CITATION: Law Society of Upper Canada v. Neinstein, 2010 ONCA 193 |
Date: 20100316 |
Docket: C50293 |
COURT OF APPEAL FOR ONTARIO |
Doherty, Gillese and Lang JJ.A. |
BETWEEN |
The Law Society of Upper Canada |
Respondent/Appellant by way of Cross-Appeal |
and |
Gary Neinstein |
Appellant/Respondent by way of Cross-Appeal |
Brian Greenspan and Seth Weinstein, for the appellant |
J.T. Curry and R.S. Breedon, for the respondent |
Heard: November 30, 2009 |
Pursuant to leave to appeal granted on April 2, 2009, on appeal from the order of the Divisional Court (Matlow, Swinton and Murray JJ.) dated March 19, 2007, setting aside the decision and order of the Law Society Appeal Panel, with reasons by Swinton J. (Matlow J. dissenting) and reported at (2007), 85 O.R. (3d) 446 (Div. Ct.), and restoring the decision of the Law Society Hearing Panel; and on appeal from the supplementary decision of Swinton and Murray JJ. of the Divisional Court, dated September 25, 2008, substituting a penalty of three months suspension, with reasons reported at (2008), 241 O.A.C. 199 (Div. Ct.). |
Doherty J.A.: |
[1] This is yet another case in which the adequacy of the reasons provided by the tribunal of first instance is the focus of the appeal. The appellant claims that the reasons given by the Law Society of Upper Canada Hearing Panel (the “Hearing Panel”) for finding that he sexually harassed the two complainants, and thereby engaged in professional misconduct, were devoid of any meaningful explanation for those findings and have effectively foreclosed meaningful appellate review of those findings. Counsel for the appellant submits that the Divisional Court erred in holding that the reasons of the Hearing Panel, while deficient, were not so inadequate as to amount to an error in law entitling the appellant to a new hearing.
[2] The respondent, the Law Society of Upper Canada (the “Law Society”), defends the reasons as adequate in the circumstances and sufficient for the purposes of appellate review. Mr. Curry, counsel for the Law Society, describes this case as a simple, straightforward factual dispute: the complainants alleged that the appellant engaged in a variety of improper and demeaning sexual activities towards them; the appellant denied these allegations. On Mr. Curry’s analysis, if the allegations were true, the appellant was clearly guilty of professional misconduct; if they were not, he was equally clearly not guilty of any misconduct. Mr. Curry submits that the outcome turned on the Hearing Panel’s assessment of the respective credibility of the complainants and the appellant. The Hearing Panel ultimately preferred the reasons of the complainants and gave reasons for that determination. Mr. Curry submits that in doing so, the Hearing Panel gave reasons that explained why they reached the conclusions they did and offered ample scope for meaningful appellate review.
[3] The appellant’s attack on the sufficiency of the reasons succeeded at the first level of appeal before the Law Society Appeal Panel, failed at the second level of appeal in the Divisional Court and has been revisited for a third time in this court.
[4] I am dubious about the merits of arguments claiming that reasons for judgment are inadequate. Experience teaches that many of those arguments are, in reality, arguments about the merits of the fact finding made in those reasons. By framing the argument in terms of the adequacy of the reasons, rather than the correctness of the fact finding, an appellant presumably hopes to avoid the stringent standard of review applicable to findings of fact. Despite my scepticism about arguments that allege that reasons are inadequate, I am satisfied that the appellant has demonstrated that the reasons given by the Hearing Panel are so inadequate as to foreclose meaningful appellate review. The inadequacy of the reasons constitutes an error in law requiring an order directing a new hearing.
[5] The appellant, Gary Neinstein, is a barrister and solicitor, and a member of the Law Society. The Law Society brought forward three complaints against the appellant, alleging that he sexually harassed three women. The allegations related to events that occurred between 1988 and 1998.
[6] The discipline hearing proceeded before the Hearing Panel in October and November of 2002. That Panel released its reasons a year later, in November 2003, finding against the appellant on two of the three allegations. In June 2004, the Hearing Panel ordered the appellant disbarred.
[7] Pursuant to ss. 49.32, 49.33 and 49.35 of the Law Society Act, R.S.O. 1990, c. L.8, the appellant appealed the findings of professional misconduct and the disbarment penalty to a Law Society Appeal Panel (the “Appeal Panel”). In February 2005, the Appeal Panel allowed the appellant’s appeal, set aside the findings of professional misconduct and ordered a new hearing. The Appeal Panel also indicated that, had it been required to address the fitness of the penalty, it would have set aside the disbarment order and directed that the appellant be suspended from practice for 12 months.
[8] The Law Society appealed to the Divisional Court. In reasons released in March 2007, the majority allowed the appeal and restored the findings of professional misconduct. In September 2008, in a subsequent appeal that addressed the penalty imposed, the majority reduced the 12-month suspension to one of three months.
[9] In April 2009, this court granted the appellant leave to appeal from the Divisional Court’s order restoring the findings of professional misconduct. The Law Society subsequently cross-appealed from the Divisional Court’s order reducing the penalty to a three-month suspension. The Law Society sought a 12-month suspension. As I would allow the appellant’s appeal, it is not necessary to consider the question of penalty raised in the Law Society’s cross-appeal. For the sake of completeness, however, I do indicate that had I reached the cross-appeal I would have dismissed it and adopted the reasons of the Divisional Court on the question of penalty.
[10] Counsel for the appellant renews the arguments advanced in the Divisional Court, although subsequent case law, in particular F.H. v. McDougall, [2008] 3 S.C.R. 41, has caused him to reorder those arguments. In addition, counsel proffers “fresh” evidence on appeal that he contends established a reasonable apprehension of bias on the part of the chairman of the Hearing Panel. I will address the fresh evidence before turning to the other grounds of appeal.
