LAW SOCIETY TRIBUNAL
HEARING DIVISION
Date: April 28, 2026
Tribunal File No.: 19H-139
BETWEEN:
Law Society of Ontario Applicant
- and -
Charlene Dorothy Desrochers Respondent
Before: Kathleen Lickers (chair), François Turpin, Margaret Waddell
Heard: June 11 and 16-20, September 22, 2025, January 26-27, February 3, and March 2, 2026, by videoconference and by written submissions
Appearances:
Daniel Iny and Shannon McDunnough, for the applicant
Respondent, self-represented
Summary:
DESROCHERS – Return to Practice – The Law Society alleged that the Lawyer was incapacitated around and between 2014 and 2019 and sought practice restrictions if the allegations were established – The Lawyer has been suspended from practice since 2018 and argued that she was not and is not incapacitated – The panel found that the Lawyer was incapacitated during the relevant period and has been in remission since then – The panel made an s 40 order setting out terms and conditions for the Lawyer’s return to practice – The parties were invited to make written submissions on costs.
REASONS FOR DECISION ON CAPACITY
1The Panel:– Charlene Desrochers, a lawyer, nurse, and Cree woman, has been a member of the Law Society of Ontario (LSO) since July 2005. She has been suspended from practice since August 16, 2018, when an interim interlocutory order was made by a panel of the Tribunal: reasons at 2018 ONLSTH 148.
2This is a capacity application brought by the Law Society pursuant to s 38 of the Law Society Act, RSO 1990, c L.8 (the Act), in 2019. The Law Society alleges Ms. Desrochers was incapacitated between 2015 and 2019 for the purposes of meeting her obligations as a licensee under s 37 of the Act. If we find that she did suffer from incapacity, then we may order practice restrictions to facilitate her return to practice pursuant to s 40 of the Act.
3The Law Society’s application has been fully contested by Ms. Desrochers, who repeatedly expressed to us her right “to make full answer and defence.” This hearing proceeded over 11 days. Each party tendered their own evidence, including witness testimony and documents filed as exhibits, both public and non-public. We have considered all evidence, even if not expressly referenced in our reasons.
4At the same time as this application was proceeding, Ms. Desrochers brought an abuse of process motion that is being heard separately. We make no determination of anything material to the motion. This application is focused solely on deciding three discrete issues:
- whether Ms. Desrochers was incapacitated within the meaning of s 37 of the Act;
- if so, whether her licence should be restored, and should practice conditions be included; and
- what the appropriate order under s 40 should be, if any.
5Based upon our review of the evidence, we find Ms. Desrochers was incapacitated within the meaning of the Act for the time period between 2014-15 and 2019. With treatment, her condition is in remission, enabling her to return to practice. We find that an order of three-year duration, focused on the respondent maintaining an effective treatment plan, with annual reporting from a treating medical professional, balances the Law Society’s duty to ensure public protection and accommodation of the respondent’s disability of the least restrictive effect.
6These are our reasons.
BACKGROUND
7Prior to the start of this capacity application, Ms. Desrochers brought an application for judicial review for, amongst other things, an order quashing this capacity application for abuse of process. In her written endorsement dismissing the application for judicial review pursuant to Rule 2.1.01 of the Rules of Civil Procedure, Justice Faieta provides a detailed chronology of events leading to this capacity hearing: Desrochers v Law Society of Ontario, 2025 ONSC 3390.1 We do not repeat that chronology, but what follows is a brief summary of the facts most relevant to the determination of capacity.
8In May 2017, the Law Society brought a conduct application against Ms. Desrochers which involved two allegations of incivility and one allegation of failing to co-operate (17H-053). This application followed an investigation into the Lawyer’s alleged uncivil criticism of a member of the judiciary through a publicly accessible online social networking service between the months of October 2016 and January 2017. Ms. Desrochers had appeared before the judge prior to her making these social media posts. During the course of this investigation, Ms. Desrochers engaged in conduct that was viewed as not co‑operative by LSO investigators, so the conduct application also alleged that she had failed to co-operate.
9The conduct application at the Tribunal was extensively case managed. During the pre-hearing process, health care professionals treating Ms. Desrochers since 2017 provided medical notes in support of a series of requests for adjournments from January through July 2018.
10One of these medical notes was provided by her treating psychiatrist, Dr. Douglas Green, who on May 31, 2018, wrote, “[D]ue to an ongoing medical condition, it is my opinion that Ms. Desrochers is not able to participate in the Law Society Tribunal matter, nor is she able to work as a lawyer.”
11Receipt of this May 31, 2018 medical note and, specifically, the language that “she is not able to work as a lawyer” prompted the Law Society to bring a motion for interlocutory suspension based on a lack of capacity (18H-091).
12A capacity investigation was instructed on June 26, 2018, pursuant to s 49(3) of the Act. This capacity investigation began by the LSO informing Ms. Desrochers of its investigation and seeking her voluntary participation in a psychiatric assessment that would be paid for the by LSO. She was reminded of her responsibility to respond pursuant to s 49(3). The LSO sent letters again in August, September and October 2018 asking Ms. Desrochers to advise whether she would participate in an assessment. The LSO did not receive an answer.
13While the conduct application remained at pre-hearing, and Ms. Desrochers’ response to the capacity investigation unknown, her doctors continued to communicate to the LSO about her inability to participate in Tribunal proceedings.
Interlocutory order
14The LSO brought a motion for an interlocutory order on July 13, 2018 to suspend her licence based on the medical information being provided by her, which indicated her inability to participate in Law Society proceedings. The panel adjourned the hearing based on the medical documentation and that participating would be detrimental to her health. The adjournment was conditional on Ms. Desrochers’ licence being subject to an interim interlocutory suspension, which has been in place since August 16, 2018: 2018 ONLSTH 148.
Contemplating a return to practice
15The Law Society discontinued the capacity investigation pending resolution of the interlocutory suspension matter (18H-091). The LSO advised Ms. Desrochers of this by letter dated June 18, 2019, and informed her that the LSO could reactivate the capacity investigation at a later time.
16On September 5, 2019, the LSO received a medical note advising that Ms. Desrochers “continues to suffer from a medical condition requiring accommodation” but provided no details. The note then stated, “Ms. Desrochers is contemplating a return to legal practice at some indefinite point.”
17Being informed that she was contemplating a return to practice “at some indefinite point,” the LSO notified Ms. Desrochers by letter delivered by email on October 3, 2019 that it had decided to re-open its capacity investigation. Ms. Desrochers advised the LSO by email of October 3, 2019 that she would not voluntarily submit to the psychiatric assessment.
18Following this, the LSO brought an application to the Tribunal to compel a capacity assessment. The capacity assessment application was heard June 12, 2023. Ms. Desrochers was represented by legal counsel. On October 26, 2023, the panel ordered an independent psychiatric examination to be conducted by Dr. Kathryn Macdonald: Desrochers, 2023 ONLSTH 138.
19Dr. Macdonald, who is not a forensic psychiatrist but has experience working with First Nations communities, declined the retainer as the assessment “would fall outside her scope of practice”. The parties consented to Dr. Gary Chaimowitz being substituted as the assessing psychiatrist in place of Dr. Macdonald.
20Dr. Chaimowitz delivered his report on November 25, 2024, and concluded that Ms. Desrochers was incapacitated from 2015 until 2019, but has been in remission with treatment since then. Based upon this assessment, the LSO withdrew its conduct application.
21In December 2024, the LSO provided Ms. Desrochers with a draft order setting out proposed terms for her return to practice.
THE CAPACITY APPLICATION
Introduction
22The Law Society applied to the Tribunal under s 38(1) of the Act for a determination of whether Ms. Desrochers was or had been incapacitated as defined in s 37 of the Act. If yes, then the Law Society seeks an order under s 40 of the Act placing restrictions on her license.
Procedural issues
Recusal of panel member
23Ms. Desrochers subpoenaed a number of individuals to attend the capacity application to give evidence. The Law Society brought a motion to quash these summonses. At the outset of the Law Society’s motion seeking to quash summons, Ms. Desrochers asserted that panel member, Mr. Turpin, had accessed her profile on the social media platform LinkedIn prior to the motion.
24Ms. Desrochers stated that she intended to “reserve her rights” to seek a recusal of Mr. Turpin for this reason, but that she was not seeking to have him removed at that time. The motion to quash proceeded and was decided with Mr. Turpin sitting as a panel member.
25In light of the concern raised by Ms. Desrochers, we considered whether any disqualifying conflict or reasonable apprehension of bias could arise from the fact that Mr. Turpin viewed Ms. Desrochers’ LinkedIn profile, even though no recusal motion had been brought. We take judicial notice of the fact that LinkedIn is a publicly-accessible social media platform. The contents of the LinkedIn profile are not at issue in this proceeding. Ms. Desrochers has not provided any evidence that her LinkedIn profile contained any information relevant to this proceeding.
26The test for a reasonable apprehension of bias is whether an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly. There is a strong presumption of judicial impartiality that is not easily displaced, and the burden of demonstrating real or perceived bias is high and requires cogent evidence. Mere suspicion is not sufficient: Law Society of Ontario v Diamond, 2024 ONLSTA 8 at para 44.
27Here, Ms. Desrochers has not adduced any cogent evidence of any bias or perceived bias arising from Mr. Turpin reviewing her public LinkedIn profile, which presumably has been curated by her to present herself in the best light. We cannot conclude that an informed person, viewing the matter realistically and pragmatically, and having thought the matter through, would conclude that there was any likelihood that Mr. Turpin would decide the merits of this case or would determine this application unfairly because of his viewing of her LinkedIn page. Indeed, the motion to strike was decided partially in favour of Ms. Desrochers on the day she raised the issue, which belies any bias against Ms. Desrochers.
Recusal of panel chair
28On January 26, 2026, the capacity hearing resumed for its eighth day, when Ms. Desrochers was scheduled to provide oral evidence. Prior to beginning, Ms. Desrochers asserted, without evidence, that the panel chair Ms. Lickers was biased and should recuse herself. The sole basis for her assertion was to allege that Ms. Lickers is an employee of the Law Society. The Law Society did not support this request. In light of this concern raised by Ms. Desrochers, we considered whether any reasonable apprehension of bias exists so that Ms. Lickers should recuse herself, even though no formal recusal motion was brought.
29As previously summarized, the test for a reasonable apprehension of bias is whether an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly. There is a strong presumption of judicial impartiality that is not easily displaced, and the burden of demonstrating real or perceived bias is high and requires cogent evidence. Mere suspicion is not sufficient.
30Ms. Desrochers has not adduced any cogent evidence of bias. All adjudicators serving at the Law Society Tribunal are compensated for their time. They are not employees of the Law Society. We cannot conclude that an informed person, viewing the matter realistically would conclude Ms. Lickers, or any other member of the panel, would decide unfairly because they are compensated, at equal rates, for their work at the Tribunal. Ms. Desrochers’ request was denied.
Motion to quash summonses
31This motion was brought by the Law Society under Rule 11.5(1) of the Tribunal Rules of Practice and Procedure (the Tribunal Rules) to quash the summonses served by Ms. Desrochers upon her proposed witnesses Curtis Smith, Kim Hertwig, and Dr. Kathryn Macdonald.
32Mr. Smith is a former employee of the Law Society and was the investigation counsel assigned carriage of the initial conduct investigation of Ms. Desrochers. His investigation was completed in or around February 2017 and culminated in a conduct application being filed against the Respondent (17H-053). In summoning Mr. Smith, Ms. Desrochers anticipated eliciting evidence regarding his investigation into her capacity starting in November 2016.
33Ms. Hertwig is also a former employee of the Law Society and in 2018 was then investigation counsel assigned carriage of an investigation into Ms. Desrochers capacity. In summoning Ms. Hertwig, Ms. Desrochers anticipated eliciting evidence regarding her investigation into Ms. Desrochers’ capacity starting in July 2018, which resulted in a report that was ultimately provided by the Tribunal-appointed assessing psychiatrist, Dr. Chaimowitz.
