The Law Society of Ontario’s appeal regarding allegations of sexual harassment against a lawyer has been partially dismissed. The appeal panel upheld the hearing panel’s dismissal of misconduct allegations related to two clients, but reversed a costs award against the Law Society.
Background
The case originated from a conduct application by the Law Society alleging that the lawyer — S.K.S. — engaged in conduct unbecoming a licensee. The allegations involved inappropriate behaviour towards a junior staff member, F.J., and clients M.T. and her son, K.T. The Law Society accused the lawyer of sexual harassment, contrary to Rule 6.3-3 of the Rules of Professional Conduct.
In its initial decision, the hearing panel found that the lawyer had engaged in misconduct concerning F.J. but dismissed the allegations related to M.T. and K.T. The panel imposed a three-month suspension and awarded costs against the Law Society, finding that the proceedings regarding M.T. and K.T. were “unwarranted.”
The appeal
The Law Society appealed both the dismissal of the allegations concerning M.T. and K.T. and the costs award.
The appeal panel found no error in the hearing panel’s analysis of the evidence provided by M.T. and K.T. “The hearing panel was entitled to make the findings that it did regarding credibility and the implausibility of the complaints,” the panel stated.
Significant inconsistencies in the testimonies of M.T. and K.T. affected their credibility and reliability. Discrepancies existed regarding events during a trip to Toronto, including differing accounts of conversations, dinner arrangements, and what occurred in the hotel room.
“The picture painted by M.T. and K.T. of the lawyer’s behaviour in the hotel room was difficult to believe on its face,” the appeal panel noted. “Their description of how the lawyer forced his way into their hotel room and stayed the night was so ‘out of keeping with expectations and reality’ that the hearing panel found it difficult to accept in the absence of additional evidence.”
The appeal panel also addressed concerns about relying on myths or stereotypes in assessing credibility. “The hearing panel did not rely on myths and stereotypes about the behaviour of victims of sexual misconduct,” the decision stated. The panel emphasized that the hearing panel based its findings on specific evidence presented during the hearing.
Costs award reversed
While upholding the dismissal of the misconduct allegations concerning M.T. and K.T., the appeal panel found that the hearing panel erred in awarding costs against the Law Society. The hearing panel had concluded that the proceedings were unwarranted and that the Law Society should have known there was no reasonable prospect of success.
The appeal panel disagreed, stating, “Given the serious nature of the allegations, the fact that M.T.’s allegations were supported by another witness (K.T.), and the information that was known to the Law Society prior to the hearing, it is understandable why the Law Society asked the Tribunal to perform a credibility assessment.”
The panel concluded that the high threshold for demonstrating that a proceeding was undertaken without justification was not met. “The panel made a palpable and overriding error when it determined that the M.T. allegations were not warranted,” the decision read.
The appeal panel’s decision reinforces that while inconsistencies in testimony can undermine credibility, allegations should be carefully considered, especially when they involve serious misconduct. The reversal of the costs award against the Law Society also signals that regulatory bodies should not be penalized for bringing forward serious allegations that require a formal hearing to resolve.
“The public interest requires self-governing professions to publicly air serious cases, in order to maintain public confidence in the regulation of the profession,” the panel noted.
Summary
The appeal was dismissed except for the appeal of the hearing panel’s order of costs against the Law Society, which was granted. As a result, the lawyer is required to pay the Law Society a total of $25,000 in costs regarding the proceedings before the hearing panel.
“No costs are awarded on the appeal,” the panel concluded.
