ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
O’DRISCOLL, JARVIS AND SWINTON JJ.
B E T W E E N:
THE LAW SOCIETY OF UPPER CANADA
Appellant/Respondent by Cross-Appeal
- and -
KAREN LEA CROZIER
Respondent/Appellant by Cross-Appeal
N.J. Spies and Diana Iannetta, for the Law Society of Upper Canada
Karen Lea Crozier, in person
HEARD at Toronto: January 28 and February 14, 2005
THE COURT:
I. Nature of Proceedings regarding application CN41/99
1The Law Society of Upper Canada (LSUC), under the provisions of s. 49.38, s. 34 and s. 49.39(2) of the Law Society Act, R.S.O. 1990, c. L. 8, (the “Act”), appeals to the Divisional Court from the final order (penalty) imposed by the Appeal Panel of the LSUC (Appeal Panel), dated April 22, 2004. The Appeal Panel set aside the penalty order of the Hearing Panel of the LSUC, (Hearing Panel), dated September 30, 2002, which had ordered that the former member, Ms. Crozier, be disbarred. The Hearing Panel made its order following a finding of professional misconduct on complaint CN41/99. The Appeal Panel set aside the penalty of disbarment and imposed a penalty that Ms. Crozier:
(i) continue treatment and counselling for her medical problem with a physician approved by the Secretary of the LSUC,
(ii) file medical reports, as required by the Secretary of the LSUC, and
(iii) practice law only as an employee of a member of the LSUC approved by the Secretary.
2Ms. Crozier cross appeals and in her Amended Notice of Appeal (dated May 22, 2004 and July 2, 2004) seeks the following relief:
i. An Order that the judgment, penalty decision and final order of the Hearing Panel be set aside and that this matter be stayed;
ii. An Order removing her name from these proceedings;
iii. A Declaration that the Hearing Panel’s conduct of the hearing was so egregious it amounted to public misfeasance or public malfeasance;
iv. An Order fully restoring her membership in the Law Society;
v. An Order awarding her punitive costs and payment for distress, loss of reputation, career losses, tangible costs, and legal fees she would have earned in these matters;
vi. An Order directing the Law Society to apologize to Ms. Crozier; and
vii. An Order that the Law Society comply fully with its grant of legislation in letter and in spirit.
3Before the Hearing Panel, before the Appeal Panel and before us, Ms. Crozier chose to be self-represented.
4Since the hearing before us concluded, Ms. Crozier has filed extensive materials with the Registrar. Through the Registrar, Ms. Crozier has also sought a further hearing before the Court. We have not considered the material filed since the hearing. We saw no reason for a further hearing.
5For the reasons that follow, the appeal of the LSUC is allowed and the cross appeal of Ms. Crozier from the finding of the Hearing Panel, and affirmed by the Appeal Panel, of professional misconduct, is dismissed.
6In oral submissions before us, Ms. Crozier submitted that should her cross appeal be dismissed the proper penalty should be a twelve (12) month suspension.
7In this case, as in all matters in the Divisional Court where a litigant is self-represented, a court reporter was in attendance and transcribed the two (2) day hearing.
II. Applicable Sections of the Act
(1) A member shall not engage in professional misconduct or conduct unbecoming a barrister or solicitor.
(1) With the authorization of the Proceedings Authorization Committee, the Society may apply to the Hearing Panel for a determination of whether a member or student member has contravened section 33.
(1) Subject to the rules of practice and procedure, if an application is made under section 34 and the Hearing Panel determines that the member or student member has contravened section 33, the Panel shall make one or more of the following orders:
An order revoking the member’s or student member’s membership in the Society and, in the case of a member, disbarring the member as a barrister and striking his or her name off the roll of solicitors.
8Section 35(1) sets out an array of penalties, including disbarment, that may be imposed by the Hearing Panel and/or the Appeal Panel following a finding that a member has committed professional misconduct.
49.32 (1) A party to a proceeding before the Hearing Panel may appeal a final decision or order of the Hearing Panel to the Appeal Panel.
49.33 (1) A party other than the Society may appeal under section 49.32 on any grounds.
49.35 (1) The Appeal Panel may determine any question of fact or law that arises in a proceeding before it.
(2) After holding a hearing on an appeal, the Appeal Panel may,
(a) make any order or decision that ought to or could have been made by the Hearing Panel or person appealed from;
(b) order a new hearing before the Hearing Panel, in the case of an appeal from a decision or order of the Hearing Panel; or
(c) dismiss the appeal.
49.38 A party to a proceeding before the Appeal Panel may appeal to the Divisional Court from a final decision or order of the Appeal Panel if,
(a) the Appeal Panel’s final decision or order was made on an appeal from a decision or order of the Hearing Panel under subsection 31(3); or
(b) the proceeding was commenced under subsection 30(3), section 34, section 38 or subsection 49.42(4).
49.39(1) A party other than the Society may appeal under section 49.38 on any grounds.
(2) The Society may appeal under section 49.38 only on a question that is not a question of fact alone, unless the appeal is from an order under section 49.28, in which case the Society may appeal on any grounds.