34During these investigations, Ms. Desrochers shared her medical documentation with the Law Society. Ms. Hertwig corresponded with Ms. Desrochers in an effort to obtain her co-operation to voluntarily participate in an assessment. Ms. Desrochers refused to co-operate in the assessment.
35The summons to Dr. Macdonald arises from the application in the capacity assessment for appointment of an independent psychiatric assessment of Ms. Desrochers. Dr. Macdonald was the first psychiatrist who had been identified to conduct the assessment: Desrochers, 2023 ONLSTH 138.
36On April 5, 2024, a retainer from the Law Society was sent to Dr. Macdonald via ShareFile, which enclosed relevant materials for review for the assessment. On April 20, 2024, Dr. Macdonald wrote to the Law Society to advise that after her review of the materials provided, she had to decline conducting the capacity assessment and concluded that the assessment “would fall outside [her] scope of practice.” Dr. Macdonald never assessed Ms. Desrochers. In summoning Dr. Macdonald, Ms. Desrochers anticipated eliciting evidence concerning Dr. Macdonald’s communications with the Law Society, her recusal from conducting the assessment, and the need for psychological testing.
37To decide the motion to quash, we must determine if there is a basis to believe that the examination of the summonsed witnesses will provide evidence relevant to the hearing. When a summons is contested, as is the case here, the person who served the summons (Ms. Desrochers) bears the burden of establishing that the summons ought to be given effect, based on a reasonable evidentiary basis that the examination would be conducted on issues relevant to the pending application and that the proposed witness is in a position to offer material evidence: Airport Taxicab (Pearson) Association v Toronto (City), 2009 CanLII 25973 (ONSC) at paras 26-30.
38The reasonable evidentiary basis to be met by the party seeking the summons is generally low and where the stakes in the underlying motion or application are high, such as in a summary judgment motion or dispositive application, the courts are more likely to uphold a summons: Derenzis v Scoburgh, 2021 ONSC 3286 at paras 43 and 46. Ms. Desrochers submits that the stakes are high in her capacity hearing. Ms. Desrochers submits that the information provided by Mr. Smith and Ms. Hertwig to the assessing psychiatrist is an issue at the capacity hearing.
39It is the Law Society’s submission that Mr. Smith was assigned to investigate Ms. Desrochers’ conduct which ultimately resulted in a conduct application (17H-053). Ms. Desrochers submits that Mr. Smith was assigned to investigate her for capacity but did not inform her of this. It is Ms. Desrochers’ submission that only Mr. Smith can speak to his investigation.
40We agree that the evidence of Mr. Smith, originally assigned to investigate for conduct, may provide evidence that is relevant to the capacity hearing and the motion to quash the summons of Mr. Smith should be dismissed.
41The Law Society investigation into Ms. Desrochers’ capacity did result in a summary report of the LSO being provided to the assessing psychiatrist. This report is relevant to the capacity hearing. Ms. Hertwig was then investigation counsel who prepared the report. The motion to quash the summons of Ms. Hertwig is dismissed.
42Dr. Macdonald recused herself after the capacity assessment was ordered by the Tribunal and before she had undertaken any substantive analysis of Ms. Desrochers’ condition. She has no substantive evidence that is relevant to the capacity hearing. The motion to quash the summons of Dr. Macdonald is allowed.
43In dismissing the motion to quash the summons of Mr. Smith and Ms. Hertwig, we directed that they would be permitted to give evidence directly relevant to the formation of Dr. Chaimowitz’s opinion and we would confine their evidence in chief and under cross-examination to this area.2 Their evidence proved to be of no meaningful assistance to us in deciding the issues before us, other than setting out the procedural history leading to the capacity hearing.
Rule 13 non public order
44The parties agreed that the Tribunal should depart from its general openness rule and invoke a Rule 13.3 non public order regarding details of Ms. Desrochers’ medical evidence, and the transcript of the proceedings where reference to this evidence is made. We accept the submissions of the parties to order a Rule 13.3 non public order concerning Ms. Desrochers’ medical evidence. We accept it is a reasonable departure from the “open court” rule to protect Ms. Desrochers’ privacy concerning her mental health conditions.
45Later in the hearing, Ms. Desrochers introduced documents and communications concerning other licensees not otherwise involved in this proceeding to assert the variableness of the Law Society’s approach to capacity proceedings. To protect the personal information of licensees not otherwise involved in these proceedings and for whom we were provided no evidence of consent to share, we ordered a Rule 13.3 non public order regarding any description of the medical condition or medical evidence of a licensee not involved in these proceedings.
Notice of constitutional question
46On day 10 of the capacity hearing, Ms. Desrochers advised us that she had delivered a notice of a constitutional question. She argued that the Law Society’s introduction of two recent LinkedIn posts (which she had refused to acknowledge were written by her) infringed her right to freedom of expression protected by s 2 of the Charter of Rights and Freedoms. Further, she submitted that the Tribunal cannot treat her social media commentary as evidence of current incapacity without violating those constitutional protections. She argued that speech which people may find offensive or inappropriate is not evidence of incapacity, and any attempt to use the posts in this way is unconstitutional. Finally, any attempt to impose practice restrictions based on her posts would amount to unconstitutional limits on her freedom of expression.
47The LSO responded to clarify that the LinkedIn posts were not being introduced as evidence that Ms. Desrochers was currently incapacitated within the meaning of the Act. The LSO’s position was that the posts mattered only after a finding of incapacity and are in no way an attempt to restrict freedom of speech or social media use. The draft s 40 order prepared by the LSO concerning potential conditions contains no speech-related restrictions.
48After hearing from the parties, we invited submissions on the constitutional question during final argument scheduled for March 2, 2026. On the day of final argument, Ms. Desrochers did not make submissions on the issue either in writing or orally, nor did the LSO. The Attorney General declined to respond to the notice.
49There is nothing for us to decide.
The Application
50The Law Society alleges Ms. Desrochers was incapacitated between 2014-15 and 2019 for the purposes of meeting her obligations as a licensee under s 37 of the Act. Where alleged, the Law Society may bring an application to the Tribunal to determine capacity pursuant to s 38 of the Act. If the Tribunal finds incapacity, then the panel may order practice restrictions pursuant to s 40 of the Act to facilitate the licensee’s return to practice and ensure that the public is adequately protected.
51Here the question for us to determine was whether Ms. Desrochers was incapacitated between 2014-15 to 2019, as alleged by the LSO, and if so, whether her licence should continue to be suspended, or if the suspension should be lifted because she is no longer incapacitated. If the suspension is lifted, we must determine whether conditions should be placed on Ms. Desrochers’ license in order to meet the LSO’s primary mandate of protecting the public.
52Section 40 of the Act provides the Tribunal with broad discretionary powers in fashioning an order that is measured to meet the individual circumstances of the licensee, and the potential risks to the public that arise from the nature of the licensee’s incapacity.
53In support of its position that Ms. Desrochers was incapacitated, and that she is not currently incapacitated only because she is following a course of treatment prescribed by her treating psychiatrist, the LSO relied upon the opinion of Dr. Chaimowitz, the forensic psychiatrist who completed the Tribunal-ordered assessment of Ms. Desrochers. Dr. Chaimowitz’s opinion was supported by the opinions of Ms. Desrochers’ treating psychiatrist, Dr. Green, and another forensic psychiatrist who examined Ms. Desrochers at her request, Dr. Booth.
54In Dr. Chaimowitz’s final report, he concludes that Ms. Desrochers has a lifelong mental illness, for which she is being treated. In his opinion, this mental illness rendered her incapacitated from 2014-15 to 2019. Ms. Desrochers’ illness can be, and has been, managed through proper treatment. She has been in treatment since 2018, and Dr. Chaimowitz concluded that she has had capacity to practise law since 2019 because of the treatment plan to which she is adhering.
55Ms. Desrochers disputes Dr. Chaimowitz’s findings that she was ever incapacitated, and submits that she voluntarily closed her practice to address her admitted mental health issues and to avoid paying fees while she took a break from practising law to focus on her health. She argues that other licensees have publicly taken a break from practice to focus on mental well-being without being alleged to be incapacitated. Ms. Desrochers argues that she was singled out because of systemic racism at the Law Society.
56Ms. Desrochers disputes the conclusion provided by Dr. Chaimowitz that she suffers from a lifelong mental illness. She alleges racism in his findings of incapacity and challenges his diagnosis as biased. Ms. Desrochers attacked his opinion as lacking credibility because she argues that it was only “a document review,” and that he did not assess her during the time of her alleged incapacity, so he cannot make a finding of past incapacity.
57Ms. Desrochers submits that the expression of her religious beliefs, including engaging in prophesizing through her social media postings, does not equate to being delusional and incapacitated, and that she has a right to freely engage in her religious beliefs. Her theory is that Dr. Chaimowitz’s entire (mis)diagnoses rested on the 250,000 tweets that she posted in rapid succession during the period in which he found her to be incapacitated, and blind adherence to the diagnoses of Drs. Green and Booth.
58Ms. Desrochers argued with conviction her belief that she is being attacked by the Law Society as an Indigenous, Christian woman. She asserts that she has capacity to return to practice without restrictions and any restrictions put in place are discriminatory.
Challenge to the affidavit of Elizabeth Parenteau
59The Law Society introduced Ms. Parenteau, Director of Investigation Services, LSO, as its first witness. We received an affidavit from Ms. Parenteau. The admissible portions of that affidavit were adopted as her evidence in-chief. She then testified before us and was cross-examined. Portions of Ms. Parenteau’s affidavit were excluded after Ms. Desrochers objected to the admissibility of the affidavit evidence of Ms. Parenteau as both hearsay and improper opinion evidence.
60Ms. Desrochers argued that Ms. Parenteau lacks personal knowledge of any investigation into Ms. Desrochers’ capacity, having joined the LSO in 2023, after this application began. Ms. Desrochers submitted that Ms. Parenteau’s affidavit at paras 34-39 improperly implies that she is currently incapacitated despite Ms. Parenteau’s lack of medical expertise. Ms. Desrochers submits that only a qualified medical practitioner may assess capacity. Ms. Desrochers submitted if the LSO intends to rely upon allegations of current incapacity, then she is entitled to bring a motion for abuse of process and request a proper capacity assessment from an independent specialist.
61In response, the LSO relied upon Rule 11.7(1) of the Tribunal Rules that state that the rules of evidence applicable in civil proceedings apply in Tribunal proceedings unless the Tribunal’s own rules state otherwise. Under Rule 39.01(1) of the Rules of Civil Procedure, evidence on motions or applications may be given by affidavit. Further, Rule 39.01(5) permits affidavits to include information and belief regarding non-contentious matters, provided the source is identified.
62It is the Law Society’s submissions that Ms. Parenteau’s affidavit complies with these requirements. In para 3, she clearly states where her evidence is based on information or belief. She identifies the source of the information and she believes the information to be true.
63On closer examination with Ms. Desrochers, we isolated her concerns raised regarding the admissibility of Ms. Parenteau’s affidavit evidence to paras 34-39. It is the Law Society’s submission that the summary of emails starting at para 35 were sent from Ms. Desrochers’ email account after the materials were provided to Dr. Chaimowitz for his July-August 2024 assessment. These communications were not available to Dr. Chaimowitz at the time of his assessment; however, they relate to themes addressed in his report and may be relevant to our considerations. Ms. Desrochers objected to the inclusion of these paragraphs.
64The Law Society submitted that these emails could not realistically have been incorporated into a supplementary report prior to this hearing. Their inclusion in Ms. Parenteau’s affidavit simply ensures that the record is complete and that all parties are aware of the emails. Any concerns regarding their weight could, it argued, be addressed by the panel.
65The Law Society confirms it is not seeking a finding of current incapacity. It seeks only a finding of past incapacity and an order for practice restrictions. The Law Society submits that it remains committed to facilitating Ms. Desrochers’ safe return to practice and has been willing to work collaboratively with her for several years. However, for the Law Society, the nature and timing of her recent communications reinforced the need for appropriate practice conditions going forward.
66The Law Society submits that Ms. Parenteau’s affidavit serves a limited and appropriate purpose: to introduce relevant documents into the record without offering opinion evidence. Any concerns about the affidavit go to weight, not to admissibility.
