CITATION: Totera v. The Law Society of Upper Canada, 2016 ONSC 1578
DIVISIONAL COURT FILE NO.: 491/14 DATE: 20160308
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. WILSON, E. STEWART, J. THORBURN JJ.
BETWEEN:
EUGENIO TOTERA
Appellant
– and –
THE LAW SOCIETY OF UPPER CANADA
Respondent
Brad Teplitsky, for the Appellant
Suzanne Jarvie, for the Respondent
HEARD at Toronto: February 4, 2016
THORBURN J.
REASONS FOR DECISION
OVERVIEW
[1] On March 27, 2006, the Appellant, Mr. Totera, was contacted by an investigator with the Law Society and told he was suspected of involvement in fraudulent activity. Five years later, on March 22, 2011, the Law Society issued a Notice of Application in which it is alleged that the Appellant was involved in a fraud involving 12 real estate transactions.
[2] On January 21, 2013, the Law Society Hearing Panel granted the Appellant’s motion to dismiss the Application for Disciplinary proceedings on the basis that:
[T]he Society’s five-year delay satisfies the test [for dismissal of the Disciplinary hearing for inordinate delay] in that… it exacerbated a pre-existing condition in a serious and profound manner. The public interest would not be prejudiced by an order dismissing the Application [as they found he had not knowingly participated in mortgage fraud or failed to be honest or candid]. The panel finds that the delay has resulted in an abuse of process that justifies such an order. In making that finding, the panel is not criticizing the hard-working members of the Society’s staff but rather the Society itself for its failure to provide sufficient resources to the prosecution of mortgage fraud cases in a timely manner (paras. 65, 67).
[3] The Law Society appealed the decision of the Hearing Panel to the Appeal Panel.
[4] On October 1, 2014, the majority of the Law Society Appeal Panel set aside the Hearing Panel Order. The majority of the Appeal Panel found that,
[T]he hearing panel’s most fundamental error was that it misapprehended the evidence on point. The panel stated at para. 57 [of its decision] that the Lawyer was not cross-examined on his affidavit. However, he was extensively cross-examined on his affidavit, and most particularly, on the level of true prejudice suffered as a result of the delay (para. 56).
In other circumstances, this error might not be fatal to the decision. However, this was far from an overwhelming case in favour of Mr. Totera’s position that the prejudice to him rose to the exceptional level justifying a stay (para. 59).
[T]he panel acknowledged at para. 64 the need for it to find a serious and profound effect on the Lawyer…. [However, the] issue is not merely whether the Lawyer experienced greater effects from the investigation than the average lawyer because of his psychological profile. It is whether those effects are so significant as to justify a stay of proceedings (para. 60).
In light of the hearing panel’s failure to consider all evidence and to properly analyze whether that evidence met the preconditions for a stay, its decision must be set aside (para. 61).
[5] The Appeal Panel noted, at para. 62:
[T]he hearing panel concluded (albeit without reviewable reasons) that the Lawyer had not knowingly participated in mortgage fraud or failed to be honest or candid. As well, the hearing panel found inordinate delay from the date of the complaint to the hearing. In all the circumstances, including this finding and the long delay, the Law Society may wish to consider whether to pursue the allegations of knowing participation and failure to be honest and candid at the new hearing.
[6] The majority of the Appeal Panel ordered a new hearing before a differently constituted Hearing Panel.
[7] In dissenting reasons, Appeal Panel member, Janet Leiper, concluded that the Hearing Panel’s decision should be upheld.
[8] She agreed with the majority Appeal Panel decision that there was inordinate delay in the investigation of this matter that caused significant prejudice to the Appellant, and there was no prejudice to the public interest as the Lawyer had not knowingly participated in mortgage fraud and was honest. She disagreed with the majority of the Appeal Panel on the significance of the failure to refer to the cross-examination of the Appellant.
[9] She concluded that the Hearing Panel had applied the test to determine whether there was serious prejudice resulting from the inordinate delay as set out in the leading case of Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307. She found that the Hearing Panel reasonably concluded that the inordinate delay resulted in significant psychological harm to the Appellant, which justified the decision to dismiss the Application for Disciplinary proceedings.
