Wednesday, September 21, 2016

Three Most Fatal Errors Committed by Judicial Misconduct and Professional Discipline Hearing Panels

1.   Jurisdiction - Hearing Panels adjudicating both judicial and professional
      misconduct proceedings have limited jurisdiction.  Their jurisdiction stems
      primarily from the statute creating them.  In virtually every jurisdiction in
      North America the starting point for jurisdiction is a complaint in writing.
      What constitutes a complaint in writing is a question of law which is routinely
      litigated as a preliminary issue in both judicial misconduct and professional
      discipline hearings.

      In Ontario the seminal case on jurisdiction in the judicial misconduct arena is
      Hryciuk  v.  Ontario 31 O.R. (3d) 1.  In that case the Court of  Appeal for Ontario
      reversed a finding of judicial misconduct and hence removal from office on
      the basis that the decision-maker exceeded her jurisdiction by entertaining
      factors or incidents which went beyond the complaint and which were not
      pre-screened by the complaints committee. The court, led by Madame Justice
     Abella, ruled that the decisions on both liability and penalty could not stand since
     it could not be ascertained as to whether removal would follow if only the matters
     which were properly before the decision-maker were considered.

      A similar result occurred in Katzman  v. Ontario College of Pharmacists 2002
      Canli 16887 (ONCA).  There the court held that a complaints committee did not
      have jurisdiction to refer matters beyond two specific complaints which they were
      appointed to investigate and hence findings of misconduct based on them were
      set aside.

2.   Abuse of Process -  The common law doctrine of abuse of process is a very broad
   and flexible doctrine whereby proceedings could be stayed when a court or tribunal
   finds that the interests of justice would not be served by carrying out a proceeding
   on its merits on account of unfairness in the proceedings.  The Supreme Court of
   Canada expanded on the circumstances which will give rise to an abuse of process
   in Blencoe  v.  B.C. Human Rights Commission.  In Blencoe the Supreme Court
   held that a stay of proceedings or other remedy may be in order where there has
   been inordinate delay in the prosecution of a matter which has caused prejudice to
   the subject of the proceedings in terms of mental suffering or other harm or where
   there has been delay which has adversely impacted the reliability of the evidence.

   Delay has firmly established itself as one of the most serious grounds of abuse of
   process at the Law Society Tribunal. In Re Baker and LS.U.C. 2000 a hearing
   panel chaired by R. Yachetti, Q.C. stayed proceedings against the subject lawyer
   invoking the doctrine of abuse of process while also relying on the principles
   articulated by the B.C. Court of Appeal in Blencoe  v. B.C. Human Rights
Presumptive Prejudice:

   In Re Baker (supra) the hearing panel determined that a delay of some
   10 years in the prosecution of the case was presumptively prejudicial and
   overrode the societal interest of having the case adjudicated on its merits. In
   rejecting the argument of very learned and able counsel, the late Edward
   Greenspan that the complexity of the matters, the seriousness of the complaints
   and the societal interest in seeing them resolved after a full hearing on the merits
   the hearing panel stated, ...."our system of jurisprudence at every level does not
   condone the sacrifice of individual rights at the altar of societal interests."

Psychological harm as

   In the past year or so our Divisional Court has been called upon to review two
   cases from the Law Society Tribunal involving the interpretation of Blencoe
   v.  B.C. Human Rights Commission (supra).  In Totera  v.  The Law Society of
   Upper Canada 2016 ONSC 1578 the court provided guidance on the psychological
   harm aspect of prejudice to the subject of the proceedings. In Totera (supra) a
   hearing panel of the Law Society Tribunal stayed the subject lawyer's discipline
   proceedings applying Blencoe (supra) finding that a close to six year delay in
   bringing the case to hearing was inordinate and caused psychological harm to him.
   The Law Society Appeal Panel overturned the stay concluding that they applied the
   wrong test in assessing prejudice. The majority of the Law Society Appeal panel
   were of the view that the lawyer failed to establish prejudice because he was a
   "thin skull" person with a propensity to suffer more than the average person.
   The Divisional Court restored the stay order by the original Hearing Panel
   concluding that the Appeal Panel was incorrect in finding the Hearing Panel
   erred on this point.