67We accept that the contents of paras 1-33 are not contentious. They consist largely of publicly available material, including Tribunal decisions and previously disclosed documents such as endorsements and medical notes provided by Ms. Desrochers herself. The panel accepts the Law Society’s position that the chronology is a matter of public record. Paragraphs 1-33 of Elizabeth Parenteau’s affidavit reproduce this chronology. Accordingly, these portions are admitted into the record, and Ms. Parenteau was examined and cross-examined on them.
68We accept Ms. Desrochers’ submission regarding paras 34-39. These paragraphs, along with their related exhibits, are excluded from the record. These documents were not reviewed by Dr. Chaimowitz, and it would be prejudicial to Ms. Desrochers for us to draw any inferences about Ms. Desrochers’ capacity from these documents. We ordered the included portion of the affidavit of Ms. Parenteau be not public.
Dr. Gary Chaimowitz as qualified expert
69After the LSO’s motion to compel a capacity assessment was heard by a separate panel, where Ms. Desrochers was represented by legal counsel, the panel ordered that Ms. Desrochers undergo a psychiatric assessment (2023 ONLSTH 138). Dr. Chaimowitz, a forensic psychiatrist, was ultimately retained to conduct the capacity assessment. He prepared a final report dated November 25, 2024, summarizing his medical opinion. Ms. Desrochers met with Dr. Chaimowitz twice for assessment.
70The LSO called Dr. Chaimowitz as an expert in forensic psychiatry to provide his professional opinion to us. Ms. Desrochers initially objected to Dr. Chaimowitz being qualified as an expert providing opinion evidence on her past incapacity. She submitted that because Dr. Chaimowitz did not know her or assess her during the period 2015 to 2019, he cannot assess her past capacity. She further submitted that it exceeds his scope of practice to determine past incapacity based upon “a document review alone”. Ms. Desrochers referred the panel to Law Society of Ontario v White, 2019 ONLSTH 138 at para 19, as authority for her position that the panel requires “a full psychiatric assessment be conducted to ensure the accuracy of the diagnosis.”
71The LSO referred us to Dr. Chaimowitz’s CV, attached to his final report. He is a forensic psychiatrist, currently a Professor and Division Head with the Department of Psychiatry and Behavioural Sciences at McMaster University and Head of Service of the Forensic Psychiatry Program at St. Joseph’s Healthcare. He was instructed to assess Ms. Desrochers’ prior incapacity following the order of the panel in 2023, His report details his complete assessment of Ms. Desrochers, including meeting with her twice.
72The panel notes that before admitting expert evidence, we must be satisfied the expert can provide a fair, objective and non-partisan opinion: White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23. After considering the submissions of the parties, we accept the qualifications of Dr. Chaimowitz as an expert in the field of forensic psychiatry. He is qualified to provide an expert medical opinion about Ms. Desrochers’ current and past mental health. His final report, CV and Expert Acknowledgement Form were made an exhibit and, by agreement of the partes, protected by our Rule 13 non public order.
73We reviewed the evidence relied upon by Dr. Chaimowitz in forming his forensic psychiatric assessment report. We accept that Dr. Chaimowitz conducted a “full psychiatric assessment.” The LSO retained Dr. Chaimowitz in July 2024 following the order of the panel pursuant to s 39 of the Act and the scope of his instructions were clearly explained by letter. He details his methodology in the opening paragraphs of his report and explains that he conducted a psychiatric assessment of Ms. Desrochers on August 23 and September 26, 2024. He writes that the purpose of his assessment was explained to Ms. Desrochers and “she was comfortable proceeding.”
74Contrary to the submission of Ms. Desrochers, the evidence does not support the assertion that Dr. Chaimowitz conducted an assessment “based only on a document review.” His report clearly explains “[T]he information contained in this report was obtained via clinical interview and review of file documentation. Records were received from both the Law Society and Ms. Desrochers. Ms. Desrochers provided additional information in multiple emails before and after the assessment interviews. I have tried to incorporate that as much as I could.” He also spoke with Ms. Desrochers’ daughter, who is a medical doctor.
75We acknowledged Ms. Desrochers’ continued criticism of Dr. Chaimowitz’s report and noted we would consider all submissions on its weight during final argument, which we have done.
Dr. Chaimowitz’s evidence
76The LSO called Dr. Chaimowitz to testify with respect to his November 25, 2024 report and the opinions expressed in his report.
77Dr. Chaimowitz testified that he was asked to provide an opinion on Ms. Desrochers’ past incapacity. He felt qualified and able to make that assessment based on his own assessment, and his review of the contemporaneous treatment notes of Dr. Green and the assessment by Dr. Booth to support his conclusions. He concluded that Ms. Desrochers had a mental illness that affected her capacity to fulfill her professional obligations and that she was incapacitated between 2014-15 and 2019.
78In forming his opinion, Dr. Chaimowitz was provided with file material by the Law Society, including the medical records of Ms. Desrochers’ treating psychiatrist, Dr. Green, and forensic psychiatrist Dr. Booth.
79Dr. Chaimowitz also met with Ms. Desrochers on August 23 and September 26, 2024 for a total of four hours. He conducted a telephone interview with Ms. Desrochers’ daughter (who is a medical doctor), and he also received additional emails and documents from Ms. Desrochers following their interview sessions. Dr. Chaimowitz admitted that he did not review all of the voluminous records that Ms. Desrochers sent him, but he testified that he reviewed enough to assist him in forming his opinion.
80One of the objections that Ms. Desrochers made about Dr. Chaimowitz’s evidence was that he had not recorded his sessions with her, which she argued impacted her ability to challenge his evidence. Dr. Chaimowitz testified that it was not his practice to record sessions, “I record them using a pen and paper and then I transcribe them.” We draw no adverse inference from the fact that Dr. Chaimowitz followed his usual practice of taking notes and not recording the sessions. There was no evidence that recording the sessions is the requisite standard of practice.
Medical notes of Dr. Green and Dr. Booth
81In forming his opinion, Dr. Chaimowitz put significant weight on the medical notes and the opinions that had been formed by Ms. Desrochers’ treating psychiatrist, Dr. Green, and by Dr. Booth, who had conducted a prior assessment of Ms. Desrochers at her request. He noted that Dr. Booth is a highly regarded forensic psychiatrist. He explained his reason for weighting Dr. Green’s opinion so heavily stating “Here you have a psychiatrist who sees [her] contemporaneous with some of these behaviours …treats her for [mental illness] … I would … give that a lot of weight.” He later stated, “Dr. Green … saw [her] around the time of these symptoms ... recommend that she suspend ... legal practice … then talks about [mental illness] and then treats her for [mental illness].”
82Dr. Chaimowitz noted that Dr. Green and Dr. Booth both saw Ms. Desrochers while she was actively suffering from what they both determined to be a mental illness. He stated, “two psychiatrists who see her around the same time. One with the duty to her and one with the duty … to a third party... they both come up with the same diagnosis.”
83When cross-examined on his reliance on the notes of Dr. Green and Dr. Booth, Dr. Chaimowitz testified, he placed “a lot of weight” on the treating psychiatrist’s opinion (Dr. Green) but insisted he did not simply adopt or “rubber stamp” prior diagnoses.
84Regarding Dr. Green specifically, Dr. Chaimowitz testified in cross-examination, “I put a lot of weight on a trained psychiatrist who’s working with you (Ms. Desrochers) and treating you .... Their opinion … plus all the other evidence … is support (for his diagnosis).”
85Ultimately Dr. Chaimowitz concluded that Dr. Green’s notes were consistent with his own diagnosis, and showed that Ms. Desrochers got better over time and with treatment. He noted that Ms. Desrochers responded well to the medications she has been prescribed, and that she had not expressed any intention to stop taking the medication.
86Dr. Chaimowitz testified that psychotic disorders generally refer to psychotic conditions where an individual appears to be out of touch with reality and include diagnoses such as schizophrenia, bipolar disorder, psycho-affective disorder, and delusional disorder. Delusional disorder in particular is a form of psychotic disorder where the primary symptoms are delusions containing “false, fixed beliefs … not touched by logic.” He conceded that a belief cannot be considered delusional if it is consistent with a person’s cultural or religious beliefs.
87Ms. Desrochers challenged the view that she was ever out of touch with reality, suggesting Dr. Chaimowitz could not make such a diagnosis as he did not treat her at the relevant time. This is part of the reason that Dr. Chaimowitz relied heavily on the notes of the psychiatrist treating her at the time, as well as the evidence of prolific social media posts, and some of the contents of those posts.
Tweets
88Part of the evidence that had been collected for the conduct application brought against Ms. Desrochers, and that was also used as part of the capacity application, was a mass of approximately 250,000 posts that Ms. Desrochers made on the Twitter/X social media platform.
89Dr. Chaimowitz testified that he considered the cumulative evidence from the tweets that were produced, noting that they were often sent in quick succession, described them “erratic” in nature, and that many others had the attributes consistent with a mental illness . He testified that some tweets expressed feelings of being persecuted and concerns of being harmed from perceived aggressors. Some were “odd at best”, some were inflammatory, and some left him with concerns about what was going on around Ms. Desrochers when they were posted. He testified that they were consistent with an evolving mental illness.
90Dr. Chaimowitz was asked during cross-examination why he did not ask Ms. Desrochers about all of her tweets. He testified that did not read all of them explaining that it was “not practical to go through all 250,000 tweets she had posted over the years.” Instead, he testified that he reviewed a selection of tweets provided by the Law Society as “inputs to opinion but also informed his opinion by his own assessment and other doctors reports.” He further testified that pp 11-19 of his report are summaries of the material provided to him, “not my opinion ... inputs for my ultimate concern.”
91He testified that some tweets could reflect activism or belief, while others suggested mental illness. Dr. Chaimowitz considered the tweets to be only “one input” into the formation of his opinion, and that he took into account that Ms. Desrochers feels strongly that she has been negatively impacted by racism directed at her as an Indigenous woman. He testified that he was aware that Ms. Desrochers felt she was being targeted by the Law Society, but he stated that it was not his brief to assess if that was true – his job was to determine if she was psychotic, consistent with her prior diagnoses.
92Dr. Chaimowitz testified that his opinion was not based on the contents of any particular tweets or just based on the tweets, but the contents of the tweets were consistent with Dr. Green’s diagnosis. He testified that “no single tweet was determinative, rather these tweets in combination with other factors, were suggestive of a mental disorder.”
93When challenged by Ms. Desrochers on his finding, Dr. Chaimowitz stated that the medical information as well as his own consultations with Ms. Desrochers were sufficient for him to confirm his diagnosis.
Religious or Spiritual Content in Tweets
94During cross-examination, Ms. Desrochers asked whether psychiatrists declare people delusional “just for saying the word God.” Dr. Chaimowitz testified “no.” He further testified that the fact that some people “feel God speaks to them does not make them delusional.” He disagreed with Ms. Desrochers’ questions to suggest that his findings were based on an assumption that Ms. Desrochers’ expressions of religious beliefs, including prophesizing, were an indicator of a mental health condition. Rather, he agreed that Ms. Desrochers was entitled to express her religious views and that expressing them was not a factor to be considered in the assessment.
95In his written report and during testimony, Dr. Chaimowitz stated that some tweets displayed “religious preoccupation and making references to listening and following God’s word.” When asked how to reconcile his identification of the tweets with religious content with the standard that religious beliefs are not delusional, he testified that the volume, the erratic nature, mixing religion with persecution themes and references to God warning of violence or bombs went “well out of keeping with cultural or religious belief.”
96Dr. Chaimowitz did not agree when it was suggested to him in cross-examination that the tweets could be a manifestation of acute stress disorder. He testified that he did not investigate Ms. Desrochers for stress disorders because his professional opinion was that she did not suffer from that. His opinion was largely based on the fact that Dr. Green had changed his diagnosis from a stress disorder to a mental illnessr, and Dr. Green had been successfully treating her for this mental illness for many years.
