Tribunal was unconvinced that the respondent's health issues sometimes stopped him from working
A Law Society of Ontario tribunal has found a family lawyer guilty of professional misconduct for failing to cooperate with the regulator in an investigation of a complaint filed by a former client.
In the Law Society of Ontario v. Tayeye, the tribunal found that the respondent failed to cooperate with an LSO investigation, was unable to respond promptly and omitted requests made in communications from the Law Society between June and November 2021, contrary to section 49.3 of the Law Society Act and Rule 7.1-1 of the Code of Ethics.
Tayeye, in his response, stated several times that he had suffered from health problems that prevented him from working at certain periods. However, the panel wrote that he did not provide medical evidence to demonstrate an inability to perform his professional obligations or submit the requested information.
The tribunal has consistently held that in addition to human rights obligations and the duty to accommodate in cases of disability, a licensee’s mental or physical illness does not preclude a finding of professional misconduct for failing to respond to the LSO’s requests for information, the panel wrote.
“The respondent did not provide evidence that is consistent with this strict standard. He continued to practice. He never stated that he was unable to provide a complete response to the Law Society during the many months covered by the allegations in the Notice of Application. He did not provide medical evidence to demonstrate an inability to perform his professional obligations, let alone evidence that this failure was related to his medical condition.”
The panel has suspended Tayeye’s license indefinitely until he responds entirely to the LSO’s requests and the regulator’s satisfaction. In addition, panel chair Raj Anand wrote that Tayeye would be suspended for 30 days following the indefinite suspension.
The tribunal ordered the indefinite suspension to begin approximately four weeks after the hearing. “This means that if the respondent provides a complete response during this period, there will be no indefinite suspension. The total suspension would thus last ‘one month.”
Anand also ordered that Tayeye fully complies with the Guideline for Lawyers Suspended or Who Have Committed Not to Practise Law During its Suspension and pay the LSO costs of $7500 no later than Apr. 1, 2027.
The misconduct arose when during an investigation into Tayeye’s conduct, the LSO requested a series of documents and information. The LSO made its initial application on Jun. 3, 2021, and asked for additional information on July 27, 2021. Tayeye responded on Jun. 25, 2021, Sept.10, 28, and 29, 2021, and Jan. 8, 9, and 27, 2022. However, his responses did not respond to all the inquiries and documents. He also participated in an interview on Jan. 21, 2022, to discuss his responses’ status and clarify them.
Despite multiple requests for a follow-up and a request for an extension of time to respond, as of the hearing date, the LSO had still not received all the info in the client file, notes regarding calls with the client or any third party, the initial retainer agreement, a copy of the telephone bills with the list of incoming and outgoing calls from April 2020 to October 2020 and proof that Tayeye gave the legal file to the client or her next lawyer.
The panel wrote that the LSO extended the deadlines several times, and Tayeye did not complain of a lack of accommodation on the regulator’s part.
At the beginning of the summary hearing judgement, Tayeye requested an adjournment, arguing that he could not provide complete answers because of mental health issues that his COVID-19 infection had exacerbated. He submitted emails and photos and claimed that his circumstances were consistent with the principles of Law Society of Upper Canada v. Vader and Law Society of Upper Canada v. Harry. However, the tribunal found reviewing the decisions in both cases unnecessary and found no basis for adjourning due to a medical condition.
“The documents that the respondent presented at the hearing were photos of the respondent allegedly in a hospital room, and of certain prescriptions or names of medications. The effect of the respondent’s argument, if accepted, would be that any licensee who is under stress or has been infected with COVID-19 would be exempt from cooperating with the Law Society.”
Tayeye has no disciplinary history, and the panel found no other aggravating factors; therefore, he asked the tribunal for more time to respond and to wait two to four weeks before imposing a sanction. If not, he argued that the penalty should be a reprimand instead of a suspension.
Tayeye described his child’s special needs and the financial consequences of a suspension. However, the tribunal found that he failed to provide tangible evidence to support his financial difficulties.
The LSO argued that the usual penalty for an indefinite suspension and a one-month suspension should be imposed but did not object to postponing the starting point of the indefinite suspension for two or three weeks.
