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Page 4 June 4, 2018 • Law Times www.lawtimesnews.com NEWS NEWS NEWS once it is brought to their atten- tion. However, most large online review-based or social media sites such as Twitter, for example, are headquartered in the United States. They are protected by pro- visions in the U.S. federal Com- munication Decency Act, which generally provides immunity for providers and "interactive computer services" from content posted by third-party users. Andrew Bernstein, a partner at Torys LLP, says the act "essen- tially inoculates website owners from most defamation claims [in the U.S.], which are already harder to establish there. "It is more difficult to get them to do anything. "There is very much a pro free speech attitude," adds Bernstein, who specializes in defamation, intellectual property and copy- right law. An action could still be brought in Canada against not only the individual who posted the comments but the website service that provided an online platform, but Bernstein says there would be a number of de- fences available. "They do not have an affir- mative obligation to monitor the content, provided they have a complaints process. "On a review site, it is inevi- table that some comments will be negative [although not neces- sarily defamatory]," he says. "Eventually, we will get a case here where someone sues the site," says Bernstein. Glassdoor did not have a law- yer attend the Superior Court hearing and, in a statement to Law Times, it questioned the jurisdiction of the court. "Glassdoor's terms of use provide that the proper forum for these proceedings is the Northern District of California," the statement said. "Glassdoor is committed to promoting and fighting for the rights of people to speak freely about their opin- ions and experiences at work, without fear of intimidation or retaliation." LT obtain "pre-action discovery" in the form of a Norwich order. "Glassdoor provides the web- site on which the members/post- ers compose, publish and dis- seminate their anonymous posts from anonymous accounts. Glassdoor facilitates their anon- ymous communications and thereby is involved in the acts complained of beyond being a "mere witness," the judge wrote. Even if the information that an individual provided to sign up as a "member" on a review site is turned over, it may not be pos- sible to track down the person who posted a defamatory com- ment, notes MacKinnon. "The email address provided may be under a fake name. The posts may be from an internet café or a proxy server may be used to conceal the IP address," he says. "It is an uphill battle. Even if you get a judgment, it may be difficult to enforce that judgment." Media publications in Can- ada may face some liability if they do not remove potentially defamatory user comments saw failure to accommodate raised more often as a defence, but what I hope the decision does is to bring greater attention to mental illness and to prompt better accommodation by the law society that will avoid the need for raising the defence in the first place," Naymark adds. LSO spokeswoman Susan Tonkin would say only that the law society "is reviewing the de- cision." Burtt's troubles began in 2015 with an earlier discipline matter, when he was reprimanded for failing to co-operate with a law society investigation. As part of those proceedings, the law society commissioned psychological and medical reports that explained how his depressive symptoms led to him feeling frozen in relation to dealing with the regulator, despite his ability to continue to run a successful law practice. The lawyer complied with a psychiatric treatment plan or- dered by the LSO, but he was back on the society's radar in 2016 following a fresh client com- plaint. Burtt repeatedly called the investigator assigned to ask for extensions to his time to reply, explaining his difficulties dealing with his own depression and the health of his terminally ill father. Banack wrote that Burtt's non-compliance would have been entirely predictable had the investigator reviewed the previ- ous medical reports and that the LSO "ought to have considered fashioning a different method- olog y" to get the information it needed to assess the complaint. The decision commended a second investigator assigned to the case for his offer to down- scale its request of Burtt, but the offer was ultimately withdrawn in favour of formal discipline. In his decision, Banack called on the law society to formalize the ad hoc system that connect- ed Burtt with Naymark in the first place, noting that his critical findings were "directly attribut- able" to Naymark's efforts. "It is now time for the So- ciety to implement a funded, permanent duty counsel system for the benefit of all licensees," the bencher wrote. "The Law Society should not be compla- cent with its reliance on an in- stitutionalized Volunteer Duty Counsel programme. The very serious potential outcomes of a discipline proceeding, which in- clude licence revocation, should not depend upon the vagaries of a volunteer lawyer being avail- able and able to fulfill the du- ties of counsel in opposition to the well-funded, full-time, professional group of Discipline Counsel trained by and work- ing for the Law Society." William Trudell, who fre- quently represents lawyers fac- ing disciplinary proceedings, hails Banack's ruling as "pro- foundly significant." "It addresses two phenom- enally important issues that we see on a daily basis, which are mental illness and unrepresent- ed lawyers," he says. "We've been waiting for a decision like this for years. It should be greeted with a hallelu- jah, and it would be disgraceful if it sits on the shelf." Trudell says freezing is an ex- ceptionally common response to a complaint letter from the law society, and he predicts regula- tory costs would go down if they contained an instruction from the LSO to the subject lawyer to obtain counsel, either privately or via a formal duty counsel system. Naymark suggests the situ- ation could be improved by ex- tending LawPRO coverage to include the defence of regulatory proceedings, modeled on the professional indemnity provider for Canadian physicians and surgeons. "It's such a burden on a lawyer to deal with these cases himself or herself and potentially pay out hundreds of thousands of dollars from their own pockets," he says. "If the lawyer in this case had counsel all along, it would never have played out the way it did. It would have been dealt with in a couple of weeks." Banack rejected the law so- ciety's argument that Burtt was reasonably accommodated dur- ing the investigation, concluding that it needed to explore options beyond time extensions to meet its obligation to accommodate to the point of undue hardship, including but not limited to oral interviews or electronic access to the lawyer's documents. "Overcoming mental illness brought on by depression is an enormous challenge that can be exacerbated by external hurdles created, for example, by a regula- tor's laser-like focus on protect- ing the public interest without acknowledging that such pro- tection may in fact be achieved by alternative and perhaps more effective means," Banack wrote. Toronto lawyer Darryl Singer says the unique facts of the case may limit its applicability to other lawyers, but he remains encouraged by it. "The earlier you can fix the law society with knowledge of your condition, the better, be- cause it should now impact how the investigation proceeds," Singer says. LT Mental health condition caused lawyer to 'freeze' Continued from page 1 Continued from page 1 Case launched by Canadian consulting company © 2018 Thomson Reuters Canada Limited 00251EA-92239-NK A comprehensive description of the current state of Canadian Aboriginal law Available risk-free for 30 days Online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 Order # L7798-8622-65203 $198 Softcover April 2018 approx. 860 pages 978-0-7798-8622-7 Shipping and handling are extra. Price(s) subject to change without notice and subject toapplicable taxes. 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