Law Society Tribunal Recognizes Duty to Accommodate Mental Illness

The Law Society Tribunal today dismissed an allegation of misconduct against a lawyer suffering from anxiety and depression. The Law Society of Ontario (LSO) had prosecuted him for failing to respond fully to a disciplinary investigation. The Tribunal found that his failure to fully respond was a direct result of the symptoms of the lawyer's diagnosed anxiety and depression, and that the LSO owed a duty to accommodate his mental illness in the course of its investigation, which it failed to meet. 

This ruling sets an important precedent. It is the Law Society Tribunal's first in-depth treatment of the LSO's duty to accommodate lawyers with mental illness involved in its disciplinary process, and is the first time the Tribunal has dismissed a conduct proceeding because the LSO had failed to provide adequate accommodation.

Daniel Naymark of Naymark Law acts as pro bono Duty Counsel at the Law Society Tribunal and acted for the lawyer at the hearing. The Tribunal recognized his efforts in its ruling:

The outcome of the matter before me was directly attributable to the diligent, exhaustive and comprehensive efforts of Duty Counsel who remained committed to the matter from the outset, through re-attendances and written submissions. This engagement by a volunteer lawyer epitomizes the best characteristics of lawyers: that of caring, commitment and duty. These efforts were vitally important to both the licensee, who was greatly assisted, and also to the profession, one of whose members found himself in need but had been proceeding without help. As well the public interest was better protected by ensuring the conduct of an informed, balanced discipline hearing. Adjudicators in an adversarial forum are entitled to the best available assistance and thoughtful analysis reflecting the interests of all concerned, before determining evolving issues of important jurisprudence in potentially precedent-setting matters.

A copy of the Tribunal's full decision is available here. Coverage and commentary is here.

Windsor Judge Revives Automotive Claim

The Ontario Superior Court of Justice has set aside the dismissal for delay of an automotive industry lawsuit, permitting the claim to proceed. Daniel Naymark of Naymark Law acted for the plaintiff on the motion. Justice Pomerance ruled that the plaintiff company's two former lawyers had acted improperly in failing to advance the lawsuit despite the plaintiff's instructions, before the Law Society of Ontario suspended each of them in turn. 

The decision is available here.

Registration on Title Declared Improper

The Ontario Superior Court of Justice has declared a vendor's pre-closing registration on title invalid pursuant to the Vendors and Purchasers Act. Daniel Naymark of Naymark Law acted for the purchasers of a property, who brought an urgent application on the date the sale was to close after learning a day prior that the vendor had registered a notice on title to the property that would have prevented the sale from closing. Justice Monahan's declaration permitted the sale to close. A copy of Justice Monahan's ruling is available here.

Daniel Naymark Featured in Canadian Lawyer Magazine

Canadian Lawyer Magazine quotes Daniel Naymark in its article, B.C. woman with criminal past can proceed with law career. Daniel offered the following comment on a decision of the British Columbia Law Society Tribunal to admit to the bar a woman who acknowledged a past addiction to crystal meth and related criminal activity:

[This is a] bold and welcome decision. It would have been safe for the panel to reject this candidate and so shield itself from future criticism should she engage in bad conduct as a lawyer. Instead . . . the panel gave a deserving person a chance at earned redemption. Perhaps more importantly, the panel recognized that the public benefits from a legal profession that reflects a diversity of life experiences.

 

Information and Privacy Commission Orders Ontario to Reveal Plans for Enforcing Accessibility Law

The Information and Privacy Commission of Ontario has ordered the province to waive most of the fee it demanded from an unfunded accessibility advocacy coalition that had sought information relating to the government's plans for enforcing provincial accessibility legislation. David Lepofsky made the request for information and appealed the imposed fee as chair of Ontario’s non-partisan AODA Alliance. Daniel Naymark acted pro bono as counsel to Mr. Lepofsky/the AODA Alliance. 

Read the IPC's decision here, the AODA Alliance's press release here, and media coverage here.

OPP Acknowledges Unlawfulness Of "Next-Door Neighbour Searches"

The Ontario Provincial Police have acknowledged the unlawfulness of "next-door neighbour searches", in which police officers enter onto private property without a warrant, exigency or consent in order to observe a neighbouring property. The adoption of this practice by the Bracebridge, Ontario OPP detachment and its public defence by head of that detachment was the subject of an application, Fitzmaurice v. Commissioner of the OPP, which was resolved by the OPP's acknowledgment. The application was supported by Osgoode University's Innocence Project and by the Criminal Lawyers' Association, which intervened in the case as a friend of the Court. Daniel Naymark acted as co-counsel to the Criminal Lawyers' Association, with Philip Campbell of Lockyer Campbell Posner.

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Law Society Of Upper Canada To Review Practices Involving Indigenous Persons

The Law Society of Upper Canada has formed a review panel to examine the way in which the Law Society and its Tribunal address regulatory matters involving Indigenous persons, complaints and issues. The Law Society recognized the need to examine its regulatory and hearing practices following the case of The Law Society of Upper Canada v. Keshen, a lengthy Kenora, Ontario-based hearing on which Naymark Law was counsel.

The Law Society’s press release is available here.