LSUC v. Neinstein,

• Jurisdiction: Ontario
• Judge: Doherty, Gillese and Lang, JJ.A.
• Neutral Citation: 2010 ONCA 193
• Citation: (2010), 259 O.A.C. 313 (CA),2010 ONCA 193,99 OR (3d) 1,317 DLR (4th) 419,[2010] CarswellOnt 1459,[2010] OJ No 1046 (QL),186 ACWS (3d) 836,259 OAC 313,[2010] O.J. No 1046 (QL),259 O.A.C. 313,99 O.R. (3d) 1,317 D.L.R. (4th) 419,(2010), 259 OAC 313 (CA)
• Date: 30 November 2009
• Court: Court of Appeal (Ontario)

LSUC v. Neinstein (2010), 259 O.A.C. 313 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. MR.070

The Law Society of Upper Canada (respondent/appellant by way of cross-appeal) v. Gary Neinstein (appellant/respondent by way of cross-appeal)

(C50293; 2010 ONCA 193)

Indexed As: Law Society of Upper Canada v. Neinstein

Ontario Court of Appeal

Doherty, Gillese and Lang, JJ.A.

March 16, 2010.

Summary:

A Hearing Panel of the Law Society of Upper Canada found that Neinstein had sexually harassed two individuals and thereby engaged in professional misconduct. It imposed a penalty of disbarment and a $10,000 fine. An Appeal Panel allowed Neinstein's appeal, set aside the decisions and ordered a new hearing. The Law Society appealed.

The Ontario Divisional Court, Matlow, J., dissenting, in a decision reported at 222 O.A.C. 286, allowed the appeal in part. The order of the Appeal Panel setting aside the Hearing Panel's finding of professional misconduct and ordering a new hearing was set aside. The Appeal Panel's order that the penalty of disbarment be set aside was upheld, but the matter was referred back to the Appeal Panel to amend its formal order to reflect its decision that a 12 month suspension should be substituted. The order was amended. Neinstein cross-appealed.

The Ontario Divisional Court, in a decision reported at 241 O.A.C. 199, allowed the cross-appeal and substituted a three month suspension. Neinstein appealed.

The Ontario Court of Appeal allowed the appeal and remitted the matter to a different Hearing Panel for a new hearing.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - A Hearing Panel of the Law Society of Upper Canada found that Neinstein had sexually harassed two individuals (C.T. and S.G.) and thereby engaged in professional misconduct - It imposed a penalty of disbarment and a $10,000 fine - An Appeal Panel allowed Neinstein's appeal, set aside the decisions and ordered a new hearing - The Divisional Court allowed the Law Society's appeal in part and ordered that the finding of professional misconduct be reinstated and that disbarment be substituted by a three month suspension - Neinstein appealed, asserting, inter alia, that the reasons given by the Hearing Panel were devoid of any meaningful explanation for its findings and had effectively foreclosed meaningful appellate review - The Ontario Court of Appeal allowed the appeal and remitted the matter to a different Hearing Panel for a new hearing - The reasons relating to C.T.'s allegations did not address the "why" component required in reasons for judgment - The Hearing Panel's reasons were a combination of generic generalities (e.g., "gave her evidence in a forthright manner"), unexplained conclusory observations (e.g., "withstood cross-examination well"), material omissions (e.g., the failure to articulate any analysis of Neinstein's evidence) and uncertainty as to the legal principles applied to the credibility analysis (e.g., the corroboration finding) - Taken together, these inadequacies rendered the reasons in respect of C.T.'s allegations so inadequate as to prevent meaningful appellate review - The Hearing Panel's reasons for accepting S.G.'s allegations offered even less insight into its decision than did its reasons concerning C.T.'s allegations - Examined from a functional perspective, the Hearing Panel's reasons relating to S.G.'s allegations came close to constituting no reasons at all - After summarizing the relevant evidence, the Hearing Panel set out its findings of fact, all in favour of S.G., in a series of conclusory statements, none of which offered any explanation for the findings or an analysis of the evidence relevant to those findings - Having regard to the nature of the issues raised by S.G.'s allegations and the conflicting evidence, the reasons of the Hearing Panel constituted no more than a finding of "what" the Hearing Panel decided - The Hearing Panel's reasons placed the "why" behind the "what", and beyond appellate scrutiny - See paragraphs 23 to 92.

Administrative Law - Topic 625

The hearing and decision - Evidence and proof - Credibility - A Hearing Panel of the Law Society of Upper Canada found that Neinstein had sexually harassed two individuals and thereby engaged in professional misconduct - It imposed a penalty of disbarment and a $10,000 fine - An Appeal Panel allowed Neinstein's appeal, set aside the decisions and ordered a new hearing - The Divisional Court allowed the Law Society's appeal in part and ordered that the finding of professional misconduct be reinstated and that disbarment be substituted by a three month suspension - Neinstein appealed, asserting, inter alia, that the Hearing Panel should have applied the three-step credibility assessment outlined in R. v. D.W. (SCC 1991) albeit in a modified version, given the applicable standard of proof - The Ontario Court of Appeal rejected the assertion - The Hearing Panel was required to determine whether the allegations were made out on the balance of probabilities - In doing so, the Hearing Panel was required to consider the totality of the evidence and to make credibility assessments in the context of the totality of the evidence - A finding by the Hearing Panel that the complainants were credible could be determinative of the outcome - In light of F.H. v. McDougall (SCC 2008), the Hearing Panel's application of a modified R. v. D.W. analysis was inappropriate to the inquiry it was required to make - However, any error flowing from the misapplication of R. v. D.W. could not have prejudiced Neinstein - See paragraphs 18 to 22.

Barristers and Solicitors - Topic 5245

Discipline - Procedure - Evidence and proof - [See Administrative Law - Topic 625 ].

Cases Noticed:

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 10].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201, refd to. [para. 13].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 18].

F.H. v. McDougall (2007), 239 B.C.A.C. 222; 396 W.A.C. 222; 68 B.C.L.R.(4th) 203 (C.A.), refd to. [para. 21].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 60].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, refd to. [para. 61].

R. v. Braich (A.) et al., [2002] 1 S.C.R. 903; 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1, refd to. [para. 61].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40, refd to. [para. 61].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 63].

R. v. Wadforth (D.) (2009), 254 O.A.C. 295; 247 C.C.C.(3d) 466; 2009 ONCA 716, refd to. [para. 63].

R. v. J.H., [2005] O.A.C. Uned. 3; 192 C.C.C.(3d) 480 (C.A.), refd to. [para. 63].

R. v. G.G. (1997), 99 O.A.C. 44; 115 C.C.C.(3d) 1 (C.A.), refd to. [para. 66].

R. v. S.H.P.-P. (2003), 215 N.S.R.(2d) 66; 675 A.P.R. 66; 176 C.C.C.(3d) 281 (C.A.), refd to. [para. 66].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 72].

R. v. J.J.R.D. (2006), 218 O.A.C. 37; 215 C.C.C.(3d) 252 (C.A.), refd to. [para. 77].

Counsel:

Brian Greenspan and Seth Weinstein, for the appellant;

J.T. Curry and R.S. Breedon, for the respondent.

This appeal was heard on November 30, 2009, by Doherty, Gillese and Lang, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Doherty, J.A., on March 16, 2010.