III. Background and Chronology
9By Notice of Application, (CN41/99), dated May 4, 1999, the LSUC applied to a Hearing Panel of the LSUC, under s. 34 of the Act, for a determination of whether Ms. Crozier had contravened s. 33(1) of the Act by engaging in professional misconduct, to wit:
Violated the provisions of By-law 19, section 2(1) made under sub-sections 62(0.1) and (1) of the Law Society Act by failing to deposit retainer funds totalling $6,000.00, more or less, received from a number of clients, including Linda Stokes, Diane Welbourn, Denise Rogers and Donna Doncaster;
Failed to account to the clients identified in particular 1 for the funds received;
Failed to serve your clients on the Carmalite [sic] Orphanage matter in a conscientious, diligent and efficient manner;
Misappropriated $1,872.50, more or less, from your client Jacqueline Annette;
Failed to serve your client, Jacqueline Annette, in a conscientious, diligent and efficient manner;
In or about the period October 1, 1996 to November 19, 1997, deposited client retainers directly to your firms [sic] general account #1255-205 at the Bank of Montreal in contravention of By-law 19, section 2(1) made under sub-sections 62(0.1) and (1) of the Law Society Act;
Failed to produce all books and records relevant to the Law Society investigation of your practice despite repeated requests during the period January to October 1998.
10The Hearing Panel (Mr. E.A. Cherniak, Q.C., Chair, and Ms. H.J. Ross and Ms. B.A. Laskin), held twenty-seven (27) days of hearings between January 24, 2000 and August 27, 2001; it reserved its decision.
11On March 7, 2001, as a term of her being granted an adjournment, Ms. Crozier entered into a written undertaking to the LSUC that she would not practice law.
12On January 24, 2002, the Hearing Panel released forty-one (41) pages of written reasons setting out why it found that all the complaints of the LSUC set out in its Notice of Application, (CN41/99), dated May 4, 1999, had been established.
13On June 27, 2002 and July 18, 2002, the Hearing Panel conducted the penalty phase of the hearing. Again, it reserved its decision. At the penalty phase, the Hearing Panel was advised that Ms. Crozier, who was called to the Bar of Ontario on March 21, 1991, had twice before been disciplined by the LSUC for professional misconduct:
(i) D263/96 – On May 21, 1997 a panel of the Discipline Committee of the LSUC, (chaired by R.D. Manes) found that Ms. Crozier had failed to produce to the LSUC client files for examination despite repeated visits and telephone calls by LSUC. Ms. Crozier was also found to have failed to provide an adequate reply to the LSUC regarding inadequacies discovered during an examination of her books and records. Ms. Crozier received a reprimand in Convocation for professional misconduct.
In its Report and Decision in 1997, the panel stated:
The solicitor’s conduct in this case has caused us the greatest of concern. It is not so much the conduct as it appears in its bald form in the complaint D263/96 that causes us this grave concern, because on its face, although this conduct is serious, it is by no means grave. What is grave is that the Solicitor obviously has such a deep-seated distrust for, and contempt of, her governing body that there is a serious question as to whether she will be governable in the future.
(ii) D168/98 and CN26/99 – On October 22, 1999, a panel of the Discipline Committee of the LSUC (chaired by G. MacKenzie), heard these applications together and found that Ms. Crozier failed to serve her client in a conscientious, diligent and efficient manner and failed to honour a trust obligation to the Ontario Legal Aid Plan. Ms. Crozier received a suspension for a period of six (6) weeks for professional misconduct. On June 25, 2004, Ms. Crozier brought a motion before the LSUC Appeals Management Tribunal for an order extending the time to appeal the October 22, 1999 finding. The motion was dismissed.
In delivering the oral reasons for penalty, Mr. MacKenzie said:
We think that the concerns that we’ve heard about over the last three days of evidence arise from your attitude towards your professional obligations. You don’t have to like your governing body. Many lawyers don’t like their governing body, it’s not a requirement that you do, but you do have to abide by the rules that govern all of us as lawyers and accept your professional responsibilities.
We were very troubled by the fact that those problems either continued or occurred after you were reprimanded in Convocation and after you had the benefit of the panel’s comments concerning the attitude that you brought to bear on your professional responsibilities and we think that you need to step back and objectively determine whether you’ve done that when problems such as this arise.
But we do have to emphasize to you as emphatically as we can that you’ve tried the patience of two discipline panels now. You will have a discipline record which includes a reprimand in Convocation and a relatively short suspension, and that if you’re back here again, we think it’s very unlikely that leniency will be extended at that time.
14On September 30, 2002, the Hearing Panel released thirteen (13) pages of reasons for penalty and said:
[10] In the serious circumstances of this case, and after careful consideration of the evidence and the submissions, we have concluded that Ms. Crozier is ungovernable. It is our decision that the ultimate penalty of disbarment is necessary to protect the public. Ms. Crozier did not ask for permission to resign, and we do not think that permission to resign is an appropriate disposition in any event.
15The Hearing Panel quoted the portions of the reasons from the 1997 and 1999 panels (supra). The Hearing Panel then stated:
[24] We set out at some length in our earlier reasons [January 24, 2002] the failures of Ms. Crozier that led to our findings on the merits of the charges. These findings, together with her conduct throughout the hearing, and her persistent contempt for the Law Society, lead us to conclude that, in addition to being guilty of the serious complaints with which she was charged, Ms. Crozier is indeed ungovernable. There is no prospect, in our view, that she will ever abide by the Rules of Professional Conduct or submit to being governed by the Law Society.
[28] …The misconduct proved here includes a failure to serve vulnerable clients, failure to put retainers in trust (including the absence of any active trust account), a misappropriation of retainer funds from Ms. Annette, and repeated failure to produce books and records to the Law Society, combined with continuing conduct and attitude which demonstrates ungovernability.
