COURT FILE NO.: 117/05
DATE: 20080925
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW*, SWINTON AND MURRAY JJ.
(* Matlow J. did not take part in this decision)
B E T W E E N:
THE LAW SOCIETY OF UPPER CANADA
Appellant
(Respondent on Cross-Appeal)
- and -
GARY NEINSTEIN
Respondent
(Appellant on Cross-Appeal)
J. Thomas Curry and Ryan S. Breedon, for the Appellant (Respondent on Cross-Appeal)
Brian Greenspan and Seth Weinstein, for the Respondent (Appellant on Cross-Appeal)
HEARD: in writing
SUPPLEMENTARY REASONS FOR DECISION
SWINTON and MURRAY JJ.:
[1] In majority reasons issued February 19, 2007, we allowed the appeal of the Law Society in part, setting aside the order of the Appeal Panel that had set aside the Hearing Panel’s finding of professional misconduct and ordered a new hearing. We upheld the part of the Appeal Panel’s order that set aside the Hearing Panel’s penalty of disbarment.
[2] The matter was referred back to the Appeal Panel to amend its formal order so that it would reflect its conclusion that a 12 month suspension should be substituted in the event that Mr. Neinstein was guilty of professional misconduct.
[3] The order having been amended, Mr. Neinstein (the “Cross-Appellant”) has since filed a cross-appeal of the amended penalty order, imposed June 11, 2007 and issued August 10, 2007. The parties have made submissions in writing on the cross-appeal.
The Fresh Evidence
[4] The Cross-Appellant seeks leave to file fresh evidence in the form of an affidavit of Jeffrey Neinstein, his son. The affidavit deals with the adverse impact that the disciplinary proceedings have had on the Cross-Appellant’s personal and professional life. The Law Society opposes the introduction of this evidence, on the grounds that it is irrelevant.
[5] Fresh evidence may be admitted on appeal if it would not have been available, with due diligence, at the time of the decision appealed from; it is relevant to a decisive or potentially decisive issue; it is reasonably capable of belief; and if believed, it could reasonably, when taken with the other evidence in the record, be expected to have affected the result (Visagie v. TVX Gold Inc. (2000), 2000 5749 (ON CA), 187 D.L.R. (4th) 193 (Ont. C.A.) at para. 53).
[6] The Cross-Appellant has not indicated whether this evidence was put before the Appeal Panel. From the content, it appears that this evidence would have been available to put before it.
[7] The fresh evidence that the Cross-Appellant seeks to adduce is of very limited evidentiary value, and we are not satisfied that it could reasonably, when taken with the other evidence in the record, be expected to have affected the result. Evidence of the impact of the proceedings on the Cross-Appellant should have come from him or a medical professional who has treated him. Moreover, the adverse effects on his professional life are just as likely to have been the result of the finding of professional misconduct as from the penalty of disbarment. Therefore, we would not admit the fresh evidence.
The Reasonableness of the Penalty
[8] That brings us to the issue of the penalty. The standard of review with respect to a penalty decision is reasonableness, as we stated in our earlier reasons (at para. 45).
[9] Before the Hearing Panel, the Law Society sought an order of disbarment, while the Cross-Appellant’s counsel submitted that a suspension of three to six months was an appropriate penalty. In this appeal, the Cross-Appellant submits that there should be no suspension.
[10] The Appeal Panel gave thorough reasons as to why the penalty of disbarment was inappropriate in the circumstances. In doing so, the Appeal Panel made a number of findings of fact, none of which have been challenged in the present appeal:
(a) the Cross-Appellant’s professional misconduct with respect to the two complainants reflected a disrespect of the trust placed in the Cross-Appellant by virtue of his relationship with the complainants;
(b) his offensive behaviour involved an abuse of power;
(c) the conduct was repeated with each complainant and continued over a lengthy period of time;
(d) the behaviour had an adverse effect on both complainants (although the Appeal Panel disagreed with the Hearing Panel’s description of the impact as “significant”);
(e) the Cross-Appellant’s conduct affects the reputation of the profession as a whole.
[11] The Appeal Panel also found that the Cross-Appellant was willing to undertake appropriate rehabilitation, and that there appeared to be no risk that he would re-offend. However, the misconduct affected the reputation of the profession as a whole. There were, as well as number of mitigating factors: the lack of a prior discipline record over a career of 34 years, the redesign of his office into an “open office” concept, registration in a sensitivity workshop, and ongoing family support.
[12] The Appeal Panel also considered penalties that had been imposed in other cases, noting that sanctions for sexual harassment had, at the time, historically ranged from a reprimand to an 18 month suspension.
[13] The Cross-Appellant submits that the penalty is unreasonable, because it is demonstrably unfit having regard to the range of penalties for professional misconduct of this nature and in light of the historical context of the misconduct.
[14] In determining the reasonableness of a decision, a reviewing court should examine the reasons to see if they stand up to a “somewhat probing examination” (Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 55). In this case, the Appeal Panel gave detailed reasons as to why disbarment was an inappropriate penalty. However, it did not discuss why it imposed a penalty of 12 months suspension in light of the various factors that should be taken into account in determining an appropriate penalty (see para. 162 of the Reasons). Therefore, we must determine whether the penalty was a reasonable one in the overall circumstances.
