No Bias In Gesture
The Tribunal Hearing Division of the Upper Canada Law Society rejected recusal of panel members and revoked an attorney’s license.
The Lawyer submits that panel member E. Krangle made a physical gesture that evinces her frustration with him and raises a reasonable apprehension of bias. He also submits that the panel’s interferences during the hearing in respect of the misconduct allegations were excessive and one-sided against him. Finally, he submits that the physical gesture together with the panel’s interferences demonstrate conscious or unconscious anti-black racism.
The misconduct findings are linked here.
The gesture issue was raised by the attorney
Une seconde. Je viens de constater que Mme Krangle faisait comme ça, comme si c’était… elle se tapait sur le front comme si je suis en train d’énerver le Tribunal. Je ne suis pas là pour vous énerver, madame.
After a break the panel responded
Je voudrais, d’abord, adresser les derniers commentaires de Me Bahimanga.
Effectivement, un des membres de la formation a eu un moment de frustration. Mme Krangle, elle a une situation médicale dans sa famille cette semaine. Alors son niveau de patience n’est pas à son même niveau que d’habitude. Mais cela ne veut pas dire que nous ne sommes pas… que nous avons préjugé votre affaire, que nous ne sommes pas dédiées à ce que le processus soit… procède d’une façon objective et juste. Alors, nous sommes vraiment dédiées à ce que vous soyez entendu complètement.
Here the panel concluded
Excluding the April 21, 2017 date, when the hearing was adjourned due to Ms. Krangle’s absence, the hearing on the merits occurred over the course of four complete days. One of the panel members exhibited a moment of frustration on one occasion during the Law Society’s cross-examination of the Lawyer, towards the end of the third day of hearing. While unfortunate, the gesture was isolated and occurred late in the day. It was a single incident. We agree with the Law Society’s submission that an isolated expression of impatience or annoyance, by a decision-maker with counsel or a witness, does not of itself create unfairness or raise a reasonable apprehension of bias (see Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47 (CanLII) at para. 243, Kelly v. Palazzo (2008), 89 O.R. (3d) 111, 2008 ONCA 82 (C.A.) (CanLII) at paras. 20-21, and Yukon Francophone School Board, above at para. 30).
Furthermore, we also agree with the Law Society’s submission that the Lawyer belatedly raised his motion for a reasonable apprehension of bias after the panel had issued its decision. For reasons related to the medical situation in her family, Ms. Krangle was unable to attend the scheduled hearing the day after the incident with the physical gesture. The remaining panel members presented the Lawyer with the option to proceed without Ms. Krangle but he chose not to do so. The Lawyer therefore had the opportunity to continue his hearing without Ms. Krangle, whom he now alleges was biased, and chose not do so. It was only after the panel released its decision on the misconduct findings that the Lawyer decided to bring his recusal motion. Having had the opportunity to proceed without Ms. Krangle on April 21, 2017 and the finding of misconduct having been made, it is too late to ask that she recuse herself. Parties against whom alleged bias is directed cannot be permitted to leave the bias unchallenged and continue with the hearing, secure in the knowledge that they can apply to have the result nullified should it go against them: R. v. Curragh Inc., 1997 CanLII 381 (SCC), [1997] 1 S.C.R. 537 at paras. 108 and 113.
As to claimed interference with his case
the Panel did not adopt a double standard but rather intervened whenever a witness, whether called by the Law Society or the Lawyer, was asked or was about to provide opinion evidence.
Racial bias
The Lawyer’s subjective belief, however strongly held, is not sufficient to support an allegation of racial bias. While we agree that direct evidence of racism is not necessary and that racism can be proved by circumstantial evidence, we disagree that there is any direct or circumstantial evidence to support an allegation of anti-black racism. The gesture had no racial connotations but rather, demonstrated some impatience explained by a personal situation…
Ultimately, the panel found that the Lawyer did not discharge the onus of establishing a reasonable apprehension of bias to support his first recusal motion.
Penalty
We accept that the Lawyer repaid the overbilled amounts to LAO through a claw back from other LAO billings. The claw back, however, does not change the seriousness of the conduct. We also concluded that the Lawyer was grossly negligent in the way in which he billed for his services in the young offender case. The Lawyer, however, continues to be extremely upset that LAO clawed back the entire amount he billed LAO in the young offender case because he had performed a lot of work and the client had a successful outcome. In summary, the Lawyer continued not to accept responsibility for any of his billing issues with LAO. There is little, if any, mitigating effect to be taken into account in respect of the LAO billings…
We conclude that there are no exceptional circumstances to justify a penalty other than revocation.
(Mike Frisch)