[30] Taking into account the facts and circumstances of this case, the conduct and attitude of Ms. Crozier, the evidence of Dr. Choy and the principles of earlier cases on the question of ungovernability, we have concluded that this is a case where the only appropriate penalty is that of disbarment, not permission to resign. The conduct of the solicitor is a part of a long-standing pattern which demonstrates both ungovernability and a potential danger to the public. We have no hope whatever that there is a prospect for change, and we cannot be satisfied that there is an alternative disposition that would be meaningful in protecting the public.
[31] In these circumstances, the panel is convinced that disbarment is warranted and we so order.
16By Notices of Appeal and Supplementary Notices of Appeal, dated November 7, 2002, December 20, 2002, May 28, 2003, July 7, 2003 and September 22, 2003, Ms. Crozier appealed the Hearing Panel’s orders of January 24, 2002 and September 30, 2002 to the Appeal Panel.
17The Appeal Panel heard Ms. Crozier’s appeal from the finding of professional misconduct and the penalty of disbarment on June 6, 2003, November 6 and 7, 2003 and December 15, 2003. The Appeal Panel’s decision was reserved until April 22, 2004 when twenty-five (25) pages of reasons were released.
18In its April 22, 2004 reasons, the Appeal Panel addressed Ms. Crozier’s grounds of appeal regarding the evidence and the law applicable to complaint CN41/99. The issues addressed by the Appeal Panel were:
(i) The Hearing Panel was not properly constituted
19The Appeal Panel held that:
(a) the appointment of two (2) members of the Hearing Panel to the Proceedings Authorization Committee (PAC) after the CN41/99 Panel hearing had commenced did not invalidate the hearing or require that a new Hearing Panel be constituted.
(b) the appointment of one member (Mr. Cherniak) of the Hearing Panel to the LSUC’s Litigation Committee did not affect his ability to be a member of the CN41/99 panel. The Appeal Panel held that “there must, in our view, be more than just the fact of membership on the committee”. Moreover, here, there cannot be any apprehension of bias as described by the Supreme Court of Canada in R. v. S. (R.D.) (1997), 1997 324 (SCC), 151 D.L.R. (4th) 193, 209 because the minutes of the Litigation Committee show that Ms. Crozier’s lawsuits against the LSUC were never discussed at any meeting attended by Mr. Cherniak. During argument, Ms. Crozier advised us that her lawsuits against LSUC had been dismissed by the Master more than a year ago. No appeal has been filed.
20On several occasions, Ms. Crozier advised the Hearing Committee that she was suing the LSUC and counsel for the Discipline Committee for libel.
(ii) Law Society and Conflict of Interest
21The Appeal Panel agreed with the Hearing Panel that the record did not disclose any conflict of interest on the part of LSUC’s counsel nor did Ms. Crozier suffer any prejudice from the LSUC’s counsel’s alleged failure to give production in a timely fashion.
(iii) Abuse of Process
22Ms. Crozier alleged that the particulars set out in CN41/99 were simply a recycling of the allegations in D168/98.
23The Appeal Panel held that the allegations in CN41/99 were completely new and different from those in D168/98. Moreover, there was no abuse of process due to the fact that CN41/99 was not proceeded with at the same time as D168/98 and CN26/99, even though CN41/99 was under investigation while D168/98 and CN26/99 were proceeding.
(iv) By-law 19 of LSUC
24Before the Hearing Panel and before the Appeal Panel, Ms. Crozier argued that the Hearing Panel erred in finding that she violated By-law 19 because particulars one (1) and six (6) of CN41/99 allege violations of By-law 19 on dates prior to that by-law being enacted by the Convocation of LSUC on January 28, 1999. The Appeal Panel disposed of this ground of appeal as follows:
[74] Notwithstanding that particulars one and six of the Notice of Application contain a reference to By-law 19, given the legislative history of the prohibition with respect to the use of trust funds, Ms. Crozier’s prior knowledge of the prohibition and her evidence at the hearing, we have absolutely no doubt that Ms. Crozier was not misled by the reference to By-law 19 or that she did not have sufficient detail in the particulars to enable her to identify the transactions in issue.
[75] We are further of the view that Ms. Crozier cannot raise the reference to By-law 19 at this stage of the proceedings. The time to raise the point was at the outset of the hearing before the Hearing Panel. Having failed to raise it then or at any time before the Hearing Panel, we do not feel that Ms. Crozier should be allowed to raise it at this stage of the proceedings.
[76] Accordingly, we are not prepared to set aside the Hearing Panel’s findings of professional misconduct with respect to particulars one and six of the Notice of Application based simply on the reference in such particulars to By-law 19.
(v) Procedural and Natural Justice Issues
(a) Regarding the LSUC
25In dismissing this ground of appeal, the Appeal Panel held that Ms. Crozier had sufficient particulars to enable her to make her defence – she had particulars, she had a copy of the brief of counsel for the LSUC and three (3) document books containing all relevant documents. Moreover, the Appeal Panel noted that Ms. Crozier had never made a motion seeking particulars. The Appeal Panel concluded that Ms. Crozier had sufficient disclosure.
26As for the “unreasonable delay” complaint of Ms. Crozier, the Appeal Panel found that any delay was caused by “Ms. Crozier’s failure to promptly respond to the Law Society”.
(b) Alleged bias of the Hearing Panel
27The Appeal Panel’s reasons for dismissing this ground of appeal state:
[87] We can find no basis for Ms. Crozier’s allegation that the Hearing Panel was biased. During the hearing Ms. Crozier brought a motion seeking the removal from the Hearing Panel of one of the members on the ground of bias. The Hearing Panel dismissed the motion for lack of merit. We agree with the Hearing Panel’s decision. Ms. Crozier has not directed us to any evidence which would come close to establishing bias or a reasonable apprehension of bias on the part of the Hearing Panel.
