Friday, April 19, 2019

No Relief For Delays In Psychiatric Evaluation

The Law Society of Ontario Tribunal Hearing Division dismissed a motion to stay hearing on an interlocutory suspension

The main proceeding (Law Society Tribunal file no. 17H-125) concerns the capacity of Glenn Patrick Bogue (the Lawyer) to practise law. In addition to this capacity proceeding, the Law Society has brought a motion for an interlocutory suspension. These reasons concern the Lawyer’s motion that the interlocutory suspension proceeding be stayed on the basis of delay. It was one of several motions we heard on January 7 and 8, 2019.

The respondent calls himself Spirit Warrior. He is an Ontario lawyer who self-identifies as non-status Métis, and as a member of the Kinakwii Nation/Confederacy.

The delay involved a psychiatric evaluation

  Far from proving that it was negligent or caused unreasonable delay, the record shows that the Law Society pursued the psychiatric assessment with reasonable dispatch. The Lawyer complains that the Law Society should have had its assessment motion ready to proceed on April 13, 2017. In fact, the Law Society wrote to the Lawyer’s apparent counsel, Mr. Watson, on April 7, 2017, to propose a psychiatric assessment on consent. A few days later, Mr. Watson removed himself from the record and the Lawyer stated that he would be retaining counsel. The Lawyer did not follow up concerning the Law Society’s proposal for an assessment. It was the Law Society that renewed the negotiations on July 12, 2017.

It was reasonable for the Law Society to wait for the Lawyer to retain counsel before pursuing the request for a psychiatric assessment. A psychiatric assessment entails intrusions into a licensee’s privacy and may have significant legal ramifications. The Law Society respected the Lawyer’s right to have a reasonable opportunity to retain counsel. If the Lawyer had retained counsel, or advised he would not be doing so, this may have assisted both parties in negotiating the terms of an assessment. Throughout April, May, and June, the Lawyer repeatedly indicated that he would be retaining counsel shortly. He cannot fault the Law Society for accepting his representations concerning counsel. Reasonableness does not entail perfection and the Law Society should not be evaluated based solely on hindsight.

The fact that the Law Society stood firm with recommending Dr. Klassen does not demonstrate any negligence or unreasonable conduct. Both parties were entitled to advance their choice of psychiatrist. As it turned out, the Lawyer became extremely dissatisfied with Dr. Bloom and asked that he be replaced by Dr. Klassen. Dr. Klassen completed the assessment and his report was tendered in late November 2018. The Law Society cannot be held responsible for the Licensee’s earlier decision to insist on Dr. Bloom.

The Lawyer’s claim that he “acceded to Dr. Bloom on Aug. 1” ignores the fact that he withdrew his consent to an assessment in September and insisted that the Law Society present its arguments at a hearing.

The Lawyer’s claim that there was a breach of the panel’s order on the assessment is not sustainable. The order obligated him to attend for up to three sessions, but it did not prohibit him from attending more than three sessions if he wished to.

The Lawyer willingly attended all five sessions with Dr. Bloom. Only after the meeting on March 28, 2018 did their relationship break down. The Lawyer has known about Dr. Bloom’s scheduling preferences since September 27, 2017. He has known the terms of the assessment order since November 10, 2017. He initially expressed his eagerness to meet with Dr. Bloom. As late as March 25, 2018, the Lawyer was communicating with Dr. Bloom in a very positive manner.

If the Lawyer did not agree to attend any sessions after the first three, then he would not have done so. If he believed at the time that Dr. Bloom was acting improperly by scheduling more meetings, then the Lawyer would have sent e‑mails expressing his displeasure – as he did after the session on March 28, 2018 _ and the issue could have been placed before a panel under the terms of its order.

The Lawyer has not established on a balance of probabilities that the Law Society is responsible for any unreasonable delay in this proceeding or that he has experienced any significant prejudice due to such delay.

The history of this proceeding shows that the Lawyer brought four motions in writing resulting in hearings and nine sets of oral and written reasons. The LSO brought its original motion for suspension and two subsequent motions for a psychiatric assessment in the main capacity proceeding. None of the Lawyer’s four motions were successful.

It is our view, based on this history, that the responsibility for the majority of the delay in reaching the hearing of the main motion for interlocutory suspension rests with the Lawyer. The Lawyer generally demanded that his motions be heard before the interlocutory suspension motion. He repeatedly asked for delays and extensions. He brought multiple motions that had to be decided before the main motion.

(Mike Frisch)

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