Mitigation of penalty
an available remedy for
inordinate delay:

   A very common error of administrative tribunal in the adjudication of abuse of process
   motions asserting Blencoe(supra) is to forget that a stay is not the only remedy available
   for remedying inordinate delay.  In keeping with this mindset it is quite common for
   hearing panels in both judicial misconduct proceedings and professional discipline
   proceedings to issue three discrete decisions(1.Decision on the Motion, 2. Decision
   finding liability and 3. Decision on penalty) which all fail to address the following
   salient questions:  1.  Was the delay inordinate ?   2.  Does the delay bring the
   adjudicative process into disrepute ?  3.  Did the delay affect the fairness of the
   hearing or cause psychological harm  to the subject of the hearing ?  This manner
   of adjudication is a clear error of law where the subject party has squarely sought
   a mitigation of penalty as an alternative remedy for the delay.

   In Law Society of Upper Canada  v.  Abbott 2016 ONSC 641 the Divisional Court
   upheld the majority decision of a Law Socieity Tribunal appeal panel substituting a
   two year suspension for the revocation of a lawyer's licensce to practice law. In that
   case the Appeal Panel found that a seven year delay was unwarranted and not the
   fault of the lawyer and could be a mitigating factor on penalty.  This is what the
   court said on the point:

[48]   In this case, the Appeal Division was faced with what it found to be a period of
unwarranted delay that exceeded seven years, none of which was the fault of the
appellant.  There is not issue that delay that does not justify a stay can be a mitigating
factor in penalty. The only issue was whether such a delay could be a factor that turned
a revocation into one that did not involve the lawyer leaving the profession. The
Appeal Division concluded that it could. It did so because it recognized that delay
in the investigation and prosecution of serious misconduct could be just as harmful
to the integrity of and the public's confidence in the legal profession as the Appellant's
continued right to practice law. The Appeal Division's reasoning on this issue was
justifiable, transparent and intelligible and the conclusion it came to fell within the
"range of possible, acceptable outcomes which are defensible in respect of the facts
and the law." (Dunsmuir,para 47)

3.   Use of Prior Decisions - The question of what use can be made of a prior decision
of another hearing panel involving the same subject before a hearing panel is yet
another significant source of error in both judicial misconduct and professional
discipline hearings.  There appears to be a temptation to circumscribe the subject
judge or professional in his or her defence of the current allegations based on the
findings of the prior panel. This is a clear error of law and a hypothetical set
of facts should illustrate the error in this logic. Judge A was found liable of
judicial misconduct in 1972 pertaining to the manner in which she interacted with
court staff between 1967 and 1969.  In 1994 Judge A is called to answer to similar
allegations - only this time her acts are alleged to be unwanted, vexatious and
amounting to creating a poisoned work environment involving a different set
of staff between 1966 and 1969. Clearly, the fact that Judge A may have been
found liable by the first hearing panel can not in law prevent Judge A in the
second hearing from asserting that her conduct was welcomed and that she
did not create a poisoned work environment. This is so even if the offence
in question is not dependent on the intent of Judge A. Judge A's defence
in that context is not dependent on her state of mind but is dependent on
whether in all of the circumstances her acts could be found by a reasonable
third person to be vexatious and unwelcome and not solely the subjective belief of the
recipients.(see or eg. CHRC  v.  Canadian Armed Forces 1999 Canlii 18902
and General Motors of Canada Limited  v. Johnson 2013 ONCA 502)
This involves a fact-finding process by the hearing panel whereby
they subject all of the evidence to a careful analysis of both the credibility
and reliability of the evidence.(see for eg. Faryna  v.  Chorney [1952] 2 D.L.R. 354.)
Evidence that a hearing panel failed to subject  the evidence to this scrutiny is a
fundamental and manifest error of law which denudes all of their decisions of any
legal force and effect.


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