Civil Litigation, Regulatory

Profession needs new framework around LSUC duty to accommodate

By Staff

At the intersection of employment legislation and the Ontario Human Rights Code, employers have a duty to accommodate an employee with a disability — but there is a question of to how this duty applies to professional regulatory bodies such as law societies, Toronto-area civil litigator Darryl Singer writes in The Lawyer’s Daily.

As Singer, principal of Singer Barristers Professional Corporation, explains, an employer must take reasonable steps to accommodate an employee's disability, although this duty only applies to the point of undue hardship.

“School boards, municipalities and other state actors are also bound by a duty to accommodate not just their employees but also their users, clients, customers or ratepayers,” he writes.

However, he says, a professional regulatory body such as the Law Society of Upper Canada (LSUC), for example, is not an employer and its mandate is to protect the public.

At the same time, LSUC is responsible for granting, temporarily suspending and revoking a licensee’s ability to practise law and thus earn a living, says Singer.

“Practising law is a privilege and transgressing professional obligations are all reasons why the regulator may suspend or revoke one’s licence. In fact, the presumptive penalty for a lawyer convicted by the discipline tribunal of misappropriation of trust funds or overbilling Legal Aid is disbarment.

“However, if the lawyer in question did not have the ability to understand the wrongdoing as it was being committed because of an addiction or mental health issue, does the law society’s presumptive penalty result in an unfairness such that the society has a duty to accommodate by considering alternative penalties short of revocation?” writes Singer.

This argument, he says, will be tested in two upcoming cases before the LSUC tribunal.

“In both cases, the lawyers breached a financial trust and in both cases the presumptive penalty is revocation. Yet, each of these lawyers, during the time period of the impugned conduct could be said to not knowingly have understood what they were doing as each suffered from mental health issues,” says Singer. It was not until LSUC began its proceedings that each was diagnosed retroactively with a disease, he adds.

“Their respective lawyers (me, in one of those cases) will argue that they were under a disability and, as such, the society’s duty to accommodate should kick in,” writes Singer.

Singer says a 2013 LSUC tribunal decision opened the door for this type of argument, when the hearing panel set aside a previous finding of professional misconduct as part of a joint submission, basing its decision on the lawyer’s previously undiagnosed mental health issues.

In addition, he writes, two cases from the B.C. Human Rights Tribunal are also instructive, as they “expressly impose upon the respective regulatory bodies a duty to accommodate addiction and mental illness when imposing penalty.

“My empirical evidence defending members in discipline proceedings before various regulatory bodies is that a significant number are there not because of incompetence, negligence or fraud, but rather because of actions caused as a direct result of an addiction or mental health issue,” writes Singer.

Ultimately, Singer says he is hopeful that a new framework will be established “for meting out penalties that properly reflect the society’s duty to accommodate.”

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