[88] Finally, we conclude that the Hearing Panel did not exceed its jurisdiction by dealing with matters not before it. Quite the contrary, it made a specific point of not dealing with matters raised by Ms. Crozier which were not properly before it.
[89] In the circumstances therefore, we cannot agree with Ms. Crozier’s multi-pronged procedural and denial of natural justice arguments in respect of both the Law Society and the Hearing Panel and accordingly dismiss these grounds of appeal.
28The conclusion of the Appeal Panel as to Ms. Crozier’s appeal from the finding of professional misconduct on particulars one (1) to seven (7) inclusive, is summarized as follows:
[96] For the reasons set forth herein, and based on the evidence and the reasons for decision of the Hearing Panel, we are all of the view that Ms. Crozier’s appeal from the finding of professional misconduct in respect of the seven particulars contained in the Notice of Application must be dismissed.
IV. The Penalty Imposed: (1) by the Hearing Panel and (2) the Appeal Panel
29As set out above, the Hearing Panel imposed disbarment. As part of the penalty process, with Ms. Crozier’s consent, the LSUC retained Dr. Alberto L. Choy, staff psychiatrist, Forensic Program, Centre for Addiction and Mental Health, Clarke Site, Toronto, Ontario, to provide an opinion as to whether, by reason of physical or mental illness or other infirmity, Ms. Crozier was or is incapable of meeting her professional obligations as a member of LSUC. Dr. Choy, together with Dr. P. Wiebe, a resident in forensic psychiatry, saw Ms. Crozier on four (4) occasions for interviews which totaled more than five (5) hours. Dr. Choy also synthesized all the written material listed “A” to “T”, inclusive, as well as the forty-two (42) items sent to him by Ms. Crozier and the listed telephone conversations Dr. Choy had with Ms. Crozier’s mother, Ms. Crozier’s son, a friend of Ms. Crozier and three (3) psychiatrists who had seen Ms. Crozier on earlier occasions.
30Dr. A. Choy provided to the Hearing Panel a twenty-four (24) page report, dated April 22, 2002, regarding his assessment of Ms. Crozier. She was provided with a copy.
31Dr. Choy concluded his April 22, 2002 report with these words:
Ms. Crozier should, in fact, strongly consider a completely different profession. To continue in law and to continue in a struggle with the Law Society of Upper Canada will only serve to replay a struggle in her life that is, at the very least futile, and at the very worst, promoting a view of herself that is valued (“the underdog”) but fraught with rage, depressive symptoms and anxiety. A completely different endeavour may allow for an opportunity to experience herself and the world in a less pathological fashion.
32Between the date of the first report on April 22, 2002 and the second report on June 1, 2002, Ms. Crozier sent some sixty-two (62) e-mails to Dr. A. Choy about his first report. Dr. Choy’s second report of some twenty-four (24) pages catalogued and explained for the Hearing Panel the material received from Ms. Crozier. The two (2) reports were before the Hearing Panel on June 27, 2002. Dr. Choy advised in the second report that Ms. Crozier’s writings, actions and words between the date of the first and second report reinforced the opinion that he had expressed in his first report, dated April 22, 2002.
V. Standards of Review
A. What standard of review should have been applied by the Appeal Panel to the decision of the Hearing Panel that Ms. Crozier had committed professional misconduct?
33As recently stated by the Supreme Court of Canada in Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 27 and Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at para. 22 and as applied by this Court in Toronto (Chief of Police) v. Blowes-Aybar 2004 CarswellOnt 1583 (April 22, 2004) (Div. Ct.) at paras. 24-29, when reviewing the finding of misconduct made by the Hearing Panel, the standard of review to be applied by the Appeal Panel is one decided by evaluating the four (4) factors listed in the “pragmatic and functional approach”:
(1) the presence or absence of a privative clause
(2) the expertise of the Tribunal compared to that of the reviewing panel
(3) the purposes of the legislation and the particular provisions applicable, and
(4) the nature of the questions – is it one of law or fact or mixed law and fact?
34Here, taking into account that the Act does not have a privative clause, that a right of appeal is provided, that the purpose of the legislation is the protection of the public, that the issues before the Hearing Panel were confined to ones of fact and mixed law and fact and in view of the fact that the Hearing Panel and the Appeal Panel are both composed of benchers, the proper standard of review for the Appeal Panel to employ on reviewing the finding of professional misconduct is the standard of reasonableness. If issues of procedural fairness, natural justice or bias were involved, then the Appeal Panel was required to employ the standard of correctness.
B. What standard of review should have been applied by the Appeal Panel to the Hearing Panel’s determination of penalty?
35For the reasons set out above regarding the proper standard of review to be applied by the Appeal Panel while reviewing a finding of professional misconduct by a Hearing Panel, it is our view that a standard of review of reasonableness is the proper yardstick to be used by the Appeal Panel, as a first instance review tribunal, as it reviews the penalty imposed by the Hearing Panel.
C. What standard of review should be applied by the Divisional Court in this case as the “secondary level” of review, in deciding whether the Appeal Panel applied the appropriate standard of review to the penalty imposed by the Hearing Panel?