[10] The Appellant appeals the majority Appeal Panel decision.
THE PROGRESS OF DISCIPLINARY PROCEEDINGS BY THE LAW SOCIETY
[11] When the Society commences disciplinary proceedings against one of its members, the decision-maker of first instance is the Hearing Panel, which consists of three members appointed by Convocation of the Society, of which one must be a non-lawyer. (Section 49.21(2) of the Law Society Act, R.S.O. 1990, c. L-8 (“the Act”).)
[12] A party to a proceeding before the Hearing Panel may appeal any final decision or order of the Hearing Panel to the Appeal Panel, which consists of at least five persons appointed by Convocation, including at least one non-lawyer. (Sections 49.32(1) and 49.29(2) of the Act.) The Appeal Panel may intervene if the decision of the Hearing Panel is unreasonable or incorrect in law. (The Law Society of Upper Canada v. Neinstein (2007), 85 O.R. (3d) 446 (Div. Ct.), at paras. 40-42.)
THE JURISDICTION OF THE DIVISIONAL COURT
[13] Section 49.38 of the Act creates a statutory right of appeal to the Divisional Court. That provision applies to any case where the Law Society charges one of its members with professional misconduct under s. 34 of the Act.
[14] The Appellant has the right to appeal on any question of fact or law. (Section 49.39 of the Act.)
STANDARD OF REVIEW TO BE APPLIED BY THE DIVISIONAL COURT
[15] The standard of review to be applied by the Divisional Court to decisions from the Law Society Appeal Panel was canvassed by the Divisional Court in Igbinosun v. Law Society of Upper Canada (2008), 239 O.A.C. 178 (Div. Ct.), aff’d 2009 ONCA 484, 96 O.R. (3d) 138, at para. 9:
The Appeal Panel is entitled to deference on its findings of mixed fact and law, determination of penalty and its interpretation of the Act and this Court should only intervene if the Appeal Panel’s decision is unreasonable. However, on questions of law outside that area of expertise, the Appeal Panel is required to be correct.
Similarly, the Appeal Panel is required to accord deference to decisions of the Hearing Panel on questions of fact and questions of mixed fact and law. The Appeal Panel is only entitled to intervene if the decision of the Hearing Panel is unreasonable or incorrect in law. The standard of review to be applied by the Appeal Panel in its consideration of the Hearing Panel decision is a question of law and is required to be correct: The Law Society of Upper Canada v. Neinstein at paras. 43-44.
(See also Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 52, 60.)
WHEN A STAY OR DISMISSAL OF PROCEEDINGS IS JUSTIFIED
[16] The court in Blencoe provides that for a stay of proceedings to be justified at common law, there must be:
i. inordinate delay, considered in light of all the circumstances;
ii. the delay must be such that it brings the adjudicative process (in this case, the Law Society’s system of professional regulation) into disrepute; and
iii. the delay must affect the fairness of the hearing or there must be significant psychological harm to the subject of the hearing as a direct result of the delay.
[17] There must be a causal connection between the delay and any complaint of “significant psychological harm.” The delay must have directly caused significant prejudice to psychological health. Only then does inordinate delay amount to an abuse of process. Few lengthy delays will meet this threshold. There is no strict rule to determine when a delay justifies dismissal of the proceeding. (Blencoe, at para. 115.)
[18] The fact that a party has a preexisting psychological condition is not a bar to a determination that there was prejudice in the form of psychological harm where the evidence establishes a pre-existing condition that is significantly worsened by the delay and constitutes significant psychological harm. In Law Society of Upper Canada v. Igbinosun, 2011 ONLSHP 15, [2011] L.S.D.D. No. 25, the panel received evidence of prior character features that predisposed the lawyer to his symptoms and other contemporaneous stresses and held that the question of causation is a determination based on the facts in each case.
THE ISSUES TO BE ADDRESSED ON THIS APPEAL
[19] The issues to be addressed on this Appeal are:
i. Did the Majority of the Appeal Panel apply the correct test in reviewing the decision of the Hearing Panel?
ii. Did the LSUC delay result in significant psychological harm to the Appellant?