Racism
97Ms. Desrochers challenged Dr. Chaimowitz’s opinion on the basis he had failed to apply an Indigenous lens to his analysis and treatment recommendations. Dr. Chaimowitz rejected this proposition, noting that he is trained and applies cultural sensitivity to his analysis. He testified that he has been treating Indigenous persons for a long time, and that his treatment recommendations would be the same regardless of a person’s culture or faith when a person is suffering from a mental illness.
98Ms. Desrochers argued that Dr. Chaimowitz did not adequately consider the impact of systemic racism on her mental health. She emphasized that racism can cause significant stress and mental health issues, which should have been factored into his assessment. Dr. Chaimowitz addressed the issue directly during cross-examination and rejected this suggestion as incorrect.
99Ms. Desrochers argued that racialized individuals are misdiagnosed with psychotic disorders more frequently than non-racialized individuals, suggesting that this bias may have influenced his diagnosis. In response to her question “are you aware that there is racism in psychiatry”, Dr. Chaimowitz answered, “There is racism everywhere.”
100He was then asked how he addresses that and he answered, “I try to be self-aware, I take courses, I recently completed a course on Indigenous mental health and care. I co-chair a committee on structural racism in psychiatry, and I co-chair the racism commission at this department. I try to recognize the biases I have.”
101During cross-examination, Dr. Chaimowitz testified:
I know you took issue and have taken issue with the LSO and their way of interacting with you. I know you have issues with the perception of racism. I was looking at whether you had a [mental] disorder and how that interfered with your ability to practice, period. I am making a basic assumption that we live in a society where racism is endemic and it can affect mental health. My task was to look at whether you had a mental disorder that rendered you incapable to practice. As a result of that, I had the opportunity to look at notes from psychiatrists, and an opportunity to look at what you are thinking - presumably tweets show that.
102The tweets reviewed by Dr. Chaimowitz and considered by the panel did not express that she was subject to persecution based on being Indigenous. Ms. Desrochers did not point to any tweets being about persecution for her Indigeneity.
103Dr. Chaimowitz did not agree with Ms. Desrochers’ suggestion that her conduct was a triggered response to racism that she has endured. Dr. Chaimowitz confirmed that he took into consideration the stress that Ms. Desrochers has experienced arising from racism, but that did not affect his opinion.
Stress disorder
104Ms. Desrochers contended that Dr. Chaimowitz did not assess her for stress disorders, which she believed were more relevant to her situation given the stress and trauma she experienced due to systemic racism and her activism. Dr. Chaimowitz stated,
I reviewed your mental status, and if I believed you had a stress disorder, I would have mentioned it. I was doing a psychiatric assessment. You were very clear in your description that you felt you were the target of racism. It was front of mind. If I thought you had a stress disorder as a result of racism it would have been there.
105Ms. Desrochers pointed out that symptoms of stress disorders can overlap with those of mental disorders, and she suggested to Dr. Chaimowitz that her symptoms were misinterpreted.
106He testified that he spoke with the respondent’s daughter (a physician), who thought the respondent had an acute stress response and was not psychotic. He recorded but did not adopt that view.
107Dr. Chaimowitz concluded that in his opinion, from 2014-15 until 2019, Ms. Desrochers suffered from an active episode of a mental disorder. This disorder is a lifetime mental illness, but it has been in remission since late 2019 through treatment with her psychiatrist, Dr. Green. Ms. Desrochers has been actively treated by Dr. Green through medication and therapy.
108He testified that her prognosis was “good” with continuing treatment. Her prognosis was not “excellent” because he expressed concern that Ms. Desrochers did not show sufficient insight to recognize when she was unwell. He testified of the risk that could lead to times when she does not recognize her illness and may fall away from treatment, which may result in more of the same behaviour that led to her involvement with the Law Society investigations. “If she takes medication, her mental status should improve, and with an improved mental status, I would expect appropriate interactions with her regulator… otherwise that might be a conduct issue, not a mental health issue.”
109He ultimately concluded that if Ms. Desrochers is being treated, this illness will not preclude her practising law. He opined that treatment and therapy needs to be for her lifetime, although this may be revisited once the patient is older, i.e. over 60. Ongoing therapy with a psychiatrist allows her to be monitored to ensure she stays on prescribed medication, and to intervene before the illness gets out of hand.
110This is his recommendation for Ms. Desrochers. He noted that she is fortunate to already be under the care of a psychiatrist (Dr. Green) whom she trusts and with whom she works well.
Pastor Bryan Williams
111Pastor Williams testified that Ms. Desrochers has been an active member of his church within the Pentecostal faith since 2010. He explained the core spiritual beliefs of his church, including the supernatural gifts of the Holy Spirit such as speaking in tongues, interpretation of tongues, and prophecy. These beliefs, he noted, are fundamental components of Pentecostal practice and are widely accepted within the faith community.
112Over the years, he has interacted with Ms. Desrochers, and regularly observed her involvement in church activities. He described her as articulate, diligent, knowledgeable, and consistently thoughtful in her participation. Throughout the entire period of his acquaintance with her, he stated that he has never had concerns about her mental health, her judgment, or her ability to provide competent legal advice.
113In his testimony, Pastor Williams also recalled an instance in which he prophesied that Ms. Desrochers would return to nursing and obtain her Bachelor of Science in Nursing degree. He explained that this prophecy was made within the normal spiritual context of their Pentecostal faith, and he noted that the prophecy ultimately came to pass. This example was offered to illustrate their shared religious beliefs and the role prophecy plays as a spiritual practice rather than a sign of mental instability.
Tannis Wilson
114Charlene Desrochers’ daughter, Tannis Wilson, testified about her Cree heritage, her educational background, and her professional life, including her studies in nursing and social work. She explained that she has been in frequent communication with her mother since 2016 — often several times a week — and has never experienced difficulty understanding her. She testified that she consistently found her mother to be sound‑minded, articulate, and coherent in all of their interactions. She acknowledged that her mother experienced periods of stress and anxiety related to the Law Society proceedings but stated that these emotional responses, in her opinion, did not indicate any form of incapacity.
115Ms. Wilson also described the importance of their shared Pentecostal faith, noting that beliefs such as prophecy, visions, and dreams are normal within their religious tradition. She emphasized her mother’s strong role within their family, particularly as a loving and capable caregiver to her granddaughter. Through both lived experience and close observation, Ms. Wilson confirmed her mother’s demonstrated stability, rational thought, and consistent responsibility in her personal and family life.
Greta Neepin
116Ms. Neepin is a residential school survivor and was represented by Ms. Desrochers from approximately 2014 to 2018. She affirmed her affidavit dated April 12, 2025, and consented to its use in this capacity hearing. Her affidavit offers her first-hand observations and positive experience as a former client of Ms. Desrochers.
Glenn Bogue
117Ms. Desrochers provided us with an affidavit from another licensee Glenn Bogue, to summarize his capacity assessment conducted by Dr. Philip Klassen by order of this Tribunal. Mr. Bogue’s session with Dr. Klassen was recorded with his consent. Ms. Desrochers adduced this evidence to contrast with Dr. Chaimowitz's assessment of Ms. Desrochers, which was not recorded.
118We agreed to admit Mr. Bogue's affidavit with certain paragraphs redacted to comply with the Rule 13 order and for the sole fact that Mr. Bogue’s psychiatric assessment was recorded by Dr. Klassen. We give this evidence no weight, for the reasons set out above, that Dr. Chaimowitz’s choice not to record the sessions was within the standard of his practice.
Participant experts
119Ms. Desrochers sought to qualify family members Lee Ann Linquist (sister), Dr. Tara Wilson (daughter), and Brenda Desrochers (sister) as participant experts. The Law Society provided us with the recent decision of the Tribunal in Law Society of Ontario v Patterson, 2025 ONLSTH 28, for guidance to qualify a participant expert as someone only able to provide opinion evidence based upon their direct involvement or observations related to the events in question. Ms. Desrochers relied upon Westerhof v Gee Estate, 2015 ONCA 206, which was cited with approval by the Tribunal in Patterson, to submit that each family member has observations of Ms. Desrochers throughout the time period at issue and is able to provide their opinions based upon their observations and expertise relevant to mental health in First Nations communities.
120We agreed to hear the testimony of Lee Ann Linquist and Dr. Tara Wilson as participant experts for their respective experience in observing Ms. Desrochers and observations as medical professionals serving members of First Nations communities who experience mental health challenges. Dr. Wilson’s opinion evidence was limited to the time since she was qualified as a nurse, and was not permitted for the period pre-dating her qualifications.
Lee Ann Linquist (sister)/participant expert
121Lee Ann Linquist, Charlene Desrochers’ sister, has been a registered nurse since 1986, a nurse practitioner since 1998, and holds a master’s degree in public health earned in 2005. She has spent her career serving primarily Indigenous clients through roles at the Waasegiizhig Health Access Center in Kenora, the Sioux Lookout Health Authority, and again at Waasegiizhig beginning in 2018. Ms. Linquist testified that she has observed Ms. Desrochers’ mental health closely since the summer of 2018, communicating with her daily — sometimes twice a day — via FaceTime. In all this time, she never observed pressured speech, erratic behaviour, or disorganized thinking. Rather, her tone was normal, and her communications were clear and rational. Ms. Linquist acknowledged that Ms. Desrochers experienced stress and anxiety arising from the Law Society’s actions but stated firmly that she had no concerns about Ms. Desrochers’ capacity during this period.
122Drawing on her professional experience, Ms. Linquist explained the pervasive impacts of racism on Indigenous people within the healthcare system and how such experiences can negatively affect mental health. She emphasized the importance of culturally appropriate, trauma‑informed care in assessing Indigenous patients. Ms. Linquist described Ms. Desrochers’ achievements during this time, including returning to nursing school, upgrading her RN, and completing a Bachelor of Science in Nursing, all while representing herself at the Tribunal. In her view, Ms. Desrochers’ ability to succeed academically and professionally demonstrated competence, focus, and stability.
123Ms. Linquist offered personal observations as well. She spent significant time on multiple vacations with Ms. Desrochers, without noticing any abnormal behaviour. She also observed Ms. Desrochers caring for her granddaughter and confirmed her ability to provide attentive, responsible care. With respect to medical considerations, Ms. Linquist explained that her own nursing practice regularly involves consultation with psychiatrists regarding treatment plans, and she underscored the need for racism‑aware psychiatric assessment. Finally, she noted that they share Pentecostal Christian beliefs, including belief in prophecy and the gifts of the Holy Spirit, which she described as part of their faith tradition rather than indicators of mental illness.
124While Ms. Linquist’s testimony was compelling, unfortunately, her re-established connection with Ms. Desrochers did not begin until after Ms. Desrochers was under treatment with Dr. Green and provides no insights into her mental health in the earlier period from 2014-15 until their connection was re-established in 2018. Ms. Linquist could not speak to Ms. Desrochers’ ability to practise law in 2018 or 2019 – times during which Dr. Green had advised the LSO that Ms. Desrochers was not able to practise law. However, her evidence provides useful insight into Ms. Desrochers’ current condition while under treatment.
Dr. Tara Wilson (Daughter)
125Dr. Tara Wilson, Charlene Desrochers’ daughter, is a graduate of Queen’s University’s nursing program (2019) and the Northern Ontario School of Medicine (2023), and she is currently completing her third year of Emergency Medicine residency in Winnipeg. She testified that she has observed her mother’s mental health closely from 2019 onward and has consistently found her to think clearly, coherently, and rationally, with no signs of delusions, hallucinations, or disorganized thought. As with Ms. Lindquist, Dr. Wilson was not able to provide opinion evidence for the period in which incapacity is alleged by the LSO.
126Dr. Wilson spoke extensively and persuasively about the impact of racism on Indigenous people in the healthcare system. She described racism as both pervasive and harmful, explaining that it can significantly affect mental health and shape the way Indigenous patients present in clinical settings. She stressed the need for cultural sensitivity and trauma‑informed assessments, particularly in psychiatric evaluations of Indigenous people. She further explained that throughout her own medical training, she has come to understand how cultural context must inform the interpretation of behaviors, beliefs, and symptoms. She also highlighted that her mother continued to excel academically and professionally after returning to nursing, earning straight A’s in her nursing program, completing her degree, and working in various First Nations communities — demonstrating both competence and stability.