[11] The substance of the proffered evidence is not in dispute. While the proceedings were before the Hearing Panel in 2002 and 2003, Mr. George Hunter, the chairman of that Panel, was carrying on a sexual affair with a client. In March 2007, about three-and-a-half years after the decision of the Hearing Panel, Mr. Hunter was found guilty of professional misconduct in respect of that affair and was suspended for 60 days. The finding was based on admissions he made. The misconduct, as particularized, alleged a conflict of interest created by Mr. Hunter’s sexual relationship with his client. Mr. Hunter also faced a second charge of professional misconduct. However, that allegation related to events that occurred years after the completion of Mr. Neinstein’s hearing. That second allegation has no relevance to the appellant’s “fresh” evidence argument.
[12] Mr. Hunter’s conduct came to light long after Mr. Neinstein’s proceedings before the Hearing Panel were complete. Neither Mr. Neinstein nor those involved in his prosecution at the Law Society were aware of Mr. Hunter’s ongoing sexual relationship with a client at the time of the hearing. There is no suggestion that Mr. Neinstein could have brought these matters forward sooner than he did.
[13] Mr. Greenspan, for the appellant, acknowledges that the evidence concerning Mr. Hunter is only relevant and, therefore, only admissible on this appeal if it demonstrates a reasonable apprehension of bias on the part of Mr. Hunter. A reasonable apprehension of bias exists where an informed reasonable person viewing the matter realistically and practically would conclude that the individual charged with the responsibility of deciding a matter would be consciously or unconsciously influenced in an improper manner: see Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, at para. 74.
[14] In argument, Mr. Greenspan submitted that one could test the bias argument by asking what Mr. Hunter would have done had the matter been raised at the outset of the hearing. Mr. Greenspan submits that Mr. Hunter would no doubt have disqualified himself. While this may be true, it is not determinative of the reasonable apprehension of bias analysis. As indicated by the unanimous court in Wewaykum Indian Band v. Canada, at para. 78:
[W]here the issue of disqualification arises after judgment has been rendered, rather than at an earlier time in the proceedings, it is neither helpful nor necessary to determine whether the judge would have recused himself or herself if the matter had come to light earlier. There is no doubt that the standard remains the same, whenever the issue of disqualification is raised. But hypotheses about how judges react where the issue of recusal is raised early cannot be severed from the abundance of caution that guides many, if not most, judges at this early stage. This caution yields results that may or may not be dictated by the detached application of the standard of reasonable apprehension of bias. [Emphasis added.]
[15] When asked how Mr. Hunter’s circumstances could give rise to a reasonable apprehension of bias in this matter, Mr. Greenspan offered the following scenario: a reasonable person, informed of Mr. Hunter’s misconduct, could conclude that Mr. Hunter could be disposed to deal harshly with Mr. Neinstein because he knew at the time he was presiding over Mr. Neinstein’s hearing that his own sexual misconduct might come to light and become the subject matter of a professional discipline inquiry at some future point. In treating Mr. Neinstein harshly, Mr. Hunter would hope to create an image of himself at the Law Society as someone who would not tolerate sexual misconduct in a professional context. That image, so goes the scenario painted by Mr. Greenspan, could potentially be seen by Mr. Hunter as helping him if his conduct ever became the subject matter of an investigation or a disciplinary proceeding.
[16] The scenario painted by Mr. Greenspan cannot be dismissed as an outright impossibility. It is, however, based on speculation that goes well beyond the kinds of reasonable inferences that can be made in assessing a reasonable apprehension of bias claim. Individuals who sit in courts or tribunals and are required to make independent and impartial decisions have private lives. Some may do things in those private lives that may be improper or illegal. Those misdeeds may subsequently come to light and become the subject matter of some form of inquiry. To suggest that decision-makers could reasonably be viewed as being influenced by considerations of what might best serve their interests at some unknown future date if some past impropriety should come to light and become the subject of some form of inquiry is farfetched, and stretches the concept of a reasonable apprehension of bias beyond all practical limits. In so holding, I do not exclude the possibility that in a given case there may be evidence that elevates the speculation underlying Mr. Greenspan’s submissions to the level of legitimate inference. I do, however, reject the submission that the necessary link between Mr. Hunter’s personal misconduct and the appearance of partiality can be made on the abstract level presented on this appeal.
[17] The proffered evidence is not capable of supporting a finding of a reasonable apprehension of bias as regards to Mr. Hunter. It is, therefore, irrelevant to these proceedings and should not be received on appeal.
[18] The appellant has argued throughout these proceedings that the Hearing Panel should have applied the three-step credibility assessment outlined in R. v. W.(D.), [1991] 1 S.C.R. 742, albeit in a modified version, given the applicable standard of proof. Counsel submits that the W.(D.) formulation avoids treating cases like this one, which pit the evidence of the complainants against the denial of the defendant, as strict credibility contests whose outcome depends on whose evidence is preferred by the tribunal. Counsel for the appellant contends that while the Hearing Panel purported to apply a modified W.(D.) analysis, it erred in so doing by failing to consider whether, apart from its findings of credibility, the Law Society had met its burden to prove the allegations on the entirety of the evidence. The appellant draws support for this position from the analysis of the Appeal Panel (paras. 33-57).
[19] The majority of the Divisional Court rejected this argument. While acknowledging that the three-step approach in W.(D.) could assist the Hearing Panel in determining the allegation of professional misconduct, the majority concluded at para. 58 that “[a] failure to follow the test is not fatal, provided a trier of fact applies the correct burden and standard of proof.”
[20] The majority went on to hold at para. 66 that the Hearing Panel did apply the correct burden and standard of proof and that the Appeal Panel erred in finding to the contrary.
