In a recent decision of the Law Society Tribunal (“Tribunal”),-
Law Society of Ontario v. Burtt, 2018 ONLSTH 63 - panelist Larry
Banack dismissed an application by the Law Society of Ontario (“LSO”)
seeking a finding that one of its lawyer licensees had committed
professional misconduct. Mr. Banack found that the lawyer’s alleged
misconduct, i.e. his failure to cooperate with a Law Society investigation was
the direct result of a disability and that the Law Society had not discharged
its legal obligation to accommodate the lawyer’s disability to the point of
undue hardship.
Interestingly, despite evidence that many lawyers who are
the subjects of LSO’s disciplinary proceedings are suffering from a mental
illness such as depression which can amount to a disability under the Ontario Human
Rights Code (the “Code”), Mr. Banack found that the circumstances of
this case were “highly unusual”. His findings were largely based on the
particular facts of the case, i.e. that the LSO knew that the lawyer was
suffering from a disability that resulted in him “freezing” and therefore was
unable to provide a written response to the LSO’s request for communication.
In this case, Mr. Burtt admitted that he had not responded
in writing to the LSO. However, Mr. Burtt asserted that he was not
capable of providing written responses, as demanded by the LSO, by reason of a
documented disability that caused him to “freeze” when confronted with the
investigation. The defence that was asserted by Mr. Burtt resulted from a
previous discipline proceeding in 2015. As a result of that proceeding,
the LSO with the consent of Mr. Burtt, commissioned and received two psychological
reports. Those reports were contained in the LSO’s file and both reports
concluded that Mr. Burtt was suffering from a psychological condition which
negatively affected his ability to respond to the LSO within specified time
frames.
In the previous matter, Mr. Burtt had been reprimanded and
ordered to comply with a psychiatric treatment plan which remained in effect up
until the date of the hearing before Mr. Banack. In making his finding
against the LSO, Mr. Banack relied on testimony from an LSO investigator that
not only had he not read the two psychological reports that were contained in
the LSO’s file but had only learned of them on the morning of the
hearing.
The Code prohibits discrimination with respect to membership
in a trade or occupational association on specified grounds, one of which is
disability. In a previous case – Law Society of Upper Canada v.
Czernik (2010 ONLSHP 122) – the Tribunal held that: “The Law
Society and the Tribunal are subject to the Code and must apply the duty to accommodate
where there is a proven disability at play. A failure to fulfill
professional obligations that is caused by a disability must be accommodated by
the Law Society and the Panel”. The LSO was
required to accommodate Mr. Burt to the point of undue hardship. Mr.
Banack found that he was satisfied that the record before him was sufficient to
make the findings as to the scope and content of the LSO’s duty to
accommodate. Not only did Mr. Burtt tell the LSO about the prior
disciplinary proceedings and the psychological reports, the decisions were
publicly available on CanLII and it was part of his LSO file.
In addition, the information available to the LSO’s
investigators from their own observations of Mr. Burtt, his conduct and his
communications with them ought to have been enough to alert them to consider
the existence of a condition which required accommodation. Mr. Banack
found that the difference in this case, as compared to many before the
Tribunal, was that Mr. Burtt had responded to the LSO on a timely basis and as
Mr. Banack found, was to be contrasted with the ‘typical” response of the
licensees in similar circumstances which included evasion, denial, obfuscation
and disregard of professional obligations. In this unusual case, the investigators
engaged with an apparently cooperative licensee in lengthy conversations in
which he disclosed a prior proceeding and medical reports, offered promises of
cooperation and did not seek to avoid or fail to communicate with them.
He simply failed to follow through on his commitments.
All of this should have alerted the LSO’s investigators that
the situation called for alternative thinking which by any other name amounted
to accommodation. The issue then became one of whether the accommodation
afforded by the LSO, i.e. providing additional time for Mr. Burtt to respond to
it was sufficient in the circumstances. Mr. Banack found that it was
not. He found that in the “highly unusual” circumstances of this licensee
who was known to be suffering from a disability that resulted in freezing but
engaged in protracted dialogue with the investigators, the burden was on the
investigators to at least canvass what alternative approach might have
fulfilled their objectives. In other words, that was no engagement in the
express thought process of inquiry concerning the need for or scope of
accommodation that was required.
In this case, it was impossible for Mr. Burtt to comply with
the LSO’s requirement of written cooperation. The LSO had alleged that
Mr. Burtt “failed to cooperate with the Law Society investigation by failing
to provide a prompt and complete response to written requests made by the Law
Society’s investigators”. Mr. Banack reviewed rule 7.1-1 of the Rules
of Professional Conduct, and held that a requirement to respond in writing
is not found in either the rules or the notice of application. In other
words, the LSO could have accommodated Mr. Burtt’s disability by allowing him
to respond orally to their inquiries and to attend at his office to obtain the
information that it needed. He concluded that the LSO had failed to
satisfy its onus of demonstrating what considerations, assessments and steps
were undertaken to accommodate Mr. Burtt “to the point of undue hardship”.
In dismissing the LSO’s application, Mr. Banack concluded
that Mr. Burtt’s disability was the cause of his inability and failure to
provide a written response to the investigator’s demands. Mr. Burtt did
not fail to comply with his regulatory obligations but only failed, by reason
of his disability, to comply with the manner to which compliance was
demanded.
Regards,
Blair
No comments:
Post a Comment