127In describing her personal interactions with her mother, Dr. Wilson testified that their communication was regular and extensive, and she always found her mother to be grounded, articulate, and capable. She confirmed her mother’s important role as a caregiver to her granddaughter and described her as consistently loving, attentive, and reliable. While acknowledging the stress of the Law Society proceedings, she maintained that these reactions were normal responses to an “oppressive process rather than signs of mental disorder.”
128Dr. Wilson also explained her interaction with Dr. Chaimowitz. She spoke with him by phone in September 2024 for approximately 30 minutes but felt that the conversation failed to explore areas she believed were essential, including their family’s religious beliefs, their Pentecostal faith, and the socio‑cultural and historical factors shaping Indigenous mental health. She felt the assessment lacked the necessary depth and that subsequent reflection confirmed her concern that important information had not been considered. Although she had initially reviewed his report after its publication, she only recently re‑read it in detail and found significant points of disagreement.
129She strongly disagreed with Dr. Chaimowitz’s diagnosis of her mother, as well as with the diagnoses provided earlier by Dr. Green and Dr. Booth, arguing that none of these practitioners adequately accounted for the socio‑cultural context or the impacts of racism. She testified that psychiatric bias toward racialized patients is well‑documented, and that Indigenous people are disproportionately and incorrectly diagnosed with psychotic disorders. She suggested that her mother was subject to this kind of bias. Dr. Wilson added that she believed the assessments were not conducted thoroughly according to Ontario’s guidelines for capacity evaluations. She noted the doctors reached clinically incompatible diagnoses, yet both had been proposed for her mother, which she considered evidence of diagnostic inconsistency rather than accuracy. She stressed that no specific psychiatric diagnosis automatically means a person lacks capacity to practise law, especially in her mother’s case, where her functioning has been consistently high.
130Dr. Wilson emphasized the importance of culturally competent care and acknowledged that non‑Indigenous physicians can achieve this through proper training.
131Throughout her testimony, she highlighted the significance of their family’s Pentecostal faith — including prophecy and spiritual gifts — as normal components of their religious tradition. Finally, she recalled police visits to their home around the year 2000, noting that these incidents contributed to her mother’s stress and underscored the lived‑experience context missing from the psychiatric assessments.
132The final portion of Dr. Wilson’s appearance before us turned into advocacy where she urged us to consider the United Nations Declaration on the Rights of Indigenous Peoples and the UN Convention on the Rights of Persons with Disabilities when weighing the evidence. We disregard this part of Dr. Wilson’s evidence and find that it colours the objectivity of the balance of her testimony, to which we accord little weight with respect to Ms. Desrochers’ current condition.
133When weighing Dr. Wilson’s evidence, we also take into consideration the fact that she is a relatively newly licensed medical doctor with only minimal training in psychiatry. While as an emergency room physician, she deals with mental health crises regularly, she is not a psychiatrist, and was not qualified to criticize Dr. Chaimowitz’s opinion or methodology.
Brenda Desrochers (sister)
134Brenda Desrochers, Charlene’s sister, holds an Honours degree in psychology, a Bachelor of Education, and a master’s degree in Indigenous Education. She is currently employed as a Vice‑Principal in Attawapiskat First Nation, where she advocates for proper healthcare access within the community. Brenda Desrochers testified that she closely observed Charlene’s mental health between 2015 and 2019 and never witnessed any behaviour that caused her concern. She described Charlene’s thought processes, decision‑making, and judgment during this period as consistently sound, with no indications of impairment. Their relationship has always been close, and they remain in frequent contact, speaking three to five times per week via FaceTime for one‑ to two‑hour conversations and visiting each other several times a year during major holidays and summer months.
135Brenda Desrochers also highlighted Charlene’s important role within the family, especially her ability to care for her granddaughter, describing her as a very caring and capable grandmother. She confirmed that although Charlene experienced stress and anxiety connected to the Law Society’s complaints process, these reactions did not reflect mental instability but rather a natural response to ongoing institutional pressure.
136Brenda Desrochers further emphasized the significance of Cree cultural values, noting that family care is collective and that extended family members routinely support one another in education, health, and overall well‑being. She also addressed their shared Pentecostal Christian beliefs — including prophecy and the gifts of the Holy Spirit — which she viewed as normal aspects of their religious practice rather than indicators of mental illness.
137In her professional role, Brenda Desrochers applies mental health training obtained through her teacher education and ongoing professional development. She supports students and families dealing with intergenerational trauma and mental‑health challenges, with particular attention to the impacts of colonialism and racism. She testified that racism in the healthcare system remains a significant barrier for Indigenous people and that she actively advocates against it both on and off reserve. This knowledge informed her perspective on Ms. Desrochers’ experiences, leading her to believe that racial bias may have played a role in how her sister’s mental health was interpreted by medical and regulatory authorities.
138Brenda Desrochers testimony was helpful in understanding the challenges that Charlene Desrochers has experienced as an Indigenous woman, and alerting us to the potential for unconscious bias to have crept into the opinions expressed by the medical expert witnesses. It provides useful insight into Charlene Desrochers’ current mental health, while she is under treatment.
Dr Green’s testimony September 22, 2025
139Dr. Green is Ms. Desrochers’ treating psychiatrist. He testified that he is a psychiatrist and assistant professor at the University of Ottawa, working primarily at The Ottawa Hospital as part of a multidisciplinary mental health team. He first met Ms. Desrochers in March 2018 after a referral from a nurse practitioner. At that time, he conducted an initial assessment and since then, he has provided ongoing psychiatric care, including medication management.
140Dr. Green detailed Ms. Desrochers’ medication history, including antidepressants, anti-anxiety, antipsychotic, and sleep medications. He confirmed Ms. Desrochers was adherent to prescribed treatments, with only brief interruptions due to side effects, which were discussed and managed together.
141Dr. Green testified that Ms. Desrochers’ condition improved, with no signs of depression or excessive anxiety since March 2023.
142Dr. Green diagnosed Ms. Desrochers with a mental illness and emphasized the importance of her adhering to medication and regular follow-ups. On cross-examination, the doctor communicated his belief that Ms. Desrochers does have insight into her illness and need for treatment, even if she disagrees with his diagnosis.
143Dr. Green wrote several medical notes to the LSO since he began treating Ms. Desrochers:
- 2018.03.29: Dr. Green recommended the Tribunal matter be put on hold and that Ms. Desrochers suspend her legal practice while she addressed her health issues.
- 2018.04.26: He opined that Ms. Desrochers was “incapable of participating in the Law Society’s disciplinary matter at this time” due to “an ongoing medical condition.”
- 2018.05.31: He opined that Ms. Desrochers is “not able to participate in the Law Society Tribunal matter, nor is she able to work as a lawyer.”
- 2018.06.21: He advised that Ms. Desrochers’ “medical condition remains unchanged”.
- 2018.08.02: He stated that participation in the 18H-091 hearing would undermine the Lawyer’s mental health and recovery.
- 2018.10.18: He stated that participation in a capacity investigation may be detrimental to the Lawyer’s mental health. He advised that Ms. Desrochers has been referred to a forensic psychiatrist (Dr. Booth) for further assessment and advice.
- 2019.03.08: He confirmed that participation in Law Society proceedings will “exacerbate her medical condition” and it is recommended that she not participate in the proceedings at this time. Pursuing her training in a nursing refresher course does not affect her medical condition.
- 2019.05.02: He advised that Ms. Desrochers was unable to participate in a hearing into her conduct as a lawyer and he did not think there are any accommodations that could be put into place that would allow her to participate in a hearing. Dr. Green was unable to provide a prognosis for when Ms. Desrochers would be able to participate in a hearing and recommended an adjournment of six months, “prior to which I may be able to provide a prognosis”.
- 2019.09.26: The following recommendations were made: i. No contact with Daniel Iny or anyone from his law firm as this tends to exacerbate her condition; ii. Ms. Desrochers is unable to do legal research or draft documents; iii. Ms. Desrochers cannot attend or conduct cross-examinations or hearings; and iv. Ms. Desrochers requires a court-appointed legal counsel to prepare the motion record for court-appointed counsel.
- 2020.03.23 He opined that Ms. Desrochers is unable to participate in the Law Society proceedings as it will exacerbate her medical condition. She also requires accommodations in the timelines for filing legal documents and responding to the Law Society’s legal documents at the Law Society Tribunal regarding her upcoming motion for court appointed legal counsel – 60 days to file documents and 60 days to respond to the Law Society’s legal documents.
144Dr. Green testified that his medical note recommendations — such as avoiding contact with certain individuals at the Tribunal proceedings and taking time away from legal practice — were based on Ms. Desrochers’ distress, cognitive symptoms, and overall mental health at the time. He clarified that he did not formally assess her capacity to practise law. Rather he had advised that she take time off work for health reasons.
145Dr. Green testified that his diagnosis of Ms. Desrochers is that she suffers from a form of mental illness which is a lifelong and for which she will require ongoing treatment. He confirmed that she has been compliant with his treatment plan throughout. Dr. Chaimowitz agreed with this diagnosis, as did Dr. Booth.
Charlene Desrochers’ testimony January 26, 27 and February 3, 2026
146Ms. Desrochers testified for two days on January 26 and 27, 2026, and was cross-examined on February 3, 2026. A summary of her evidence in-chief follows.
147Ms. Desrochers testified that she has, and had, insight into her medical condition. Although she disagrees with the precise psychiatric diagnosis, she continues to follow the treatment plan recommended by her psychiatrist, Dr. Green. In her opinion the prescribed medications are also helpful to treat acute stress disorder, which she believed is the cause of her mental health conditions. Ms. Desrochers denies that she was suffering from any form of mental health condition at the time she wrote the 250,000 tweets but rather blames her illness on the conduct of the LSO in prosecuting her, including its alleged racism towards her as an Indigenous woman. To this end, Ms. Desrochers points to her excellent grades when she went back to school to qualify as an RN, and she emphasized that she remains a registered nurse, with no restrictions on her nursing license. In this respect, we note Dr. Green’s conclusion that Ms. Desrochers was able to capably practise as a nurse at the same time that he concluded that she was not able to perform her duties as a lawyer. We therefore do not put any weight on the fact that Ms. Desrochers performs her nursing duties capably as being an indicator of her ability to practise law now or during the time of her alleged incapacity.
148Ms. Desrochers disagreed with Dr. Green’s diagnosis of a mental illness because, she argued, that a mental disorder involves having fixed false beliefs. She asserted that he found a mental disorder because her tweets included religious overtones, Bible quotes and prophesizing. However, she maintained that the freedom to express religious and spiritual beliefs must be considered when applying a diagnosis to her. She denied that references to God in her statements or posts are evidence of any mental illness. She noted that she had not previously been shown Dr. Green’s medical notes that were later shared with Dr. Chaimowitz, so she had no opportunity to rebut any findings made based on them.
149Ms. Desrochers recalled telling Dr. Green about two or three incidents in which she thought she might be being watched, and that she believed the Law Society was targeting her. She shared materials she had gathered during the conduct application at her first appointment with Dr. Green in an effort, she said, to demonstrate that her concerns were grounded in evidence rather than illness.
150Ms. Desrochers maintained that she never experienced delusions or any of the symptoms she associates with a mental illness. She maintains that what she did experience were stress and anxiety responses that, in her view, can present both in stress‑related conditions and in mental illness. She stated that because she mentioned God she felt she was labeled with a mental illness; likewise, when she said the Law Society was targeting her, she offered details that she believed supported that view but that, in her submission, were not credited by the psychiatrists.
151She linked her activism online to heightened scrutiny by police and security agencies and described multiple interactions with law enforcement, including RCMP and OPP visits to her home, which she says contributed to stress. She also recounted an incident in which a client reported a police visit shortly after Ms. Desrochers had left the client’s home, and an August 2013 visit from Ottawa police regarding her tweets, which she perceived as an effort to discourage her online speech. She reiterated that prophecy is part of her religious practice and should not be treated as a sign of mental illness.