[21] The appellant’s argument that the three-step approach in W.(D.), or its purposive equivalent, must be used in assessing conflicting evidence in non-criminal cases was put to rest in McDougall, a decision rendered after the Divisional Court released its reasons in this case. McDougall involved allegations of sexual assault made in a civil proceeding. Southin J.A., one member of the two-judge majority in the British Columbia Court of Appeal ((2007), 68 B.C.L.R. (4th) 203 (C.A.) (sub nom. C. (R.) v. McDougall)) had indicated that a W.(D.) analysis of the conflicting evidence of the complainant and the defendant as it related to the allegations of sexual assault was required. In the Supreme Court of Canada, the court unanimously concluded that a W.(D.)-type analysis was inappropriate in a civil case. Rothstein J. said at para. 86:
However, in civil case in which there is conflicting testimony, the trial judge is deciding whether a fact occurred on a balance of probabilities. In such cases, provided the judge has not ignored evidence, finding the evidence of one party credible may well be conclusive of the result because that evidence is inconsistent with that of the other party. In such cases, believing one party will mean explicitly or implicitly that the other party was not believed on the important issue in the case. That may be especially true where a plaintiff makes allegations that are altogether denied by the defendant as in this case. W.(D.) is not an appropriate tool for evaluating evidence on the balance of probabilities in civil cases. [Emphasis added].
[22] McDougall has direct application to this case. 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. As in McDougall, a finding by the Hearing Panel that the complainants were credible could be determinative of the outcome. In light of McDougall, the Hearing Panel’s application of a modified W.(D.) analysis was inappropriate to the inquiry it was required to make. However, any error flowing from the misapplication of W.(D.) could not have prejudiced the appellant.
[23] This was a classic “he said-she said” case. The complainants testified about various acts of sexual harassment. The appellant denied those acts occurred. Other witnesses were called, and while their evidence was important, it was clearly secondary to the evidence of the main protagonists. To assess the adequacy of the reasons, a more detailed review of the conflicting evidence is necessary.
[24] The Law Society alleged that Mr. Neinstein sexually harassed three women, C.T., a client, S.G., a secretary in his law office, and L.D., a family friend and client. The Hearing Panel found that the allegation relating to L.D. had not been made out, but found against Mr. Neinstein on the other two claims. I will not summarize the evidence relating to L.D.’s complaint.
[25] C.T. met Mr. Neinstein in 1986. He was acting for her brother in a lawsuit arising out of a motor vehicle accident. C.T. retained Mr. Neinstein in 1988, in connection with a claim that she had arising out of another accident.
[26] C.T. testified that, from the outset, Mr. Neinstein seemed “overly friendly”. He made inappropriate sexual comments and touched her in inappropriate ways. Some of this activity occurred in the presence of her brother or husband. She said nothing about this to her husband. Neither her husband nor her brother testified at the hearing.
[27] C.T. began a consensual sexual relationship with the appellant in August 1990, which continued until December 18 or 19 of that year. She described several incidents involving sexual activity. The first encounter, which did not involve sexual intercourse, occurred after her examination for discovery in St. Catharines, Ontario. C.T. described two incidents in the Park Plaza Hotel and four in Mr. Neinstein’s law office during regular office hours, all involving sexual intercourse. Of the four incidents in the law office, three occurred on a couch or loveseat in his office and one took place on his desk.
[28] C.T. indicated that she stopped this sexual relationship about four months after it started, in December 1990, because Mr. Neinstein’s conduct around the office with his staff had come to disgust her. By December 1990, she described herself as “vulnerable, humiliated at the end, ashamed.” She added, “I didn’t know Gary was married.”
[29] Mr. Neinstein continued to act for C.T. after she terminated their sexual relationship in December 1990. According to her testimony, he continued to make sexually explicit and improper comments. He also touched her in a sexual manner on occasion.
[30] C.T. testified that Mr. Neinstein was her lawyer until 1991, when she settled her claim. She described one further incident of sexual harassment in Mr. Neinstein’s office in 1993, when she attended on behalf of her brother, who was still Mr. Neinstein’s client.
[31] C.T. testified that she put up with Mr. Neinstein’s conduct because she felt powerless and regarded lawyers as persons of authority. She also came to feel ashamed and embarrassed about their sexual relationship. C.T. believed that Mr. Neinstein had the ability to jeopardize her brother’s lawsuit. Consequently, she did not want to report him to the Law Society. She did consult a lawyer (Ron Brady) in 1994, and discussed with him the possibility of commencing a civil lawsuit against Mr. Neinstein. Her brother’s lawsuit ended in 1997, and she complained to the Law Society about Mr. Neinstein’s behaviour in that year.
[32] There was no evidence independent of C.T.’s testimony that offered any direct support for her allegations of sexual harassment. She produced a Park Plaza bill that noted a telephone call to Mr. Neinstein’s office, notes on Park Plaza stationery indicating an exchange of telephone calls between C.T. and Mr. Neinstein and a note from Mr. Neinstein to a Yorkville retailer written in reference to a potential business matter involving C.T.
[33] Ron Brady, a solicitor, testified that he met with C.T. in December 1994. She had various concerns, including the adequacy of the settlement that had been obtained for her by Mr. Neinstein in 1991. C.T. told Mr. Brady about her personal relationship with Mr. Neinstein. C.T. engaged Mr. Brady to explore the possibility of a civil suit against Mr. Neinstein. He eventually advised against it but told her that she could make a complaint to the Law Society.
[34] Mr. Neinstein testified. He acknowledged that he acted for C.T., but testified that the retainer continued until 1994. He indicated that he did the best he could for her in the settlement, but that there were significant problems with her claim.
[35] Mr. Neinstein denied that he engaged in any inappropriate sexual conduct with C.T. According to him, the events described by C.T. did not happen. As he first became aware of the allegations years after the alleged events, he could not in some cases provide any detailed response to the particulars of the allegations. Mr. Neinstein did produce his diary that indicated that he had appointments in Toronto on the afternoon when according to C.T.’s evidence he was making improper sexual advances towards her in St. Catharines. His diary entry for the day of the alleged meeting at the Park Plaza Hotel also showed an appointment, which, if kept, would indicate that Mr. Neinstein did not have the opportunity to attend at C.T.’s hotel room as she had testified.
[36] In an effort to discredit C.T.’s claim that she and Mr. Neinstein had sexual intercourse in his office during working hours, Mr. Neinstein called a great deal of evidence about the operation of his law office. There were about 50 people working there, including eight lawyers. It was very busy and somewhat chaotic. Mr. Neinstein had a corner office. Mr. Neinstein testified that his office door was almost always open. He testified, and his assistant agreed, that there was constant traffic in and out of his office. Mr. Neinstein’s office was next to the office of the other senior partner in the firm. The offices were separated by very thin walls and sounds in one could be heard in the other.