[20] The Appeal Panel’s consideration of the issue of whether there was serious prejudice resulting from the inordinate delay, its effect on the penalty, if any, to be imposed on the Appellant, and whether the public interest is served by dismissal of the disciplinary proceedings are questions of mixed fact and law to which the reasonableness standard should be applied. (Blencoe; Law Society of Upper Canada v. Evans (2008), 91 O.R. (3d) 163 (Div. Ct.); Law Society of Upper Canada v. Abbott, 2016 ONSC 641 (Div. Ct.).)
[21] The determination of the appropriate legal test to determine when a misapprehension of the evidence warrants a decision being set aside is a legal question to which the correctness standard should be applied. (Dunsmuir, at paras. 53, 60.)
THE POSITIONS OF THE PARTIES
[22] The parties agree that there was inordinate delay, and the Law Society does not dispute that the public interest would not be compromised if the Disciplinary Proceeding against the Appellant were dismissed as the Hearing Panel concluded that the Appellant did not knowingly participate in mortgage fraud or fail to be honest or candid.
[23] The parties disagree as to whether the Appellant suffered serious prejudice resulting from the delay.
The Appellant’s Position
[24] The Appellant claims the Appeal Panel’s decision (which overturned the decision of the Hearing Panel) was unreasonable. The Hearing Panel’s incorrect finding that the Appellant had not been cross-examined on his Affidavit was not a “reversible error.” Considering the Appellant’s evidence as a whole, including his cross-examination, and the unchallenged expert evidence before the Hearing Panel, the evidence clearly established that the Appellant suffered serious psychological harm resulting from the inordinate delay in this investigation.
[25] The Appellant further claims the Appeal Panel’s decision overturning the decision of the Hearing Panel was incorrect in law. The Appellant claims the Hearing Panel considered the correct legal test, which is: did the delay cause a “serious and profound effect on the lawyer?” The reference to the “thin or egg shell skull” rule was imported from Dr. Killian Walsh’s expert report. It was not used to suggest that the test is anything other than the test articulated in Blencoe, which is whether the delay results in significant harm to the lawyer.
The Law Society’s Position
[26] The Law Society takes the position that the Hearing Panel’s statement that, “The Society did not cross-examine the Appellant on his affidavit” was a misapprehension of the evidence and a fundamental error. In fact, the following points were brought out on cross-examination:
i. the Appellant’s ability to service his clients was not affected during the period of the investigation;
ii. he began to suffer stress after a lender contacted him in 2004;
iii. he took two vacations in 2008; and
iv. the only anxiety the Appellant reported to his family physician was that he was afraid of flying.
[27] The majority of the Appeal Panel concluded that the answers given by the Appellant in cross-examination detracted from his position that he suffered serious psychological harm and were therefore important and should have been considered by the Hearing Panel. In addition, the Hearing Panel mistakenly thought the Law Society was not challenging the Appellant’s credibility and reliability.
[28] The Law Society also takes the position that the Hearing Panel applied the wrong legal test by focusing on the “thin skull” rule. The test is not whether the Appellant experienced greater effects from the investigation than the average lawyer but whether those effects are so significant as to justify a stay of proceedings.
THE EVIDENCE RELEVANT TO THIS APPEAL
The Appellant’s Background
[29] The Appellant is a 42-year-old single male. He is close to his parents and two brothers. He received an undergraduate degree from the University of Toronto in 1991. He was the first member of his family to attend university.
[30] From 1991 to 1993, he worked in the family business (his father is a butcher) while applying for admission to law schools. He was not accepted in 1991 or 1992. In 1993, he was accepted at Loyola College in Louisiana and received a JD degree in 1996. On his return to Canada he applied to the National Committee on Accreditation, took additional courses to qualify to practice law in Ontario and was called to the Bar in February of 2000.
[31] After receiving his call to the Bar, he worked at the Bastedo firm in the area of family law but found the work too stressful. He left to begin his own practice, and in 2002, he opened an office in Richmond Hill.
[32] He had a mentor lawyer who practiced real estate law. The mentor lawyer referred some work to him, including the real estate files that are at issue in this proceeding.
[33] At the time he worked on the files in issue, the Appellant had only two years’ experience as a lawyer and almost no experience as a real estate lawyer.
