Regulators continue to face the difficult task as to how to balance evidence of some degree of disability (e.g., mental or cognitive impairment, substance abuse disorders) when dealing with allegations of professional misconduct. Further guidance was provided by the Manitoba Court of Appeal in The Law Society of Manitoba v Cherrett, 2016 MBCA 119. In that case a lawyer had misappropriated $20,000. He argued that he was in a “cognitive fog” and was confusing different files when he transferred the funds into various accounts controlled by him. On the issue of finding, the Court upheld the findings of the tribunal that “found that the appellant’s methodical actions were inconsistent with that argument, and that his actions were done “purposefully” and were “deliberate and considered conduct.”” The Court later said, on the issue of penalty: “While the panel acknowledged that the appellant’s ill health affected his ability to practice law, it found that the appellant’s diminished capacity argument was inconsistent with what he did, and explained why.” Thus, even where incapacity is present, that does not necessarily mean that the tribunal must conclude that the conduct resulted from the disability where the facts suggest otherwise.
Interpreting Legislation vs Making Legislation
Regulators cannot enact legislation through policy. However, regulators frequently publish policies interpreting or applying their legislation. The line between those two activities is sometimes fine.