[15] Although administrative tribunals are not bound by stare decisis, a comparison of similar cases is an essential component when considering the appropriateness of a disciplinary penalty (Re Stevens and Law Society of Upper Canada (1979), 1979 1749 (ON SC), 55 O.R. (2d) 405 (C.A.) at p. 411). A review of the penalties previously imposed by the Law Society for sexual harassment shows a range of penalties from a reprimand to suspension. The Cross-Appellant, in his factum for the original appeal by the Law Society, included an Appendix setting out the relevant cases. Five cases resulted in a reprimand or admonition: LSUC v. Chodos (1986), LSUC v. Zuker (1989), LSUC v. Ramsey (1992), LSUC v. Freedman (2000), and LSUC v. Richardson (2001).
[16] In LSUC v. Coccimiglio (1991), a twelve month suspension was imposed where a lawyer had been found guilty of sexual assault (for which he was initially sentenced to 30 days imprisonment), and he was found to have propositioned a client using sexually explicit language, including discussions about oral sex.
[17] In LSUC v. Bondzi-Simpson (1999), a lawyer was suspended for 18 months after sexually harassing a client by making inappropriate sexual advances and touching her and inappropriately asking a client about her sex life. In that case, the member did not appear, nor was he represented by counsel. The majority of the Committee expressed concern about the need for protection of the public, as the evidence disclosed some underlying problem that was probably psychiatric in nature.
[18] In the second Zuker case, decided in 1999, the member made unwelcome comments and overtures of a sexual nature to a client. For this second offence of sexual harassment, he received a six month suspension with conditions on his practice.
[19] In LSUC v. Venn (2003), the member received a one month suspension with conditions after being found guilty of sexually harassing four clients by making unwelcome sexually suggestive comments and/or advances and by engaging in unwanted physical contact of a sexual nature.
[20] Finally, in LSUC v. Norris (2003), the member received a three month suspension after pleading guilty to committing an indecent act with intent thereby to offend a female person.
[21] While the Law Society relied on the case of Igbinosun (2006), where the member was disbarred because of acts of physical assault, sexual assault and sexual harassment in 1999 through 2001, that decision has recently been overturned by the Divisional Court (see 2008 36158).
[22] In sum, the longest penalty imposed by the Law Society for sexual harassment was 18 months, and in that case, Bondzi-Simpson, there were no mitigating circumstances and a serious concern for public safety. In the second Zuker case, a six month suspension was imposed after a second offence of sexual harassment. Therefore, a penalty of 12 months suspension is much heavier than penalties in comparable cases.
[23] Moreover, in this particular case, in determining the appropriateness of the penalty, justice requires that the conduct be considered in its historical context, as observed by another Law Society Hearing Panel in the J.W.C.B. case in 2003 ([2003] L.S.D.D. No. 42). The conduct in issue occurred between 1988 and 1991 with one complainant and between 1990 and 1993 with another. The Law Society first passed a rule dealing with sexual harassment in July 1992, and the first case in which a lawyer was found guilty of sexual harassment, the first Zuker case, occurred in 1989. There, a reprimand was imposed.
[24] Moreover, there are a number of mitigating factors in this case. The Cross-Appellant had no prior disciplinary history throughout a lengthy career. He had taken steps to rehabilitate himself by participating in a gender sensitivity training programme, and he had taken steps to redesign his office space to make it more transparent. The Hearing Panel and the Appeal Panel concluded that the Cross-Appellant was unlikely to re-offend, and the Appeal Panel observed that the protection of the public does not appear to be in issue.
[25] The Law Society was understandably very concerned about general deterrence in these proceedings. There is no question that the conduct of the Cross-Appellant was serious and deserving of sanction. His conduct reflects both disrespect for the two complainants and an abuse of power, and it reflects negatively on the reputation of the profession as a whole. Therefore, a reprimand, in the circumstances, would not be a sufficient penalty.
[26] However, the penalty of a 12 month suspension is excessive and unreasonable in the circumstances, given the historical context within which the conduct occurred, the range of penalties for professional misconduct of this nature, and the numerous mitigating factors in this case. In our view, a suspension of three months is appropriate to meet concerns for general deterrence and public protection.
[27] Therefore, the cross-appeal on penalty is allowed, and the order of the Appeal Panel is amended to substitute a penalty of three months suspension.
[28] If the parties cannot agree on costs, they may make brief written submissions within 30 days of the release of this decision.
Swinton J.
Murray J.
Released: September 25, 2008
COURT FILE NO.: 117/05
DATE: 20080925
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, SWINTON AND MURRAY JJ.
B E T W E E N:
THE LAW SOCIETY OF UPPER CANADA
Appellant
(Respondent on Cross-Appeal)
- and -
GARY NEINSTEIN
Respondent
(Appellant on Cross-Appeal)
SUPPLEMENTARY REASONS FOR DECISION
SWINTON and MURRAY JJ.
Released: September 25, 2008