53—54; and LSO v Bahimanga, 2018 ONLSTH 60 at para 51). 299 While generally relevant, it is particularly aggravating if the licensee has been previously disciplined for similar misconduct in the past. See e.g. LSUC v Yungwirth, 2012 ONLSHP 29 at para 21; LSUC v Motee, 2012 ONLSHP 113 at para 17; LSUC v Newbury, 2013 ONLSHP 113 at para 5; LSUC v Thomas, 2014 ONLSTH 208 at para 30; and LSUC v Wilson, 2018 ONLSTH 31 at para 29. The lack of a discipline record is particularly mitigating if a licensee has practised for many years without incident: see e.g. LSUC v Kulidjian, 2011 ONLSHP 6 at para 11; LSUC v Istl, 2013 ONLSHP 123 at para 4; and LSUC v McKenzie, 2014 ONLSTH 213 at para 18. 300 The treatment of remorse as a factor in Law Society disciplinary proceedings closely mirrors criminal sentencing: see e.g. LSUC v Budd, 2009 ONLSHP 111 at para 95. The degree of mitigation afforded to an expression of remorse will also depend on a licensee’s insight into the seriousness of the misconduct and the consequences: see e.g. LSUC v Jones, 2013 ONLSHP 65 at para 22. See also LSUC v Pope, 2014 ONLSTH 71 at para 24; and LSUC v Ellis, 2014 ONLSTH 202 at para 83. 301 This factor is specific to allegations that a licensee failed to cooperate with a Law Society investigation pursuant to Rules, supra note 29 at s 7.1-1; or Paralegal Rules, supra note 29 at s 9.01. 302 In Law Society disciplinary proceedings, admissions of misconduct are usually facilitated through Agreed Statements of Fact [ASF]. Like guilty pleas, ASFs are treated as mitigating: see e.g. Flumian 2015, supra note 63 at para 24.
69 (h) whether the misconduct is out-of-character or, conversely, likely to recur.303
During sentencing, each of the Aguirre factors is identified as aggravating or mitigating. The resulting balance is used to identify an appropriate sentence within the range of penalties imposed for similar misconduct.304
In conduct applications involving licensee mental illness, extenuating circumstances are centrally relevant. Medical circumstances were clearly identified by the panel in Aguirre and have been subsequently considered by the Tribunal on many occasions. As noted by the panel is LSUC v Ellis, if mental health conditions fall short of completely excusing the misconduct in accordance with the Vader analysis, they may nevertheless “assist in explaining why the conduct occurred and was out of character,”305 mitigating its seriousness or the moral blameworthiness of the licensee.306
Extenuating circumstances are also closely associated with exceptional circumstances, which are particularly relevant in cases involving presumptive dispositions. In LSUC v Mucha, the then Appeal Panel of the Tribunal held that, in cases involving mortgage fraud, revocation of licence is the presumptive penalty absent exceptional circumstances.307 This presumption has since been
303 In the Law Society disciplinary process, a focus is placed on the licensee’s likelihood to cooperate with the regulator and to follows its rules moving forward. This is intimately tied to the Law Society’s distinct mandate, and the central purpose of disciplinary sentences: to protect the public, and to maintain public confidence in the Law Society as a regulator. To this end, as noted by MacKenzie, supra note 28, many of the mitigating and aggravating factors identified are ultimately relevant to the likelihood that a licensee’s misconduct will recur. 304 See e.g. LSUC v Mason, 2012 ONLSHP 92 at para 19, which provides a good example of this process in motion. In Mason, the panel held that “[t]he factors […] show a mixture of aggravating and mitigating incidents, although the former certainly outweigh the latter. The hearing panel has concluded that this misconduct falls within the medium to severe range of the spectrum of cases.” 305 LSUC v Ellis, 2016 ONLSTH 20 at para 36 [Ellis]. See also Harry, supra note 291 at para 22; LSUC v Burdet, 2014 ONLSTH 241 at para 16; LSUC v Good, 2016 ONLSTH 21 at para 10; and LSUC v Robson, 2018 ONLSTH 6 at para 64, wherein the panel noted, “[i]n order to establish that mental illness has furnished a complete defence to the allegations of professional misconduct […] there must be a nexus with the mental illness that precludes compliance with […] regulatory obligations. Even if it is not a defence to the allegations of misconduct, mental illness may still be a consideration in any penalty determination.” 306 Note that, as stated by King & May, supra note 187 at 19, “[h]aving a disorder with widespread effects on agential capacities that operates across time doesn’t guarantee that those effects were present in the given case.” Rather, “there is no general relationship between moral responsibility and psychopathology; we must evaluate responsibility on a case-by-case basis” (14). The focus of the analysis will be on the degree to which the proven mental illness impacted the seriousness of the behaviour or the moral blameworthiness of the licensee. In order to engage this analysis, “one’s disorder must not only compromise a capacity relevant to responsibility, but it also must be relevant to the act in question” (17). 307 2008 ONLSAP 5 at paras 22—23 [Mucha].
70 extended in the jurisprudence to include cases of misappropriation,308 whether or not it is in a lawyer’s personal or professional capacity;309 fraud or theft more broadly;310 criminal convictions for serious offences;311 severe dishonesty or lack of integrity;312 and the creation of fraudulent documents.313
The justification for these presumptions stems from the seminal UK decision of Sir Thomas Bingham in Bolton v the Law Society.314 In this case, the Law Society appealed from the Divisional Court, which had quashed an order of the Law Society Disciplinary Tribunal suspending Mr. Bolton for two years, substituting a £3,000 fine.315 In allowing the appeal and restoring the original order, Sir Thomas Bingham made a number of now-famous comments regarding professional disciplinary proceedings. He noted that, “[a]ny solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him”, and that in cases of proven dishonesty, licensees should have their licence revoked.316
308 LSUC v Purewal, 2008 ONLSHP 132 at para 35; and LSUC v Pachai, 2010 ONLSHP 130 at para 54, aff’d 2011 ONLSAP 34 [Pachai]. 309 LSUC v Houlahan, 2018 ONLSTH 149 at paras 32, 54 and 57; and LSO v Comartin, 2020 ONLSTH 57 at paras 10—11. 310 LSUC v Drabinsky, 2014 ONLSTH 139 at paras 55—56; and LSUC v Anderson-Clarke, 2017 ONLSTH 10 at para 29. 311 LSUC v Cwalino, 2015 ONLSTH 32 at para 7 [Cwalino]. 312 Ellis, supra note 305 at para 33. 313 LSO v Spiegel, 2018 ONLSTH 57 at paras 10—18; LSO v Bahimanga, 2019 ONLSTA 25 at paras 100—106; and LSO v Aleong Magee, 2020 ONLSTH 64 at paras 32—38. See also Bishop v LSUC, 2014 ONSC 5057 at para 30, in which the Divisional Court held that there was nothing objectionable per se about the profession setting out presumptive penalties for breaches of different types of professional obligations: “It is no different than appellate courts setting out presumptive penalties for certain types of offences. Moreover, it is not accurate to characterize such presumptive penalties as “mandatory minimums” with all of the attendant concerns that may accompany statutorily mandated sentences. Rather, presumptive penalties act as a guide, both for the entity imposing the penalty and for the persons who may be subject to such penalties.” See also LSUC v Abbott, 2017 ONCA 525 at paras 21 and 78, which affirmed the Bishop decision. 314 Bolton, supra note 285. 315 Ibid at para 1. 316 Ibid at para 14. Note that Sir Thomas Bingham further held that, absent proven dishonesty, where a licensee’s actions nevertheless demonstrate serious lapses in judgment, a suspension will likely be appropriate: “If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends upon trust. […] Only in a very unusual and venial case of this kind would the Tribunal be likely to regard as appropriate any order less severe than one of suspension” (para 14).
