Canada: LSO Tribunal Recognizes Mental Illness As "Exceptional Circumstance" In Penalty Decision

Last Updated: August 15 2018
Article by Uri Snir

In a recent penalty ruling by the Law Society Tribunal, Mr. Darwin Anthony Yantha (the "Licensee") was ordered to surrender his licence to practice law in Ontario, despite the panel's acknowledgment that the Licensee's clinical depression and alcoholism were the cause of his recklessness in billing practices. It was this recklessness in billing practices that led to disciplinary proceedings commenced by the Law Society of Ontario ("LSO") in which the panel concluded that the Licensee had knowingly (recklessly) engaged in dishonest or fraudulent conduct.

The Law Society recognized a duty to accommodate the Licensee's disability, to the point of undue hardship to the public interest. However, the panel was not satisfied that the Licensee's misconduct would not recur, and therefore found that any penalty other than a termination of licence would cause undue hardship. The panel ultimately reduced the presumptive penalty, allowing the Licensee to surrender his licence rather than having his licence revoked, citing his mental illness as a mitigating factor.

The Licensee's Misconduct: By way of a joint statement of facts, the panel found that the Licensee had engaged in the following misconduct:

  •  knowingly overbilling Legal Aid Ontario ("LAO") by $29,540.61, more or less;
  • appearing for Legal Aid certificate clients on his assigned duty counsel days without disclosure or prior approval;
  • acting for clients on certificates after serving them as duty counsel, again without disclosure or prior approval; and
  • failing to maintain contemporaneous detailed records in support of his accounts to LAO, contrary to Regulation 106 for the year 1999 under the Legal Aid Services Act.

The presumptive penalty for licensees who knowingly engage in dishonest or fraudulent conduct is a revocation of licence.

Mitigating Factors: As part of the penalty hearing, the Law Society initially requested a revocation of licence. The Licensee, on the other hand, submitted that a long suspension followed by restrictions on licence and supervision would be a fair penalty. The Licensee based his submission on the Law Society's duty to accommodate his disability under the Ontario Human Rights Code (the "Code").

The panel accepted evidence from the Licensee, the Licensee's wife, and a psychiatrist, who all testified that the Licensee began suffering from depression in the early 2000s, which he self-medicated with alcohol.

However, the panel found no evidence that the Licensee accepted the seriousness of his condition and the recommended treatment. Although he had been seeing his family doctor and was taking anti-depressants, he refused to meet with a psychiatrist. The panel found that the Licensee's symptoms were not under control, and that he still needed professional help.

Determining an Appropriate Penalty: The legal framework for determining penalty where a licensee has knowingly engaged in dishonest and fraudulent conduct was laid out in Law Society of Upper Canada v. Mucha, 2008 ONLSAP 5 ("Mucha"). In that case, the Law Society determined that the presumptive penalty was a revocation of licence. A presumptive penalty can be reduced where mitigating factors create "exceptional circumstances". Any mitigating evidence must credibly indicate that the misconduct was out of character and is unlikely to recur. The LSO recognizes a duty to accommodate a licensee's disability to the point of undue hardship. In the case of regulatory proceedings by the LSO, undue hardship arises when the public interest is harmed by the accommodation.

The panel accepted that the Licensee's depression and alcoholism made him reckless, and that it was causally connected to his misconduct. The panel found that the Licensee's condition formed an exceptional circumstance, which displaced the presumptive penalty in Mucha.

However, the panel could not find that a penalty other than termination of licence would be appropriate in this case. In the panel's view, the misconduct was likely to recur, so long as the Licensee continued to minimize the wrongdoing, and avoid medical and psychiatric treatment for his depression.

According to the panel, the circumstances in this case did not rise to a level where it would be obvious to members of the public and the profession that they no longer needed to be concerned about the Licensee's honesty and integrity.

The Takeaway: The LSO acknowledged its obligation under the Code to accommodate mental conditions as a disability. The panel found that the Licensee's condition met the test of "exceptional circumstances" and displaced the presumption of revocation in Mucha. However, it ultimately found that any penalty involving a mere suspension would cause undue hardship to the public interest. In the end, the panel granted the Licensee permission to surrender his license, rather than revoking it.

As reported in our previous blog post, the LSO has committed to "ensure appropriate considerations for mental health...are integrated into regulatory processes." Despite the decision to terminate the Licensee's licence, it is encouraging to see further evidence that the Law Society Tribunal is taking a hard look at the issue of mental illnesses, and that the LSO itself recognizes its duty to accommodate alcoholism and depression under the Code.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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