Saturday, March 19, 2016

Divisional Court Sends Clear Message to Law Society Appeal Panel on Blencoe Stay Ruling by Hearing Panel

     A three judge panel of the Divisional Court sitting on an appeal from a decision of a Law Society Tribunal Appeal Panel which set aside a stay of proceedings ordered by a Hearing Panel unanimously restored the stay of proceedings in accordance with Blencoe  v.  B.C. Human Rights Commission [2000] 2 S.C.R. 307.(see Totera  v. The Law Society of Upper Canada 2016 ONSC 1578)  The Hearing Panel found that the Society's five year delay between investigation and hearing was inordinate, the delay brought the adjudicative process into disrepute and the delay had caused significant psychological harm to the lawyer.  The majority of the Appeal Panel creatively overturned the Hearing Panel on the the third part of the Blencoe test, namely, whether the lawyer suffered significant psychological harm as a direct result of the delay.  The Divisional Court essentially upheld the very sound dissent of Ms. Janet Leiper of the Appeal Panel. Here are the salient parts of the Divisional Court's ruling:

Basic Facts:

- March of 2006 Law Society begins investigation into mortgage fraud
- In May 2006 the lawyer was asked to produce several files and he complied promptly
- The lawyer heard nothing from the Law Society until February of 2008 (21 months later)
- Another investigator was assigned to the case in February 2008.  She asked the lawyer to give her 75 files which he did
- On September 17, 2010 (2 2/2 years later), the meeting took place.  The lawyer attended without counsel and was cooperative
- On March 22, 2011 (6 months later) a Notice of Application alleging fraudulent involvement of 12 transactions was issued
- On February 27, 2012 - five years and 11 months after the initial contact the hearing began
- These problems of delay were systemic, and the lawyer neither contributed to nor waived the delay
- The led evidence from a psychiatrist and his dentist on the psychological harm he suffered as a result of the delay and the Law Society did not cross-examine on this evidence

Issues to be addressed on this Appeal are:

i    Did the Majority of the Appeal Panel apply the correct test in reviewing the decision of the Hearing Panel ?

ii   Did the LSUC delay result in significant psychological harm to the Appellant ?

The Focus on the "Thin Skull Rule"

[65]   The Appeal Panel held that the Hearing Panel failed to distinguish the impact of the delay from the investigation and applied the wrong test by focussing on the "thin skull" rule.

[66]   I disagree.  As noted in the clear and succinct dissenting reasons of Ms. Leiper, at para 115:

"This notion appears to have been imported from Dr. Walsh's report in which he analogized the Lawyer to person with "egg shell skulls", making them more vulnerable t injury than other.  The hearing panel observed that the predisposition of the Lawyer meant that he suffered more than the average lawyer would have suffered as a result of the delay.  This unnecessarily complicated the straightforward idea that it is the harm caused by the delay that is the focus of the second branch of the Blencoe test.  A lawyer with a pre-existing condition who is harmed by the delay and suffers as a result is open to receiving relief as a lawyer with no such condition who subsequently develops significant psychological harm.  The test in Blencoe asks if there was inordinate delay and did it cause significant prejudice.  On the record that was before this hearing panel, this was a reasonable conclusion.

[67]   The Panel concluded, at para 67, that although the Appellant was an anxious person before the investigation began, "the Society's fiver-year delay....exacerbated Mr. Totera's psychological integrity in a serious and profound manner."

[68]   The evidence accepted by the Hearing Panel included insomnia, isolation, loss of income, loss of self-confidence, phobic symptoms, feelings of shame and bruxism (teeth grinding)

[69]   The fact that the damage to him was far more significant than might be suffered by another lawyer who did not have his predisposition does not negate the fact that the Appellant suffered serious psychological harm as a result of the delay.

Summary Conclusions

[70]   The Appeal Panel was incorrect in finding that the Hearing Panel applied the wrong test.

[74]   On the basis of the evidence as a whole, including the Appellant's cross-examination, the Appellant established that he suffered serious psychological harm as a result of the delay in the investigation.


[16]   The court in Blencoe provides that for a stay of proceedings to be justified at common law, there must be:

i   inordinate delay, considered in light of all of the circumstances;

ii   the delay must be such that it brings the adjudicative process (in this case the Law Society's system of professional regulation) into disrepute; and

iii   the delay must affect the fairness of the hearing or there must be significant psychological harm to the subject of the hearing as a direct result of the delay.

Thorburn J.
Wilson J.
Stewart J.

Released: March 8, 2016

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