71 In such cases, revocation is necessary for two reasons: (1) to prevent the lawyer from repeating the misconduct; and (2) to maintain public confidence in “the reputation of the solicitors’ profession as one in which every member, of whatever standing, may be trusted to the ends of the earth.”317 Of those two reasons, the protection of the collective reputation of the profession and the role that disciplinary proceedings play in such protection was highlighted, as “a profession’s most valuable asset is its collective reputation and the confidence which that inspires. […] The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.”318
In Mucha, the panel noted that “compelling psychiatric or psychological evidence that, among other things, credibly indicates not only that the misconduct was out of character and unlikely to recur, but explains why it occurred” may amount to exceptional circumstances.319 In Bishop, the Divisional Court confirmed this definition of exceptional circumstances, noting:
Medical reasons or financial desperation or situations of duress serve as examples of the type of mitigating factors that may amount to exceptional circumstances […]. That said, it remains the case that any such factors will normally have to be ones that would rise to the level where it would be obvious to other members of the profession and to the public that the underlying circumstances of the individual clearly obviated the need to provide reassurance to them of the integrity of the profession. 320
However, the Divisional Court also expanded the Mucha definition of exceptional circumstances by going on to note that “factors that provide an explanation for the conduct of the lawyer will generally be the ones that would most likely reach the requisite level of mitigation but they are not the only ones that may achieve that result.”321 Consequently, in very rare cases thereafter, the Tribunal has accepted circumstances that did not explain in whole or in part the misconduct, but may have set the stage for its occurrence in some manner as exceptional.322
317 Ibid at para 15. 318 Ibid at paras 15—16. 319 Ibid at para 28 [Emphasis in original]. 320 Ibid at para 31. 321 Ibid [Emphasis added]. 322 See e.g. LSUC v Kennedy, 2014 ONLSTH 227 at paras 36—37; Cwalino, supra note 311 at para 29; LSUC v Fine, 2018 ONLSTH 56 at paras 31 and 34; Khan, supra note 286 at paras 84—85 and 88; and LSO v Piccinini, 2019 ONLSTH 157 at paras 15 and 18. In particular, the issue of ‘compassion’ has arisen with some frequency: see e.g. LSUC v Piner, 2008 ONLSHP 52 at paras 13—14; LSUC v Erlich, 2008 ONLSHP 72 at paras 16, 23, 27
72 Mental health conditions are a common example of potentially exceptional circumstances.323 As noted by the panel in LSUC v Hamalengwa, and consistent with the analysis elsewhere in this paper, objective third-party evidence is and ought to be required to establish mental health as an extenuating circumstance:
What the enumerated items (medical and family circumstances etc.) have in common is the capacity for some measure of verification through documentary or other evidence. Medical circumstances are not addressed by the self-diagnosis of the Lawyer. They are usually addressed through medical certificates or testimony of medical professionals. Similarly, it may be appropriate in some circumstances to hear from family members and others about the context in which the misconduct took place or its subsequent impact on the psychological, physical, social or financial well-being of the lawyer.324
The level and strength of evidence required will depend on the outcome sought by the licensee. If a licensee who has engaged in misconduct that attracts a presumption of revocation is seeking to continue as a licensee, they must meet a very high evidentiary bar.325 In contrast, if a licensee who has engaged in misconduct that attracts a presumption of revocation is seeking permission to surrender—which will still result in termination of their licence to practice—a lower evidentiary bar is appropriate.326 Similarly, a lower evidentiary standard is suitable for licensees
and 33; LSUC v Horgan, 2010 ONLSHP 12 at para 19; LSUC v Pierce, 2012 ONLSHP 90 at para 9; and LSUC v Stone, 2012 ONLSHP 116 at paras 10, 16, 35, and 40. 323 See e.g. LSUC v Whyte, 2007 ONLSHP 14 at paras 11-12, 18, and 20; LSUC v Aguirre, 2009 ONLSHP 23 at para 50; LSUC v Rosenthal, 2011 ONLSHP 103 at paras 64—6 and 81, aff’d Rosenthal, supra note 207; Flumian 2015, supra note 63 at paras 14, 20, and 22—23; Ellis, supra note 305 at para 36; Adams, supra note 286 at para 53; LSO v McNamara, 2018 ONLSTH 155 at paras 43—45 [McNamara]; LSUC v Kwok, 2019 ONLSTH 115 at para 20 [Kwok]. 324 2010 ONLSHP 13 at para 52. See also Ellis, ibid at para 37, wherein the panel stated, “it is only through [the expert evidence] that the connection between the disability and the misconduct can be fully examined.” Note that, in such circumstances, a licensee’s medical circumstances are not being raised by the Law Society, nor as evidence that they are incapacitated within the meaning of the LSA, and therefore there are not the same autonomy concerns. Accordingly, the same insistence on objective third-party evidence is not necessary in order to protect the licensee. However, the need for such evidence is similarly important in this context, though for slightly distinct reasons. Given the Law Society’s duty to protect the public interest, it cannot simply ‘take a licensee’s word for it’ when they claim that their mental health impacted their ability to fulfill their professional obligations. When a licensee raises these issues, the Law Society is required by statute to ascertain the full extent of the impact on their ability to practice, and to impose appropriate conditions to address any risks to the public. While a licensee’s lived experience of their illness is certainly valuable and should not be discounted, they simply cannot speak objectively or clinically to the nature of their mental illness and its impact on their ability to practice in the present and future: see e.g. LSUC v Florentis, 2015 ONLSTH 181 at para 45. Therefore, if licensees intend to raise their mental health as a mitigating circumstance, it needs to be supported by objective evidence in order to be taken into account. 325 See e.g. LSUC v Brown, 2019 ONLSTH 91 at para 33 [Brown]. 326 See e.g. the explanation of the panel in Kwok, supra note 323 at para 25. Note however, that there must nevertheless be some quality of exceptionality to the evidence: see Pachai, supra note 308 at para 13—14.
