No Stay Pending Appeal

The Ontario Law Society Appeal Division has denied to order a stay and order restricting openness sought by an attorney who had been determined to be incapacitated from the practice of law

 I do not consider the fact of the appellant’s straitened circumstances to be sufficiently personal or sensitive to warrant a Rule 13 order. It is to be expected that an individual in the appellant’s situation may have financial problems – for many years he was a successful lawyer. He is now no longer able to practice law, and, like many other suspended lawyers, is having difficulty supporting himself. However, this is not a core aspect of the appellant’s life – hopefully it will remain a temporary situation.  The mention of this in a Tribunal decision does not constitute an affront to the appellant’s dignity. There is no need to address the further requirements of Rule 13 and Sherman Estate. The Tribunal is, however, mindful of privacy issues and must be careful to ensure that personal information unnecessary to ensure openness is not included through “the exercise of discretion in drafting reasons.”

Prior finding

On January 12, 2024, the appellant Lawyer, Kristin Ernest Hutton (the appellant) filed an appeal from a decision of the Hearing Division declaring that he is incapacitated, and a suspension and costs order issued on December 5, 2023. He requested an appeal hearing on an expedited basis.

Background

The Law Society initiated an investigation of this matter in October 2017, after it received complaints that the appellant had commenced several proceedings in Federal Court, alleging that he had been the victim of the Canadian government.

The appellant claimed (and still claims) that the government improperly accessed and altered data on his cell phone and positioned friends, legal colleagues and intimate partners, as part its unlawful attempts to recruit him into the Canadian security apparatus. Some of the Federal Court claims dealt with his allegations concerning a former girlfriend. After this claim was dismissed, her lawyer complained to the Law Society.

Between 2017 and 2020 the appellant commenced six further proceedings in Federal Court, attempting to validate his theories and obtain evidence that he was in fact being surveilled by the Canadian government. He also sought redress for the harm allegedly caused to him by the alleged surveillance activities.

The appellant also lodged a complaint with the College of Nurses of Ontario against his former girlfriend on August 17, 2018. He requested that she be investigated for her “dual role” acting as both a nurse and an operative of the government’s security apparatus.

The Law Society asked the appellant to voluntarily attend for a psychiatric assessment. He refused to do so.

Therefore in 2018 the Law Society retained Dr. Sumeeta Chatterjee, a forensic psychiatrist, to review the documents which had been gathered in connection with the Society’s investigation, and to provide a preliminary assessment of the appellant’s health status. She concluded that there was a reasonable likelihood that the appellant was experiencing a major mental illness of a psychotic nature, likely a delusional disorder, persecutory type.

The appellant ran in the Law Society’s 2019 Bencher election. Part of his published platform included uncovering individual lawyers acting in a “duel [sic] capacity” role.

In April 2019 the Law Society of Ontario filed a motion requesting that the appellant undergo a medical assessment, to determine whether he was incapacitated in respect of this ability to practise law.

The appellant resisted the requested order for assessment. The motion hearing spanned several months, mainly due to the pandemic and the resultant temporary suspension of hearings. During this period, at least six interlocutory motions were filed in connection with the motion hearing.

On November 4, 2020, the hearing panel ordered the appellant to attend for a psychiatric assessment pursuant to s. 37 of the Act, with reasons to follow.

On February 24, 2021, the panel released its reasons for making the requested order, as well as reasons dealing with the various interlocutory motions (none of the interlocutory motions were allowed).

The appellant accordingly attended for a psychiatric assessment, carried out by forensic psychiatrist Dr. Andrew Morgan. Dr. Morgan reviewed the extensive documentation from the Law Society and conducted an assessment which included meeting with the appellant in person, twice. On March 14, 2022, he provided a report diagnosing the appellant with a delusional disorder, persecutory type, and opined that this condition arose in 2015 and continues to persist. On June 8, 2022, he provided a supplementary report at the request of the Law Society investigator.

Dr. Morgan concluded that the appellant was incapacitated from mid-2015 until his departure from Gibbs & Associates in January 2016.

Dr. Morgan examined the appellant’s conduct and concluded that he was not currently incapacitated with regards to his (then functioning) construction law practice but that he was incapacitated with respect to his self-represented litigation before the Federal Court. He opined there was a risk that the appellant may eventually draw people from his construction law practice into his delusional system, thereby putting the public at risk.

Dr. Morgan noted that the appellant’s delusional system was stable, in that it did not appear that he had incorporated anyone he has met since 2016 into his delusional construct. However, if he were to incorporate others (clients, court staff, opposing counsel or parties from his construction law practice) into his delusions, there would be a high risk that the appellant’s conduct as a lawyer would be heavily influenced by his delusional beliefs, and he could thus become incapable in his private practice.

A supplemental report opined that he had a delusiona7l disorder

The appellant’s defence in the application focused on his assertion that his accusations against the government were not a delusion, but rather true facts. However, his efforts to continue with his various Federal Court proceedings and access various requests for information from several federal government departments, in order to persuade the Hearing Division that his conspiracy theory was factual, were unsuccessful.

(Mike Frisch)