Appeal Of Penalty Rejected
The Ontario Law Society Tribunal Appeal Division rejected an appeal to a 30 day suspension imposed by a hearing panel
Before the hearing panel, the parties put forward an agreed statement of facts (ASF) and a joint document book (JDB) relating to three particulars of alleged professional misconduct:
• sexual harassment or discriminatory conduct toward some of his female employees, contrary to Rules 6.3-3 and 6.3.1-1 of the Rules of Professional Conduct
• sending correspondence to Client A that was abusive, offensive or otherwise inconsistent with the proper tone of professional communication from a lawyer, contrary to Rule 7.2-4 of the Rules
• sending correspondence to Client B and Client B’s father that was otherwise inconsistent with the proper tone of professional communication from a lawyer, contrary to Rule 7.2-4 of the Rules.
The first particular
• The appellant made references to “hookers” in front of three of his female staff, referring to sex trade workers.
• He made comments about his female receptionist in front of others, asking clients, “Doesn’t my receptionist look good?” He also commented on her age and told her he could not believe how young she looked. This caused her to leave her employment after three months.
• After a telephone encounter with a post office employee, he sent an email to two employees who had unsuccessfully attempted to retrieve a package before turning to him for help. Among other things he told them he had “shouted at both these bitches but it didn’t do any good…. A little bit of power going to the head of people on minimum wage.”
Reply to an unhappy client
The appellant replied, in part: “It is clear from all you have been through – beating and been urinated on – you are a very unhappy person – Not our problem – Don’t take it out on people who tried to help you. It was explained clearly to you why matter was sent from one court to another.” He also stated, “…apart from offer of a discount I am not willing to spend more time in it until we get [t]o court as I know you just [m]eant to punish someone to get back at your husband by proxy.”
Appeal of penalty
As always, penalty determinations are case-specific, and mitigating and aggravating circumstances vary widely in cases involving similar seriousness of misconduct. Given the circumstances of the three particulars in this case, and the fact that the appellant essentially conceded at the hearing that his penalty appeal would not be successful, this is not a case in which to delve further into the appropriate penalty for sexual harassment alone, or sexual harassment combined with one or two particulars of uncivil communications.
The hearing panel addressed much of the relevant jurisprudence, although it was responding to a case in which liability was largely admitted, and in which the parties’ opposing positions effectively put before it a penalty range between a reprimand and a one-month suspension.
We therefore dismiss Mr. Rogerson’s appeal against the penalty.
(Mike Frisch)