Citation and Court Information
CITATION: Bharadwaj v. Law Society of Upper Canada, 2013 ONSC 4329
DIVISIONAL COURT FILE NO.: 141/12
DATE: 20130621
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MOLLOY, MURRAY AND HARVISON YOUNG JJ.
BETWEEN:
MEERA BHARADWAJ
Appellant
(Respondent)
– and –
LAW SOCIETY OF UPPER CANADA
Respondent
(Applicant)
Neil J. Perrier, for the Appellant
Lisa Freeman and Danielle Smith, for the Respondent
HEARD at Toronto: June 21, 2013
Oral Reasons for Judgment
MURRAY J. (orally)
[1] Pursuant to s. 49.38 of the Law Society Act, the appellant lawyer, Meera Bharadwaj appeals to this court from the Decision and Order of the Law Society Appeal Panel, dated February 22, 2012.
[2] We accept as accurate the factual overview was summarized by the Chair of the Appeal Panel, Ms. Rothstein, at paras. 1 and 5 of her Decision. They are as follows:
On September 17, 2008, a hearing panel found Ms. Meera Bharadwaj (the “Appellant”) to have committed 43 particulars of professional misconduct in relation to 11 clients. The Appellant’s misconduct reflected a lack of integrity in a variety of ways over a six-year period. She caused economic and emotional harm to many of her clients. She engaged in a pattern of accepting trust funds, failing to deposit them in trust or pre-taking them, failing to do work of any value for her clients and then sometimes becoming abusive when seeking further funds. The Appellant’s behaviour was vindictive and stress-inducing to her clients and damaging to the reputation of the profession.
The appellant was called to the Bar in 1999. She is a sole practitioner practising in the areas of real estate, wills, family law and criminal law. She was initially denied admission to the Bar and was required to demonstrate her good character. In allowing her application, the panel nevertheless warned her that her case came “very close to the line of being ungovernable.” The panel reminded her that candour and honesty should be at the forefront of her relationship with her clients and other lawyers.
[3] At the initial hearing no witnesses were called on behalf of the appellant lawyer, neither did she testify on the merits of the application. She did testify during the penalty phase of the hearing.
[4] At the penalty phase of the hearing, which took place on September 18 and December 4, 2008, the Law Society took the position that the appellant should be permitted to surrender her licence. The appellant submitted, that in light of her psychiatric history, she ought to be suspended for a fixed period and thereafter indefinitely until she could demonstrate that she was fit to return to the practice of law.
[5] The decision of the Hearing Panel on January 12, 2011, was to impose a penalty on the appellant of permission to surrender her licence with terms. As the appellant failed to surrender her licence by the specified date of January 28, 2011, her licence was revoked.
[6] The lawyer appealed the Decision of the Hearing Panel to the Law Society Appeal Panel. On appeal, two grounds were advanced: (1) that the Hearing Panel erred in law by failing to provide adequate reasons for its decision on penalty; and (2) that the Hearing Panel’s decision on penalty was unreasonable.
[7] In its Decision of February 22, 2012, the Appeal Panel dismissed the appeal holding that:
(i) the Hearing Panel provided adequate reasons for its decision; and
(ii) that the appellant lawyer posed an ongoing and significant risk of harm to the public and that the penalty imposed by the panel, permission to surrender her licence with terms, was not unreasonable.
[8] In this court, the appellant argues that the Law Society Appeal Panel erred in finding that the penalty imposed by the Hearing Panel was reasonable and further erred in finding that the reasons of the Hearing Panel were adequate or sufficient to permit meaningful review.
[9] We agree with the appellant that the standard of review to be applied to the Hearing Committee Decision, is one of reasonableness.
[10] The appellant argues that the penalty imposed by the panel was unreasonable because there was no finding of ungovernability and the penalty imposed was disproportionate to penalties imposed in other cases involving similar or more egregious misconduct and that the Committee failed to explain why a lesser penalty was not imposed in this case.
[11] We agree with the Decision of the Appeal Committee that the penalty of permission to surrender her licence was reasonable.
[12] As noted at the outset, the appellant was found to have committed 43 particulars of professional misconduct. The most egregious misconduct of the appellant is reviewed by the Appeal Panel in its Decision. A complete review is found in the Decision of the Hearing Panel. These need not be repeated here.
[13] In the penalty phase of the hearing, the appellant also was noted to have frequently minimized or mischaracterized her conduct. She also shifted the blame to others. The appellant made it clear that she did not accept the findings of the Hearing Panel.