36Following the pragmatic and functional approach of the Supreme Court of Canada decisions set out in Dr. Q., (supra) and Ryan, (supra), it is our view that this court is obliged to apply a standard of correctness as to whether the Appeal Panel selected and applied the proper test. If the Appeal Panel selected or applied an incorrect standard of review, this Court must undertake the review based on the correct standard.
37In summary, the Divisional Court, in reviewing the Appeal Panel’s decision on professional misconduct, must utilize a standard of correctness on matters of law and a standard of reasonableness on matters of fact and matters of mixed fact and law.
VI. The Former Solicitor’s Cross Appeal
38Earlier in these reasons at “Part III”, the grounds of appeal and issues argued by Ms. Crozier before the Appeal Panel were summarized. At para. [89] of its reasons, the Appeal Panel found no merit in the grounds of appeal argued and dismissed the appeal. The Appeal Panel decided all questions of law correctly and properly applied a reasonableness test to the decision of the Hearing Panel regarding Ms. Crozier’s professional misconduct.
39In para. [42] to para. [89] of the April 22, 2004 reasons, the Appeal Panel reviewed all Ms. Crozier’s complaints, whether or not proper grounds of appeal, about the Hearing Panel and how its members were appointed and how they comported themselves and made decisions. The Appeal Panel concluded:
[89] In the circumstances therefore, we cannot agree with Ms. Crozier’s multi-pronged procedural and denial of natural justice arguments in respect of both the Law Society and the Hearing Panel and accordingly dismiss these grounds of appeal.
40In our view, the Appeal Panel applied the standard of reasonableness to the professional misconduct issue and concluded that the reasons and decision of the Hearing Panel, on that issue, were reasonable and dismissed the appeal of Ms. Crozier regarding the Hearing Panel’s finding of professional misconduct. Moreover, as seen in the Appeal Panel’s reasons at para. [89], it properly applied the standard of correctness to the natural justice and procedural issues.
Issues raised by the former solicitor for the first time on her cross appeal
41Ms. Crozier, as is her wont, at each stage of the proceedings, incrementally added issues that were not before the previous forum. In Perka v. The Queen (1984), 1984 23 (SCC), 14 C.C.C. (3d) 385, 391, Dickson J. (for four (4) of a five (5) judge court) said:
In both civil and criminal matters it is open to a respondent to advance any argument to sustain the judgment below, and he is not limited to appellant’s points of law. A party cannot, however, raise an entirely new argument which has not been raised below and in relation to which it might have been necessary to adduce evidence at trial: …
42In their factum on the cross appeal, counsel for the LSUC lists the issues raised by Ms. Crozier before the Divisional Court:
i. She was prejudiced by the improper joinder of unrelated matters;
ii. She was the subject of a collateral attack as the result of the Law Society’s issuance of a Notice of Application in an unrelated matter;
iii. She was the subject of a complaint concerning a by-law not in force at the relevant time;
iv. She was not furnished with proper particulars of the allegations;
v. She had no counsel while very ill;
vi. She was penalized for the effects of her medication for depression and anxiety;
vii. The original hearing panel was improperly constituted and lacked jurisdiction as it violated section 49.21(2)1 of the Law Society Act;
viii. A conflict of interest exists between outside counsel for the LSUC as they occupy the same premises;
ix. A pre-trial ordered by Carole Curtis was never held;
x. The Hearing Panel refused to move to appropriate facilities as Ms. Crozier could not see the Hearing Panel from where she was sitting;
xi. The Hearing Panel erred in requiring her to provide three weeks notice for motions she wished to bring;
xii. LSUC replaced its outside counsel without bringing the proper motions;
xiii. The Hearing Panel complained of her conduct in the hearing, but did not specify what conduct it objected to, other than lateness and some absences; and
xiv. She was not granted access to the decisions of the LSUC Hearing or Appeal Panels which favour members.
43From para. [24] to para. [108], inclusive, of their factum on the cross appeal, counsel for the LSUC deals with all issues raised by Ms. Crozier.
44On June 2, 2004, Ms. Crozier also filed a draft “Notice of Constitutional Question” (in draft form). No notices were delivered during the hearing before the Hearing Panel or the Appeal Panel. Ms. Crozier claimed her s. 2(b) Charter Rights were breached by the LSUC in that it failed to provide her with case law which was favourable to LSUC members. This issue is dealt with by LSUC counsel in their factum from para. [109] to para. [115], inclusive.
45In our view, counsel for the LSUC’s factum, fully and correctly answers and rebuts each and every issue raised by Ms. Crozier. There is no merit to any of the issues raised by Ms. Crozier. It would serve no useful purpose to deal, seriatim, in these reasons, with each of those issues.
46In summary, on the issue of professional misconduct, the Appeal Panel applied the proper standard of review. As for matters raised for the first time before the Divisional Court, we find no merit in any of those issues.
47The cross appeal is, therefore, dismissed.
VII. The LSUC’s Appeal of the Penalty Imposed by the Appeal Panel
48The Decision and the Reasons of the Appeal Panel regarding penalty, dated April 22, 2004, states:
[90] In respect of penalty, Ms. Crozier submitted that the Hearing Panel erred in relying on Dr. Choy and that the penalty imposed was too extreme and not necessary to protect the public. It was also Ms. Crozier’s submission that the Hearing Panel should have granted a stay of penalty when she undertook not to practice law.
[91] In our view, having regard to the evidence before it, the Hearing Panel did not err in relying on the evidence of Dr. Choy. The penalty phase of the hearing was scheduled far enough in advance that Ms. Crozier could have and should have presented her own medical evidence to respond to Dr. Choy.
