Benchers at the Law Society of Ontario were divided at a Feb. 28 Convocation meeting over new proposed rules for Ontario’s Law Society Tribunal.
If Convocation ultimately decides to adopt the rules, it could improve the flexibility of the tribunal, which can decide the fate of lawyers and paralegals accused of misconduct, said Bencher Isfahan Merali, chairwoman of the committee that presented the proposal.
“You’ll see the rules are more user-friendly and flexible, they are clearer and use plain language,” Merali told Convocation.
The new proposed rules would revoke the old rules in favour of recommendations that “better accommodate vulnerable witnesses and those with mental health issues,” said a report from the LSO’s Tribunal committee. Among the proposed rules are a simpler appeal process, a rule on publication bans and anonymity for children and sexual misconduct complainants and “specific considerations for departures from openness in capacity proceedings.” There are also new timelines that speed up requests for written reasons and allow licensees more time to respond in certain situations.
However, the tribunal committee was split over the proposed approach to handling evidence.
Some on the tribunal committee said they favoured evidence rules in s.15 of the Statutory Powers Procedure Act, which allows for tribunals to admit evidence that would not be admissible in a civil proceeding, the report said.
“It is important to note that applying the SPPA would not lead to automatic admission of evidence that would be excluded in civil court. Rather, it would give a panel discretion to do so,” the report said. “The current rules, which require the application of the civil rules of evidence, make the Law Society of Ontario an outlier, although not unique, among Canadian law societies. The only other Canadian law society that is required to apply the civil rules is Manitoba.”
Bencher Raj Anand said at Convocation that the law society tribunal has already exempted the civil rules, in some situations, for more than a decade.
“We shouldn’t underestimate the ability of our adjudicators to assess admissibility,” said Anand, a partner at WeirFoulds LLP. “The fact that the SPPA would apply does not exempt admissibility. It simply indicates that some of the doctrines and technical rules of civil cases may not apply. That doesn’t mean the same rationale that governs them won’t apply.”
The proposed rules could reduce the complexity and improve flexibility for underrepresented licensees appearing before the LSO tribunal, said Rebecca Durcan, a partner at Steinecke Maciura LeBlanc, who spoke at Convocation.
“An unrepresented lawyer — even those that practice litigation — may not be quite as up to date on evidentiary rules or evidentiary law,” said Durcan. “Providing that clarity, that simplicity, to unrepresented licensees is a great benefit. . . . This is a foundational principle in a lot of administrative tribunals. It’s important to remember why administrative tribunals were created — to inject flexibility.”
Others, including tribunal committee vice chairman Paul Cooper of Cooper Jørgensen, favoured keeping the existing approach, where the rules of evidence applicable in civil proceedings apply at many LSO tribunal hearings. Cooper moved to amend the proposed rules to maintain the reliance on the evidentiary rules used in civil cases, instead of adopting the SPPA approach to evidence.
“Here’s why I say ‘Do not change it,” Cooper said at Convocation. “This greater flexibility does not provide an answer. Imagine you are before a tribunal, maybe dealing with incivility. Maybe they want to add affidavits about your facial expression and how it was interpreted. That may, under the SPPA, be relevant, because the core issue will be or could be your civility. . . . This is not the answer.”
Joseph Groia, a bencher who was previously accused by the LSO of professional misconduct based on uncivil behaviour during a trial, ultimately went to the Supreme Court of Canada, which dismissed the complaints against him.
Groia, who practises at Groia & Company PC, said at Convocation that he agreed with Cooper.
“I have prosecuted cases using s. 15, as well as the civil rules, as well as the criminal rules,” he said. “In addition, as you all know, I also had an experience as a respondent in a law society proceeding where a hearing took place for a period in excess of 20 days. I have no doubt that the result in that hearing would have been significantly and materially different if the s. 15 rules had been in place. . . . I can tell you, as a matter of my experience, s. 15 hearings are conducted in a way that are fundamentally unfair to licensees.”
Janis Criger, president of the Ontario Deputy Judges Association, who has chaired LSO tribunal hearings, said she also opposed the proposed change to the approach to evidence.
“Exclusion of any evidence will . . . rely on the perception of fairness by the adjudicator or chair. Fairness is subjective,” said Criger. “Evidentiary rules were developed in the first place so we didn’t rely on subjective notions to assess what evidence we should use to change the course of a person’s life.”
Bencher Teresa Donnelly, a Crown attorney from Huron County, also raised questions at Convocation about whether the proposed rules go far enough to protect witnesses and complainants during the cross-examination process.
“If a victim or a person complaining of sexual assault or sexual harassment comes before the tribunal and [the licensee] is unrepresented, she gets cross-examined by the person she says sexually harassed or assaulted her?” asked Donnelly.
A Feb. 28 report from the LSO’s Discrimination and Harassment Counsel said that 68 individuals contacted the DHC program with a new matter in the period starting in July 2018 and ending in December 2018. That represented a decreased rate compared to the same period in 2017. In the 2018 timeframe, sexual harassment was the most common complaint.
“In our view, departing from the civil rules of evidence actually will allow the panel to prevent things like a person who has been sexually assaulted to be cross-examined by the person who alleged to have sexually assaulted them,” Merali said. “These concerns were certainly considered and we believe this change will actually address it in a better way.”