Law Times

Law Times • OctOber 20, 2014 Page 3 www.lawtimesnews.com Noteworthy 2013 ruling on LSUC hearing delays overturned By yAMRI TADDESE Law Times ast year, a Law Society of Upper Canada hearing panel tossed out a case against a Toronto lawyer due to the regulator's five-year delay in bringing the applica- tion against him after finding the lengthy time frame had caused the lawyer severe emotional and psychological distress. But after a recent appeal deci- sion, Eugenio Totera may again be facing professional misconduct allegations in relation to 12 real estate transactions. "This is very disturbing, this decision," says To- ronto lawyer Bill Trudell. "When I read it, I found it outrageous." On Oct. 1, an appeal panel decided 4-5 in favour of the law society's bid to reverse the stay. The majority found there was no direct link between Totera's psychological distress and the delay in bringing the application against him. "We find that the hearing panel committed reversible error in its application of the second stage of the Blencoe test under the common law," wrote panel members David Wright, Christo- pher Bredt, Seymour Epstein, and Mark Sandler in a decision refer- encing Blencoe v. British Columbia (Human Rights Commission). "There was no allegation that the fairness of the hearing was affected by the delay in this case, nor that s. 7 of the Charter was violated. The lawyer's argument was that a stay of proceedings should be ordered under the com- mon law based on his psychologi- cal stress. Blencoe provides that for abuse of process to result, the delay must have directly caused significant psychological harm to the lawyer. There are few delays, even if lengthy, that will meet this threshold." The appeal panel also found the hearing panel shouldn't have taken Totera's personal psycho- logical profile into consider- ation. It suggested Totera had a "thin skull" and, as a result, found the delay affected him more than would be the case for the average lawyer. "However, the correct test is not analogous to the 'thin skull' test from tort law as suggested by the panel," the appeal panel's majority wrote. "The issue is not merely whether the lawyer experienced greater effects from the investi- gation than the average lawyer because of his psychological profile. It is whether those ef- fects are so significant as to jus- tify a stay of the proceedings." One member of the appeal panel, Janet Leiper, dissented on this aspect of the ruling. "The hearing panel correctly identified that the second branch of the Blencoe test means that the prejudice to the lawyer must be caused by the delay," she wrote. "It considered the evidence filed in the affidavits and the evidence given by the lawyer at the hear- ing. This evidence was summa- rized in the hearing panel's rea- sons, which described the lawyer's background, educational experi- ence, practice and the critical evi- dence on his mental and physical health from the time of the initia- tion of the law society investiga- tion in March 2006. Portions of the lawyer's affidavit evidence were quoted in full in this portion of the reasons." Toronto lawyer Bill Trudell says the majority's decision in the appeal is both "outrageous" and "disturbing." "I think the majority's decision is outrageous and insensitive to the lawyer as a human being," he says. "Lawyers are human. . . . To suggest that the delay must cause [the psychological distress] is a total rejection of the humanity of individuals and it's rigid and, sim- ply, it's going to be very discon- certing to the profession." A requirement that there be a direct causation between psy- chological distress and the delay in bringing an application is "an impossible standard," according to Trudell. But criminal lawyer Marcy Segal doesn't think the appeal panel's decision is all that grim. Ultimately, the best approach is to decide cases on their merit and delays must have had an ex- traordinary impact to warrant a stay of proceedings, she says. "What the appeal panel was saying was, 'We recognize, as the public recognizes, that these cases should be heard on their merits when at all possible,'" she says. "The majority of the people are going to feel stressed when they're before any criminal court or a regulatory body and so rightfully so, there needs to be particular effects that are over and above the anxiety of waiting for a trial. That's what the appeal panel was saying: there needs to be a higher threshold." And "if you look at the deci- sion in a more positive fashion," it's opening up the possibility of arguing for a stay of proceed- ings when a lawyer can link an extraordinary psychological impact to the delay in the pro- ceedings, Segal adds. But Trudell also has con- cerns about what he calls a trend among appeal panels to show little deference to hearing panels. "If we're going to have a process that people respect, then you have got to show deference to the hearing panels who hear the witness, know the evidence, and not reject them," he says. LT NEWS Introducing the new CriminalSource ™ on WestlawNext ® Canada. Nothing else compares. The new CriminalSource™ is home to Canada's largest collection of case law, annotations, and commentary from criminal law experts – all presented to you in every search. 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