73 who have engaged in misconduct that does not attract a presumption of revocation, and who are marshalling medical evidence to support a lesser penalty.327
As in capacity applications, there must be a causal nexus between the exceptional circumstance and the misconduct in order to displace the presumption of revocation, or to gain the benefits that mitigation may provide.328 If there is no nexus, the exceptional or extenuating circumstance does little to explain why the misconduct occurred, does not impact the seriousness of the offence or the moral blameworthiness of the licensee, and cannot reassure the public of the integrity of the profession. In assessing whether this criterion has been met, it is often integral whether there is evidence addressing a licensee’s mental state during the particular timeframe identified in the conduct application, rather than merely a general assessment of their capacity.329
In every case, however, mitigating circumstances, even if proven, generally have less weight in regulatory proceedings than they do elsewhere. As noted by the then Hearing Panel in Strug, “in our jurisprudence […] mitigating factors, while they have their place, have less effect on our deliberations than they do in criminal court […] [where] the judge is almost always focused on the individual accused. Rarely, if ever, is the judge in criminal court focused on the collective reputation of the accused’s peer group.”330
To that end, in cases of proven dishonesty, even if the evidence demonstrates that a licensee’s mental illness impacted their behaviour, termination of licence through revocation or permission to surrender may nevertheless be appropriate in two main circumstances, both of which are
327 Ellis, supra note 305 at para 35. In particular note that a diagnosis is not necessary for a health issue to constitute an exceptional circumstance, provided they demonstrate that the behaviour was out of character and unlikely to recur, or explain why it occurred: see Molson, supra note 207 at paras 26—27. 328 See e.g. LSUC v McLellan, 2009 ONLSHP 44 at para 27 [McLellan 2009], aff’d 2011 ONLSAP 14 [McLellan 2011]; Reilly, Re, 1995 CanLII 13840; LSUC v Fenik, 2005 ONLSHP 25 at paras 79, 87, and 91; Kelly, supra note 210 at para 32. See also Len, supra note 210 at 160 and 174, wherein he noted, “violations of the rules are not evidence of mental illness, and those attorneys who plead such illness as the cause of their violations must show that it directly caused the misconduct.” 329 See e.g. LSUC v Markowitz, 2008 ONLSHP 49 at para 26; LSUC v Gertner, 2010 ONLSHP 10 at para 37; LSUC v Szpirglas, 2010 ONLSHP 133 at para 8; LSUC v Burns, 2011 ONLSHP 101 at para 22; Wysocky, supra note 276 at paras 72—73 and 78; LSUC v Williams, 2015 ONLSTH 146 at paras 77 and 80; LSO v Reble, 2019 ONLSTH 49 at para 17; LSO v McLean, 2019 ONLSTH 62 at para 17; and LSO v Stevens, 2019 ONLSTH 114 at para 24. 330 Strug, supra note 296 at paras 27—28. See also Bolton, supra note 285 at para 16.
74 predicated on the fundamental importance of the profession’s collective reputation, as identified in Bolton.
First of all, despite the evidence presented, if the misconduct is particularly heinous or troubling, allowing the licensee to continue practising may diminish the public’s confidence in the legal profession. This was acknowledged by the panel in Ellis, which noted:
The nature of the misconduct and the way the disability contributed to that misconduct must be carefully evaluated to determine whether the circumstances are such that the person can continue to practice while maintaining public confidence. In analysing the impact on the legal profession, we must consider the situation from the point of view of the well-informed member of the public who understands the evidence about the underlying circumstances of the individual, not one who is uninformed. […]
Given the gravity of his conduct unbecoming and its impact on the legal profession, the mitigating circumstances must be especially strong to meet the Bishop test.331
Secondly, despite the evidence presented, the licensee’s future prognosis may call into question whether the misconduct is unlikely to be repeated. For example, in LSUC v Bharadwaj, while the licensee demonstrated that she suffered from a mental illness that impacted her during the time of the proven misconduct,332 the panel nevertheless ordered permission to surrender rather than a lengthy suspension. In so doing, it drew particular attention to the poor prognosis of the lawyer: “Of particular significance is the nature of her mental illness. The evidence […] disclosed that multiple personality disorders are difficult to treat, requiring long term and specialized therapy. […] [Dr. Farnick] indicated that other forms of therapy may need to be considered and that she is at significant risk of developing another depression.”333
As noted above, when engaging in any sort of risk analysis regarding mental illness, panels should be sure that their conclusions are based on evidence rather than stereotypes. To that end, the words of the then Appeal Panel in Kelly are instructive:
331 Ellis, supra note 305 at paras 37, 46 and 49. See also Adams, supra note 286 at para 66; and Brown, supra note 325 at para 41. 332 2011 ONLSHP 4 at para 121, aff’d 2012 ONLSAP 7 and 2013 ONSC 4329. 333 Ibid at paras 133—135. See also McLellan 2009, supra note 328 at paras 29—31 and 39; McLellan 2011, supra note 328 at paras 4 and 15; Farant, supra note 116 at para 70; LSUC v Nicholson, 2015 ONLSTH 110 at para 50; LSO v Yantha, 2018 ONLSTH 94 at para 30; and McNamara, supra note 323 at paras 31—32.