The Delays in the Investigation
[34] By the time the Law Society investigation began in March of 2006, the Appellant was aware of the problem with one of the transactions, as he had reported it to LawPro. The Appellant said he believed he and the bank were victims of a mortgage fraud ring. (The Appellant later testified as a witness for the Crown.)
[35] After the Law Society investigation began, the Appellant asked repeatedly that the investigation proceed as quickly as possible.
[36] In May 2006, the Appellant was asked to produce several files and promptly provided them.
[37] He heard nothing further from the Law Society until February 2008 (21 months later).
[38] The Law Society investigator indicated that this was because many other mortgage files were coming in and he was busy with them.
[39] Another investigator was assigned to the case in February 2008. She asked the Appellant to give her 75 files, which he promptly did. She photocopied the files, returned them to the Appellant and asked him to meet with her.
[40] On September 17, 2010 (2 1/2 years later), the meeting took place. The Appellant attended without counsel and was cooperative.
[41] A Notice of Application alleging fraudulent involvement in the 12 transactions was issued on March 22, 2011 (6 months later). The hearing began on February 27, 2012 - 5 years and 11 months after the initial contact.
[42] These problems of delay were systemic, and the Appellant neither contributed to nor waived the delay.
The Effect of the Delay on the Appellant
[43] The Appellant filed an affidavit in which he outlined the psychological harm he says he suffered as a result of the delay in the investigation:
There is no question that my mental and physical health began to deteriorate after receiving the first phone call in March of 2006. I particularly recall that the initial fear and uncertainty were like nothing I had experienced before. These feelings have persisted and seldom waned. The Applicant's investigation and subsequent issuance of this proceeding has been the focus of my life since 2006. The only time I can recall not waking up each day and going to bed each night thinking about the investigation was when my father was diagnosed with colon cancer in 2010.
[T]he source of my fear and anxiety during the five year period was that the Applicant would accuse me of knowingly participating in the alleged misconduct ... and that my family, friends, colleagues, and clients would find out. I lived daily with this fear. As terrible as it was to be finally charged with this misconduct in 2011, the uncertainty during the preceding five years was equally unbearable for me.
I did not tell anyone because of the deep sense of shame I have felt since 2006 and because I did not want to bring dishonour to my family (real or perceived). I also did not want my family to worry about me....
The physical and emotional toll on me from 2006 onwards has been severe, and at times, debilitating. My afflictions have included the following:
a) chronic depression and malaise due to the anxiety, shame and low self-esteem I feel as a result of the investigation and charges. Before the investigation, I did enjoy life. Since the investigation began, that has not been the case;
b) feelings of loathing and dread concerning my future, and in particular, my future ability to support myself, again due to the allegations against me;
c) chronic insomnia;
d) feelings of disappointment and resentment towards the Applicant (and the profession more generally) because of what I perceive as its indifference towards the effects the delay has had on me and the lack of any support I have received from the Applicant;
e) worsening of my bruxism (teeth grinding) which is a result of the anxiety and my agoraphobia (claustrophobia) for which I carry medicine with me at all times; and
f) worsening of my high cholesterol which I believe is due to the fact that since 2006, I have not routinely exercised and have been under significant stress.
Dr. Anna Soong is one of the physicians I have consulted regarding my physical and psychological problems. She prescribed various medications including Ativan for anxiety. Dr. Soong recommended that I see a psychologist; however, I did not have the money to do so and I did not want to ask my family for financial assistance in light of my decision not to tell them about the investigation. I did not tell Dr. Soong about the investigation notwithstanding that it was the actual cause of my medical problems because of my embarrassment and anxiety, and also because Dr. Soong is a family acquaintance ….
In addition to the above illnesses, I have withdrawn from social interactions and personal relationships because of my depression and fear that people would find out about the investigation (and this proceeding). Whereas I had many friends prior to 2006, there are now one or two people with whom I infrequently socialize.
I believe that had the Applicant not delayed in conducting its investigation and in making its decision whether to proceed with charges against me, I would not have become chronically depressed and would not have either suffered some of the other illnesses (referred to above) or not to the same degree and prolonged extent.
