Law Times

Page 4 September 10, 2018 • Law timeS www.lawtimesnews.com Costs ruling shows help needed on mental health issues BY MEAGAN GILLMORE For Law Times T he Law Society Tribunal has said a lawyer can- not receive costs for a complaint against him that the tribunal dismissed. The tribunal had dismissed a complaint against Jeffrey Burtt in May. The society had alleged Burtt had failed to communicate properly with the tribunal dur- ing an investigation in 2016 and 2017 about a client complaint. Ultimately, the tribunal found the Law Society of Ontar- io did not properly accommo- date the lawyer's disability dur- ing an investigation. However, tribunal chairman Larry Banack ruled that he was not prepared to award costs to Burtt. "A licensee is not entitled to the costs of fulfilling his obliga- tions," Banack wrote in Law So- ciety of Ontario v. Burtt, 2018 ONLSTH 111. "I am aware of no case in which costs were awarded to an unrepresented licensee or one assisted by duty counsel," Banack's decision also said. Banack had dismissed the law society's complaint against Burtt in May, saying the society had failed to accommodate Burtt's depression throughout its in- vestigation in 2016 and 2017. In- vestigators had available to them information from a 2015 inves- tigation into Burtt that docu- mented his depression. In their second investigation, investiga- tors required Burtt to respond to requests in writing, but Burtt's depression made him unable to respond in that way, Banack wrote in May. Banack did not make a find- ing about costs in May. Instead, as he wrote in the August deci- sion, he "(offered) the parties the opportunity to address the mat- ters themselves." "That proved unsuccessful," Banack's August decision says. He then invited the parties to give written submissions about costs. His latest decision is in re- sponse to those submissions. Burtt argued that he should receive costs because he said the costs were unwarranted be- cause the case against him was doomed to fail and that the in- vestigators had wasted money by launching a claim without cause or being somehow negligent in the investigation. Law society rules say costs can be awarded in these situations. "Mr. Burtt asserts that an award of costs is necessary to emphasize to the Society the im- portance of fulfilling its duty to accommodate in future cases," Banack wrote in his decision. Lawyers who have repre- sented lawyers at the tribunal say the system does not support people with mental health con- cerns. They say this particular case shows how difficult it is for lawyers who can't afford counsel to defend themselves in an in- vestigation, especially when they have a mental illness. Richard Watson, a Toronto lawyer who has also represented lawyers before the tribunal, says the investigation process can cause distress. "The law society grossly un- derestimates the impact the investigation has," says Wat- son, who has been consulted by lawyers who have mental health concerns. "A person who already has a degree of [mental] fragility can be provoked by the investiga- tion," he says. Bill Trudell, a defence attor- ney in Toronto who has repre- sented lawyers at the tribunal, says people in crisis need to talk to someone. He would like to see the society create an office where lawyers can speak to a retired judge or a senior lawyer about their problems in a confidential way. "We need to recognize men- tal illness and depression among lawyers and paralegals in the front end," says Trudell. "The system itself is not built to deal with a health issue." Banack's August ruling quotes Burtt's written submis- sions about costs. Burtt said he should be compensated for the time he spent responding to the law society. He also said that, because of his previous medical condition, investigators should have known their investigation would fail. Banack rejected the argu- ment in his August ruling. "Even with perfect knowledge of Mr. Burtt's prior condition as described in his 2015 discipline record, it would not have been clear that that was the cause of his failure to co-operate with the Law Society investigation during 2016 and 2017," Banack wrote. Banack's August ruling also notes that Burtt had re- ceived "invaluable help from a dedicated and thoughtful Duty Counsel" throughout the pro- cess. That duty counsel is free, Banack wrote. Daniel Naymark, who acted as duty counsel for Burtt, said in an email statement to Law Times that "the tribunal can only order the law society to re- imburse lawyers' costs in very narrow circumstances." He added: "That restriction illustrates a systemic gap that Mr. Burtt's case shone a spot- light on." LAWPRO should cover regulatory investigations and proceedings, and the tribunal would benefit from having a "ro- bust, practising bar," Naymark wrote, noting a couple of hours of legal work early on in Burtt's case would have saved a lot of time and money. LSO Treasurer Malcolm Mercer says the society is work- ing to better support lawyers' mental health and train inves- tigators about recognizing the signs of mental health concerns throughout an investigation. In August, Convocation ap- proved continuing to implement recommendations made in 2016 by a mental-health task force, he says. Mercer could not provide timelines about when proposals for new initiatives would be in- troduced. The society has "been work- ing in this area quite deliberately going back a number of years," Mercer says, listing recent staff training about mental health and addiction and enhanced resources to help investigators understand mental health con- cerns as notable accomplish- ments. Some cases involving mental health concerns have been diverted from a hearing process, he says. "Mental health is an issue that we have to be thoughtful about. It's not one that we're going to solve," Mercer says. Mercer says the law society offers free counselling to lawyers as part of its members assistance program and has various men- torship and coaching opportu- nities. Darryl Singer, head of the commercial and civil litigation practice group at Diamond & Di- amond Lawyers LLP in Toronto, who has also represented clients before the tribunal, says hav- ing winners pay costs is "unfair." Many people who appear before the tribunal are self-represented and can't afford counsel, he says. Singer says he was "elated" by the decision dismissing the complaint, "but the cost part is disappointing but not surpris- ing." "I think it speaks to the bigger issue," he says. "There's this gross imbalance of power where the law soci- ety can pretty much do what it wants, and it's very hard for an individual — particularly a sole practitioner or someone dealing with mental health or substance abuse issues — to mount an ef- fective and credible defence to the law society costs." Singer says he would like the law society tribunal to be like the civil system, where losers don't have to pay costs. Mercer says the society does not comment on specific cases. He says it can be argued that los- ers should pay costs but that isn't how things are done in criminal law. "Knowing where the right balance is is not necessarily easy," he says. "The law society, like other regulators, has long taken the position that one of the conse- quences of being a professional is that being held to account is part of your professional respon- sibility," he says. 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Also available in Hardcover Print, Softcover Print, Softcover Print + Online and Online only formats. Hosted on WestlawNext Canada, the online version of Canadian Guide to Uniform Legal Citation, 9th Edition makes it accessible anytime, anywhere. Hardcover + Online Order # L92077-9ED-65203 $142 Hardcover + Online approx. 700 pages June 2018 978-0-7798-8581-7 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. *Online access offer not available to trade bookstores, third-party distributors, students and academic institutions (law school-wide online access is available for students and academic institutions only). Get online access * with print purchase Bill Trudell says mental illness and depres- sion among lawyers and paralegals must be recognized in the front end of investiga- tions into their conduct.

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