[37] According to Mr. Neinstein, his assistant and his wife, there was no couch in Mr. Neinstein’s office. There were chairs that could be pushed together to create a sort of loveseat, however, there was no evidence that they were ever used that way.
[38] C.T. testified that Mr. Neinstein’s office was “filled” with family pictures. Mr. Neinstein’s wife and his secretary testified to the same effect. According to them, there were numerous photos of the entire family, including photos of Mr. Neinstein’s wife. C.T. testified that on the many occasions she was in Mr. Neinstein’s office before she terminated their sexual relationship on December 19, 1990, she saw only pictures of Mr. Neinstein and his children, and none of his wife. This evidence was relevant because C.T. testified that when she ended her sexual liaison with Mr. Neinstein in December 1990, she was unaware that he was married. It is implicit in her evidence that one of the reasons she felt ashamed and humiliated by the affair was because Mr. Neinstein had not told her he was married.
[39] S.G., the second complainant, worked for Mr. Neinstein’s law firm from September 1990 until May 1991, when she went on maternity leave. She returned to the firm in January 1992, and worked there until March 1993. She worked for a Mr. Ellis and Mr. MacDonald, both lawyers in the firm. S.G. also became a client of the firm in connection with a products liability claim.
[40] S.G. testified that her job as a secretary in the Neinstein law firm was her first office job. She said she enjoyed the work very much and rarely went home before six or seven o’clock at night. She was sometimes there until 11:00 p.m. Mr. Ellis testified that it was not common for S.G. to stay late. He also testified, however, that she did work for other lawyers and “liked to work”.
[41] S.G. testified that Mr. Neinstein regularly made inappropriate comments and gestures towards her. The comments were often made when they were working late at night. S.G. described specific incidents where Mr. Neinstein made boorish and inappropriate sexual comments. She also testified that he would place himself in the doorway so that she would have to squeeze past him. S.G. testified that she was shocked by this conduct but did not want to be seen as overreacting. On occasion she would tell him that he was rude or refer to him as “a pig”. Mr. Neinstein would laugh and protest that he had done nothing wrong.
[42] S.G. described an incident in September 1992, where Mr. Neinstein came up to her as she waited for the elevator and began to rub her neck and back. He then put his arm around her and rubbed her stomach. She jumped away but did not know what else to do.
[43] S.G. testified that in February 1992, she asked Mr. Neinstein for a raise. His response indicated to her that he would require sexual favours before she would get the amount of money she had requested. He then put his hands on her shoulders and upper arms and said he would think about it. He also put his hand on her knee. According to her, she eventually received a very modest raise.
[44] S.G. testified that Mr. Neinstein’s actions towards her made her feel uncomfortable; however, she was a single mother who had very few job options. She eventually quit her job.
[45] S.G. was contacted in 1997 by a friend who had worked at Mr. Neinstein’s firm. That friend asked her to speak to someone from the Law Society. The Law Society contacted her in January 1998.
[46] S.G. testified that she did mention some of Mr. Neinstein’s unwanted comments and actions to her immediate boss, Mr. Ellis. According to her, Mr. Ellis described Mr. Neinstein as “an old perv”. Mr. Ellis worked for Mr. Neinstein’s law firm for a relatively brief period of time. When he testified before the Hearing Panel, he was a member of the Immigration and Refugee Board. He denied speaking to S.G. about Mr. Neinstein’s conduct. He also denied that he made any adverse comments to S.G. about Mr. Neinstein or referred to him as a “perv” or a pervert. Mr. Ellis further testified that, contrary to S.G.’s evidence, Mr. Neinstein seldom worked as late as 10:00 p.m. as he usually began his work day very early.
[47] Mr. Neinstein testified and denied all of the allegations made by S.G. He testified that although he knew S.G. worked for his law firm, he could not recall her. He denied the encounter over her salary, testifying that others in the office dealt with matters relating to the salaries of the office employees. He did, however, acknowledge that he had in the past been involved in some decisions concerning office employees’ salaries. Mr. Neinstein’s assistant supported his evidence on this point. She testified that it was unlikely that Mr. Neinstein would have discussed a salary matter with S.G.
[48] Mr. Neinstein testified that while he used coarse language in the office, including profanities, he would not use sexually explicit language. He denied that he had made inappropriate sexual comments to her, as she had alleged. Mr. Neinstein also went through the various allegations of improper touching made by S.G. and denied that he had touched S.G. in the ways she had described. He further testified that he never placed himself in the doorway so that she would have to squeeze by him.
[49] This is not a case where the tribunal of first instance did not give reasons. The reasons of the Hearing Panel fill some 39 typed pages. Paragraphs 1 through 10 outline the nature of the allegations and the meaning of sexual harassment. Paragraphs 11 through 21 set out certain applicable legal principles, including the meaning of corroboration. The Hearing Panel summarizes the evidence relevant to C.T.’s complaint in paras. 22 through 89. That summary is quite complete and does not contain any material misapprehensions of the evidence.
[50] For present purposes, the crucial part of the Hearing Panel’s reasons, as they relate to C.T., are found in paras. 90 through 99 under the heading “Findings with Respect to the First Particular”. Paragraph 90 identifies the importance of the credibility assessment to the outcome. Paragraph 91 describes C.T. as testifying “in a forthright manner” and concludes “that her evidence was honestly given”. Paragraph 92 is a one-sentence paragraph indicating that the appellant denied the allegations. Paragraph 93 reiterates the significance of the credibility assessment and describes the case in these words:
...this case comes down to whether or not the Panel prefers the evidence of one of the two parties – the Member [Mr. Neinstein] or C.T.