As I mentioned above, I was (and remain) very concerned about the impact charges would have on my law practice. This concern manifested itself in 2006 and thereafter in repeated panic attacks and lingering doubts as to whether my law license would be taken away (or whether I would face a lengthy suspension). As a direct consequence of these concerns which have worsened my depression, my practice has not grown since 2006 and my income has dropped. Whereas I was initially very eager to grow my practice and foresaw a promising future for myself, since 2006 I have had to increasingly supplement my income by acting as duty counsel at the Family Court for Legal Aid Ontario.
[44] The Appellant’s statement that his practice has stalled since 2006 is corroborated by copies of his income tax returns, which were filed as an exhibit to his affidavit. They disclose that between 2003 and 2006 his gross professional income grew from $71,099.25 to $133,222.52. Since 2006 his gross professional income has dropped. In 2010 he earned $71,396.47. He never earned more than $83,510.47 after 2006. (The 2011 return was not included in the exhibit.)
[45] In the five day hearing before the Hearing Panel, the transcript reveals that there were 17 pages of cross-examination and five pages of re-examination on the issue of delay. On his cross-examination, the Appellant stated that he did not promote his legal practice but rendered quality services to his clients during the period in question. He also advised that he went on two holidays in 2008, one at the request of friends to mark his fortieth birthday. He admitted that the only anxiety he reported to his family physician was that he was afraid of flying. On re-examination, he explained that he did not disclose his stress as a result of the investigation because the doctor was an acquaintance of the family and he had not told his family.
[46] Dr. Killian Walsh, a medical practitioner in Ontario who holds a Fellowship in Psychiatry with the College of Physicians and Surgeons of Ontario, met with the Appellant and performed a full psychiatric assessment. Dr. Walsh’s findings include the following:
Mr. Totera clearly has always been an anxious man….
I asked Mr. Totera to complete a Zung self-rating scale for depression. On it he scored an SDS Index of 76 which, if accurate, would indicate a severe level of depression….
I believe that the appropriate diagnoses would have been those of a Generalized Anxiety Disorder and of Agoraphobia prior to 2006. It seemed that he was holding things together, albeit with emotional difficulties related to anxiety and phobic difficulties attached to areas in which he did not feel he had sufficient control, but at a level which it would seem was generally manageable for him. However, his being put on notice by the Law Society had a major impact on him and his emotional difficulties have significantly increased over the years since then. While not totally analogous, one could look at Mr. Totera as being more vulnerable than most of the population with respect to handling significantly anxiety-provoking situations as a result of a 'thin' or 'egg shell' skull. His having the Law Society issue hanging over his head for, it would seem, close to five years and the emotional fluctuations that have occurred during that time would seem to have caused him to increasingly isolate himself with his losing self confidence and his feeling deeply ashamed.It seems clear that because of Mr. Totera's, at least, avoidant personality features and his sense of shame he did not share what was taking place with others, nor did he seek out psychotherapeutic intervention. I believe that over the last five years, superimposed on his earlier conditions, was an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Such a diagnosis would indicate that he developed significant emotional symptoms in response to the stressor and it caused a significant impairment, it would seem, in terms of his social and occupational functioning. [Emphasis added.]
[47] Dr. Mark Altman, the Appellant's dentist reported that,
Mr. Totera has been a patient of our practice since 2003. He has a history of grinding his teeth, or bruxism: however, the severity of these symptoms has become significantly more prevalent over the last several years.
Early abfraction lesions were first noted in May 24, 2006 and had not been noted prior to that visit. There has been a progression of his signs and symptoms of bruxism since that time, such that Mr. Totera now has multiple areas of occlusal and cervical abfractions, chipped anterior incisal edges, and heavily burnished amalgam restorations.
Radiographically there has been severe enamel wear…. There is a marked difference in the thickness of the enamel in current radiographs when compared to radiographs from 2004, to the extent that almost half the cuspal height has been worn away.
[48] The affidavits of Drs. Walsh and Altman were filed on consent. The Law Society did not seek to cross-examine Dr. Walsh or Dr. Altman or obtain reports from other experts to challenge their findings.