[92] Having regard to the evidence before it, and in all the circumstances, we cannot say that the penalty imposed by the Hearing Panel was inappropriate or wrong. However, that does not end the matter.
49With respect, that should have been the “end of the matter”. Paras. [90], [91] and [92] of the Appeal Panel’s reasons show that, at that juncture, it was applying the proper test, a reasonableness standard of review to the penalty issue, as is required by Dr. Q., (supra), and Ryan, (supra), and had concluded that the Hearing Panel’s decision on penalty was reasonable. At that juncture, even if the Appeal Panel had applied the stricter standard of correctness, the Appeal Panel was right to agree with the Hearing Panel when it said: “we cannot say that the penalty imposed by the Hearing Committee was inappropriate or wrong”. The greater includes the lesser. However, the Appeal Panel then embarked on a series of rulings and decisions as it left behind its proper function as a “first level review” panel, erroneously adopted a trial de novo stance and adopted the role of an initial hearing panel.
50Counsel for the LSUC submits that the Appeal Panel did not apply any discernible standard of review regarding the penalty imposed by the Hearing Panel but treated the appeal on penalty as a de novo hearing and substituted its unreasonable decision, based on a misapprehension of the “fresh evidence” and a failure to consider the total evidence that was before the Hearing Panel on the question of penalty.
VIII. The “Fresh Evidence” Issue
A. Its Admissibility
51After the Hearing Panel had released its written reasons finding that Ms. Crozier committed acts amounting to professional misconduct, it received Ms. Crozier’s consent and retained Dr. A.L. Choy to furnish the Hearing Panel with a psychiatric report to be used by the Hearing Panel on the penalty phase of the disciplinary hearing. Ms. Crozier attended at the doctor’s office on four (4) occasions for more than five (5) hours in total and provided Dr. Choy with material from psychiatrists and other medical personnel she had seen on earlier occasions. Ms. Crozier was given a copy of Dr. Choy’s first report, dated April 20, 2002 and she was also given Dr. Choy’s second report, dated June 1, 2002, where, inter alia, he examined and discussed the sixty-two (62) e-mails that Ms. Crozier had sent to him between April 20, 2002 and June 1, 2002. On September 30, 2002, the Hearing Panel imposed disbarment. Ms. Crozier appealed. The Appeal Panel convened on June 6, 2003, November 6 and 7, 2003 and December 15, 2003. Ms. Crozier, over the objections of counsel for the LSUC, on November 7, 2003, asked to file, inter alia, reports of her treating psychiatrist, Dr. E. Borins, dated January 17, 2003, February 18, 2003, May 21, 2003 and October 23, 2003. Ms. Crozier became Dr. Borins’ patient in August 2002, one or two months before the Hearing Committee imposed the penalty of disbarment. It will be recalled that Ms. Crozier did not present any oral evidence or psychiatric report on the penalty hearing before the Hearing Panel. The Hearing Panel, in giving its reasons for penalty, stated:
[7] In the main, her submissions contained a litany of complaints about the conduct of the Law Society, the conduct of the hearing and the panel, including the refusal to remove one of its members, the conduct of Law Society counsel and other staff, and a purported libel committed by the Law Society against her in matters unrelated to this hearing, in respect of which she has apparently commenced legal proceedings.
52In their factum on the appeal regarding penalty, counsel for the LSUC state:
[62] Ms. Crozier brought a motion to introduce a number of pieces of fresh evidence apart from the medical evidence. Amidst lengthy and confusing motion proceedings by Ms. Crozier, the Chair of the [Appeal] Panel proposed to Law Society counsel that the Appeal Panel “look at” medical evidence. Counsel for the Law Society clearly stated her objections to the evidence. However, questioned a second time, and after repeating the Law Society’s position that they were not relevant and inadmissible under the test for fresh evidence Law Society counsel agreed with the proposal that the documents be “looked at”. It was unclear and unarticulated what precisely was meant or what component of the penalty decision the documents were considered relevant to.
[63] The Law Society’s submissions on penalty were to the effect that the medical evidence that Ms. Crozier sought to rely on was simply irrelevant in that it could not have affected the result, and was not credible, particularly in light of Dr. Borins’ clear role as an advocate rather than a true expert. The Law Society submitted, further, that the Hearing Panel’s decision on penalty was to be reviewed on a reasonableness standard, consistent with the Ryan case, supra, and set out the numerous bases on which the Hearing Panel had made its decision.
53The Appeal Panel wrote in its reasons, dated April 22, 2004:
[27] In response to the motion, counsel for the Law Society agreed to the admission of the medical letters and e-mail from Ms. Crozier’s doctors and the record from Sunnybrook Hospital dated July 23, 1991. As a result, the admitted documents contained in a bound volume were marked collectively as Exhibit 2 to the appeal. However, the Law Society objected to the other documents being admitted on the basis that there was no evidence that the documents could not have been found with due diligence prior to or during the evidentiary portion of the hearing.
[28] The Court of Appeal recently reiterated the test for admission of fresh evidence in Zesta Engineering Ltd. v. Cloutier, 2002 45084 (ON CA), [2002] O.J. No. 3738 (C.A.).
[29] It was our view, having reviewed the documents in issue and having regard to the test set forth in the Zesta Engineering case, that Ms. Crozier had failed to establish that the documents in question were not obtainable by exercise of due diligence before or during the evidentiary portion of the hearing. Accordingly, we ruled that the Criminal Injury Compensation Board forms and the trust account records were not admissible as fresh evidence on the appeal.
