British Columbia’s highest court dealt with several distinct issues in the appeal from the discipline findings in Ahmadian v. Law Society of British Columbia, 2023 BCCA 470 (CanLII). Four of those rulings will be of interest to regulators.
A lawyer was found to have engaged in seven particulars of misconduct related to trust fund records, unauthorized trust disbursements, and taking loans from clients. The lawyer was unsuccessful on two grounds of appeal and successful on two other grounds of interest.
The regulator had provisions requiring a lawyer facing discipline to respond to requests to admit the authenticity of documents and agree to certain facts. The provisions required the lawyer to provide a substantive response if they were not making an admission. Here, the regulator requested multiple admissions. The lawyer simply refused to make the admissions, without providing an explanation. The panel found that the denials did not meet the requirements of the provision and deemed the lawyer to have admitted the documents and facts. The Court agreed; the lawyer had not followed the rules.
In addition to the current allegations, there was another investigation pending into related matters. The lawyer wanted the regulator to consolidate any new referral into the current proceeding to avoid multiple hearings. The regulator was not ready to determine what it would do with the pending investigation. The lawyer asked the panel to adjourn the discipline hearing until the pending investigation was concluded so that any additional allegations could be consolidated into the current proceeding. The panel indicated that it had no authority to control the pending investigation and refused to grant an indefinite adjournment in order to pressure the regulator. The Court agreed.
The lawyer tendered expert evidence by another lawyer on the accepted practice related to real estate transactions (related to the trust fund issues). The panel declined to consider the witness to be an expert, despite their experience, because the witness had not written or taught on the central issues, had not produced a curriculum vitae, and because the evidence would not be relevant and helpful to them. The Court found that this ruling was wrong. A witness can be admitted as an expert through experience even without writing or teaching on a topic. Also, where the issue related to standards of practice, expert evidence would be relevant and helpful so that the panel was not relying on its own expertise in a specific area of practice.
The lawyer also tendered medical evidence about their mental health at the time of the events. In particular, the lawyer was treated for anxiety and depression, which was said to have the potential to affect their judgment and cognitive abilities. The panel refused to consider this evidence towards whether the lawyer had engaged in professional misconduct (indicating that such evidence was only relevant to the imposition of any sanction). The Court said:
This passage describes both necessary and sufficient conditions for evidence of a member’s mental health to be relevant. In order to establish that evidence of mental health is relevant, it is necessary that the evidence tends to establish the member suffers from a condition that may have precluded them from fulfilling their obligations “such that it would be inappropriate to find that the licensee engaged in professional misconduct”. It is sufficient, but not necessary, to show that mental illness “truly and fundamentally renders them incapable of performing their professional obligations”.
A panel charged with determining whether a member’s impugned conduct amounts to professional misconduct must address the presence or absence of mala fides. Evidence of mental illness short of total incapacity may be relevant to that analysis. All of the allegations in the Citation have an aspect of poor management or poor judgment. It is at least arguable that none of the deemed admissions are proof of mala fides. For that reason, it is arguable that the proffered medical opinion evidence would, in fact, be material to the proof of professional misconduct. In my view, the medical evidence in this case was prima facie admissible and logically relevant to the Panel’s inquiry. It ought to have been addressed by the Panel. [Emphasis in original]
The Court’s rulings were not the death of the case. The matter was returned for a new hearing.