Following a finding of professional misconduct, a Hearing Panel of the Law Society of Upper Canada (“LSUC”) ordered that the former member be disbarred. The LSUC Appeal Panel set aside the penalty order and substituted its penalty that the former member receive ongoing medical treatment, file medical reports, and practice law only as an employee of an approved member of the LSUC. On appeal by the LSUC, the Court found that the Appeal Panel stepped out of its proper role as a “first review tribunal” and erroneously took on a trial de novo role and proceeded as an initial hearing panel. The Court set aside the penalty imposed by the Appeal Panel and reinstated the Hearing Panel’s penalty of disbarment.

Administrative law – Barristers and solicitors – Disciplinary proceedings – Penalties – Disbarment – Decisions of administrative tribunals – Law Societies – Appeal process – Fresh evidence – Admissibility – Jurisdiction – Procedural requirements and fairness

Law Society of Upper Canada v. Crozier, [2005] O.J. No. 4520, Ontario Superior Court of Justice, October 24, 2005, J.G.J. O’Driscoll, P.G. Jarvis and K.E. Swinton JJ.

Following a hearing by the Hearing Panel of the Law Society of Upper Canada (“LSUC”), a former member was found to have engaged in professional misconduct. The Hearing Panel conducted a penalty phase of the hearing and considered that the former member had twice before been disciplined for professional misconduct. In its reasons for penalty, the Hearing Panel concluded that the former member was ungovernable due to her persistent contempt for the Law Society and the findings of professional misconduct. As a result, the Hearing Panel decided that disbarment was warranted. The former member appealed the Hearing Panel’s orders to the LSUC’s Appeal Panel. The Appeal Panel dismissed the member’s various grounds of appeal which included conflict of interest, abuse of process, failure of the Hearing Panel to move to facilities where she could see the panel members from where she was sitting, and other alleged breaches of the procedural and natural justice rights.

The Appeal Panel then considered the penalty imposed by the Hearing Panel and admitted “fresh evidence” in the form of letters and medical reports of the member’s treating psychiatrist that the former member suffered from a very severe stress response manifesting itself in depression and incapacity. These reports countered the opinion of a psychiatrist retained by the Hearing Panel (with the member’s consent) who concluded that the former member suffered from a mixed personality disorder. The Appeal Panel held it preferred the diagnosis of the treating psychiatrist, and as such, set aside the penalty of disbarment and ordered that the member continue treatment, provide medical reports, and practice law only as an employee of an approved member of the LSUC.

The LSUC appealed the Appeal Panel’s decision on penalty to the Divisional Court. The Court allowed the appeal. With respect to the “fresh evidence”, the Court took the view that the letters of the treating psychiatrist did not meet the criteria for admissibility set out by the Supreme Court of Canada in Palmer v. the Queen, [1980] 1 S.C.R. 759 and Regina v. Levesque, [2002] 2 S.C.R. 487. However, without deciding whether “fresh evidence” was evidence, the Appeal Panel erred in concluding that the fresh evidence, with a different diagnosis of the former member’s problems, should cause it to change or vary the penalty imposed by the Hearing Panel. The proper question to be determined by the Appeal Panel was whether the Hearing Panel’s penalty was unreasonable in light of the evidence before the panel or in light of the “fresh evidence”. A review of the Hearing Panel’s decision showed that it was the words, actions, and conduct of the former member, for which she was responsible, that influenced the Hearing Panel’s decision to disbar. The decision to disbar was not based on a psychiatric diagnosis. In conducting the penalty review in the manner it did, the Appeal Panel stepped out of its proper role as a “first review tribunal” and erroneously took upon itself a trial de novo role and proceeded as an initial hearing panel. As a result, its decision on penalty was set aside and the Hearing Panel’s penalty of disbarment was reinstated.

To stay current with the new case law and emerging legal issues in this area, subscribe here.