54There appears to have been confusion about what consent/agreement, if any, was given by counsel for LSUC on November 7, 2003 regarding Dr. Borins’ reports.
55In our view, the letters of Dr. Borins were after the fact and did not meet the criteria for admissibility set out by the Supreme Court of Canada in:
(b) Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759, and
(c) Regina v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487.
56If the letters/reports of Dr. Borins had not been admitted by the Appeal Panel, there would have been no “perceived conflict” in medical/psychiatric diagnoses. If the Appeal Panel had applied the reasonableness test to the penalty imposed by the Hearing Panel, the answer would have been “reasonable”.
B. The Problems that ensued when the “fresh evidence” was admitted
57As the record shows, the Appeal Panel admitted into evidence the letters/reports of Dr. Borins.
58Counsel for the LSUC submits that Dr. Borins should not be classified as an “expert” in this case because:
(1) Ms. Crozier is her patient
(2) Dr. Borins views Ms. Crozier as an “innocent individual” caught up in the pressures of being investigated and prosecuted by LSUC
(3) Dr. Borins relied only on what Ms. Crozier told her
(4) Dr. Borins was an advocate for Ms. Crozier and not an independent expert with no ties to any of the parties.
59On cross-examination, Dr. Borins gave the following answers:
Q. Did you think that, given sufficient time, Ms. Crozier would be able to clear her name?
A. Yes, I did.
Q. You hoped it would be possible for the appeal panel to have a more humane evaluation of the situation?
A. Yes.
Q. And you hoped, in writing the report, that you’d be able to help Ms. Crozier?
A. Yes.
60Counsel for the LSUC summarizes their submissions in the following paragraphs from their factum:
[59] It is submitted that if Ms. Crozier was not capable of meeting her professional obligations because she is being disciplined by the Law Society, she is by definition not governable. This issue, and not the question of which specific diagnosis from the Diagnostic Standards Manual could be applied to Ms. Crozier, was the issue on which Dr. Borins’ evidence could have been useful. On that issue, Dr. Borins’ evidence did not assist Ms. Crozier.
[60] Moreover, a review of the Hearing Panel’s decision supports the view that it was the symptoms Ms. Crozier was exhibiting, and not the diagnosis of their cause, that formed part of the Hearing Panel’s decision to disbar her.
(emphasis in original)
61The matter that caused concern for the Appeal Panel was the difference in the diagnosis of Dr. Choy and that of Dr. Borins. Dr. Choy found that Ms. Crozier suffers from a mixed personality disorder while Dr. Borins diagnosed Ms. Crozier as suffering a very severe stress response which was primarily manifested as depression and which, in turn, led to incapacity. Dr. Borins felt that the stress on Ms. Crozier had been caused, in part, by the LSUC’s disciplinary proceedings.
62In her letter/report of January 17, 2003, Dr. Borins wrote:
She functioned at a high level in her practice but of course was vulnerable to the withdrawal of support from the changes in the administration of funding and the pressures of complaints in her practice and auditing difficulties. There was penalizing which caused significant damage to her self and her integrity and to her financial functioning.
Ms. Crozier’s diagnosis is much more consistent with a depressive reaction to the acute stresses imposed by the Law Society and the difficulties in her practice since 1996. The stresses have been chronic, have led to significant financial losses including the loss of her home and the loss of her practice and a significant accumulation of debt. These chronic stresses have contributed seriously to ongoing depression.
When individuals are seriously stressed, their personality and coping mechanisms are brought into play and some of these may be exaggerated but one must use caution in diagnosing Personality Disorder when there are serious stresses involved.
The patterns of behaviour demonstrated by Ms. Crozier since 1998 are much better accounted for by the presence of depression as a response to the audits and investigative charges by the Law Society of Upper Canada, the arbitrary cancellation of her legal aid funding leading to more serious losses. This has made it extremely difficult for her to rally resources for a proper challenge to the Law Society and has also manifested itself in difficulties with her scheduled appearances.
Given an adequate time frame to submit her full case for a proper hearing, she will be able to clear her name.
63The heart of the Appeal Panel’s reasons for varying the penalty are set out in the following paragraphs of its decision:
[93] As previously noted, Ms. Crozier has filed fresh evidence on the appeal principally in the form of an opinion from Dr. Borins which counters the opinion of Dr. Choy. Unlike the Hearing Panel, therefore, we have before us medical evidence contradicting the opinion of Dr. Choy and providing a different view of Ms. Crozier’s medical situation and the reasons for her behaviour. The result is that we are left in a difficult position. We must decide on the different diagnosis of each doctor not having had the opportunity to hear from each doctor in person.
[94] After carefully reviewing the reports and evidence of both Dr. Choy and Dr. Borins, we accept the opinion of Dr. Borins in this situation. Dr. Borins spent a significant period of time with Ms. Crozier, has been treating her on an ongoing basis and noted an improvement. It is also clear from the reports (and not just Dr. Borins’) that the diagnosis of personality disorder can easily be masked by depression and particularly the severe depression Ms. Crozier was suffering.
[95] In our view, had the Hearing Panel had the benefit of the opinion of Dr. Borins, we believe they would have better understood the problems that Ms. Crozier was facing and the reasons for her behaviour during the course of the hearing which in part led to the severe penalty they imposed. The conclusion that Ms. Crozier was suffering from depression provides a different explanation of her behaviour and the problems she found herself in than the diagnosis of personality disorder. It is for this reason that we feel that the penalty of disbarment imposed by the Hearing Panel cannot stand.