152With respect to her assessment by Dr. Chaimowitz, Ms. Desrochers testified that their discussion focused largely on religion and prophecy; she denied describing “special powers,” and said neither Dr. Green nor Dr. Chaimowitz explored her religious beliefs in detail. She took issue with what she characterized as a statement in the report that she was “Pentecostal with [her] own belief system,” explaining that she follows the teachings of her church and pastor and does not hold a personal belief system apart from that doctrine. She also said Dr. Chaimowitz did not sufficiently investigate Dr. Green’s notes about the impact of Law Society contact on her health.
153She emphasized her right, as a patient and a nurse, to question medical opinions, especially given her legitimate concerns about racism within health systems. She rejected the proposition that her condition is necessarily lifelong, aligning herself instead with an understanding of her symptoms as an ongoing acute stress response tied to the Law Society process, which she said was supported by her daughter, who is a medical doctor.
154She also testified that Dr. Chaimowitz did not canvass her perspective on each medical appointment included in his report, nor go tweet‑by‑tweet through the posts the Law Society highlighted. She testified she would have preferred to explain the context of each tweet, even if now she could not recall her thinking at the time.
155She maintained that during the relevant period she was under the care of Dr. Green and that she was not incapacitated; rather, she took time to prioritize mental health on his advice. She had voluntarily closed her practice in March 2018 and applied for a fee exemption, and she said no one from the Law Society contacted her to inquire about the reason for closing her practice. She agreed with Dr. Green’s evidence that she exhibited elements of PTSD and added that there are many symptoms of PTSD that overlap with anxiety.
156Regarding the need for conditions on her licence, Ms. Desrochers submitted that none are warranted. She pointed to her ongoing nursing practice without restrictions, noting that the College of Nurses was aware of the Law Society’s capacity investigation and that Dr. Green did not recommend nursing practice restrictions.
157She reiterated that whether or not she met the legal test for incapacity in 2015-2019 is, in her words, “moot” today given her years of treatment and stability. She underscored that she continues to follow Dr. Green’s treatment plan and would not discontinue it without medical advice. She viewed any restrictions as discriminatory, criticized the LSO draft s 40 order for what she described as reliance on “templates,” and emphasized that variable diagnoses across clinicians undermined their reliability.
158During cross-examination, Ms. Desrochers testified that although she and Dr. Green disagreed with the formal diagnosis, she relied on his advice regarding treatment, noting that the medication prescribed to her could be used for a range of mental health conditions. She testified that she follows his treatment and does not make changes without his approval. She recalled one period of discontinuation of one medication based on side‑effects, which she said occurred in consultation with Dr. Green, after which she resumed medication at a lower dose without side‑effects.
159Ms. Desrochers maintained that she was not incapacitated during the relevant period and explained that Dr. Green’s medical note stating she was unable to work as a lawyer did not equate to a finding of incapacity. She described closing her law practice in March 2018 with Dr. Green’s support and in an effort to obtain a fee exemption from the Law Society while she prioritized her mental health.
160Ms. Desrochers disagreed with any suggestion that her condition was lifelong and stated that she believed the proper diagnosis was an acute stress disorder arising from her experience with the Law Society’s processes, which she testified was supported by her daughter.
161She further testified that racism in healthcare and psychiatry informed her critical approach when reviewing medical information, explaining that patients must be allowed to question physicians and that she believed some doctors may misuse their authority. She also rejected the various diagnoses she had received from multiple doctors, stating that the inconsistency — up to seven different diagnoses by her count — undermined their reliability and supported her position that what mattered was her consistent engagement with treatment.
Analysis
The statutory framework
162We are aware of Ms. Desrochers’ abuse of process motion that is proceeding separately from this capacity application. For this reason, we confine our analysis to the discrete issues that are before us.
163The Act defines an incapacitated licensee as follows:
37(1) A licensee is incapacitated for the purposes of this Act if, by reason of physical or mental illness, other infirmity or addiction to or excessive use of alcohol or drugs, he or she is incapable of meeting any of his or her obligations as a licensee.
37(4) The Hearing Division shall not determine that a licensee is incapacitated for the purposes of this Act if, through compliance with a continuing course of treatment or the continuing use of an assistive device, the licensee is capable of meeting his or her obligations as a licensee.
37(6) Despite subsection (4), the Hearing Division may determine that a licensee who is the subject of an application under section 38 is incapacitated for the purposes of this Act if,
(a) the licensee suffers from a condition that would render the licensee incapacitated were it not for compliance with a continuing course of treatment or the continuing use of an assistive device; and
(b) the licensee has not complied with the continuing course of treatment or used the assistive device on one or more occasions in the year preceding the commencement of the application.
165Section 40 (1) of the Act sets out the types of orders that the Hearing Division may make where it determines that a licensee “is or has been incapacitated”:
- An order suspending the licensee’s licence,
i. for a definite period,
ii. until terms and conditions specified by the Hearing Division are met to the satisfaction of the Society, or
iii. for a definite period and, after that, until terms and conditions specified by the Hearing Division are met to the satisfaction of the Society.
An order that the licensee obtain or continue treatment or counselling, including testing and treatment for addiction to or excessive use of alcohol or drugs, or participate in other programs to improve his or her health.
An order restricting the areas of law that the licensee may practise or in which the licensee may provide legal services.
3.1. An order restricting the legal services that the licensee may provide.
- An order that the licensee practise law or provide legal services only,
i. as an employee of a person approved by the Society,
ii. as an employee or partner, and under the supervision, of a licensee approved by the Society, or
iii. under the supervision of a licensee approved by the Society.
An order that the licensee report on his or her compliance with any order made under this section and authorize others involved with his or her treatment or supervision to report thereon.
Any other order that the Hearing Division considers appropriate.
166The two-fold purpose of a capacity proceeding is most notably summarized in the Law Society of Upper Canada v Lyon, 2014 ONLSHP 1, starting at para 22:
[22] The capacity provisions of the Act, which are notably distinct from conduct and competence applications, serve two primary purposes. First they ensure that there is a mechanism to protect the public when a licensee cannot meet his or her obligations for medical reasons. Second, they recognize that when actions which would otherwise constitute professional misconduct result from illness or addiction, in some cases it may not be appropriate to treat them as wrongdoing. The focus in a capacity application is on ensuring that the public interest is protected, not deterrence. As required by the Human Rights Code, any orders based on a licensee’s medical condition must be reasonably necessary to protect the public and accommodate the disability to the point of undue hardship.
[25] Yet, such orders may be made under the Act because of a licensee’s special privileges as a regulated professional. The power to order and examination arises from the need to ensure, in the public interest, that lawyers and paralegals are able to fulfill their professional obligations. Licensees provide services that, by law, others cannot provide. They also obtain economic benefits from being part of the legal profession. Members of the public retain lawyers and paralegals with the understanding that they are part of a regulated profession that mandates and enforces standards of education, ethics, competence and insurance, among others. Accepting the benefits of regulation also requires accepting the consequences, which may include being subject to the possibility of a s. 39 order and its impact on autonomy, privacy and Code rights.
(emphasis added)
167In Law Society of Ontario v Stewart, 2019 ONLSTH 118, the panel noted “an important milestone in the evolution of the legal profession’s regulatory approach when its members experience mental health or substance use challenges.”
168In Stewart, the LSO converted its conduct investigation into a capacity application, and following an extensive medical assessment, jointly negotiated the terms of an s 40 order detailing the conditions of the Licensee’s return to practice. The panel considered the evolution in approaches to incapacity and the impact of mental illness in professional environments stating:
[11] Both issues demand the attention of Law Society investigators, the Tribunal and the profession as a whole. Within the confines of an individual case, licensees and representatives of both sides need to be aware that the range of regulatory responses is expanding, and they may have to react accordingly during an investigation or a hearing.
[12] In that context, this case may exemplify a developing trend in the Law Society’s handling of discipline matters where one or more disabilities lie at the core of a licensee’s conduct.
[13] To be sure, the Law Society and this Tribunal must comply with not only their constituting statute, the Law Society Act, but also the Ontario Human Rights Code, which governs all regulatory bodies and the decisions they reach in the public interest. There is an inherent tension, or at least a balance to be struck, between the collective right of the public to a competent, ethical profession and the individual right of each licensee to be free from discrimination based on personal characteristics, including having a disability, over which they may have no effective control.
[14] The application of the Code is fairly recent; historically, these health-related factors were considered from the standpoint of penalty principles such as the need for specific or general deterrence, rehabilitation and confidence in the self governance of the professions.
[15] Moreover, while Law Society discipline cases have always taken into account the impact of mental illness or alcohol or drug use where it was raised at the penalty stage, the cases in which these factors operated to exclude a finding of professional misconduct were few and far between.
169The panel in Stewart noted at para 31 the “difficult reconciliations of professional discipline and human rights law” will occur where the licensee seeks to invoke human rights principles to avoid or mitigate severe penalties in conduct proceedings. In this case the panel stated, “the public is seriously harmed, yet the licensee argues that no finding of professional misconduct, or a much lighter penalty, should result.”
170In Law Society of Upper Canada v Robson, 2018 ONLSTH 6, cited by Stewart at para 34, the panel applied the Human Rights Code when considering the effect of the Licensee’s mental illness on findings and stated, “We must accommodate proven disability, if it causes or contributes to a failure to fulfill professional obligations, unless and to the extent that accommodation would cause undue hardship in the form of harm to the public interest ….”
171In the Law Society v Campos, 2022 ONLSTH 137, the panel also considered the intersection of ss 37(1) and (4) of the Act and human rights legislation stating,
[72] Section 37(1) of the Act states that “a licensee is incapacitated for the purposes of this act, if, by reason of physical or mental illness, other infirmity or addiction to or excessive use of alcohol or drugs, he or she is incapable of meeting any of his or her obligations as a licensee” unless, according to s. 37(4), “if through compliance with the continuing course of treatment or the continuing use of an assistive device, the licensee is capable of meeting his or her obligations as a licensee.”
[73] In this way the Act conforms with human rights legislation to accommodate those with substance abuse disorders. Indeed, the Law Society is accommodating the Lawyer’s alcohol disorder by allowing him to return to practice if he abstains from consuming alcohol and continues the course of treatment and monitoring.
172As regards how a panel should approach creating s 40 practice conditions in contested matters, and where found necessary, the panel in Campos, 2023 ONLSTH 8, stated:
[6] The common themes in these orders generally include treatment by an approved healthcare professional; reporting and testing by that individual or another outside party; monitoring by the Executive Director of Professional Regulation or designate; terms of employment or other arrangements for a return to practice; timelines; provisions for non-compliance such as license suspension; and terms for resumption of practice.
[7] To a great extent, the Law Society and the respondent both addressed these issues in their respective draft orders. Their differences related to the extent of the restrictions and who would decide whether the respondent had complied with them.
[12] First, the least restrictive alternative to be achieved is the one that is consistent with the public interest, protection of the public, and restoration of the privilege of practicing law as a licensee.
[14] Second, the terms must be consistent with the evidence we received in the capacity application and the decision that was made.
173The panel in Campos clearly accepted that the Ontario Human Rights Code applies to Tribunal proceedings under the Act. Further, that accommodation may be satisfied through directing the terms of an s 40 order itself.
174In the Law Society of Ontario v Salvona, 2025 ONLSTH 170, also a contested capacity application, the panel reinforced the balance needed in crafting a s 40 order stating, “it should reflect the least restrictive terms that permit the Licensee to provide legal services in a way that is consistent with the public interest and protection of the public.” In deciding upon the conditions needed, the panel disagreed with the Law Society’s draft seeking “detailed terms to make the order more easily enforceable” and disagreed with the Licensee’s position that “he should be able to maintain full autonomy over any medical treatment.” Stating, “[If] he wishes to provide legal services, which is a privilege rather than a right, the Licensee will have to relinquish some autonomy and privacy so the Law Society can carry out its function to protect the public”: Salvona, paras 83-85.
175Ultimately the panel in Salvona sought additional submissions from the parties on the terms of a draft order. Two days after the close of final argument in this application, the decision of the panel directing the terms of the s 40 order in Salvona was published on March 4, 2026: 2026 ONLSTH 48. As a consequence, we invited supplementary submissions confined to Salvona from the LSO and Ms. Desrochers.
