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Anonymity Issues

By Michael Frisch

The Ontario Law Society Hearing Division dealt with anonymity concerns in a matter where a 30-day suspension was imposed for non-cooperation with bar investigations

XY’s position is that I should find that absent anonymization, publication/dissemination of his regulatory status and the reasons for it will cause him serious, and possibly extreme, psychological harm. He argues that because of his unique psychological makeup, public disclosure of personal information (such as details about his mental health) or the findings against him would be particularly damaging to his mental and psychological health. In support of this position, he points to the opinion of Dr. Colleton that there is “a significant likelihood that public disclosure of findings and/or reasons against [XY] would have an adverse effect upon him that is greater than the average person.”

The Law Society’s position is that the evidence does not support a finding that a serious risk of psychological harm exists in this case. The Law Society submits that: 1) at the hearing on the merits of the application, XY did not testify or provide any sensitive information that is not currently available in the public domain; 2) the fact of his suspension (resulting from my April 2022 order) was noted in two Superior Court endorsements from June 2022 in related (but different) proceedings; and 3) XY did not seek a similar order in earlier Law Society proceedings and there is no evidence of resulting serious psychological harm. Citing Xynnis, the Law Society also says that the evidence that XY is more vulnerable because of his unique situation is not enough to justify derogation from the openness principle, particularly as it relates to the order and reasons of the Tribunal.
 
Harm 

 Dr. Colleton’s opinion is that the specific impact on XY’s mental health that may result from public disclosure of my order and/or reasons in respect of this application is of a different quality, and in a higher register, than the discomfort, embarrassment, or anticipated negative psychological reaction of many licensees occasioned by the usual openness in which the Tribunal operates. In response to a question regarding the specific impact on XY’s psychological health that may result from public disclosure (by way of publication) of my findings and order, Dr. Colleton stated:

In terms of specific impact, the likely outcomes include personality-based feelings/reactions…, adjustment disorder as a secondary consequence, and major depressive disorder as a more significant tertiary consequence. These psychological responses have been observed repeatedly over the past several years of involvement with the Law Society….

This is not simply an issue of XY wishing to avoid publicity regarding the finding and penalty, or avoiding the societal stigma that, unfortunately, still surrounds mental health issues. Rather, as identified by Dr. Colleton, the potential for serious psychological harm to XY is far different than that experienced by the “average” licensee in similar circumstances. Historically, XY has experienced unusually intense emotional reactions well out of proportion to the stress ordinarily associated with the Law Society regulatory process, including anxiety and a sense of being overwhelmed; shame-based paralysis; and, at times, symptoms that meet criteria for major depressive disorder.

Order

 Based on my findings, and bearing in mind Rule 13.3(2) of the Tribunal Rules, I make the following order on the Rule 13 motion:

1.      XY’s name and file number will be anonymized in any version of these reasons that is available to the public.

2.      The Tribunal will not provide any link to the anonymized reasons that are associated with this Tribunal file.

3.      My endorsements in respect of this application will remain not public.

4.      There will be a publication ban on the record of proceedings other than the public portions of the notice of application and orders on this application.

(Mike Frisch)

 

Posted in:
Bar Discipline & Process