64In our view, the Appeal Panel erred when it held that because it preferred the diagnosis of Dr. Borins to that of Dr. Choy, the Appeal Panel was entitled to change, alter or modify the penalty imposed by the Hearing Panel. It will be recalled that the Appeal Panel said:
[91] In our view, having regard to the evidence before it, the Hearing Panel did not err in relying on the evidence of Dr. Choy. The penalty phase of the hearing was scheduled far enough in advance that Ms. Crozier could have and should have presented her own medical evidence to respond to Dr. Choy.
[92] Having regard to the evidence before it, and in all the circumstances, we cannot say that the penalty imposed by the Hearing Panel was inappropriate or wrong. However, that does not end the matter.
65The Appeal Panel misdirected itself when it said: “The result is that we are left in a difficult position. We must decide on the different diagnosis of each doctor not having had the opportunity to hear from each doctor in person” [para. 93].
66Neither Dr. Choy nor Dr. Borins, nor anyone else, has ever said that Ms. Crozier was not responsible for her actions. The reasons of the Appeal Panel seem to indicate that the Hearing Panel imposed the penalty of disbarment based solely on Dr. Choy’s diagnosis that Ms. Crozier suffers from a personality disorder. The reasons and decision of the Appeal Panel ignore the finding of the Hearing Panel that Ms. Crozier is ungovernable and a potential danger to the public, and there is no hope that Ms. Crozier will change. The Appeal Panel failed to address these findings and the serious concerns of the Hearing Panel.
67There is no doubt that Ms. Crozier said, did and failed to do what the Hearing Panel recorded in its reasons. Whether the diagnosis of Dr. Choy or that of Dr. Borins is accepted, it is immaterial because, under either diagnosis, she remains responsible for her actions and accountable for her conduct.
68The Hearing Panel did not disbar Ms. Crozier based solely on Dr. Choy’s diagnosis of her personality disorder. His diagnosis was one factor considered by the Hearing Panel. The Hearing Panel based its decision on a multitude of factors, including:
(i) Ms. Crozier’s serious prior discipline history
(ii) Ms. Crozier’s serious previous admonitions by the Discipline Panels
(iii) Medical evidence
Therefore, it makes sense to me that she will never be able to see the Law Society as a governing body that she can work under. She will always maintain that she is right in this way, that she’s been victimized by the Law Society, and is going to undoubtedly lead to conflict and problems in her acting in her duties as a lawyer.
(Evidence of Dr. Choy taken in camera on June 27, 2002: p. 2184 of Transcript – quoted in Hearing Panel’s reasons at para. [21])
(iv) Ms. Crozier’s conduct during the hearing over twenty-seven (27) days before the Hearing Panel and her continued contempt for the LSUC and its rules and regulations.
(v) Seriousness of the professional misconduct of Ms. Crozier – misappropriation of clients’ funds, failure to place retainers in trust or even to maintain a trust account and repeated failures to produce books and records to the Law Society.
(vi) Ms. Crozier’s lack of appreciation of the seriousness of her misconduct, lack of remorse for the harm caused to her clients, unwillingness to assure the LSUC that her conduct would not be repeated, unwillingness to ensure that she would abide by the Rules of Professional Conduct and her persistence in maintaining that “her problems” were caused by her clients, the LSUC and its counsel and the Hearing Panel itself.
69The conclusion of the Hearing Panel was: “The conduct of the solicitor is a part of a long-standing pattern which demonstrates both ungovernability and a potential danger to the public”.
IX. Conclusions
70Assuming without deciding that the “fresh evidence” was admissible, the Appeal Panel erred in concluding that the fresh evidence, with a different diagnosis of Ms. Crozier’s problems, should cause it to change or vary the penalty imposed by the Hearing Panel. The proper question to be determined by the Appeal Panel was whether the Hearing Panel’s penalty was unreasonable in light of the evidence before the Hearing Panel or in light of the “fresh evidence”. The Appeal Panel failed to identify any finding of the Hearing Panel which Dr. Borins’ evidence served to overturn. A review of the Hearing Panel’s decision shows that it was the words, actions and conduct of Ms. Crozier, for which she is responsible, that influenced the Hearing Panel’s decision to disbar Ms. Crozier. The decision to disbar was not based on a psychiatric diagnosis.
71In conducting the penalty review in the manner it did, the Appeal Panel stepped out of its proper rôle as a “first review tribunal” and erroneously took upon itself a trial de novo rôle and proceeded as an initial hearing panel. The Appeal Panel’s reasons at para. [93] (supra) sets out the essence of where it went wrong.
X. Result
72The appeal of the LSUC as to penalty is allowed, the penalty imposed by the Appeal Panel on April 22, 2004 is set aside and the penalty of disbarment imposed by the Hearing Panel on September 30, 2002 is reinstated.
73The cross appeal by Ms. Crozier from the findings and conclusions of the Appeal Panel, dated April 22, 2004, is dismissed.
XI. Costs
74Counsel for the LSUC does not ask for costs. Therefore, there will be no order as to costs of the appeal or the cross-appeal.
O’Driscoll J.
Jarvis J.
Swinton J.
Released:
COURT FILE NO.: 314/04
DATE: 20051024
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
o’driscoll, jarvis and swinton jj.
B E T W E E N:
THE LAW SOCIETY OF UPPER CANADA
Appellant and Respondent by Cross-Appeal
- and -
KAREN LEA CROZIER
Respondent and Appellant by Cross-Appeal
REASONS FOR JUDGMENT
THE COURT
Released: October 24, 2005