75 [While licensees] need not demonstrate that they are no longer vulnerable to [mental illness] or provide a guarantee that they will not reoffend, [panels need to consider] […] whether the risk of recurrence has been significantly diminished to an acceptable level, having regard to […] the nature and extent of the past misconduct, medical and other interventions that have taken place, plans for ongoing or future treatment […] and measures that can be introduced in practice both to provide support for licensees and protect the public.334
In upholding this decision, the Divisional Court further held that, in order to persuasively argue that certain behaviour is unlikely to recur, ensuring the public confidence will not be shaken by continued licensing, a licensee must demonstrate insight into their prior conduct.335
In either of the above-noted circumstances, even if the requisite causal nexus between a licensee’s mental illness and the proven misconduct is established, the collective reputation of the profession and protection of the public interest may nevertheless require termination of a licensee’s ability to practice.
However, in those circumstances where the licensee can demonstrate, through compelling medical evidence that there is a causal nexus between their mental illness and the proven professional misconduct and/or conduct unbecoming, and the above-noted concerns are not present, the panel may justifiably impose a lesser penalty. One of the main reasons for this, as identified by the panel in Vader, is that the sentencing objectives of specific and general deterrence are not strictly applicable in cases involving proven mental illness:
A sentencing objective of specific deterrence can have no application to a licensee who, although she may appreciate the nature and consequences of her actions and knows right from wrong […] is simply incapable of getting out of bed to actually do right from wrong […]
Similarly, reliance on the principle of general deterrence [in] sentencing in such a situation, in the belief that a sanction might prevent other like-minded licensees from similar conduct, will be ineffective in a mental illness situation. No legal services practitioner, without a disability [or] psychiatric illness, will govern their behaviour on the basis of punishment attributed to a colleague with a mental illness.336
334 Supra note 210 at para 73. See also LSUC v Luizos, 2014 ONLSTH 184 at para 53 [Luizos], wherein the panel acknowledged “there [are] no absolutes in the sphere of mental illness.” 335 Kelly 2015, supra note 210 at para 18. 336 Supra note 274 at paras 60 and 65. See also LSUC v Burtt, 2015 ONLSTH 165 at para 59 [Burtt]; LSUC v McAllister, 2016 ONLSTH 112 at paras 42 and 44; LSUC v Robinson, 2017 ONLSTH 13 at para 14; and LSUC v Secker, 2017 ONLSTH 116 at para 27.
76 In other words, consistent with the twin goals of the capacity regime, if professional misconduct and/or conduct unbecoming is partially explained by a licensee’s illness, it lessens the degree of moral blameworthiness associated with that behaviour, and appropriately shifts the focus in sentencing to more rehabilitative efforts. Of course, in these circumstances, given that the misconduct is not wholly explained by the licensee’s capacity issues, there is still the necessity to protect the public and a lesser though present role for general deterrence, which justifies the imposition of some form of penalty, even if the ultimate sanction is less than it otherwise would be.337
In these circumstances, panels can, pursuant to section 35(1) of the LSA, include remedial terms addressing a licensee’s mental health or addictions issues in their final order. Between 2007 and 2019, this was done on 31 occasions,338 demonstrating that concerns about licensee capacity— and the related impacts on licensee autonomy—are not confined to capacity applications alone. Panels ought to consider these impacts when determining whether such terms are or are not appropriate.
337 See e.g. Flumian 2013, supra note 291 at paras 22 and 27; Ellis, supra note 305 at para 39; and LSO v Miller, 2019 ONLSTH 106 at para 82. 338 See e.g. LSUC v McLellan, 2008 ONLSHP 27; LSUC v Kearney, 2008 ONLSHP 78; LSUC v Mikitchook, 2009 ONLSHP 59; LSUC v Brousalis, 2009 ONLSHP 106; LSUC v Cox, 2010 ONLSHP 24; LSUC v Elston, 2010 ONLSHP 82; LSUC v Lyle, 2011 ONLSHP 34; LSUC v Sinukoff, 2012 ONLSHP 12; LSUC v Robinson, 2013 ONLSHP 12; Flumian 2013, ibid; LSUC v Middlebrook, 2013 ONLSHP 103; LSUC v Ludmer, 2013 ONLSHP 114; LSUC v Puskas, 2013 ONLSHP 127; LSUC v Secker, 2013 ONLSHP 148; LSUC v Xynnis, 2013 ONLSHP 154; LSUC v Loria, 2014 ONLSTH 87; LSUC v Czernik, 2014 ONLSTH 175; Luizos, supra note 334; LSUC v Kennedy, 2014 ONLSTH 227; LSUC v Novak, 2014 ONLSTH 237; LSUC v Kamarasamy, 2015 ONLSTH 52; LSUC v Tan, 2015 ONLSTH 60; LSUC v Botiuk, 2015 ONLSTH 143; Burtt, supra note 336; LSUC v Rapoport, 2016 ONLSTH 47; LSUC v McAllister, 2016 ONLSTH 112; LSUC v Karlstedt, 2017 ONLSTH 112; LSUC v Secker, 2017 ONLSTH 116; LSUC v Kaminski, 2017 ONLSTH 200; LSO v Robson, 2018 ONLSTH 84; and LSO v Walia, 2018 ONLSTH 133.
77 CONCLUSION
As it stands, the Law Society has significant statutory powers at its disposal to address mental illness that impacts a licensee’s ability to practice law or provide legal services to the public. Not only can the Law Society seek to compel licensees to undergo medical examinations, it can also seek to suspend their ability to serve clients and make a living in their chosen profession pending demonstrated medical proof of their capacity. Given the significant impact that the exercise of such powers can have on a licensee’s autonomy to make their own medical decisions, it is of utmost importance that they are wielded responsibly. In particular, the Law Society—including the Tribunal—must ensure that it at no time conflates the presence of a mental illness alone with incapacity, and that it is not treating licensees with suspicion based merely on their condition. Approaching its statutory authority as I’ve outlined above will help in this regard, as it will ensure that the Law Society is held to an appropriately high standard when it attempts to interfere with a licensee’s autonomy. In accepting only severe and persistent mental illness that has impacted or demonstrates a significant risk of impacting a licensee’s ability to fulfill their professional obligations, the Tribunal can both ensure that its analysis is not engaging in stereotypes, and that licensee interests are appropriately balanced with the Law Society’s duty to protect the public.
