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Tribunal Must Give Adequate Reasons
Published in the March 2010 issue of Litigation Notes - View Article
The Ontario Court of Appeal orders a new hearing because a disciplinary panel of the Law Society of Upper Canada gave deficient reasons for its decision.
The Ontario Court of Appeal recently released an important decision relating to the necessity for courts and tribunals to give adequate reasons for their decisions. In November of 2002 an Ontario Lawyer, Gary Neinstein, had a discipline hearing before a Hearing Panel of the Law Society of Upper Canada. The allegations related to three complaints of sexual harassment alleged to have occurred between 1988 and 1998. In November of 2003, the Panel found against Mr. Neinstein on two of the three allegations and ordered him disbarred.
Mr. Neinstein appealed to the Law Society Appeal Panel, which set aside the findings of professional misconduct and ordered a new hearing. The Law Society appealed to the Divisional Court, which restored the finding of professional misconduct, but reduced the penalty to a suspension of three months. Mr. Neinstein appealed to the Ontario Court of Appeal.
The first argument in the Court of Appeal related to a reasonable apprehension of bias on the part of one of the members of the Law Society Hearing Panel, Mr. George Hunter. During the proceedings involving Mr. Neinstein, Mr. Hunter was himself carrying on a sexual affair with a client. He was later found guilty of professional misconduct relating to that affair and was suspended. The argument was that Mr. Hunter would have been predisposed to treat Mr. Neinstein harshly in order to convey the impression that he was not someone who would tolerate sexual misconduct and that this might stand him in good stead if his own transgressions were ever to come to light. The Court of Appeal stated that while this scenario could not be dismissed as an outright impossibility it was, however, “…based on speculation that goes well beyond the kinds of reasonable inferences that can be made in assessing a reasonable apprehension of bias claim.” The Court then went on to consider the adequacy of the Reasons given by the Hearing Panel for the decision that it reached. The Court points out that this was a classic “he said - she said” case. It was alleged that Mr. Neinstein had sexually harassed three women. The Hearing Panel found against Mr. Neinstein on two of the three claims, those of CT, a client, and SG, a secretary in his law office. CT claimed that Mr. Neinstein had been “overly friendly” from the outset of their relationship, had made inappropriate sexual comments and touched her in inappropriate ways. Nevertheless, she began a consensual sexual relationship with him. She described having met him twice in a hotel and having sexual relations with him four times in his office, during regular office hours. There was no independent evidence in respect of her allegations of sexual harassment. She did produce a hotel bill which showed a telephone call to Mr. Neinstein’s office and, notes on hotel stationary indicating an exchange of telephone calls between her and Mr. Neinstein. She testified that when she was in Mr. Neinstein’s office she noticed pictures of his children but none of his wife. She claimed that she did not know that he was married and felt humiliated and ashamed when she learned this after the affair was terminated.
Mr. Neinstein produced a diary entry showing an appointment which, if kept, would indicate that he was not at the hotel. He testified that his office door was always open. There was also evidence that his office contained photographs of his entire family, including his wife.
SG, who had worked as a secretary in Mr. Neinstein’s office, alleged various improprieties, including one incident in which Mr. Neinstein allegedly requested sexual favours in return for a raise. Mr. Neinstein denied all of these allegations and in fact did not specifically remember SG.
The Court of Appeal began its analysis by pointing out that in certain circumstances, the duty of procedural fairness requires that a tribunal give reasons for its decision. One of those circumstances is where the decision in issue has “important significance for the individual”. Clearly in this case a finding of professional misconduct against a lawyer has important significance for that lawyer. Furthermore, adequate reasons are necessary to permit effective appellate review.
In the case of CT’s evidence, the Court of Appeal could find four reasons given by the Hearing Panel for preferring CT’s evidence over that given by Mr. Neinstein: “1. She gave her evidence in a forthright manner; 2. She withstood cross-examination well; 3. There was independent evidence which corroborated her version of relative events; and 4. Although there was contradictory evidence as to the layout of Mr. Neinstein’s office and related matters, that evidence was not material to a finding of whether sexual harassment took place.”
On the first two points, the hearing panel gave no indication why it considered CT to have been “forthright” or why it concluded that she withstood cross-examination. “Bold generalized assertions defy appellate review.”
The Hearing Panel did not identify the independent evidence which supposedly corroborated CT’s version of events. The Divisional Court assumed that it related to the evidence of the hotel stay, but this was an assumption and did not, in any event, corroborate the harassment allegations.
On the subject of the material differences between the evidence of CT and that of Mr. Neinstein the Court of Appeal failed to identify why it considered these inconsistencies to be immaterial and why it preferred the evidence of CT to that of Mr. Neinstein and his witnesses.
In the case of SG, the Hearing Panel gave little evidence of why it preferred her evidence over that of Mr. Neinstein other than to say that the panel did not believe Mr. Neinstein’s “blanket denials”. The Court of Appeal considered that Mr. Neinstein had offered particularized explanations to support his assertion that the events never happened.
The Court concluded that the reasons for the findings at the Hearing Panel were so deficient as to constitute an error in law. The appeal was allowed, the order of the Divisional Court set aside and the matter remitted to a different hearing panel for a new hearing.
Law Society of Upper Canada v. Neinstein, 2010 ONCA 193