176The draft order in Salvona contained a number of practice restrictions such as requiring the Licensee to work as an employee for an approved employer, not operating a trust account or handling trust funds, conditions that are not proposed here. In their supplementary, the LSO submit that the panel in Salvona continued to focus on public protection as a paramount consideration: Salvona, paras 13, 20, 21.
177The panel in Salvona considered discrimination arguments where the Licensee, like Ms. Desrochers, asserts “the entire order is discriminatory.” In its supplemental submissions, the LSO referred to para 20 of Salvona which applied Campos and held that s 37(4) satisfies the human rights requirement of accommodation to the point of undue hardship. Specifically,
[20] At this stage, as stated in Law Society of Ontario v. Campos, 2022 ONLSTH 137 at para. 79, human rights and regulatory obligations merge. The Law Society has an obligation to accommodate but it also has the duty to protect the public interest. The Law Society must be able to assure the public that with accommodation the Licensee can perform the essential duties of the profession. The terms of the capacity order are the accommodation terms. While we understand the Licensee’s position that they restrict his ability to practise, we must also consider the serious consequences that would flow from not adhering to such restrictions given the Licensee’s history with substance use, the risk of relapse, and his ongoing inappropriate behaviours that were on display throughout these proceedings.
178Ms. Desrochers’ supplementary submission went well beyond a consideration of Salvona but from what we understand, she argues that Salvona can be distinguished from her matter because he was found to be incapacitated and she is not. She submitted:
179Further, all the LSO’s supporting cases, including Salvona, are irrelevant and inapplicable in her submission, because the licensees in those cases were incapacitated and did not have present capacity like she has.
CONCLUSIONS
180This capacity application requires us to decide three discrete issues:
- Was Ms. Desrochers incapacitated within the meaning of s 37 of the Act?
- If so, and if her license to practice is restored, should practice conditions be included?
- What should those conditions be?
Was Ms. Desrochers incapacitated within the meaning of s 37 of the Act?
181To this first question, the LSO submits that the evidence overwhelmingly supports a finding of incapacity during the relevant period. In particular, it relies on the contemporaneous medical opinions of Ms. Desrochers’ treating psychiatrist, Dr. Green, who issued medical notes in March and May 2018 advising the Law Society that she was unable to work, and specifically unable to practice law, due to her medical condition.
182Dr. Green’s oral evidence was also consistent with his written recommendations. He testified that because of the level of her psychotic impairment, he believed she should not have been working in any capacity during that time.
183The LSO further relies on the medical notes of Dr. Booth, whom Dr. Green identified as a respected forensic psychiatrist. Although Dr. Booth did not testify, both Dr. Green and Dr. Chaimowitz confirmed that Dr. Booth diagnosed Ms. Desrochers with a mental illness during the same period.
184The LSO also relied on the expert evidence of Dr. Chaimowitz, whose assessment and report concluded that Ms. Desrochers suffers from a mental illness that was active from 2015 until 2019, now in remission due to treatment. He opined that without ongoing treatment, there would be a substantial risk of recurrence of the symptoms that had impaired her ability to meet professional obligations.
185The LSO rejected Ms. Desrochers’ submissions that Dr. Chaimowitz’s evidence should be discounted because he did not know her during the relevant period. The LSO submitted that s 39(3) expressly authorizes assessments of whether a licensee “is or has been” incapacitated. The statute’s language “has been”, specifically contemplates a retrospective assessment. Further, Tribunal jurisprudence contains multiple cases in which the licensee was previously incapacitated but was no longer incapacitated at the time of the hearing. The LSO argues this jurisprudence is directly applicable to this application concerning Ms. Desrochers. Further, the prior incapacity assessments were accepted and replied upon to determine the appropriate s 40 order in each case. Specifically, it relies on Law Society of Upper Canada v Bishop, 2014 ONLSTH 118; Law Society of Upper Canada v Forget, 2015 ONLSTH 118; Law Society of Ontario v Stewart, 2019 ONLSTH 118; Law Society of Ontario v Mahoney, 2019 ONLSTH 126; Law Society of Ontario v Lever, 2019 ONLSTH 140; Law Society of Ontario v Burgess, 2021 ONLSTH 25; Law Society of Ontario v Lesieur, 2021 ONLSTH 144; Law Society of Ontario v Phillips, 2022 ONLSTH 2; and Law Society of Ontario v Escobedo Hoyo, 2023 ONLSTH 88.
186The LSO submits that the consistent conclusions of three psychiatrists (two contemporaneous treating psychiatrists, Dr. Green and Dr. Booth, and one independent assessor, Dr. Chaimowitz) constitute compelling evidence of Ms. Desrochers’ past incapacity. In contrast, the LSO argues that the evidence given by Ms. Desrochers’ family members and her own evidence was subjective, inconsistent with contemporaneous medical documentation, and often contradicted by her own medical notes at the time.
187Ms. Desrochers submits that she presently possesses the capacity to practise law and that no terms or conditions may be imposed on her licence under s 40 of the Act. She argues that the evidence before the Tribunal, including the opinion of the Law Society’s own expert, establishes current capacity.
188She notes that Dr. Chaimowitz concluded she is presently capable of practising law, and her treating psychiatrist, Dr. Green, testified that she has insight into her mental health, adheres consistently to treatment, and remains stable. She also highlighted that she has successfully practised as a registered nurse since 2021 without restrictions, which she submits demonstrates her ability to exercise professional responsibility.
189Ms. Desrochers disputes that she was incapacitated between 2015 and 2019. She submits that the opinion of Dr. Chaimowitz should be afforded limited weight because it is based largely on a document review conducted many years after the events in question. She argues that a psychiatrist cannot reliably determine past capacity without knowing her or assessing her at the time. In her view, the historic notes of Dr. Green and Dr. Booth reflect that they did not agree upon their diagnoses. She maintains that her ability to represent clients during the relevant period demonstrate that she met the obligations of a licensee.
190Ms. Desrochers further submits that the expert evidence misinterpreted key aspects of her religious beliefs. She maintains that her prophetic expressions and references to divine guidance are consistent with her Pentecostal faith and should not be treated as indicators of mental illness.
191Ms. Desrochers submits that Dr. Chaimowitz never assessed the impacts of racism on her mental health. She submitted that its “common knowledge that racism impacts mental health”. In her view, Dr. Chaimowitz ignored all of the documents she provided on this and he relied solely on the Law Society’s documents. In her view, “He did not have the whole record” arguing the Law Society “cherry picked the documents that they wanted to review.” It was not up to the Law Society to determine what Dr. Chaimowitz should be reviewing. He should have had the whole record.
192Finally, Ms. Desrochers submits that the Law Society has identified no present risk to the public. She has remained stable for many years, adheres to treatment, and has functioned successfully. She submits that the evidence does not establish incapacity between 2015 and 2019, that the evidence affirms she currently has capacity, and that no terms or conditions are justified under s 40. She therefore asks us to dismiss the application and lift the suspension of her licence.
Analysis
193Based upon the evidence, we conclude that Dr. Chaimowitz prepared a comprehensive and complete assessment. He was instructed in 2024 to assess Ms. Desrochers’ prior incapacity. Dr. Chaimowitz did not and could not conduct a contemporaneous examination in 2015-2019. He reviewed her medical notes, including a review of Dr. Green’s treating psychiatrist’s contemporaneous notes and opinions in 2018-2019 which were accepted by Dr. Chaimowitz as significant inputs. Dr. Green described Ms. Desrochers having an active mental illness that was being treated, and included advice that Ms. Desrochers should not be working as a lawyer at the time.
194We find that Dr. Chaimowitz conducted two clinical interviews with Ms. Desrochers (August 23 and September 26, 2024). He took his own assessment notes. In addition to his review of the review of the medical records of her treating psychiatrist, he also reviewed the medical records of a second forensic psychiatrist, Dr. Booth. He considered a large volume of collateral material, including a segment of the voluminous social media posts. He spoke with family and received supplemental emails and documents from Ms. Desrochers. He accepted his acknowledged practical limits to reviewing all 250,000 tweets and explained that such content was only one input considered alongside medical records and his own clinical assessment.
195We are unable to accept Ms. Desrochers’ argument that Dr. Chaimowitz’s report is not reliable and of little probative value because he carried out a “document review” only. In fact, he conducted two interviews with Ms. Desrochers for a total of four hours and had a conversation with her daughter. We find his final report of probative value. We accept the evidence of Dr. Green that Ms. Desrochers has been in treatment for a mental illness since 2018. This was information shared with Dr. Chaimowitz and confirmed by his testimony to the panel. This is not speculative.
196Contrary to the submissions of Ms. Desrochers, there is no direct evidence of discrimination by either her treating psychiatrist, Dr. Green, or by the assessing psychiatrist, Dr. Chaimowitz. The considered tweets did not speak to her Indigeneity. Both doctors denied racism in their diagnosis of Ms. Desrochers. Contrary to the submission of Ms. Desrochers, we provided ample opportunity for her to establish evidence of racism towards her during her cross-examination of each doctor, as well as in her own testimony. She was unable to establish any racial bias.
197We accept the informed observations shared by Ms. Desrochers’ family members who are also medical professionals serving Indigenous communities. We accept that there is racism throughout society and accept their informed perspective; but there is no evidence of racism infecting the diagnosis of a mental illness in this application.
198While Ms. Desrochers takes issue with the three psychiatrists not coming to agreement on a firm diagnosis and she challenged Dr. Chaimowitz’s methodology, all three psychiatrists reach the same conclusion. She suffers from a mental illness. Further, Ms. Desrochers assertion that Dr. Chaimowitz made a diagnosis to align with his friend and colleague Dr. Booth is not supported by the evidence. Dr. Chaimowitz described the factual foundation upon which he based his opinion both in his report and during his testimony. He insisted that he reached his diagnosis independently, and we find that there is no evidence to the contrary. The fact that his diagnosis is similar to the other two psychiatrists is not surprising, nor is it a sign of a lack of independent analysis by Dr. Chaimowitz. It is a reflection of the fact that three highly qualified psychiatrists all agree that Ms. Desrochers suffers from a form of mental illness, which became manifest during the relevant time period.
199We accept that Ms. Desrochers has been in treatment for a mental illness since 2018. We do not need to label her psychiatric diagnosis conclusively when all doctors agree that she has a mental health illness that rendered her incapable during the period 2015-2019, and that is a life-long condition.
200Dr. Chaimowitz’s conclusion is that Ms. Desrochers suffered a mental illness from 2014-15 until remission in 2019 with treatment, and that without treatment there is risk of symptom recurrence affecting professional obligations. We accept that finding, which is consistent with the preponderance of the evidence.
201The evidence of her pastor and family members provides a perspective of Ms. Desrochers’ personality. Their testimony provided a welcomed view of her family and community dynamics. They show her to be a kind, thoughtful, highly intelligent Indigenous woman, caregiver and community participant. While informative, their evidence was not reflective of her ability to practise law or to meet her professional obligations. Further, we draw no conclusions from her ability to meet her professional obligations as a registered nurse, which involves a different skill set. Our obligation concerns her professional responsibilities as a practising lawyer, and the need to protect the public in that context.
202Having considered the totality of evidence, we find the contemporaneous medical record — particularly the treating medical notes of Dr. Green in 2018 — together with Dr. Chaimowitz’s assessment, sufficient to establish that during the relevant time period, 2014-15 extending into early 2019, Ms. Desrochers was incapable of meeting her obligations as a licensee by reason of mental illness.
203We accept the assessor’s conclusion that the Ms. Desrochers has been in remission since late 2019 with treatment and that, when adhering to her treatment plan, she can meet professional obligations. We commend Ms. Desrochers for her commitment to preserving and maintaining her mental health, and her determination to return to the practice of law.
If incapacity found, should practice conditions be included?
204The LSO submits the evidence establishes that although Ms. Desrochers is currently in remission and engaged in treatment, it raises significant concerns regarding her insight into her condition, including her disagreement with past diagnoses, her statements minimizing the need for ongoing medication, and her assertion that the condition and treatment may not be lifelong.