This research regarding the Law Society’s approach to licensee’s with mental illness in its coercive processes also raises three important questions warranting further research. First of all, it is clear that, in light of the prevalence of mental health concerns in the legal profession, the Law Society needs to develop more robust procedures at the front-end of its regulatory processes, in advance of proceedings before the Tribunal. If, as the legislature intended in passing the significant amendments to the LSA in 1998, the Law Society is to be more proactive and less reactive in its approach to regulation, it must have better means of identifying and responding to the mental health concerns of its members. In particular, the Law Society has to consider ways in which it can both establish and improve trust with licensees, so that they are comfortable coming to their regulator for assistance, without fear of retribution.339
339 Canadian Medical Association, supra note 6 at 30 found that only 23% of people surveyed said they would feel comfortable talking to their employer if they thought they had a mental illness. See also, the entirety of note 6. It is
78 One promising addition that could be made to the Law Society’s regulatory processes is the development of diversionary mechanisms for licensees experiencing mental health problems. Such mechanisms were alluded to by the Tribunal in Vader, Flumian, and Luzius, for example.340 While the capacity stream already provides one way of diverting licensees, it does little to address those whose mental illness impacted but did not completely explain their misconduct. The needs of such licensees are currently most often addressed through the penalty stage of conduct proceedings, where they may mitigate but do not excuse misconduct, leaving licensees with a stigmatizing disciplinary record that can impact their future ability to practice and serve the public. If the Law Society is truly committed to meaningfully addressing mental health issues in the profession, this should not be its approach, but for the most serious forms of misconduct. In particular, it ought to consider adopting an approach similar to the use of mental health courts in the criminal context, where accused’s whose mental illness impacted but did not explain less serious offences can avoid a formal criminal record, provided they agree to and abide by certain enumerated conditions.341 Similar processes have been adopted in other regulatory jurisdictions, and a closer review may provide a helpful blueprint for the development of a comparable approach by the Law Society.342
Finally, it may be appropriate for the Tribunal to include mental health experts such as psychiatrists, psychologists, or community health workers on panels addressing the capacity of licensees to fulfill their professional obligations. These experts would be invaluable in the Tribunal’s consideration of medical evidence, including what if any impacts certain conditions have on a licensee’s ability to practise or to provide legal services, and what if any order terms
reasonable to extrapolate from these findings that licensees would be equally uncomfortable talking to their regulator, particularly if they feared immediate regulatory intervention. 340 Vader, supra note 274 at paras 67—71; Flumian 2013, supra note 291 at para 27; and Luzius, supra note 274 at para 50. 341 For a further discussion of the criminal approach, see Human Services & Justice Coordinating Committee, “Mental Health Courts in Ontario: A Review of the Initiation and Operation of Mental Health Courts Across the Province” (October 2017) at 20, online(pdf):
79 could appropriately address concerns. As is, the Tribunal is limited in its ability to question the medical evidence presented by licensees or the Law Society, which is an inadequacy in the regulatory approach to these issues. The more specific a Tribunal can be in imposing conditions, the less restrictive these conditions are likely to be on a licensee’s autonomy. Medical experts would assist in identifying conditions that are strictly necessary, while excising any extraneous limitations.
