Can a disability constitute a substantive defence to an allegation of professional misconduct? Must discipline panels accommodate a disability when making findings? This issue came up in Khan v. Law Society of Ontario, 2022 ONSC 1951 (CanLII), https://canlii.ca/t/jnf2z. The practitioner was disciplined for submitting false accounts (both for time periods worked and for disbursements) for publicly funded legal aid. The practitioner provided medical evidence that he suffered from “Generalized Anxiety Disorder, Persistent Depressive Disorder, and Attention Deficit Hyperactive Disorder (“ADHD”)”.
The Court accepted the tribunal’s approach that disability could provide a defence, requiring accommodation, but the practitioner:
had to prove: (1) he has a personal characteristic that is protected under the Human Rights Code; (2) he experienced an adverse impact or differential treatment from his professional regulator; and (3) the protected characteristic was a factor in the adverse impact.
The Court upheld the rejection of the defence that the practitioner had fabricated the false invoices over the course of one panicked weekend while experiencing unrecognized symptoms of mental illness. It was established in the evidence that the dishonest conduct occurred over an extended period of time, continued to be covered up, and was not disclosed until it was discovered by the auditors. The medical opinion evidence on the point was unhelpful because it was based on an inaccurate factual foundation. There was no causal connection between the disability and the conduct.
The Court did not address the tribunal’s musings that even if the disability defence applied, undue hardship to the protection of the profession would result if there was no finding or a sanction less than revocation.
While a disability may be considered on the issue of finding and not just on sanction, it has to meet the applicable criteria.