[1] C. Scott Marshall (for the panel):– We found that Andrew Robert Kerr (the Lawyer) engaged in professional misconduct by:[1]
[2] The Lawyer argued that mental illnesses made it impossible for him to respond to the Law Society without accommodation. We concluded he was capable of complying with his professional obligations without accommodation.
[3] Having found misconduct, we turn to penalty and costs. It is worth noting that at the time of the penalty hearing, the Lawyer had yet to provide the Law Society with responses in nine active investigations despite being on notice that failure to provide responses would be an aggravating factor in determining penalty. Some of these responses have been outstanding for more than three years.
[4] We find the Lawyer to be ungovernable and order that his licence to practise be revoked forthwith. He shall pay costs to the Law Society in the amount of $52,215.53. Our reasons with respect to penalty and costs follow.
Andrew Robert Kerr (the Respondent), was found to have committed professional misconduct on the following established allegations: (1) With respect to four Law Society investigations, the Respondent failed to reply promptly and completely to 11 Law Society communications, over a period of almost 12 months, contrary to s. 49.3(2) of the Law Society Act and Rule 7.1-1 of the Rules of Professional Conduct. On May 17, 2018, the Law Society Tribunal – Hearing Division ordered that: (1) The Respondent’s licence to practise law shall be suspended for one month, effective May 22, 2018, and shall continue to be suspended indefinitely thereafter until, to the satisfaction of the Executive Director, Professional Regulation of the Law Society or her designate (the “Executive Director”), he has provided a complete response to the Law Society requests dated May 3, 2017 and May 4, 2017 in relation to the four following Law Society investigations: Case No. 2016-200275; Case No. 2017-204157; Case No. 2017-206039; and Case No. 2017-208003. (2) While suspended pursuant to this order, the Respondent shall comply fully with the terms of the Law Society’s Guidelines for Lawyers Who Are Suspended or Who Have Given An Undertaking Not to Practise. (3) The Respondent shall pay costs to the Law Society in the amount of $4,000 on or before the deadline of May 4, 2019. Starting the day following the deadline for the payment of costs, interest shall accrue on any unpaid part of those costs at a rate of 3% per year.
Appeal – June 18, 2018
By Notice of Appeal to the Law Society Tribunal – Appeal Division, dated June 18, 2018, Andrew Robert Kerr (the Appellant) appealed the Order of the Law Society Tribunal – Hearing Division, dated May 17, 2018.
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Law Society of Ontario v. Kerr, 2018 ONLSTH 139 (CanLII), <http://canlii.ca/t/hvht1
Summary:
KERR – Procedure – Adjournments – The Lawyer’s adjournment request was granted so that he could file a medical report, which he submitted would support his argument that his disability was a relevant factor with respect to any finding of misconduct or any potential penalty.
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Law Society of Ontario v. Kerr, 2018 ONLSTH 65 (CanLII), <http://canlii.ca/t/hs3bb
Summary:
KERR – Failure to Co-operate – The Lawyer failed to reply promptly and completely to the Society’s inquiries in relation to four investigations, over a period of almost 12 months – He admitted his misconduct and he had no prior disciplinary record – The Lawyer described a series of staff disruptions and personal misfortunes, but there was no evidence from a health care practitioner about the medical condition he reported – In any event, during the period of his non-compliance, he was able to continue practising successfully – The Lawyer’s licence was suspended for one month, continuing indefinitely until he has provided a complete response to the Society’s requests regarding the four investigations.
REASONS FOR DECISION
OVERVIEW
[1] Raj Anand:– The Law Society alleged that Mr. Kerr (the respondent) failed to reply promptly and completely to its inquiries in relation to four of its investigations. Its evidence was contained in an affidavit of the Law Society’s investigator, which was admitted on consent. I made a finding of professional misconduct, which the respondent did not oppose, and I indicated that short written reasons would follow.
[2] Proceeding to penalty, Mr. Kerr testified and submitted additional evidence. Duty counsel submitted that the penalty should be a reprimand with conditions, while the Law Society asked for a one-month suspension. After argument, I reserved my decision.
[3] After considering the matter further, I order a one-month suspension, together with the agreed to amount of $4,000 in costs. These are my reasons.
PROFESSIONAL MISCONDUCT
[4] The affidavit evidence showed that over a period from May 3 to October 18, 2017, the investigator requested Mr. Kerr’s responses to the Law Society’s inquiries in order to proceed with five investigations. She received a response in one investigation on October 25, 2017, and none in the other four. During this period, the investigator wrote three letters and exchanged nine phone calls or messages with the respondent. The Law Society gave Mr. Kerr about six time extensions for response between May and October 2017.