While this contribution does not offer definitive answers, it does provide a detailed and comprehensive overview of the Law Society’s current coercive approaches to capacity issues in the legal professions. I have offered a lens through which to view further issues regarding licensee capacity, and with this research in hand, we are better equipped to assess the Law Society’s approach to licensee mental illness moving forward. While I certainly cannot speak to everyone’s experience with mental illness, nor does every mental illness manifest in the same way, I do know first-hand that, with appropriate supports, mental illness is not and does not need to be or be seen as a barrier to providing effective services to one’s client(s). The Law Society should, as much as possible, limit its interference with a licensee’s autonomy to make their own medical decisions, and when such interference is required to protect the public, its focus should be on providing support rather than sanction. Such an approach will ultimately better serve both the public and the professions.
80 APPENDIX A: Table Analyzing Law Society Tribunal Conduct Orders from 2007 – 20191
Year Number of Number of Number of Number of Number of Percentage of Publicly Proceedings Proceedings Proceedings Proceedings Proceedings Available where a where the where the where the Where a Proceedings Capacity Capacity Capacity Capacity Capacity Issue Issue2 was Issue Raised Issue Raised Issue Raised was Raised, Raised, Either was Mental was Physical was Addiction Either as a as a Complete Illness Illness Related4 Complete Defence or in Related Related Defence or in Mitigation3 Mitigation 2007 51 14 7 3 3 27.45% 2008 48 16 10 2 1 33.33% 2009 44 15 9 4 2 34.09% 2010 49 21 9 4 3 42.85% 2011 74 20 13 3 4 27.02% 2012 87 19 10 8 2 21.83% 2013 80 27 19 7 0 33.75% 2014 95 30 22 5 3 31.54% 2015 86 26 17 4 0 30.23% 2016 81 27 15 4 1 33.33% 2017 116 26 18 4 2 22.41% 2018 93 31 20 5 3 33.33% 2019 91 22 13 4 1 24.17% Overall: 9955 2946 182 57 25 29.54%
1 These numbers are drawn from the Tribunal jurisprudence publicly available on the Canadian Legal Information Institute website:
Legend: - • : Mental illness - ± : Physical illness - µ : Addiction to or excessive use of alcohol or drugs8
Year Cases 2007 LSUC v Comfort, 2007 ONLSHP 28 LSUC v Bull, 2007 ONLSHP 80 (•) LSUC v Whyte, 2007 ONLSHP 14 (•) LSUC v Korb, 2007 ONLSHP 104 (µ) LSUC v Hunter, 2007 ONLSHP 27 (• ±) LSUC v Kesten, 2007 ONLSHP 95 (•) LSUC v Leighl, 2007 ONLSHP 60 (•) LSUC v Harvey, 2007 ONLSHP 99 (µ) LSUC v Edwards, 2007 ONLSHP 42 (•) LSUC v Branoff, 2007 ONLSHP 103 (µ) LSUC v Cockburn, 2007 ONLSHP 85 (±) LSUC v Henderson, 2007 ONLSHP 108 LSUC v Lubon-Butcher, 2007 ONLSHP 91 (±) LSUC v Winton, 2007 ONLSHP 112 (•) 2008 LSUC v Lang, 2008 ONLSHP 2 (•) LSUC v Poulakis, 2008 ONLSHP 57 (•) LSUC v Piner, 2008 ONLSHP 52 LSUC v Stefoff, 2008 ONLSHP 106 LSUC v Harvey, 2008 ONLSHP 14 LSUC v Simpson, 2008 ONLSHP 62 (• ±) LSUC v D’Agostino, 2008 ONLSHP 26 (•) LSUC v Jemmott, 2008 ONLSHP 61 LSUC v Kenwell, 2008 ONLSHP 48 (•) LSUC v Ehrlich, 2008 ONLSHP 72 (±) LSUC v Kearney, 2008 ONLSHP 78 (•) LSUC v Hennessey, 2008 ONLSHP 96 (• µ) LSUC v Markowitz, 2008 ONLSHP 49 (•) LSUC v Martin, 2008 ONLSHP 123 LSUC v Strug, 2008 ONLSHP 88 (•) LSUC Purewal, 2008 ONLSHP 132 (•) LSUC v Hoskinson, 2008 ONLSHP 55 (±) 2009 LSUC v Raytek, 2009 ONLSHP 19 (• ±) LSUC v Horwood, 2009 ONLSHP 66 (±) LSUC v Notzl, 2009 ONLSHP 26 LSUC v Kelly, 2009 ONLSHP 81 (•) LSUC v Aguirre, 2009 ONLSHP 23 (•) LSUC v Lambert, 2009 ONLSHP 82 (•) LSUC v Grys, 2009 ONLSHP 35 (µ) LSUC v Shifman, 2010 ONLSHP 41 LSUC v McLellan, 2009 ONLSHP 44 (•) LSUC v Di Paolo, 2009 ONLSHP 102 (•) LSUC v Hoskinson, 2009 ONLSHP 54 (±) LSUC v Brousalis, 2009 ONLSHP 106 (• µ) LSUC v Mikitchook, 2009 ONLSHP 59 (•) LSUC v Middlebrook, 2010 ONLSHP 89 (•) LSUC v Castellano, 2009 ONLSHP 80 (•) LSUC v Wong, 2010 ONLSHP 65 (±) 2010 LSUC v Inparajah, 2010 ONLSHP 8 LSUC v Kwaw, 2010 ONLSHP 148 LSUC v Gertner, 2010 ONLSHP 10 (•) LSUC v Chojnacki, 2010 ONLSHP 74 (µ) LSUC v Horgan, 2010 ONLSHP 12 LSUC v Elston, 2010 ONLSHP 82 (• µ) LSUC v Vance, 2010 ONLSHP 14 (•) LSUC v Hatcher, 2010 ONLSHP 91 (•) LSUC v Kelly, 2010 ONLSHP 15 (•) Barreau de Haut-Canada c Malonga, 2010 ONLSHP 101 (±) LSUC v Senjule, 2010 ONLSHP 18 (±) LSUC v Atuobi-Danso, 2011 ONLSHP 60 LSUC v Mandana-McKechnie, 2010 ONLSHP 66 LSUC v Fuerst, 2011 ONLSHP 61 (±) LSUC v Cox, 2010 ONLSHP 24 (•) LSUC v Ndema-Moussa, 2010 ONLSHP 107 (±) LSUC v Rothman, 2010 ONLSHP 25 LSUC v Chojnacki, 2011 ONLSHP 170 (µ) LSUC v Cox, 2010 ONLSHP 120 (•) LSUC v Kryvenko, 2010 ONLSHP 108 (µ) LSUC v Szpirglas, 2010 ONLSHP 133 (•) LSUC v Czernik, 2010 ONLSHP 122 (•) 2011 LSUC v Silver, 2011 ONLSHP 2 (• ±) LSUC v Kuzmicz, 2011 ONLSHP 51 (• µ) LSUC v Bharadwaj, 2011 ONLSHP 4 (•) LSUC v Chambers, 2011 ONLSHP 92 LSUC v Kelly, 2011 ONLSHP 88 (• ± µ) LSUC v Trainer, 2011 ONLSHP 186