[51] Paragraph 94 is the heart of the Hearing Panel’s reasons with respect to C.T.’s complaint:
Taking all of the evidence into consideration, the Panel prefers the evidence of C.T. with respect to material matters. She withstood cross-examination well. There was also independent evidence, as noted, which corroborated her version of the relevant events. While there was contradictory evidence of the lay-out of the Member’s office and related matters, the Panel concludes that this evidence, in itself, was not material to a finding of whether sexual harassment took place. Otherwise, where C.T.’s testimony differs from that of the member, taking all of the evidence into account, and the tendering of it, the Panel prefers hers.
[52] Paragraphs 95 through 99 set out the Hearing Panel’s conclusions with respect to the specific allegations made by C.T. In paragraph 96 the hearing panel accepts each and every specific allegation made by C.T. without any individual analysis of the evidence relating to each allegation.
[53] Paragraphs 98 and 99 contain the Hearing Panel’s conclusions in respect of C.T.:
The Panel has carefully weighed the law relating to the standard of proof required in this case, given the gravity of the allegations against the Member and the potential seriousness of the consequences of a finding of guilt. The Panel was compelled to draw its conclusions based on its decision on credibility. The Panel is satisfied that C.T.’s evidence was clear and convincing proof and cogent.
Accordingly, the Panel finds that in the period from 1988 to 1993, inclusive, the Member sexually harassed in a professional context, C.T. by engaging in a series of incidents involving unwelcome sexual advances and verbal or physical conduct of a sexual and non-sexual nature including but not limited to engaging in unwanted touching, making sexually suggestive comments and engaging in unwanted contact or attention after the end of a consensual personal relationship.
[54] Paragraphs 100 to 131 of the Hearing Panel’s reasons summarize the evidence relating to S.G.’s complaint. The summary is unremarkable. Paragraph 132 identifies the assessment of the respective credibility of S.G. and Mr. Neinstein as the crucial issue. In para. 133, the Panel describes S.G. as testifying “in a forthright and honest manner”. In para. 134 the Hearing Panel states:
Accordingly, the Panel must turn to the evidence of S.G. and the Member to determine what specifically happened in the office and at what times.
[55] The Hearing Panel then refers to Mr. Neinstein’s evidence at para. 135:
While the member denied the allegations, taking into account all of the evidence, and the manner of its presentation, the Panel prefers the evidence of S.G. over that of the Member. The Panel does not believe the Member’s blanket denials.
[56] Having decided that S.G.’s evidence should be preferred over Mr. Neinstein’s evidence, the Hearing Panel proceeded in paras. 136 through 145 to accept each and every specific allegation made by S.G. The Panel did so in a series of one-sentence paragraphs that are devoid of any analysis of the evidence relating to the specific allegations. No explanation is offered in these paragraphs for the findings. By way of example, para. 141 reads:
The Panel finds that, on an occasion when S.G. was attempting to fix a paper jam at the printer, the Member put his hands on her hips.
[57] In paras. 146 through 148, the Hearing Panel restates the burden of proof, alludes to the definition of “sexual harassment” and concludes that Mr. Neinstein’s activities amounted to sexual harassment.
[58] The Appeal Panel determined that the Hearing Panel made several errors including a failure to give adequate reasons. The Appeal Panel stressed the conclusory nature of the credibility findings and the absence of any explanation for the outright rejection of the appellant’s evidence. The Appeal Panel held at para. 111:
We wish to make it clear that our finding in this regard does not oblige every Hearing Panel to provide an exhaustive analysis of all of the evidence in each decision, regardless of the circumstances. In this case, the reasons given by the Hearing Panel did not need to be exhaustive. They ought, however, to have addressed the contradictory evidence related to the material issues, and provided some reason for disbelieving the member. In particular, because the eight day hearing took place over a period of four and a half months, the Hearing Panel’s path through the conflicting evidence should have been made clear.
[59] In reversing the Appeal Panel and restoring the disposition of the Hearing Panel, the majority in the Divisional Court acknowledged that the reasons could have been “more detailed and better” (para. 91). In concluding, however, that they met the “adequacy standard”, the majority said at para. 92:
In this case, the reasons meet the adequacy standard, and they are sufficient to permit meaningful appellate review. The Hearing Panel expressly turned its mind to the evidence and made clear findings with respect to credibility. It concluded that any inconsistencies were not material, as it reasonably could do when all of the evidence was considered. Most importantly, it applied the correct standard of proof. While it did not say why it disbelieved the respondent, that alone is not grounds to overturn its decision.[1]
[60] Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 43, declares that in certain circumstances the duty of procedural fairness requires that a tribunal give reasons for its decision. Reasons will be required where the decision in issue has “important significance for the individual”. A finding of professional misconduct against a lawyer obviously has important significance for that lawyer. In addition, as a self-governing profession, it is important that the Law Society explain its discipline decisions to complainants and members of the public at large in a way which renders those decisions comprehensible and transparent. A Hearing Panel can achieve those ends only through the reasons it gives. Mr. Neinstein, the complainants and the community were entitled to reasons explaining the Hearing Panel’s decision.
[61] Reasons for a decision serve several salutary purposes. Where there is a right of appeal from that decision, reasons must provide a sufficient window into the decision to allow meaningful appellate review to the extent contemplated by the permitted scope of the appeal. Reasons for a decision that describe both what is decided and why that decision was made are susceptible to effective appellate review. Whatever other shortcomings may exist in reasons that adequately explain the “what” and the “why”, those shortcomings will not render the reasons so inadequate as to justify appellate intervention on that basis: R. v. Sheppard, [2002] 1 S.C.R. 869, at paras. 25-26; R. v. Braich, [2002] 1 S.C.R. 903, at para. 31; R. v. R.E.M., [2008] 3 S.C.R. 3, at paras. 15-18, 52-53.
[62] A determination of whether reasons fulfill their purpose and admit of effective appellate review can only be made by examining those reasons in the context of the proceedings that gave rise to the reasons. Context includes the nature of the issues raised before the tribunal, the evidence adduced and the submissions made. For example, in a one-issue case the adequacy of the reasons given will turn on the treatment of that issue in the reasons and not on the treatment of matters that were peripheral or unchallenged at trial but have been made the focus of the appeal: Sheppard, at paras. 37-42; R.E.M., at paras. 16, 41.
