Agreed Statement Not Set Aside

The Ontario Law Society Tribunal Hearing Panel denied a motion to set aside an agreed statement of facts (“ASF”) in a matter involving allegations that the attorney had sexually harassed two women.

The attorney contended the ASF was not voluntary

During the motion, Mr. Moubarak proffered Dr. Gerard Kimmons as an expert witness. Dr. Kimmons conducted a psychiatric interview with Mr. Moubarak, reviewed diagnostic criteria and made diagnoses. His report details that he was asked to opine in four areas.

 In separate reasons we held that, although we have significant concerns with the evidence and report of Dr. Kimmons, we found that his evidence met the threshold for admissibility as an expert in relation to his expertise in one area, specifically in identifying the psychiatric diagnoses/mental health conditions that exist or have existed for Mr. Moubarak. With regard to the other areas in which Dr. Kimmons opined, we found that he was not properly qualified to opine in these areas. He has no experience, education, expertise or qualifications to opine on these legal issues. We also found that at points Dr. Kimmons was an advocate for Mr. Moubarak.

Allegations

On February 7, 2020, two women complained to the Law Society that Mr. Moubarak, their employer, had sexually harassed them, primarily in writing. Mr. Moubarak was notified of the allegations on February 27, 2020. By March 13, 2020, Mr. Moubarak had hired Bill Trudell, a senior counsel with significant regulatory experience, to assist him with the complaints.

Agreed statement

•           Mr. Moubarak sexually harassed two female employees (Person A and Person B) of the law firm at which he was the managing partner: para. 1.

•           Mr. Moubarak admitted the facts in the ASF and they constituted the professional misconduct alleged in the notice of application (NOA): para. 3.

•           Having had the assistance of counsel, Mr. Moubarak has reviewed and understands the NOA and this ASF: para. 4.

•           Mr. Moubarak voluntarily admits the truth of the facts in the ASF and the authenticity of the documents in the document book: para. 5.

•           The parties agree that because of the admissions in this ASF, neither party need prove the facts in the ASF through a full hearing with testimony or other evidence: para. 6.

•           In relation to the NOA, Mr. Moubarak specifically admitted (para. 7):

o   (1)(a): making sexually suggestive or obscene comments;

o   (1)(b): making unwelcome sexual flirtations advances, or propositions; and

o   (2)(a): making sexually suggestive or obscene comments.

•           Mr. Moubarak specifically denied the allegations of (para. 7):

o   (1)(c): unwanted touching,

o   (2)(b): making unwelcome sexual flirtations, advances, or propositions, and

o   2(c): leering.

•           Mr. Moubarak understood that if a panel accepted the admissions in the ASF, it could make a finding of professional misconduct and would consider the appropriate order to make. Mr. Moubarak also understood that a panel might not accept a joint submission as to penalty or costs: para. 9

•           Detailed the sexual harassment of Person A, which included 67 excerpts from written messages by Mr. Moubarak to Person A and her responses: paras. 17-28.

•           Stated that Mr. Moubarak’s “sexually harassing written messages to Person A and her responses are appended in full in the Document Book at Tab A”: para. 23.

•           Detailed the sexual harassment of Person B, including specific emails over two separate days: paras. 39-43.

•           The ASF contained four paragraphs for each complainant describing the impact of Mr. Moubarak’s misconduct on them:

o   Person A reported that she did not feel she could leave the firm earlier because she needed to complete articling to continue in the LSO licensing process; the licensee’s incessant communications prevented her from being able to concentrate during her articles; she feared being fired for not returning the licensee’s affections; she worried she would not be called to the bar with her friends; the licensee’s actions made her feel uncomfortable, frightened and anxious; she was mortified by his attentions; and, after becoming an associate at the firm, she resigned, with the licensee’s behaviour being a major factor in that decision: paras. 29-33.

o   Person B reported that he made her feel uncomfortable, embarrassed, degraded, and fearful of crossing his path; she was disgusted by him because he harassed her while she worked with his wife; she stopped wearing dresses and skirts to the office to avoid his unwanted attention; she began to fear him; she did not feel comfortable reporting his behaviour; and Mr. Moubarak’s behaviour was harmful to her mental health, so she resigned from the firm: paras. 44-47.

Merits of the motion

 We find that Mr. Moubarak has not met the onus to demonstrate that he entered into the ASF involuntarily. Absent evidence to the contrary, which is not present here, he is presumed capable: Gibbs at para. 6. In order to find that he met his onus, we would need to accept the evidence of Mr. Moubarak about the confluence of factors he was under at the time of signing the ASF and its impact on him. As detailed above, we do not accept his evidence. Furthermore, while the medical evidence details Mr. Moubarak’s mental health diagnoses and struggles, that does not automatically satisfy his onus: Gibbs at para. 6. As the court stated in R. v. Baylis, 2015 ONCA 477 at para. 47:

Anxiety, depression, chronic pain, anger management issues and difficulty in communicating are very real problems. However, they establish neither an inability to understand the nature of the criminal proceedings in which the appellant was involved, nor an inability to make an effective choice as to the plea to be entered on the charges.

There is no credible and competent testimony that those issues caused impairment of Mr. Moubarak which would render entering into the ASF involuntary.

 Rather, the evidence which we accept – the written communications Mr. Moubarak had with his counsel and Mr. Trudell’s evidence – establishes that Mr. Moubarak clearly understood the nature of the proceedings (for example, he was trying to minimize embarrassment and sought to serve the suspension in a way most beneficial to himself); he could communicate with counsel; and he made an active, conscious choice to engage with the process, as repeatedly demonstrated by his responses to his lawyer’s communications to him (e.g. his numerous emails to Mr. Trudell between March 29, 2022 and January 17, 2023). Further, specifically on January 17, 2023, we find that, contrary to Mr. Moubarak’s evidence, he was in the office that day, not aimlessly driving around.

Order 

If the LSO relies on the ASF at the merits hearing of this application and professional misconduct is found by the hearing panel, the LSO must honour the previously agreed penalty and costs submission of a four-month suspension and $12,500 in costs.

(Mike Frisch)