A Law Society of Ontario tribunal has dismissed a lawyer’s motion to set aside an agreed statement of facts (ASF) in a professional misconduct case involving allegations of sexual harassment against two female employees. The tribunal found that the lawyer — R.Y.M. — did not prove the ASF was uninformed or involuntary, nor that failing to set it aside would result in a miscarriage of justice.
The tribunal concluded that the ASF, executed on Jan. 17, 2023, should stand. The panel ordered that if the Law Society of Ontario (LSO) relies on the ASF at the merits hearing and professional misconduct is found, the LSO must honour the previously agreed penalty and costs submission.
Background of the case
On Aug. 4, 2021, the LSO filed an application alleging that between August 2017 and November 2019, R.Y.M. engaged in professional misconduct by sexually harassing two female employees. The allegations included making sexually suggestive comments, unwelcome advances, and inappropriate electronic communications.
Following a series of pre-hearing conferences and negotiations, both parties entered into an ASF and a joint submission on penalty and costs. The ASF detailed the misconduct, including numerous excerpts from messages exchanged between R.Y.M. and one of the complainants, referred to as Person A. The agreed penalty included a four-month suspension and $12,500 in costs.
Motion to set aside the ASF
On April 24, 2023, shortly before the scheduled hearing, R.Y.M. brought a motion to set aside the ASF. He argued that he was not in the necessary voluntary state of mind when he signed the document, due to severe post-traumatic stress disorder (PTSD) and other mental health issues stemming from past abuse by his father and a professional associate, referred to as Person C.
He claimed that each time he attempted to read the ASF, he experienced blackouts and psychological debilitation, rendering him incapable of making a conscious, volitional decision. He also alleged that he was misled by LSO counsel regarding the inclusion of victim impact statements and that he signed the ASF without fully understanding its contents or consequences.
The LSO opposed the motion, asserting that after extensive discussions and with the assistance of experienced counsel, R.Y.M. had voluntarily and knowingly executed the ASF. The LSO argued that the finality of resolution agreements is crucial to the regulatory process.
Tribunal’s analysis and decision
The tribunal considered evidence from multiple sources, including affidavits, medical and therapy reports, and testimony from witnesses such as R.Y.M., his former counsel M.S., and a psychiatrist. The panel also reviewed numerous email exchanges between R.Y.M. and his counsel during the negotiation of the ASF.
The tribunal found that the evidence did not support the claim that the ASF was executed involuntarily or without full understanding. They noted that:
- Throughout the negotiation process, which spanned several months, “(R.Y.M.) actively engaged in his review of ASF drafts and he understood its potential impact on him.”
- There was no contemporaneous evidence indicating that he experienced blackouts or psychological debilitation when reviewing the ASF.
- His communications demonstrated a clear understanding of the allegations, the legal implications, and the potential consequences.
Regarding the alleged misleading conduct by LSO counsel, the tribunal stated: “We find that LSO counsel did not act improperly in asking the complainants if they wanted to prepare victim impact statements and following up with them.” The panel found no evidence of improper conduct or misrepresentations.
The tribunal also assessed the medical evidence, acknowledging diagnoses of PTSD and other mental health conditions. However, they concluded that these did not impair his capacity to voluntarily and knowingly execute the ASF. The panel expressed concerns about the objectivity of the expert witness, noting that “we have significant concerns with his lack of independence and impartiality. This affects the weight we give to his evidence.”
In their conclusion, the tribunal stated: “We find that Mr. M. had the requisite cognitive capacity to enter into the ASF and that he did so voluntarily.” They dismissed the motion to set aside the ASF.
The dismissal of the motion to set aside the ASF means that the agreed-upon facts and joint submission on penalty and costs remain in effect, pending the merits hearing. The tribunal emphasized that resolution agreements contribute to the efficiency and integrity of the regulatory process and should be upheld unless there is clear evidence to the contrary.
For more information, see Law Society of Ontario v. Moubarak, 2024 ONLSTH 116 (CanLII).