[63] The outcome of this proceeding turned almost exclusively on the Hearing Panel’s assessment of the credibility of the appellant and the complainants. Where a decision depends on credibility assessments, an appellate court, in reviewing the sufficiency of the reasons, must be sensitive to both the advantage the tribunal has over the appellate court when it comes to assessing credibility and the difficulties inherent in articulating reasons for credibility findings: R.E.M., at paras. 48-51; R. v. Gagnon, [2006] 1 S.C.R. 621, at paras. 20-21; R. v. Wadforth (2009), 247 C.C.C. (3d) 466 (Ont. C.A.), at paras. 66-68; R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 46.
[64] As the majority of the Divisional Court observed at para. 92, the Hearing Panel made clear findings of credibility – it believed C.T. and S.G. at least to the extent of preferring their evidence to the contradictory evidence give by Mr. Neinstein. The reasons of the Hearing Panel, however, offer little by way of explanation for those assessments. I will address the Hearing Panel’s reasons as they apply to each of the complainants separately, beginning with C.T.
[65] I can find four reasons that the Hearing Panel gave for preferring C.T.’s evidence over that given by Mr. Neinstein:
· She “gave her evidence in a forthright manner” (para. 91);
· She “withstood cross-examination well” (para. 94);
· There was “independent evidence, as noted, which corroborated her version of relevant events” (para. 94); and
· Although there was contradictory evidence as to the layout of Mr. Neinstein’s office and related matters, that evidence “was not material to a finding of whether sexual harassment took place” (para. 94).
[66] The first two reasons speak to C.T.’s demeanour and may be considered together. Both addressed demeanour in a generic and conclusory manner. There is no insight provided as to why the Hearing Panel found C.T. to be “forthright” and no indication of why it concluded she “withstood” cross-examination. Bald generalized assertions defy appellate review. Furthermore, while demeanour is a relevant factor in a credibility assessment, demeanour alone is a notoriously unreliable predictor of the accuracy of evidence given by a witness: see R. v. G. (G.) (1997), 115 C.C.C. (3d) 1 (Ont. C.A.), at pp. 6-8; R. v. P-P. (S.H.) (2003), 176 C.C.C. (3d) 281 (N.S.C.A.), at paras. 28-30.
[67] The third reason articulated by the Hearing Panel for believing C.T. is, I think, the most significant. It is worth repeating: “There was also independent evidence, as noted, which corroborated her version of relevant events.”
[68] The first problem with this part of the reasons is the Hearing Panel’s failure to specifically identify the evidence it is referring to in this passage. The majority of the Divisional Court (paras. 71-73) assumed that the reference to corroborative evidence was a reference to the Park Plaza bill, notes on Park Plaza stationery indicating calls to and from Mr. Neinstein’s office, and the note to a Yorkville shop owner. The Divisional Court may be correct in its identification of the evidence that the Hearing Panel treated as corroborative. The point is, however, the Divisional Court is clearly making an assumption. There is nothing in the reasons of the Hearing Panel that expressly or by implication identifies the evidence that it was referring to as “independent evidence” in the passage quoted above.
[69] Assuming the Hearing Panel was referring to the evidence identified by the Divisional Court, its finding that the evidence corroborated C.T.’s version of events is perplexing. Earlier, the Hearing Panel had accepted the definition of corroboration put forward by counsel for Mr. Neinstein (paras. 11-13). The Hearing Panel accepted that corroboration meant “evidence which directly supports allegations of fact.… Confirmation of neutral facts is neither useful nor corroborative” (emphasis added).
[70] The hotel bill, the notes on the hotel stationery and the note to the Yorkville shopkeeper could not possibly constitute corroboration of C.T.’s allegations of sexual misconduct using the definition specifically adopted by the Hearing Panel earlier in its reasons. That evidence does not directly support any of C.T.’s allegations. It is, at best, supportive of her version of events on peripheral matters and is arguably “confirmation of neutral facts”, a category of evidence specifically excluded as potentially corroborative by the Hearing Panel in its definition of corroboration. If the Hearing Panel did indeed apply the definition of corroboration it had specifically adopted earlier in its reasons, it erred in law in finding that there was any evidence capable of corroborating C.T.’s version of the relevant events.
[71] The majority of the Divisional Court recognized that the evidence of the hotel bill and the notes could not corroborate C.T.’s version of the alleged acts of sexual misconduct using the approach to corroboration articulated by the Hearing Panel. However, the Divisional Court went on to say at para. 73:
However, it appears that the Hearing Panel is actually treating this evidence as confirmatory of C.T.’s evidence of the events of August 20, 1990. In order to be confirmatory, evidence must strengthen the trier of fact’s belief that the witness is telling the truth [citation omitted]. In this case, this evidence, while not particularly strong, can be taken as supporting C.T.’s recollections of what occurred on the day in question.
[72] The distinction drawn by the majority of the Divisional Court between strict notions of corroboration and the broader, more contemporary concept of confirmatory evidence is well established in the modern authorities. Evidence that strengthens the belief in the veracity of a witness can be confirmatory even though it may not provide direct support for the allegation of misconduct: R. v. Khela, [2009] 1 S.C.R. 104, at paras. 40-43, 52. There is, however, nothing to support the Divisional Court’s assertion that the Hearing Panel was using the modern concept of confirmatory evidence in its reasons. Moreover, even on the modern approach, confirmatory evidence must be directed to an important aspect of the witnesses’ testimony and not to a peripheral or minor component of that evidence. It is arguable that the hotel bill, stationery and note to the Yorkville store owner were not important aspects of C.T.’s evidence relating to the allegations of sexual harassment. There is nothing in the reasons to suggest that the Hearing Panel grappled with the potential significance of that evidence to C.T.’s allegations and came to the conclusion that the evidence was sufficiently important to be confirmatory of her evidence.