[14] The Hearing Panel considered the psychiatric evidence before them. The diagnosis of mixed personality disorder was unchallenged. This was described as “an enduring pattern of inner experiences and behaviours that deviate markedly from the expectations of the individual’s culture.” Dr. Rootenberg’s opinion was that personality disorders are notoriously difficult to treat given the ingrained personality characteristics that define them. They are life-long conditions. Dr. Rootenberg opined that even if the appellant successfully completed a long-term course of therapy with a skilled clinician, “It will be some time in the future until one can truly gauge how well the appellant has actualized these principles into her daily life and whether in fact she has made positive changes regarding her interaction with others.” No clear prognosis for recovery was also the opinion of Dr. Leszcz, the Psychiatrist In-Chief at Mount Sinai Hospital.
[15] In concluding that the penalty imposed was reasonable, we adopt the analysis at paras. 61 through to and including paragraph 65 of the Decision of Ms. Rothstein, Chair of the Appeal Panel.
[16] The appellant was critical of the Hearing Panel not reviewing or analyzing other discipline cases viewed by the appellant as similar and requiring the penalty urged by the appellant. We disagree.
[17] It is clear from the Decision of the Hearing Panel that the panel did consider other cases in determining whether the penalty imposed in this case was reasonable. Although the Appeal Panel did not refer to other cases specifically, clearly the Appeal Panel was alive to the arguments and the jurisprudence referred to by the appellant. The Appeal Panel addressed the issue of categorization of penalty at paras. 61 through to and including 66, as noted above.
[18] This is not a case where there was a large disparity in the positions taken by the parties. The Law Society of Upper Canada asked for the penalty of the opportunity to resign. The appellant sought a definite plus and indefinite penalty as described above. It is recognized that the penalty imposed may make readmission to the profession more difficult than the penalty sought by the appellant. It may be that both penalties represent possible reasonable outcomes.
[19] We conclude that the penalty imposed was reasonable. In this regard, we essentially agree with the Decision both of the Hearing Panel and of the Appeal Panel.
[20] With respect to the second issue, we are also in agreement with the Appeal Panel that the Hearing Panel provided adequate reasons for its decision on penalty. To paraphrase the words of Binnie J. in Sheppard (R. v. Sheppard, 2002 SCC 26, [2002] S.C.J. No. 30), it is plain from the record why the penalty was imposed and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right to appeal. The Hearing Panel articulated with clarity the factual foundation for their determination of penalty and the evidence, including the psychiatric evidence relating thereto. The Hearing Panel articulated the factors which informed their decision on penalty including the factors have outlined succinctly in the Respondent’s Factum at para. 70 including the following:
(i) The nature, duration and repetitive character of the misconduct;
(ii) The Appellant’s limited insight and remorse;
(iii) The failure of the Appellant to make voluntary restitution to any clients;
(iv) The fact that the Appellant was denied admission to the bar, was required to demonstrate her good character, and was cautioned by the Discipline Committee that ultimately allowed her to be called to the bar;
(v) The fact that personality disorders are notoriously difficult to treat;
(vi) Dr. Farcnik’s inability to offer a time estimate for when the Appellant would be fit to practise;
(vii) The absence of any character witness;
(viii) The need for deterrence and protection of the public.
[21] We agree with the observations of the Appeal Panel at paras. 58 and 59 of its Decision and the conclusion reached therein at para. 59 that “Taken together, the panel’s reasons permit meaningful review.”
[22] As a result, the appeal is dismissed.
Costs
MOLLOY J.
[23] I have endorsed the Appeal Book, “This appeal is dismissed for oral reasons delivered in court today. Costs fixed at $7,500.00.”
MURRAY J.
MOLLOY J.
HARVISON YOUNG J.
Date of Reasons for Judgment: June 21, 2013
Date of Release: July 16, 2013
CITATION: Bharadwaj v. Law Society of Upper Canada, 2013 ONSC 4329
DIVISIONAL COURT FILE NO.: 141/12
DATE: 20130621
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MOLLOY, MURRAY AND
HARVISON YOUNG JJ.
BETWEEN:
MEERA BHARADWAJ
Appellant
(Respondent)
– and –
LAW SOCIETY OF UPPER CANADA
Respondent
(Applicant)
ORAL REASONS FOR JUDGMENT
MURRAY J.
Date of Reasons for Judgment: June 21, 2013
Date of Release: July 16, 2013