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Inherently Improbable

By Michael Frisch

The Ontario Law Society Appeal Division sustained a finding that one of two allegations of misconduct had not been proven with respect to the attorney’s representation of clients in an accident case.

The allegations

In July 2015, the Lawyer sexually harassed MT, as defined in Rule 6.3.0 of the Rules, by:

a.      making unwelcome inquiries into MT’s sex life;

b.      engaging in unwelcome physical conduct of a sexual nature; and

c.      making unwelcome sexually suggestive comments…

MT and her son KT were the Lawyer’s clients as plaintiffs in a personal injury action arising out of a tragic motor vehicle accident in 2013. KT was an adult passenger in a car driven by a friend that went off the road and down into a valley. As a result of the accident, KT suffered life-changing head and leg injuries. His mother, MT, left her job as a personal support worker to look after him full-time. The Lawyer was retained to act for them in their personal injury claim.

The allegations against the Lawyer related to a period of about one day. On July 27, 2015, the Lawyer brought MT and KT to Toronto to prepare for their examinations for discovery. It was common ground that the Lawyer drove MT and KT from their home in Shelbourne, Ontario to Toronto and discussed their anticipated evidence with them during the drive.

However, their stories diverge in three significant respects: first, with respect to what was said during the drive on the highway; second, with respect to whether they had dinner when they arrived in Toronto and what was said during dinner; and third, with respect to what, if anything, occurred in the hotel room later that evening.
 
During the drive to Toronto, MT testified that she began to ask the Lawyer some questions and he responded, “shut the fuck up or I will throw you on the fucking highway.” KT recalled different language being used. He said that the Lawyer was angry because MT was talking to him, and he said he would throw her out on the road if she did not shut up. The Lawyer denied that this conversation occurred.
 
After arriving in Toronto, MT testified that the three of them had dinner at a restaurant before going to the Lawyer’s office to do more preparation for discovery. MT said that the Lawyer asked her during dinner whether she had ever been with a 40-year-old. KT had a different recollection. He said that they only arrived in Toronto at 8 or 9 PM, and that the only meal that the three of them had together was breakfast the next morning. KT did not say anything about the Lawyer making a comment of the kind recounted by MT.
 
The Lawyer denied having dinner with MT and KT. He testified that he dropped the two of them off at their hotel room, told them to get something to eat, went to his nearby office, and then returned for an hour of further preparation in the hotel room. He denied asking MT anything about 40-year-olds. He said that at one point MT asked him how old he was because he looked young to be handling her son’s case. He told her [he] was 43 years old and told her his year of call to the Bar.

Their was agreement of a hotel room meeting; what took place was in dispute

With respect to what, if anything, happened later that evening in the hotel room, MT and KT testified that the Lawyer let himself into their hotel room with a key card, which surprised them. They were in their pajamas.

 MT said that the Lawyer arrived with his suit on his shoulder and a duffel bag. He sat down on her bed and said he wanted to give her a massage. She was offended. She turned to KT and told him to get into her bed. She said she was terrified. The Lawyer then stood up, undressed down to his underwear, and got into the other bed. MT said that she and her son watched the Lawyer all night, at least until they fell asleep at some point. KT woke her up in the morning and said it was time to go to discoveries. At that point, the Lawyer asked her whether she wanted to have a shower. She did not know whether he was referring to the two of them showering together, or her having a shower alone. She said no, went into the bathroom, locked the door, and got dressed.

KT gave an account of what happened in the hotel room that differed in some respects from MT’s. KT testified that after the Lawyer checked them in but did not go up to their room right away. Instead, he said he would be back. MT and KT then put on a movie, and the Lawyer arrived carrying a bag with his clothes. He opened the door with a key card, told his clients to turn off the movie they were watching, and began discussing the case. MT was giving KT a massage at the time, and the Lawyer asked if she would mind giving him one as well. She asked if he was serious and said she didn’t think it would be a good idea. Later on, MT asked the Lawyer if he was going home and the Lawyer said no. MT told the Lawyer that he was not sleeping with her. The Lawyer slept on the bed beside MT and KT, and stayed up, watching the two of them. In the morning, KT had to wake up the Lawyer. The Lawyer said, “holy shit, I have to have a shower. Does your mother want to come in with me?” MT was “weirded out”. She got dressed in the room while the Lawyer had a shower.
 
The Lawyer agreed that he met with them in their hotel room and that they may have been in their pajamas at the time. He testified that he dropped them off at the hotel, gave them the key, and told them he would be back later and that they should get something to eat. He later returned, spent an hour or less in the hotel room with his clients, and left. He denied all of the allegations about inappropriate conduct in the hotel room. He denied staying overnight and denied asking for a massage. He denied making any comments about having a shower.
 
The hearing panel has “significant concerns” about the reliability of the evidence
 
In rejecting MT’s and KT’s allegations against the Lawyer, the hearing panel made it clear that it was not relying on the alibi evidence of a woman with whom the Lawyer claimed he was having an extramarital relationship and with whom the Lawyer said he spent the night after leaving MT and KT at their hotel. Given its conclusions regarding the credibility and reliability of the evidence given by MT and KT, the hearing panel found that it did not need to decide whether the alibi was genuine. Nor did it have to decide whether the Lawyer had lied to the Law Society investigator when he told them he probably went home that evening because he did not want to admit to an extramarital affair.
 
Appeal
 
…we understand the hearing panel to have taken note of the inherent improbability of KT’s and MT’s account of what happened in the hotel room. In light of this improbability, the hearing panel concluded that it could not find the allegations to have been proven on a balance of probabilities without some additional evidence to shore up the weaknesses in the Law Society’s case. This is a proper, context-sensitive application of the applicable standard of proof and not an error.
 
(Mike Frisch)

Posted in:
Bar Discipline & Process