[73] It is impossible to know from the Hearing Panel’s reasons what it meant by “independent evidence” corroborating C.T.’s testimony. As set out above, it is possible that the Hearing Panel misapplied the definition of corroboration it had expressly adopted earlier in its reasons. It is also possible that the Hearing Panel used a different, unarticulated definition of corroboration in arriving at its conclusion that C.T.’s evidence was corroborated. It is even possible that the Hearing Panel used the concept of confirmatory evidence as described by the majority in the Divisional Court. With respect to the reasons of the majority in the Divisional Court, the uncertainty created by the Hearing Panel’s reasons is not resolved by simply declaring that the Hearing Panel, in referring to corroboration, meant to use the modern concept of confirmatory evidence. That concept was never mentioned in the Hearing Panel’s reasons and flies in the face of the much stricter notion of corroboration specifically adopted by the Hearing Panel in its reasons.
[74] I have emphasized what I see as the problems associated with the Hearing Panel’s reference to corroboration in its reasons because that passage strikes me as crucial to the Hearing Panel’s decision with respect to C.T.’s allegations. The appellate court’s ability to effectively understand and review that component of the decision is central, in my view, to the adequacy of the reasons as they relate to C.T.’s allegations. I repeat, either the Hearing Panel misapplied its own definition of corroboration, used some unarticulated broader concept of corroboration without identifying the evidence that fell within that concept, or used the modern concept of confirmatory evidence, again without identifying the relevant evidence or explaining why it was confirmatory of C.T.’s allegations.
[75] The fourth reason given by the Hearing Panel for accepting C.T.’s evidence was its finding that none of the inconsistencies between her evidence and the evidence of other witnesses concerning the setup of Mr. Neinstein’s office were “material” to the truth of the allegations of sexual harassment. I accept that the Hearing Panel, having set out much of the contradictory evidence, was not obliged to go through the various inconsistencies seriatim and explain why those inconsistencies were not material. For example, it was open to the Hearing Panel to decide that while the defence evidence contradicted C.T.’s evidence about the existence of a couch in Mr. Neinstein’s office, that defence evidence also allowed for the possibility that chairs could be put together to form a couch like setup. On either the defence version or C.T.’s version of the office setup, the sexual contact described by C.T. could well have occurred. The substance of this inconsistency is immaterial to the ultimate question in issue. The Hearing Panel was not required to elaborate on it further.
[76] The conclusory assertion that none of the inconsistencies were “material” does, however, make appellate review difficult. There was strongly conflicting evidence about the existence of pictures of Mr. Neinstein’s wife in his office. C.T. denied that there were any pictures of Mr. Neinstein’s wife in his office and testified that she did not know he was married. She presented herself as a person who had become ashamed and humiliated by the sexual relationship that had developed between her and Mr. Neinstein in part because she was unaware that he was married. If, in fact, pictures of Mr. Neinstein’s wife were in his office as the witnesses testified, it would be difficult to believe that C.T., who was in that office on many occasions, did not see those pictures. If she was disbelieved on this point, that disbelief could well be material to her credibility on the sexual harassment allegations. Without any explanation of why the inconsistencies concerning the photographs were immaterial, it is difficult to know whether the Hearing Panel appreciated the potential significance of the conflicting evidence concerning the photographs and the potential importance to C.T.’s credibility should she be disbelieved on this point.
[77] In respect of C.T.’s allegations, C.T. was not the only person whose credibility was in issue. The Hearing Panel also had to address the credibility of Mr. Neinstein and his witnesses. I agree with the majority of the Divisional Court (para. 92) that it is not necessarily reversible error to fail to give reasons for rejecting the credibility of a witness. Particularly, in light of McDougall, a finding that one party is credible may be conclusive where the other party’s evidence is irreconcilable with the evidence of the party found to be credible: see R. v. D.(J.J.R.) (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at paras. 34-39.
[78] However, I do not accept that a review of the adequacy of the reasons should not include a consideration of how the Hearing Panel addressed Mr. Neinstein’s evidence. The adequacy of the reasons can only be assessed by considering those reasons as a whole. In some cases, what might appear to be insufficient reasons for a favourable finding of credibility may be buttressed by additional reasons given for rejecting the evidence of a witness who gave contradictory evidence. Similarly, the absence of reasons addressing the credibility of one side of a “he said she said” case may impact on the adequacy of the reasons as a whole.
[79] There is exactly one sentence about Mr. Neinstein’s evidence in the part of the Hearing Panel’s reasons where it purports to make and explain its credibility findings (at paras. 90-99). That sentence, at para. 92, reads as follows: “Without reservation the member denied all of the allegations of misconduct.”
[80] There is no analysis of his evidence or the evidence of his witnesses. There is nothing in the content of that evidence or the character of those witnesses that would make the evidence inherently unreliable and justify an outright, unexplained rejection of that evidence without any comment. It can be fairly said that Mr. Neinstein, on a reading of the Hearing Panel’s reasons, would have absolutely no idea what, if anything, the Hearing Panel made of his evidence, and that of his supporting witnesses. Nor can a reviewing appellate court know what the Hearing Panel made of that evidence. Indeed, the reasons suggest that the Hearing Panel, having found C.T. credible, never engaged in any analysis of Mr. Neinstein’s evidence. The Hearing Panel’s silence in respect of the evidence led on behalf of Mr. Neinstein renders meaningful appellate review of the Panel’s credibility assessments very difficult.
[81] The observations I have made in the preceding paragraph have equal application in a case where a Hearing Panel finds in favour of the lawyer. Surely, if this Hearing Panel had found that the allegations were not made out because it preferred Mr. Neinstein’s evidence, there would have been an obligation to explain to the complainants why their evidence was not accepted. Indeed, the Hearing Panel did give specific and relatively detailed reasons for rejecting the evidence of L.D., the third complainant (paras. 203-211). Had the Hearing Panel afforded the same treatment to Mr. Neinstein and his witnesses, an appellate court would have been in a much better position to conduct a meaningful review of the Hearing Panel’s decision.
