Accomodations Require Evidence

Regulators frequently deal with accommodation issues related to a registrant experiencing disabilities. The issue can relate to procedure (e.g., requests for extensions and adjournments) and substance (e.g., a disability may have contributed to the conduct). In Ballam v. Justices of the Peace Review Council, 2023 ONSC 2502 (CanLII), the Court held that regulators can require evidence to support requested accommodations.

In that case a Justice of the Peace (JP) was on long-term disability leave. She was found to have engaged in the practice of law on three occasions without a licence, without insurance, and without having first resigned as a JP. The hearing panel recommended that she be removed from judicial office.

On judicial review she argued that the hearing panel was procedurally unfair in proceeding with the hearing in the face of her disability. The Court found there had been no unfairness. The JP received multiple accommodations throughout the process including several extensions and adjournments and conducting the hearings intermittently on shortened and non-consecutive days. The panel offered to provide breaks as needed. The JP provided assurances during the hearing as to her ability to conduct the hearing. No recent evidence of ongoing inability to participate in the hearing was provided. There was no obligation on the hearing panel to inquire further as to the JP’s ability to participate in the hearing.

Similarly, the Court rejected the JP’s assertion “that although the Panel had significant evidence before it that she was not at full cognitive capacity when these acts occurred, it analyzed her conduct through the lens of an able-bodied person with full cognitive function.” The Court noted that “there is no reliable medical evidence to suggest that any cognitive disability was a significant contributing factor to her misbehaviour.” In addition, the JP’s “advocacy during both the misconduct and penalty hearings – while ultimately not successful – was lucid and relevant. Her written submissions following the hearing were capable and coherent. There was nothing of significance to suggest a cognitive deficit. To the extent her strategy during the litigation may be questioned, that does not signify lack of cognitive function but, at most, possible poor judgment.”

While there may be some circumstances in which it is incumbent upon regulators to inquire into a registrant’s capacity, this case was not one of them.

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