Law Times

Page 4 November 10, 2014 • Law Times www.lawtimesnews.com Panel faces unique circumstances as lawyer seeks reinstatement BY YAMRI TADDESE Law Times Law Society Tribunal hearing panel faced unique circum- stances last week as a lawyer suspended in 2007 for lack of capacity to practise law sought r einstate- ment on the basis that the psy- chologist who had penned her medical report is biased. On June 20, 2007, a Law Soci- ety of Upper Canada hearing pan- el suspended Tracey Marie Foster, then known by her married name Tracey Marie Resetar, indefinitely "until she provides medical ev i- dence" that she's fit to practise law. At her reinstatement hearing last week, she unsuccessfully sought to summon Toronto police Chief Bill Blair and alleged the govern- ment and police had committed crimes against her. Law Times can't report the details of those alleged crimes due to a publica- tion ban ordered by the hearing panel last week. Her notice of ap- plication, which seeks her rein- statement as well as a stay of the law society proceedings against her based on an infringement of her rights under the Charter of Rights and Freedoms, is available on the LSUC's web site. The 2007 hearing panel made its decision based on a medical report that found Foster suffers from "a significant psychiatric disorder." But last week, Foster alleged the psychologist whose analysis the panel relied on at that time lacks both experience and independence. Foster, who's now in Turkey, attended the hearing via telecon- ference with a patchy connection. She asked that Dr. Treena Wilkie, who authored a medical report, and Dr. Carolyn Abramowitz, who conducted a psychometric test on her, provide several docu- ments — including their clinical notes and tax return documents — as part of her efforts to prove that they're biased in favour of the provincial government. Foster also said she wished to cross-examine the doctors on the documents she demanded. "I believe [the documents] are clearly relevant," said Foster. "I am entitled to that information." At the time of the first law so- ciety proceeding, Foster said she had asked Wilkie not to access her medical information at a hospital because it was in the process of be- ing corrected. Foster told the panel last week Wilkie went ahead and accessed the medical records any- way before they could be corrected. That, Foster argued, "speaks to the issue of [Wilkie]'s bias." Both doctors made a motion to quash the summonses, arguing they're an abuse of process. "The onus is on Ms. Foster to establish relevance," said Nada Nicola-Howorth, who represent- ed Wilkie. She said Foster wants the information to attack Wilkie's credibility and her findings. "None of those are valid pur- poses," said Nicola-Howorth. In the end, the panel, chaired by David Wright, found the docu- ments requested from the doctors weren't relevant to the issue before it and quashed both summonses. Foster argued the docu- ments she sought were "fresh evidence" because her previous counsel had failed to call them. "The outcome would have been different if the panel had all the information I'm calling right now," she said. "The tribunal got it wrong because it didn't have this information," she added. After the panel quashed all three summonses, a very upset Foster said she would appeal the orders. "These proceedings are sham proceedings," she said, not- ing she had been "absolutely disre- garded'' throughout the hearing. In 2010, Foster sued her for- mer counsel, Ken Hughes, for more than $10 million for al- leged breach of contract, breach of fiduciary duty, negligence, loss of income, and loss of repu- tation. She claimed Hughes was negligent through his failure to produce medical reports to counter the one provided to the LSUC and by not cross-examin- ing the doctor whose report was the basis for the suspension. Hughes tells Law Times the court has since dismissed that application. "The negligence ap- plication was dismissed," he says. "She never proceeded with it and we brought a motion for dismissal. She never filed the ap- propriate material." Even if Foster convinces the panel she's medically fit to practise, she still faces a miscon- duct application the law society launched against her based on a 2010 endorsement from Superior Court Justice Leonard Ricchetti. In an endorsement dated May 6, 2010, Ricchetti expressed con- cerns about Foster's conduct as trustee of her sister's estate. In it, he detailed a number of payments Foster made to herself for expenses and legal services. Two payments for legal fees, total- ling almost $60,000, occurred af- ter the law society had suspended her, but Foster claims they were for services performed in advance of the LSUC's action. She purchased a $30,000 car with estate money and used it for more than a year after her removal as trustee despite "sev- eral court orders directing its sale," according to the endorse- ment. She also paid her husband $114,000 out of the $1-million estate, Ricchetti found. The court dismissed Foster's request for leave to appeal the decision the same year. 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