[82] The paragraphs in the Hearing Panel’s reasons following para. 94, which address C.T.’s allegations (paras. 94-99), contain a series of generic, conclusory findings with respect to the individual allegations of harassment made by C.T. The Hearing Panel does not engage in any analysis of the specific evidence as it relates to those events.
[83] The reasons relating to C.T.’s complaints compel the conclusion that those reasons do not address the “why” component required in reasons for judgment. The Hearing Panel’s reasons are 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 Mr. Neinstein’s evidence) and uncertainty as to the legal principles applied to the credibility analysis (e.g. the corroboration finding). Taken together, these inadequacies render the reasons in respect of C.T.’s allegations so inadequate as to prevent meaningful appellate review.
[84] The Hearing Panel’s reasons for accepting S.G.’s allegations offer even less insight into its decision than do its reasons concerning C.T.’s allegations. Examined from a functional perspective, the Hearing Panel’s reasons relating to S.G.’s allegations come perilously close to constituting no reasons at all. After summarizing the relevant evidence, the Hearing Panel sets out its findings of fact, all in favour of S.G., in a series of conclusory statements, none of which offer any explanation for the findings or an analysis of the evidence relevant to those findings (paras. 136-148).
[85] The Hearing Panel does conclude at para. 133 that S.G. “gave her evidence in a forthright and honest manner” and that she was not effectively challenged on cross-examination. I would make the same comments concerning these observations as I did in respect of some of the observations relating to C.T.’s demeanour (see above, at paras. 66-67).
[86] The only specific observation made by the Panel concerning S.G.’s credibility that might assist in understanding why the Panel believed her is found in paras. 133 and 134:
While there were contradictions in the evidence about the hours she and the Member worked, no other witness, other than S.G. and the member, were able to testify precisely about the specific incidents alleged to have occurred.
The Member’s spouse testified that there were no times between 1988 and 1992 when he would be home very late at night. Mr. Ellis testified that while it was not in the normal practice for S.G. to stay late, it may have happened. Accordingly, the Panel must turn to the evidence of S.G. and the Member to determine what specifically happened in the office and at what times. [Emphasis added.]
[87] I am not sure what to make of this part of the Hearing Panel’s reasons. It would appear that the Hearing Panel decided that, because the contradictions in the evidence did not relate specifically to the alleged incidents involving S.G. and Mr. Neinstein, those potential inconsistencies could not assist in assessing whether S.G. or Mr. Neinstein was telling the truth about those incidents. If that is what the Panel meant by this passage, it clearly misdirected itself. Evidence relating to matters other than the actual incidents could certainly shed light on the credibility of the evidence of S.G. and Mr. Neinstein concerning those incidents. For example, there were potentially significant inconsistencies between S.G.’s testimony about conversations she had with Mr. Ellis concerning Mr. Neinstein’s conduct and Mr. Ellis’s recollection of any such conversations. Those inconsistencies were potentially significant in assessing the truthfulness of S.G.’s evidence that the incidents had in fact occurred. If the Hearing Panel did not address conflicting evidence relating to matters other than the actual incidents in assessing S.G.’s credibility, the Hearing Panel effectively excluded a large body of evidence from its credibility analysis.
[88] I cannot go so far as to say that the Hearing Panel improperly excluded parts of the evidence from its credibility analysis. I can say, however, that to the very limited extent that the Hearing Panel offers any explanation for its credibility assessment, that explanation suggests an improper approach to the evidence contradicting parts of S.G.’s evidence.
[89] Unlike its findings with respect to C.T., the Hearing Panel did make a specific finding with respect to Mr. Neinstein’s evidence relating to S.G.’s complaints at para. 135:
While the Member denied the allegations, taking into account all the evidence, and the manner of its presentation, the Panel prefers the evidence of S.G. over that of the Member. The Panel does not believe the Member’s blanket denials.
[90] It is difficult to imagine a more generic finding. To paraphrase my colleague, Watt J.A., in Wadforth, at para. 71, this finding could apply equally to any other case involving any other allegation against any other individual.
[91] The Hearing Panel also mischaracterizes Mr. Neinstein’s evidence when it refers, somewhat pejoratively, to his “blanket denials”. Mr. Neinstein contended that none of the events testified to by S.G. happened. An individual cannot be expected to give details of events that the individual says never occurred. Mr. Neinstein did, however, offer particularized explanations to support his assertion that the events never happened. For example, in denying S.G.’s evidence about his sexual misconduct during salary discussions, Mr. Neinstein led considerable evidence that it was not the usual office practice for him to be involved in salary discussions with office personnel.
[92] Having regard to the nature of the issues raised by S.G.’s allegations and the conflicting evidence, the reasons of the Hearing Panel constitute no more than a finding of “what” the Panel decided. The Hearing Panel’s reasons place the “why” behind the “what”, and beyond appellate scrutiny.
[93] The allegations made against Mr. Neinstein raise matters of serious concern. The proper resolution of the allegations is of significant importance to both Mr. Neinstein and the complainants. It is not for this court to weigh the competing evidence and make findings of fact. Nothing in these reasons should be taken as critical or supportive of the evidence of anyone. Those kinds of decisions can only be made by a Hearing Panel.
[94] Unfortunately, I think, for all concerned, the reasons for the findings of the Hearing Panel are so deficient as to constitute an error in law. The appeal must be allowed, the order of the Divisional Court must be set aside, and the matter must be remitted to a different Hearing Panel for a new hearing.
[95] If the parties cannot agree on the question of costs, written submissions may be filed with the court. Those submissions should not exceed five pages. The appellant shall file his submissions within 14 days of the release of these reasons. The respondent shall have seven days to reply.
RELEASED: “DD” “MAR 16 2010”
“Doherty J.A.”
“I agree E.E. Gillese J.A.”
“I agree S.E. Lang J.A.”
[1] The dissenting judge in the Divisional Court would have dismissed the appeal from the Appeal Panel’s order directing a new hearing primarily on the basis of the hearing panel’s misapplication of the W.(D.) standard. He also indicated at para. 130 that he agreed with the appeal panel’s conclusion that the reasons were inadequate.