[5] Based on this evidence, I made a finding of professional misconduct relating to the respondent’s failure to submit a full and timely response to the Law Society’s inquiries.
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NOTICE OF APPLICATION – CONDUCT https://lawsocietytribunal.ca/Current%20Proceedings/Kerr18H-084NOA.pdf
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16-002815 v The Personal Insurance Company of Canada, 2017 CanLII 56677 (ON LAT), <http://canlii.ca/t/h5pwq
[17] The respondent contends the medical note provided by applicant’s counsel was insufficient as it failed to provide a medical opinion to explain why counsel could not make a phone call or email the Tribunal, or give instructions to an assistant to explain he was having medical issues and request an adjournment. The respondent argues that despite illness it was unreasonable for counsel to fail to advise the Tribunal and/or request an extension until 26 days after the first deadline was missed.
[18] The respondent quoted LAT decision B.F. v. Wawanesa Mutual Insurance Company, 2017 CanLII 9821 (ON LAT) as authority. In this case, the Adjudicator awarded costs against the respondent for failing to comply with the Tribunal’s production orders twice and for not providing a reasonable explanation until a request had been made for costs. The Adjudicator found the representative’s conduct was unreasonable as it was disrespectful of the Tribunal’s process and interfered with the Tribunal’s ability to run an efficient hearing.
[19] Applicant’s counsel submits that the nature of his illness has impeded his ability to comply with the Tribunal’s orders. Applicant’s counsel argues that the intention of the legislation is that an award of costs be granted in extreme circumstances. He acknowledges missing a number of deadlines and was delayed in notifying the Tribunal. Furthermore, he indicates his illness has been corroborated in the doctor’s note submitted. Therefore, his actions cannot be defined as unreasonable because his actions were not deliberate or a contemptuous course of action, as the term “unreasonable” suggests.
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16-002815 v The Personal Insurance Company of Canada, 2017 CanLII 63664 (ON LAT), <http://canlii.ca/t/h6cfz
[8] On February 17, 2017, the respondent wrote to the applicant advising that they had not received any submissions in relation to either hearing.
[9] On February 23, 2017, the Tribunal contacted the applicant’s representative to inquire about their intention to proceed as they had not filed any submissions. The Tribunal spoke with the representative’s assistant who confirmed an intention to proceed, and left a voicemail for the applicant’s counsel.
[10] On March 14, 2017, the Tribunal received correspondence from the applicant’s representative indicating that he had not been in touch with the Tribunal due to illness and requesting an extension to file submissions. This letter also enclosed a FSCO Report of Mediator dated June 21, 2016 in relation to the written preliminary hearing that was scheduled for March 2, 2017. The applicant had only recently provided this report to the respondent.
[11] On the same date, the Tribunal received correspondence from the respondent opposing the applicant’s request for an extension to file submissions and opposing acceptance in evidence of the Report of Mediator. The respondent cited Rule 9.4 of the Tribunal’s Rules of Practice and Procedure which deals with the Tribunal’s discretion to not accept evidence that is in non-compliance with the Tribunal’s Rules and Orders. In addition, the respondent indicated an intention to formally request an Order for costs for the applicant’s failure to advise the Tribunal of his medical condition in a timely manner and his subsequent request for an extension to file submissions.
Adjournment Request
[12] On March 16, 2017, the day of the scheduled hybrid hearing, a teleconference was held with the parties. The applicant’s representative advised that he was not prepared to proceed with the hearing and asked for an adjournment. I asked the applicant’s representative why he had failed to request an extension to file submissions or file a proper request for an adjournment. The applicant’s representative advised that he has had various medical issues and most recently an illness that rendered him completely unable to work. He indicated that he could provide a doctor’s note confirming same. I asked that he provide the Tribunal with a medical certificate no later than March 23, 2017.
[13] I further inquired about why he did not provide instructions to someone at his office to communicate his health issues to the Tribunal and request an extension and adjournment. He replied that he is unfamiliar with Tribunal work and got the dates of the written and preliminary hearing mixed up.
[14] After hearing the parties submissions, I granted the request for an adjournment of the hybrid hearing. In coming to this decision, I considered the principles of procedural fairness and the disadvantaged position that the applicant would be in if he was forced to proceed in the absence of the ability to file any submissions or evidence. I reminded the applicant about the Tribunal’s commitment to providing a fair open and accessible process that is also timely. I also cautioned the applicant about any further delays. To balance the rights of the respondent, I have given it the opportunity to provide submissions on costs. Details with respect to the new dates and deadlines for submissions follow in the attached order.
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