When lawyers make mistakes, new rules consider rallying cries on mental health, sexual harassment

When lawyers face complaints, the discipline process will now offer more protections for vulnerable witnesses and more privacy around sensitive issues like mental health.

For the first time in a decade, Law Society of Ontario is completely overhauling the Law Society Tribunal’s Rules of Practice and Procedure. Among the provisions approved by benchers last week are accommodations for vulnerable witnesses and options for dealing with capacity issues within conduct proceedings.

“The inclusion of these rules reflects best practices already found in other tribunals across Ontario — and I would say that most of them actually were things that we could already do. It simply makes it very clear in the rules,” said Bencher Isfahan Merali, chair of the LSO’s tribunal committee.

In an announcement of  the new rules, which take effect in 2020, the law society said the tribunal will be able “to better respond to the particular needs and dynamics of each case — including the needs of the parties, complainants, witnesses and the public.”

“This flexibility is especially applicable in matters that may involve mental health issues,” said the LSO’s announcement. A committee report outlining the new tribunal procedures noted that benchers had long planned to change the rules around capacity and conduct applications.

The new Rule 14.3 permits the panel in a conduct application, on consent of the parties, to deal with matters that would otherwise be the subject of a capacity application.

The new rules also spell out that a vulnerable witness — such as a sexual harassment or assault complainant — has the option to sit near the support person, as well as be cross-examined by an outside counsel without seeing the accused.

“The witness can testify behind the screen or on video so they cannot see the licensee — again, something that we could have provided already,” said Merali at Convocation. “The rule now sets out that where it would be fair and in the interest of justice for the tribunal to order the licensee or license applicant not personally conduct the cross-examination of a witness and — again this should be very rare — the panel shall appoint counsel for the purpose of conducting the cross examination for witnesses . . . . second, that appointment shall be without cost to the licensee or license applicant.”

The issue had previously been raised by Bencher Teresa Donnelly, a Crown attorney from Huron County who works specifically with victims of domestic and sexual violence.

“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 at a February Convocation meeting.

Sexual harassment was the most common complaint before the LSO’s Discrimination and Harassment Counsel in 2018.

A separate LSO report said the vast majority of files opened by the Law Society Tribunal in 2018 dealt with “responsibility to the LSO,” a category that surpasses any other categories of accusations in the report, such as “failure to serve clients,” integrity, misappropriation, trust accounts, mortgage fraud, sexual misconduct, marketing, referral fees or incivility.

At November’s Convocation meeting — the last of the year — benchers also approved other alterations which aimed to simplify appeals, solidify the tribunal’s approach to technology and speed up proceedings. Another change: “a new requirement that communications be respectful of other parties and of the Tribunal, with possible cost consequences for disrespectful communications.”

Benchers did not, however, move forward with a hotly debated change to the rules for evidence.

Earlier this year, some benchers said the approach in the Statutory Powers Procedure Act would be more “flexible” for admitting evidence before the Law Society Tribunal. But, others argued that “exclusion of any evidence will . . . rely on the perception of fairness by the adjudicator or chair” under the SPPA.

In February, Bencher Paul Cooper said the SPPA rules could mean that subjective grounds, such as someone’s facial expression, could become relevant to allegations of incivility due to looser guidelines.  Joseph Groia, a bencher who was previously accused by the LSO of professional misconduct based on uncivil behaviour during a trial, said at the February meeting he agreed with Cooper.

While the status quo on evidence admissibility is maintained for the Jan. 1, 2020 implementation, it doesn’t mean that a future change is off the table, the committee’s report indicated.

“The issues surrounding the Tribunal’s approach to evidence were contentious,” said the committee’s report. “Although the prior Committee discussed the issue extensively during the drafting process, the new Convocation members and other benchers should be given the opportunity to review and consider the issue.”

The new rules approved by benchers, do, however, tackle another hot topic: privacy. Paralegal Marshall Yarmus questioned LSO Treasurer Malcolm Mercer at the LSO’s annual general meeting on May 8 about the tribunal’s transparency. Particularly, Yarmus was concerned about how the law society decides which complaints go to hearings and which files are closed.

“There is a balance between effective decision-making, protection of the privacy rights of members and protection of the decision-making process covered by litigation privilege. It’s not necessarily clear that transparency is the right answer in that context,” said Mercer in May.

Beginning in January, the balance will be a bit clearer, thanks to the new Rule 13, where the committee acknowledged that “defining the appropriate balance between transparency and protecting privilege and privacy interests has been a challenge under the current rules.”

Now, licensees before the tribunal will have clearer definitions of the effect of publication bans, non-disclosure orders, and specific health-related privacy needs for capacity proceedings, said benchers. The new rule also “makes correspondence from the parties that the panel has reviewed public, which it is not in the current rules.” 

“This is essential to maintaining transparency as the Tribunal increases the use of written processes,” said the benchers’ committee report.

Merali told benchers that the new rules are responsive to requests from groups such as the tribunal’s duty counsel, a review panel on Indigenous peoples, and a mental health task force.

“We wanted to ensure as part of what's needed for an independent modern tribunal, flexible approaches and best practices for deciding administrative justice, as well as a solid structure and language for the rules,” said Merali.