The Public Interest
[49] The Hearing Panel made determinations that were accepted by the Appeal Panel that the public interest was not compromised because,
i. none of the lenders claimed the Appellant was guilty of dishonesty or suggested he was involved in wrongdoing;
ii. the Appellant continued to practice and there have been no incidents to suggest he is a continuing danger to the public;
iii. the panel was satisfied that the Appellant did not knowingly participate in the fraud and did not fail to be honest when advising his clients; and
iv. a member of the public would be shocked to learn the investigation took five years to complete.
ANALYSIS AND CONCLUSION
[50] The three factors to be considered when deciding whether to dismiss an Application for Disciplinary Hearing for delay are:
i. inordinate delay;
ii. whether the public interest will be compromised; and
iii. serious prejudice resulting from the delay. (Blencoe)
[51] There is no dispute that there was inordinate delay and that the public interest would not be compromised by a dismissal of the Disciplinary Proceeding.
[52] The only issues in this case are whether the Hearing Panel applied the correct test to determine whether there was significant prejudice resulting from the inordinate delay and whether there was serious prejudice to the Appellant resulting from the delay.
The Failure to Take into Account the Evidence of The Appellant’s Cross-Examination
[53] The majority of the Appeal Panel held that the Hearing Panel’s statement in its reasons that, “The Society did not cross-examine Mr. Totera on his affidavit” was a misapprehension of the evidence and a fundamental error.
[54] In my view, the Law Society Appeal Panel’s characterization of the importance of that error when considered in light of the Appellant’s evidence on cross-examination is not reasonable.
[55] Appellate decision-makers, such as the Appeal Panel, must consider whether the decision as a whole is reasonable in light of all of the evidence. In Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, the Court held, at paras. 15-17:
[15] In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show “respect for the decision-making process of adjudicative bodies with regard to both the facts and the law” (Dunsmuir, at para. 48). This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome.
[16] Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.
[17] The fact that there may be an alternative interpretation of the agreement to that provided by the arbitrator does not inevitably lead to the conclusion that the arbitrator’s decision should be set aside if the decision itself is in the realm of reasonable outcomes. Reviewing judges should pay “respectful attention” to the decision-maker’s reasons, and be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fateful.
[56] Deference is owed from the Divisional Court to the Appeal Panel and from the Appeal Panel to the Hearing Panel in matters involving findings of fact. (Dunsmuir.)
[57] The Appeal Panel should only interfere with the Hearing Panel’s findings of fact if the Hearing Panel’s reasoning process was tainted by an error essential to determining the challenged finding of fact. It was not. (Keljanovic Estate v. Sanseverino, [2000] O.J. No. 1364 (C.A.).)
[58] Although the Hearing Panel failed to consider evidence adduced on the Appellant’s cross-examination, the test to be met is amply satisfied with or without the evidence on cross-examination that he was able to do some work (albeit never earning more than $85,000 per year), took two holidays in 2008, rendered acceptable work to his clients and did not tell his family physician that he was anxious about the investigation and that the delay was causing him stress as he had not spoken to his own family about it out of shame.
[59] None of these facts from the cross-examination in the context of the evidence as a whole undermines the conclusion of the Hearing Panel that the Appellant suffered serious psychological harm as a result of the delay in the investigation.
[60] On the contrary, the uncontested expert evidence alone establishes that the Appellant has suffered serious emotional stress resulting from the delay in the investigation. Dr. Walsh’s medical opinion was that:
[B]eing put on notice by the Law Society had a major impact on him and his emotional difficulties have significantly increased over the years since then.... His having the Law Society issue hanging over his head for, it would seem, close to five years and the emotional fluctuations that have occurred during that time would seem to have caused him to increasingly isolate himself with his loosing self-confidence and his feeling deeply ashamed…. I believe that over the last five years … he developed significant emotional symptoms in response to the stressor and it caused a significant impairment, it would seem, in terms of his social and occupational functioning.
[61] The Appellant’s dentist also reported serious effects of the stress from the time of the commencement of the investigation onward:
Early abfraction lesions were first noted on May 24, 2006 and had not been noted prior to that visit. There has been a progression of his signs and symptoms of bruxism since that time…. There is a marked difference in the thickness of the enamel in current radiographs when compared to radiographs from 2004, to the extent that almost half the cuspal height has been worn away.
