Discipline panels often must decide how to consider a registrant’s medical conditions or personal stress when imposing a sanction. Alberta’s highest court provided guidance on this issue in Beaver v Law Society of Alberta, 2024 ABCA 354 (CanLII). A lawyer was found to have misappropriated about $300,000 of funds held in trust. He tendered medical evidence indicating that he was suffering from depression (due to several personal stresses he was undergoing) and alcohol dependency. His registration was still revoked.
The Court noted that medical evidence can be considered both on the merits of the case and on the sanction. However, the medical evidence must be both compelling and determinative to prevent a finding of misconduct that would otherwise be established. As a practical matter, those cases are likely to be addressed as an incapacity, rather than a misconduct, issue.
There should be a two-step approach to considering sanction. First, does the medical evidence establish that the registrant’s condition caused or contributed to the misconduct? If so, then what weight should be given to the medical condition when deciding sanction? At the weighing stage, the medical condition can influence sanction in at least two ways. It could reduce the blameworthiness of the conduct and it can also indicate that treatment has reduced the risk of the misconduct being repeated in the future.
Regarding the first stage of this case, the Court noted that the persuasiveness of the medical evidence was reduced because most of the medical experts were not involved with the lawyer at the time of the misconduct. Additionally, the experts based their opinions largely on information provided by the lawyer and that information minimized the nature of his behaviour.
Respecting the second stage, the conduct involved a complex, systematic series of severe dishonesty over a year that harmed vulnerable individuals. In addition, the medical evidence did not specifically state that the lawyer was unlikely to misappropriate trust funds in the future if stresses or the medical conditions recurred. The Court therefore gave little weight to the medical evidence.
The Court also addressed some other frequently recurrent sanctioning and costs issues:
- The panel can give less weight to partial admissions by the registrant (as compared to full admissions), especially where they were no significant concessions.
- The weight that would otherwise be accorded to a long and unblemished career can be reduced depending on the nature of the misconduct (e.g., severe dishonesty). In some ways, the seniority of the registrant makes the misconduct worse as the registrant should have known better and should have had the capacity to resist pressures.
- While the panel should consider alternative or less serious sanctioning options, in some cases minimal analysis of them in its reasons is sufficient.
- A sanction can still be reasonable where the panel misapprehends the evidence on a peripheral point that did not appear to have a significant impact on the sanction decision.
- The Court upheld the costs order, which represented about 75% of the total costs. The Court found that the panel’s decision could be reconciled with Jinnah v Alberta Dental Association and College, 2022 ABCA 336 (CanLII) because of the degree of dishonesty involved. The Court also deferred for another day the reconsideration of Jinnah itself (which says that regulators should usually bear their own costs).
This approach to medical evidence in misconduct hearings may provide guidance for other regulators.