7 While each case was only counted once for the purposes of Table 1 at Appendix A (see note 3), I’ve included every decision which mentioned capacity concerns in this chart. 8 If no symbol follows the neutral citation, the capacity issue was unspecified.
2 LSUC v Burns, 2011 ONLSHP 101 (•) LSUC v Rosenthal, 2011 ONLSHP 103 (•) LSUC v Pecoraro, 2011 ONLSHP 11 (•) LSUC v Kryvenko, 2011 ONLSHP 120 (µ) LSUC v Wong, 2011 ONLSHP 90 (•) LSUC v Kesavan, 2011 ONLSHP 155 (•) LSUC v Emond, 2011 ONLSHP 29 (µ) LSUC v Shah, 2011 ONLSHP 157 (•) LSUC v Silver, 2011 ONLSHP 32 (• ±) LSUC v Wysocky, 2011 ONLSHP 189 (•) LSUC v Lyle, 2011 ONLSHP 34 (•) LSUC v Lapointe, 2011 ONLSHP 208 (•) LSUC v Willoughby, 2011 ONLSHP 43 (•) LSUC v Potomski, 2012 ONLSHP 1 LSUC v Karkkainen, 2011 ONLSHP 46 (±) LSUC v Perrelli Jr, 2012 ONLSHP 25 (±) 2012 LSUC v Sinukoff, 2012 ONLSHP 12 LSUC v Novak, 2012 ONLSHP 77 (±) LSUC v Evans, 2012 ONLSHP 21 (•) LSUC v Faga, 2012 ONLSHP 142 LSUC v White, 2012 ONLSHP 48 (•) LSUC v Stone, 2012 ONLSHP 116 (±) LSUC v Shah, 2012 ONLSHP 37 (• ±) LSUC v Guttman, 2012 ONLSHP 119 (• µ) LSUC v Rossman, 2012 ONLSHP 38 (• ±) LSUC v Hoskinson, 2012 ONLSHP 120 (±) LSUC v Markin, 2012 ONLSHP 64 (±) LSUC v Ebagua, 2012 ONLSHP 123 (•) LSUC v Peirce, 2012 ONLSHP 90 LSUC v Litkowski, 2012 OPNLSHP 162 (•) LSUC v Millar, 2012 ONLSHP 74 LSUC v Sam, 2013 ONLSHP 24 (•) LSUC v Bathurst, 2012 ONLSHP 70 (• ±) LSUC v Sloan, 2012 ONLSHP 176 (µ) LSUC v Kirichenko, 2012 ONLSHP 106 (•) LSUC v Novak, 2013 ONLSHP 35 (±) 2013 LSUC v Vader, 2013 ONLSHP 8 (•) LSUC v Wilson, 2013 ONLSHP 106 (•) LSUC v Totera, 2013 ONLSHP 9 (•) LSUC v Bhardwaj, 2013 ONLSHP 111 (•) LSUC v Robinson, 2013 ONLSHP 12 (•) LSUC v Newbury, 2013 ONLSHP 113 (•) LSUC v Newbury, 2013 ONLSHP 36 (•) LSUC v Ludmer, 2013 ONLSHP 114 (•) LSUC v Dyment, 2013 ONLSHP 43 (•) LSUC v Tucker, 2013 ONLSHP 118 (•) LSUC v Boissonneault, 2013 ONLSHP 46 (•) LSUC v Puskas, 2013 ONLSHP 127 (•) LSUC v Matteazzi, 2013 ONLSHP 129 LSUC v Nwakobi, 2013 ONLSHP 140 (±) LSUC v Shifman, 2013 ONLSHP 74 (±) LSUC v Secker, 2013 ONLSHP 148 (• ±) LSUC v Istl, 2013 ONLSHP 123 LSUC v Greenspoon, 2013 ONLSHP 190 LSUC v Flumian, 2013 ONLSHP 92 (•) LSUC v Xynnis, 2013 ONLSHP 154 (•) LSUC v Smith, 2013 ONLSTH 55 (±) LSUC v Zaretsky, 2013 ONLSHP 157 (•) LSUC v Gosbee, 2013 ONLSHP 137 LSUC v Pereira, 2014 ONLSHP 21 LSUC v MacKay, 2013 ONLSHP 105 (•) LSUC v Lebarge, 2014 ONLSHP 31 (•) LSUC v Middlebrook, 2013 ONLSHP 103 (• ±) LSUC v Luzius, 2013 ONLSHP 193 (• ±) 2014 LSUC v Munro, 2014 ONLSTH 49 LSUC v Hartwick, 2014 ONLSTH 170 LSUC v Feldman, 2014 ONLSHP 6 (• µ) LSUC v Harry, 2014 ONLSTH 173 (•) LSUC v Novak, 2014 ONLSHP 19 (• ±) LSUC v Marler, 2014 ONLSTH 203 (±) Barreau de Haut-Canada c Noel, 2013 ONLSHP 30 (•) LSUC v Czernik, 2014 ONLSTH 175 (•) LSUC v McLean, 2014 ONLSTH 100 (•) LSUC v Luizos, 2014 ONLSTH 184 (•) LSUC v Mikitchook, 2014 ONLSTH 58 (•) LSUC v Abbott, 2014 ONLSTH 194 (• ±) LSUC v Peirce, 2014 ONLSTH 61 (•) LSUC v Farant, 2014 ONLSTH 201 (•) LSUC v Lacaria, 2014 ONLSTH 62 (•) LSUC v Van Dusen, 2014 ONLSHP 210 (•) LSUC v Pope, 2014 ONLSTH 71 (•) LSUC v Burdet, 2014 ONLSTH 215 (±) LSUC v Barker, 2014 ONLSTH 72 (•) LSUC v Battaglio, 2014 ONLSTH 222 (•) LSUC v Loria, 2014 ONLSTH 87 (•) LSUC v Tan, 2015 ONLSTH 3 LSUC v Grant, 2014 ONLSTH 125 (•) LSUC v Kennedy, 2014 ONLSTH 227 (µ) LSUC v Rotenberg, 2014 ONLSTH 107 (± µ) LSUC v Lo Faso, 2014 ONLSTH 228 (±) LSUC v Anber, 2014 ONLSTH 143 (•) LSUC v Bereznick, 2015 ONLSTH 10 (•) LSUC v Molson, 2014 ONLSTH 144 (•) LSUC v Novak, 2014 ONLSTH 237 (• ±) LSUC v Smith, 2014 ONLSTH 190 (•) LSUC v Burdet, 2014 ONLSTH 241 (±) LSUC v Peters, 2014 ONLSTH 163 (•) LSUC v Motee, 2014 ONLSTH 242 (•) 2015 LSUC v Abbott, 2015 ONLSTH 12 (•) LSUC v Gavris, 2015 ONLSTH 144 (±)