[62] These two expert opinions were tendered on the consent of both parties without cross-examining the affiants. The opinions contained in them are clear and represent unchallenged evidence of the significant adverse psychological and physical effects that coincide with the time the investigation began and got markedly worse throughout the period of the investigation.
[63] The Appellant himself and Dr. Walsh both attribute the marked severity of his symptoms to the investigation, and there is no evidence to suggest otherwise. The Appellant’s dentist notes the timing of the marked increase in dental problems associated with stress. These times coincide with the period of the investigation.
[64] This uncontradicted evidence is not undermined by the answers given by the Appellant on cross-examination.
The Focus on the “Thin Skull Rule”
[65] The Appeal Panel held that the Hearing Panel failed to distinguish the impact of the delay from the investigation and applied the wrong legal test by focusing on the “thin skull” rule.
[66] I disagree. As noted in the clear and succinct dissenting reasons of Ms. Leiper, at para. 115:
This notion appears to have been imported from Dr. Walsh’s report in which he analogized the Lawyer to persons with “egg shell skulls”, making them more vulnerable to injury than others. The hearing panel observed that the predisposition of the Lawyer meant that he suffered more than the average lawyer would have suffered as a result of the delay. This unnecessarily complicated the straightforward idea that it is the harm caused by the delay that is the focus of the second branch of the Blencoe test. A lawyer with a pre-existing condition who is harmed by the delay and suffers as a result is as open to receiving relief as a lawyer with no such condition who subsequently develops significant psychological harm. The test in Blencoe asks if there was inordinate delay and did it cause significant prejudice. On the record that was before this hearing panel, this was a reasonable conclusion.
[67] The Panel concluded, at para. 67, that although the Appellant was an anxious person before the investigation began, “the Society’s five-year delay … exacerbated Mr. Totera’s psychological integrity in a serious and profound manner.”
[68] The evidence accepted by the Hearing Panel included insomnia, isolation, loss of income, loss of self-confidence, phobic symptoms, feelings of shame and bruxism (teeth grinding).
[69] The fact that the damage to him was far more significant than might be suffered by another lawyer who did not have his predisposition does not negate the fact that the Appellant suffered serious psychological harm as a result of the delay.
Summary of Conclusions
[70] The Appeal Panel was incorrect in finding that the Hearing Panel applied the wrong legal test.
[71] The reference to the “thin or egg shell skull” was imported from Dr. Walsh’s expert report. As Ms. Leiper pointed out, it was not used to suggest that the test is anything other than the correct test as articulated in Blencoe, which is whether there is inordinate delay that creates a “serious and profound effect on the Lawyer.”
[72] Moreover, the Majority of the Appeal Panel did not show deference to the decision of the Hearing Panel as it is required to do, and it failed to consider the evidence as a whole when concluding that the Hearing Panel’s incorrect finding that the Appellant had not been cross-examined on his Affidavit was a “reversible error.”
[73] The evidence adduced on cross-examination was not “essential” to the issue. With or without the evidence on his cross-examination, the unchallenged expert evidence and the evidence of the Appellant before the Hearing Panel was that he suffered serious psychological and physical harm resulting from the inordinate delay in this investigation. Moreover, the Appellant’s evidence on cross-examination did not undermine the unchallenged conclusions of Drs. Walsh and Altman and the Appellant’s own evidence that the delay in the investigation caused him serious harm.
[74] On the basis of the evidence as a whole, including the Appellant’s cross-examination, the Appellant established that he suffered serious psychological harm as a result of the delay in the investigation.
[75] For these reasons, the Appeal is allowed. The decision of the Appeal Panel is set aside, and the decision of the Hearing Panel inclusive of any cost award is restored.
[76] In accordance with the agreement between the parties, costs in the amount of $5,000 are awarded to the Appellant.
Thorburn J.
Wilson J.
Stewart J.
Released: March 8, 2016
DIVISIONAL COURT FILE NO.: 491/14
DATE: 20160308
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. WILSON, E. STEWART, J. THORBURN JJ.
EUGENIO TOTERA
Appellant
– and –
THE LAW SOCIETY OF UPPER CANADA
Respondent
REASONS for decision
Released: March 8, 2016