205The LSO submits that these concerns, taken together, heighten the risk that unless directed, Ms. Desrochers may not strictly adhere to a treatment plan. The LSO also pointed to her stated unwillingness to agree to any form of order, and her repeated assertion that she will challenge any outcome other than full reinstatement of her licence without conditions, as evidence that co-operative approaches — such as negotiated orders common in other capacity cases — are not feasible here. The LSO submit that if the Tribunal finds past incapacity, then Tribunal jurisprudence is clear that a s 40 order is necessary to protect the public should Ms. Desrochers return to practice: Lyon; Campos; Salvona.
206The LSO relies upon Law Society of Ontario v Kerr, 2019 ONLSTH 86 at para 38, where the Tribunal affirmed that, “(t)he ability to meet professional responsibilities to the regulator is an essential requirement of practising law. A licensee who is unable to do so by reason of disability is incapacitated, as set out at s. 37(1) of the Act.”
207The panel in Kerr went on at para 40 to state that:
The duty to accommodate does not include an obligation to excuse the Licensee from fulfilling his professional obligations while permitting him to continue to practice without restrictions. Rather, the Law Society is obliged to consider a Licensee’s need for accommodation once it is aware of it and to determine, in consultation with the licensee, what measures can be implemented without compromising its obligation to effectively regulate the professions in the public interest.
208Ms. Desrochers submits that because Dr. Chaimowitz has concluded that she has current capacity, ss 37(4) and (6) preclude the Tribunal from making an s 40 order. Further, she argues that no practice restrictions are necessary because she has a long history of adherence to her doctor’s treatment plan.
209The Law Society submits that ss 37(4) and (6) of the Act provide certain conditions where a panel shall not determine that at licensee is incapacitated. The LSO has been clear that it not seeking a finding of current incapacity and therefore these provisions are inapplicable here.
210As the Tribunal stated in Lyon at paras 22 and 25:
The focus in a capacity application is on ensuring that the public interest is protected, not deterrence. As required by the Human Rights Code … any orders based on a licensee’s medical condition must be reasonably necessary to protect the public, and accommodate the disability to the point of undue hardship.
Yet, such orders may be made under the Act because of a licensee’s special privileges as a regulated professional. … Accepting the benefits of regulation also requires accepting the consequences, which include being subject to the possibility of a s. 39 (as it then was) order and its impact on autonomy, privacy and Code rights.
211We accept that ss. 37(4) and (6) address instances where a licensee’s current capacity is at issue and do not apply here. Ms. Desrochers’ current capacity is not in issue. This application concerns her prior incapacity. If prior incapacity is found, then s. 40 empowers the Tribunal to craft an order to ensure that the public is protected going forward.
212We find that Dr. Green and Dr. Chaimowitz agree that Ms. Desrochers suffers from a lifelong mental illness and is currently not incapacitated so long as she in compliance with the treatment plan prescribed by her treating psychiatrist.
213The need to accommodate this lifelong illness while protecting the public necessitates an s. 40 order: Robson, Kerr.
What conditions should be made?
214The LSO emphasized that in comparable cases involving past incapacity with current remission, panels have consistently imposed time‑limited practice conditions to mitigate risk — typically ranging from one to three years. The LSO notes that in the majority of cases, the s 40 orders were the result of a joint submission by the licensee and the LSO. That is not the case here.
215The LSO submitted a lengthy, template draft order that it provided to Ms. Desrochers in December 2024 and argued that the terms set out in the draft were appropriate in the circumstances of Ms. Desrochers’ case. Ms. Desrochers flatly rejects any conditions on her return to practice. She also raises concerns about the potential discriminatory effect of imposing restrictions based solely on historical disability. She submits that, because her current capacity is established, restrictions are unnecessary. She draws our attention to her long-term adherence to treatment and successful professional functioning in nursing without regulatory restriction as evidence supporting her position that no restrictions are warranted.
216The LSO submits its proposed order would allow a return to practice subject to continued psychiatric treatment, regular follow‑up with Dr. Green, compliance with prescribed medication, and periodic reporting from the treating psychiatrist. The LSO submit that these conditions meet its obligation to reflect the least restrictive terms necessary to protect the public, noting that they do not seek limitations on trust accounts, areas of practice, supervision requirements, or employment‑only practice.
217The LSO submits that a three‑year duration is appropriate given the serious nature of Ms. Desrochers’ underlying illness, concerns regarding Ms. Desrochers’ insight about her illness, and the length of time that has elapsed since the period of incapacity. It argued that a shorter term would not adequately mitigate risk, particularly given Ms. Desrochers’ stated reluctance to accept her own psychiatrist’s medical diagnoses, including lifelong treatment requirements.
218Finally, the LSO emphasized that the proposed order includes procedural safeguards, including the ability to seek review in the event of a suspension for non‑compliance.
219We approach s. 40 with two principles in mind. First, the Law Society has a duty to protect the public interest, and second, it has an obligation to accommodate the licensee to the point of undue hardship: Salvona, Campos, Lyon.
220As stated in Salvona at para 20, “The Law Society must be able to assure the public that with accommodation the Licensee can perform the essential duties of the profession. The terms of the capacity order are the accommodation terms.”
221Section 40 orders should be minimally impairing and tailored to the evidence — aimed at ensuring compliance with treatment and early intervention: Campos at para 14.
222On the evidence, Ms. Desrochers’ mental illness has been diagnosed as lifelong, now in remission with medication and psychiatric follow‑up. Ms. Desrochers has adhered to the treatment plan of her treating psychiatrist (Dr. Green) since 2018. Her prognosis is good with continued adherence to a treatment plan; however, the assessing psychiatrist Dr. Chaimowitz expressed concern about relapse risk in the absence of treatment. We find that Ms. Desrochers’ mental illness is lifelong, but in remission with treatment, and that Ms. Desrochers has evidenced an intention to adhere to the treatment plan put in place by Dr. Green. We conclude that the LSO’s standard form proposed order is overly broad and would impose unreasonable restrictions on Ms. Desrochers’ return to practice.
223In these circumstances, we find a limited order focused on maintaining the existing, effective treatment plan, rather than altering treatment or imposing supervisory practice controls, strikes the appropriate balance between meeting the Law Society’s obligation to protect the public interest with its duty to accommodate the Licensee.
ORDER
224We make the following order:
- The Licensee was incapacitated within the meaning of s 37 during 2014-15 and into early 2019.
- An s 40 order should be made setting out the conditions of her return to practice.
- Section 40 order as follows:
Timeline and Treatment/Care Team
- For three years from the date of this order, the respondent shall not practise law except while under the care of a physician or psychiatrist who is licensed to practise and is practising in Ontario without restriction, and who has experience in treating mental health conditions (Treating Regulated Professional. Except for the circumstances described in paragraphs 11, while this order is in effect, the respondent’s licence to practise law shall be suspended at any time that she is not under the care of a Treating Regulated Professional.
- The terms of this order shall be terminated prior to its three year term if the respondent provides a current written report, satisfactory to the Executive Director, from the Treating Regulated Professional confirming that the respondent is not incapacitated within the meaning of s 37 of the Law Society Act, and that continuing the previous prescribed course of treatment is no longer required in order for the respondent to be capable of meeting her obligations as a licensee.
- For the purposes of paragraph 1, the respondent shall, within 60 days of this order: a. Identify the Treating Regulated Professional and their full contact information (i.e., mailing address, email, and telephone number) to the Regulatory Compliance Department of the Law Society (Regulatory Compliance); b. Provide to Regulatory Compliance a letter from the Treating Regulated Professional on their professional letterhead confirming, i. the respondent will continue or has been accepted as a patient for ongoing treatment; ii. that they are willing to act in the capacity of the Treating Regulated Professional for the respondent for the purposes of this order; iii. their experience in treating the respondent’s health condition(s); iv. that they have received and reviewed this order and the panel’s Reasons for Decision; v. that the respondent has provided them with an Authorization & Direction authorizing and directing the Treating Regulated Professional to do each of the following: (1) Immediately advise Regulatory Compliance in writing if they determine that the respondent is incapable of meeting any of their obligations as a licensee and/or if they fail to comply with any prescribed treatment; (2) Unless the respondent is suspended at any time pursuant to the terms of this order, provide written reports to Regulatory Compliance on an annual basis for the next three years that, at a minimum: (a) confirms whether the respondent is still under their care and has followed all prescribed treatment; (b) that they will abide by the Authorization & Direction; and (c) that they understand that the respondent cannot practise law unless under the care of a Treating Regulated Professional, as set out at paragraph 3 of this order.
- The respondent shall provide a copy of the panel’s Reasons for Decision to the Treating Regulated Professional and substantiation of having done so to Regulatory Compliance within five business days of receiving the Reasons for Decision from the Tribunal.
- The respondent shall comply with any treatment, for the treatment of their health condition(s) prescribed by the Treating Regulated Professional, at their own cost.
- The respondent shall attend appointments with the Treating Regulated Professional as clinically indicated by the Treating Regulated Professional, but not less than twice per year.
Change in Treatment/Care Team
- If any reporting deadline in accordance with para 3(b)(v)(2) is missed or is incomplete as it does not contain the information listed at para 3(b)(v)(2), then the respondent may be provided a written warning by Regulatory Compliance, and the respondent shall have 60 days to remedy the default.
- The Treating Regulated Professional may be changed by the respondent, in which case she shall notify Regulatory Compliance of the change to the Treating Regulated Professional as soon as the change is to come into effect.
- If the Treating Regulated Professional becomes unable, unavailable, or unwilling to continue treating the respondent, then the respondent shall advise Regulatory Compliance in writing within five business days.
- In the circumstances described at paragraph 9 the respondent shall continue treatment with her family physician or other regulated or registered health professional who has experience in treating mental health conditions until a successor Treating Regulated Professional assumes her care and treatment. In that event, the respondent must comply with the conditions set out in paragraphs 3(b) and 4 in respect of the treatment by her family physician or other regulated or registered health professional.
Possible Suspension
If the respondent is ever without an active Treating Regulated Professional for more than sixty days, and is not under the care of her family physician, or registered health professional who has experience in treating mental health condition then her licence to practise law shall be suspended immediately and continuing indefinitely thereafter until she is under the care of another Treating Regulated Professional, or her family physician or registered health professional who has experience in treating mental health conditions.
If the Executive Director receives information from the Treating Regulated Professional or from the respondent’s family physician or registered health professional advising that in their opinion the respondent is unable to meet any of her obligations as a licensee, then her licence to practise law shall be suspended immediately and continuing indefinitely thereafter until the respondent has satisfied the terms outlined in para 13.
The respondent can lift a term of suspension imposed in accordance with para 11 or 12 by providing a current written report, to the satisfaction of the Executive Director, from the Treating Regulated Professional, her family physician or other regulated health professional who has experience in treating her mental health conditions that: a. Describes the circumstances of the breach and confirms that these circumstances have been addressed; and b. Confirms that the respondent is not incapacitated within the meaning of s 37 of the Law Society Act, as i. the respondent can meet her obligations as a licensee through compliance with a continuing course of treatment which she is currently complying with; or ii. a continuing course of treatment is no longer required in order for the respondent to be capable of meeting her obligations as a licensee.
The respondent shall comply fully with the terms of the Law Society’s Guidelines for Lawyers Who are Suspended or Who Have Given an Undertaking Not to Practise while her licence to practise law is suspended.
If either party seeks costs, they may file written costs submissions by May 12, 2026. The other party may file responding submissions by May 26, 2026.
The submissions are limited to five pages, double-spaced, excluding a bill of costs.
Footnotes
- Portions of this chronology are also summarized in the interim interlocutory matter, Law Society of Ontario v Desrochers, 2018 ONLSTH 148; in the lawyer’s motion for the appointment of legal counsel, Law Society of Ontario v Desrochers, 2022 ONLSTH 108; in the capacity assessment in Law Society of Ontario v Desrochers, 2023 ONLSTH 138; and by the Divisional Court in Desrochers v Law Society of Ontario, 2025 ONSC 3390.
- The oral evidence of Curtis Smith and Kim Hertwig were consistent with the chronology and supporting documents summarized in E. Parenteau’s affidavit.