14 June 2018By Shakaira John
In Law Society of Ontario v. Burtt, the Law Society Tribunal recently dismissed a disciplinary case against a Toronto lawyer, finding that the Law Society of Ontario (the “LSO”) had failed to satisfy its duty to accommodate the lawyer’s disability (mental illness).
Background: This was the second of two disciplinary proceedings against Jeffrey Burtt (“Burtt”). Burtt, an employment lawyer, was called to the bar in 1990. In about 2013, he missed a filing deadline. In the ensuing LSO investigation, Burtt failed to promptly respond to requests for information and documents, and the LSO commenced proceedings against him. In that first proceeding, the LSO commissioned medical reports that concluded that Burtt was suffering from depressive symptoms that caused him to feel “frozen”, impeding his ability to respond to the LSO within specified time frames. In July 2015, Burt was reprimanded, and ordered to comply with a psychiatric treatment plan.
The Current Case: Within a year of the conclusion of the prior proceeding, the LSO commenced an investigation into a new client complaint (received in relation to a retainer in July 2015). The LSO requested a written response from Burtt by a specified deadline. Burtt called the investigators on a number of occasions to request extensions to the deadline for his response, expressing difficulties with depression, his now terminally ill father, and the breakup of his marriage. Burtt ultimately failed to provide the LSO with a written response, and the LSO commenced proceedings.
By way of substantive defence, Burtt argued that his mental illness caused him to “freeze” when confronted with the investigation, and that the LSO had failed to provide the accommodation he required in order to fulfil his obligations.
The Tribunal accepted Burtt’s defence and dismissed the application.
The Duty to Accommodate: The Tribunal held that the LSO had failed to satisfy its onus of demonstrating what considerations, assessments and steps were undertaken to accommodate Burtt, up to the point of undue hardship.
The Tribunal noted that the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”) prohibits discrimination with respect to membership in a trade or occupational association on specified grounds, including disability. Prior jurisprudence indicates that the LSO is subject to the Code, and has a duty to accommodate where there is a proven disability at play, unless and to the extent that accommodation would cause undue hardship in the form of harm to the public interest.
The Tribunal held that Burtt’s mental illness constituted a disability that rendered him incapable of responding to the LSO in the manner required, and that required accommodation. This licensee demonstrated “responsive engagement” that differed from the typical response of licensees in similar circumstances (evasion, denial, obfuscation and disregard of professional obligations). Despite this, the LSO failed to recognize that Burtt’s disability prevented him from providing a written response to the investigators’ demands. In the circumstances, the LSO had a duty to canvass additional potential accommodations before deciding that the protection of the public interest demanded a traditional written response, and a subsequent prosecution. The Tribunal noted that the Rules of Professional Conduct contain no actual requirement to respond to the LSO in writing. An oral interview subsequently reduced to writing may have been sufficient, and if the LSO investigators needed to review the relevant file, they could have attended at the licensee’s office to do so.
Calls to Action: The Tribunal noted, citing its recent Annual Report, that the LSO has undertaken to understand lawyers’ mental health as a strategic priority, including ensuring appropriate considerations for mental health are integrated into regulatory processes. It noted that “[m]ental illness is a medical condition, not a personality defect. A major depressive disorder is a debilitating illness that must be recognized as such”.
The Tribunal also noted that the successful outcome of these proceedings for the licensee was directly attributable to the diligent, exhaustive and comprehensive efforts of Duty Counsel. The Tribunal wrote that, just as the LSO has recognized and taken steps to address the inherent challenges presented by licensees with mental health issues, it is now time for the LSO to implement a funded, permanent duty counsel system for the benefit of all licences. The very serious potential outcomes of a discipline proceeding, which include licence revocation, “should not depend upon the vagaries of a volunteer lawyer being available”. Our profession, with its knowledge base and resources, should no longer accept licensees appearing unrepresented in discipline proceedings, unless they do so by choice.
The Takeaway: The Tribunal’s decision in Burtt appears to be the first time the failure to accommodate has been recognized as a substantive defence to a conduct application. The decision is significant for its potential to promote awareness and improved accommodation of mental illness in the legal profession, and also for its call to the LSO to implement a funded, permanent duty counsel system for the benefit of all licensees.