Conflict of Interest and Cognitive Illusions: Law Society of Upper Canada v. Neinstein

Today’s decision in Law Society of Upper Canada v. Neinstein, 2010 ONCA 193 deals with sufficiency of reasons in an administrative law context.   In an earlier decision, the Court of Appeal for Ontario in King’s Bay Development Corp. v. Cornerstone Custom Homes Ltd., 2009 ONCA 611, confirmed that the test for sufficiency of reasons applies equally in both the civil and criminal context. Essentially, the unsuccessful party must understand the rationale behind the decision or “why they lost”:

“[21] … King’s Bay submits that the trial judge’s reasons are sufficient and that the record supports his findings. It relies upon the decision of the Supreme Court of Canada in R. v. M. (R.E.), [2008] 3 S.C.R. 3, where the court pointed out that a trial judge’s reasons are sufficient if they show why the judge arrived at the decision; it is not necessary for the reasons to demonstrate how the judge reached the decision. But, as McLachlin C.J.C. said in R. v. M. (R.E.) at para. 20, “the trial judge need not expound on evidence which is uncontroversial, or detail his or her findings on each piece of evidence or controverted fact, so long as the findings linking the evidence to the verdict can be logically discerned” [emphasis added]. That was not done in this case. The reasons in this case contain bare conclusions tainted by a misapprehension of the parties’ positions and a misunderstanding of the impact of [the trial judge’s] order. To the extent the reasons show why the trial judge arrived at his conclusions, the reasons are erroneous.”

While most may read the Neinstein decision through the prism of sufficiency of reasons, I find Justice Doherty’s analysis on the issue of fresh evidence relating to an allegation of reasonable apprehension of bias against the chairman of the Hearing Panel and former Treasurer of the Law Society of Upper Canada, George Hunter, rather intriguing:

“[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.”[my emphasis]

It would appear that Mr. Hunter was suffering from cognitive dissonance in not averting to his own inherent conflict of interest. How a former Treasurer of the Law Society of Upper Canada—the repository of professional conduct and sentinel of public trust over Ontario’s legal profession—fails to recuse himself from presiding over a professional disciplinary hearing of another lawyer accused of sexual impropriety with his clients, while, at the same time, being involved in an improper sexual relationship with his own client, is  Kafkaesque. 

Doherty, J.A. continues,

“[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.]

 Justice Doherty then addresses, albeit obliquely, Mr. Hunter’s hypocrisy and cover-up and opts to gild the lily of judicial impartiality:

“[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.”

I find the learned Justice’s reasoning here unpersuasive. The rules or guidelines for recusal or disqualification are somewhat of a red herring and built upon a faulty premise. The presumption that the trier of fact is impartial is sacrosanct, admitting of very rare exceptions. Fair enough. Judges are presumed to be impartial by virtue of their elevation to the Bench. However, to dismiss as irrelevant a panel member’s own sexual impropriety that is the subject-matter of the disciplinary proceedings is a classic example of the Biblical parable that “those who live in glass houses, should not throw stones.” Moreover, to get bogged down into the issue of the timing of the recusal or disqualification fails to acknowledge the psychological effects of hindsight bias  or Déformation professionnelle, let alone failing to take into account the primacy effect and recency effect on decision-making processes. In layman’s terms, this is wilful blindness at its best, or hypocrisy, at its worst, depending on whether or not you are a moral relativist. 

At least Mr. Neinstein gets another chance at a fair and impartial hearing.

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