3 LSUC v Lyon, 2015 ONLSTH 15 (•) LSUC v Williams, 2015 ONLSTH 146 (±) LSUC v Nguyen, 2015 ONLSTH 33 (•) LSUC v Fitz Gibbon, 2015 ONLSTH 167 LSUC v Cwalino, 2015 ONLSTH 32 (•) LSUC v Flumian, 2015 ONLSTH 162 (•) LSUC v Kotsakis, 2015 ONLSTH 38 (•) LSUC v Burtt, 2015 ONLSTH 165 (•) LSUC v Munro, 2015 ONLSTH 45 LSUC v Jones, 2015 ONLSTH 191 LSUC v Silver, 2015 ONLSTH 50 (• ±) LSUC v Florentis, 2015 ONLSTH 181 (•) LSUC v Tan, 2015 ONLSTH 60 (•) LSUC v Brooks, 2015 ONLSTH 194 LSUC v Peters, 2015 ONLSTH 65 (•) LSUC v Williams, 2015 ONLSTH 195 (±) LSUC v Nicholson, 2015 ONLSTH 110 (•) LSUC v Batstone, 2015 ONLSTH 214 (•) LSUC v Freeman, 2015 ONLSTH 125 (• ±) LSUC v Klein, 2015 ONLSTH 226 LSUC v Willoughby, 2015 ONLSTH 129 LSUC v Jaszi, 2015 ONLSTH 211 LSUC v McClelland, 2015 ONLSTH 138 (•) LSUC v Tran, 2015 ONLSTH 218 (•) LSUC v Botiuk, 2015 ONLSTH 143 (•) 2016 LSUC v Cuddy, 2016 ONLSTH 15 LSUC v Tinianov, 2016 ONLSTH 91 (•) LSUC v Ellis, 2016 ONLSTH 20 (•) LSUC v McAllister, 2016 ONLSTH 112 (•) LSUC v Good, 2016 ONLSTH 21 LSUC v Fleming, 2016 ONLSTH 133 (•) LSUC v Shah, 2016 ONLSTH 36 (• ±) LSUC v Barile, 2016 ONLSTH 150 LSUC v Middlebrook, 2016 ONLSTH 38 (•) LSUC v Pley, 2016 ONLSTH 159 (•) LSUC v Pope, 2016 ONLSTH 40 (•) LSUC v Good, 2016 ONLSTH 134 LSUC v Rapoport, 2016 ONLSTH 47 (•) LSUC v Koumerelas, 2016 ONLSTH 147 LSUC v Thatcher, 2016 ONLSTH 63 LSUC v Cuddy, 2016 ONLSTH 154 (•) LSUC v Harry, 2016 ONLSTH 62 (•) LSUC v Shewchuk, 2016 ONLSTH 178 LSUC v Mazinani, 2016 ONLSTH 80 (±) LSUC v Tan, 2016 ONLSTH 171 (•) LSUC v Silver, 2016 ONLSTH 82 (• ±) LSUC v Dillon, 2016 ONLSTH 167 LSUC v Fine, 2016 ONLSTH 99 (•) LSUC v Raytek, 2016 ONLSTH 190 LSUC v Subramaniam, 2016 ONLSTH 84 (µ) LSUC v Latina, 2016 ONLSTH 192 (•) LSUC v Palios, 2016 ONLSTH 85 (±) LSUC v Robinson, 2016 ONLSTH 200 (• ±) 2017 LSUC v Cairns, 2017 ONLSTH 8 (±) LSUC v Robson, 2017 ONLSTH 132 (•) LSUC v Anderson-Clarke, 2017 ONLSTH 10 LSUC v Comtois, 2017 ONLSTH 140 (•) LSUC v Robinson, 2017 ONLSTH 13 (• ±) LSUC v Mutoigo, 2017 ONLSTH 173 LSUC v Cusack, 2017 ONLSTH 22 LSUC v Amiri, 2017 ONLSTH 152 (•) LSUC v Batstone, 2017 ONLSTH 34 (•) LSUC v Zigler, 2017 ONLSTH 172 (•) LSUC v Munir, 2017 ONLSTH 52 (µ) LSUC v Mok, 2017 ONLSTH 177 (•) LSUC v Panacci, 2017 ONLSTH 58 LSUC v An, 2017 ONLSTH 181 (•) LSUC v Jackson, 2017 ONLSTH 64 (µ) LSUC v Sumner, 2017 ONLSTH 194 (•) LSUC v English, 2017 ONLSTH 65 (•) LSUC v Kaminski, 2017 ONLSTH 200 (• ±) LSUC v Bryson, 2017 ONLSTH 71 (•) LSUC v Simpson, 2017 ONLSTH 223 LSUC v Ronen, 2017 ONLSTH 89 (•) LSUC v Chandra, 2017 ONLSTH 214 (•) LSUC v Karlstedt, 2017 ONLSTH 112 (•) LSUC v Richey, 2017 ONLSTH 224 (•) LSUC v Secker, 2017 ONLSTH 116 (•) LSUC v Amiri, 2017 ONLSTH 230 (• ±) LSUC v Kotsakis, 2017 ONLSTH 163 (•) 2018 LSUC v Robson, 2018 ONLSTH 6 (•) LSO v Yantha, 2018 ONLSTH 94 (• µ) LSUC v Adams, 2018 ONLSTH 20 (• ±) LSO v Low, 2018 ONLSTH 102 LSUC v Kripak, 2018 ONLSTH 54 (• ±) LSO v Newbury, 2018 ONLSTH 104 (•) LSUC v Spettigue, 2018 ONLSTH 28 LSO v Walia, 2018 ONLSTH 133 (•) LSUC v Khan, 2018 ONLSTH 35 (•) LSO v Gill, 2018 ONLSTH 130 (• ± µ) LSUC v Henry, 2018 ONLSTH 36 LSO v Khan, 2018 ONLSTH 131 (•) LSUC v Lewis, 2018 ONLSTH 62 (•) LSO v Strashin, 2018 ONLSTH 134 (•) LSUC v Fine, 2018 ONLSTH 56 (•) LSO v Taylor, 2018 ONLSTH 136 (•) LSUC v Burtt, 2018 ONLSTH 63 (•) LSO v Reble, 2018 ONLSTH 140 (•) LSUC v Kerr, 2018 ONLSTH 65 (•) LSO v Kay, 2018 ONLSTH 144 (•)
4 LSO v Pahuja, 2018 ONLSTH 67 (µ) LSO v Marler, 2018 ONLSTH 147 LSO v Claxton, 2018 ONLSTH 75 LSO v Houlahan, 2018 ONLSTH 149 (• ±) LSO v Grewal, 2018 ONLSTH 90 Barreau de l’Ontario c LaVictoire, 2018 ONLSTH 153 (•) LSO v Oti, 2018 ONLSTH 82 LSO v McNamara, 2018 ONLSTH 155 (•) LSO v McEnery, 2018 ONLSTH 83 (±) LSO v Bodkin, 2018 ONLSTH 161 LSO v Robson, 2018 ONLSTH 84 (•) Barreau de l’Ontario c Dougan, 2018 ONLSTH 162 (•) LSO v Nasseri, 2018 ONLSTH 85 (•) LSO v Gillespie, 2018 ONLSTH 164 LSO v Sayers, 2018 ONLSTH 87 LSO v Ejidike, 2018 ONLSTH 169 (•) 2019 LSO v Walsh, 2019 ONLSTH 21 (•) LSO v Bien, 2019 ONLSTH 103 (±) LSO v Mokhnach, 2019 ONLSTH 26 (±) LSO v Miller, 2019 ONLSTH 106 (•) LSO v Gillespie, 2019 ONLSTH 27 LSO v Fathi, 2019 ONLSTH 112 LSO v Lee, 2019 ONLSTH 34 (• µ) LSO v Stevens, 2019 ONLSTH 114 (• ±) LSO v Conroy Jr, 2019 ONLSTH 44 (•) LSO v Kwok, 2019 ONLSTH 115 (•) LSO v Reble, 2019 ONLSTH 49 (•) LSO v Cadogan, 2019 ONLSTH 137 (±) LSO v Bitter, 2019 ONLSTH 71 LSO v Zopf, 2019 ONLSTH 144 (•) LSO v McLean, 2019 ONLSTH 62 LSO v Bien, 2019 ONLSTH 145 (±) LSO v Kerr, 2019 ONLSTH 86 (•) LSO v Morhan, 2019 ONLSTH 149 LSO v Brown, 2019 ONLSTH 91 (•) LSO v Piccinini, 2019 ONLSTH 157 (•) LSO v Tran, 2019 ONLSTH 101 (•) LSO v Bolt, 2019 ONLSTH 158 (•)
5