An attorney is facing an challenge to her capacity from the Ontario Law Society.
This is a capacity application. Ms. Desrochers was assessed by a psychiatrist (the “Assessor”) in 2024. He concluded that Ms. Desrochers was previously incapacitated by reason of mental illness but that she is not currently incapacitated.
The Law Society seeks a capacity order which would require that, until certain requirements are satisfied, Ms. Desrochers not practise law unless she is continuing under the care of an approved regulated health professional. Ms. Desrochers’s position is that she was not previously incapacitated and that the proposed order should not be made.
The capacity hearing is scheduled to be heard in June 2025. Ms. Desrochers has filed an abuse of process motion which is scheduled to be heard in September 2025.
An preliminary issue regarding her communications in the proceeding drew an opinion from the Chair of the Ontario Law Society Tribunal Hearing Panel.
The Chair declined to take action at this juncture
In my opinion, it is best to take a cautious patient approach. While to date Ms. Desrochers has not demonstrated that she is prepared to accept guidance or direction from the Tribunal, there may be value in simply having found a breach of Rule 5.6(1), having previously provided a reminder about this rule and then having directed compliance with the rule.
Closing comment
As a closing observation, I am concerned that the essential problem may be that Ms. Desrochers does not accept the Law Society’s regulatory authority and responsibility and the Tribunal’s adjudicative authority and responsibility. While it is understandable that the experience of conduct and capacity proceedings can be difficult and stressful, lawyers and paralegals are required to engage professionally in these proceedings.
Recent events
By December 2024, the Assessor’s report had been received and a Proceedings Management Conference (PMC) was held at which the parties agreed that a capacity hearing was the next step to be taken. During and following the PMC, Ms. Desrochers disparaged Law Society discipline counsel. By way of example:
During the PMC, Ms. Desrochers referred to Mr. Iny, Law Society discipline counsel, as Duncan C. Scott rather than as Mr. Iny. On inquiry, Ms. Desrochers advised that Duncan C. Scott was the Deputy Minister of Indian Affairs in 1876 who implemented the Indian residential school system. Ms. Desrochers suggested that, if it wished to resolve this matter, the Law Society should replace Mr. Iny, who she said was abusive, racist and lacking in cultural sensitivity towards Indigenous people.
A few days later, Ms. Desrochers wrote in an email that if Mr. Iny “wants to make more money off my Indigenous back, then by all means, raise the irrelevant issue and bill the LSO for it. He’s being paid big bucks to prosecute me, an Indigenous woman.”
On January 2, 2025, Ms. Desrochers responded to an email from Shannon McDunnough, co-counsel with Mr. Iny, saying, “I read your email again. It blows my mind. From one Indian to another. Stand around the fort, much?”
When the Chair wrote her about respectful communication
As for Mercer’s comment regarding respect. Respect is earned, not demanded. I do not give respect to people whose conduct is unworthy, such as racism, discrimination, bias and conflict of interest. If Mercer doesn’t like my communications, he does not have to read them. If Mercer doesn’t like my communications, then perhaps, he should tell me, the “Indian”, how to correspond with people, like him, who are white, racist, biased, and conflicted. Do not expect me to smile in silence in the face of racism, discrimination, bias etc. either.
In response to a direction to file a document on her abuse of process claim
A number of communications from Ms. Desrochers followed after my endorsement was sent to her at 4:51 pm on April 3. The following sets out some of what was said by Ms. Desrochers:
- April 3 at 5:58 pm – Ms. Desrochers alleged racism, abuse of process, and claimed incorrectly that I had declared a conflict of interest on my case. She stated that she would like my direction to be changed.
- April 3 at 6:58 pm – Ms. Desrochers repeated her communication sent at 5:58 pm
- April 3 at 9:05 pm – Ms. Desrochers filed a short factum, further described below.
- April 4 at 8:12 am – Ms. Desrochers noted that she had filed a factum the night before and asked that “timelines [be set] for the LSO to file their responding affidavit, [her] reply, their factum, and a hearing date for the motion”.
- April 4 at 10:08 am – Ms. Desrochers observed that I teach legal ethics at Osgoode Hall Law School and rhetorically asked whether my direction requiring that she serve her factum was my own ‘ethical conclusion’ and if I created “an unethical ‘onus’ to determine who files the facta first using [my] ‘ethical’ beliefs”. Ms. Desrocher alleged that my direction showed preference to the Law Society.
- April 4 at 10:28 am – Ms. Desrochers asserted that I was acting to delay her motion “to protect your employer, and as we all know, you are a Bencher, and you declared a conflict of interest in my case”. She asserted that I would “do anything to protect yourself and your employer from filing a responding affidavit”, that “You really should not be teaching ethics because I haven’t seen anything ethical come out of you yet …” and “The LSO and yourself as Bencher of the LSO created the Tribunal Rules of Practice to benefit the LSO and not the public interest or licensees”. Ms. Desrocher further stated that “I will be discussing the Tribunal Rules of Practice, and the LSO and LST incestuous conflict of interest in my submissions to the UN”. Ms. Desrochers closed stating “Take a look in the mirror because you will see an unethical man staring back at you.”
- April 4 at 11:01 am – Ms. Desrochers again noted that she had filed her factum and stated that she expected the LSO to file its affidavit evidence within 30 days “since you made me file my factum to give your employer the upper hand”. Ms. Desrochers again asserted that “Your delay in setting timelines and a hearing date for my motion is very telling of your bias and racism”.
- April 4 at 11:38 am – Ms. Desrochers repeated her communication sent at 11:01 am.
- April 4 at 12:05 pm – Ms. Desrochers wrote saying “I can’t wait to discuss Yours, the LSO and LST’s obsessive demand for civility and compare it to the LSO and LST’s practices. We will see what is more important after my examination in front of a forum that has integrity, ethics, and people who are professional. It will make for a good examination.”
- April 4 at 1:52 pm – Ms. Desrochers rhetorically asked whether it is “your “ethical” position that “Indians” are just not entitled to procedural fairness and Rule 8.2(2)?” and claimed that variation of the deadline for materials under Rule 8.2(2) violated her right to procedural fairness. Ms. Desrochers asserted that “Your order will be judicially reviewed and overturned”.
- April 4 at 2:10 pm – Ms. Desrochers claimed that I had refused do as she asked “due to abuse of process and racism” and rhetorically asked if it is my position that “that Indigenous woman lawyers are not entitled to procedural fairness and Rule 8.2(2)?”. She stated that “You have one rule for the Law Society of Ontario, your employer, and one rule for Indigenous lawyers, which I can only construe as racism and abuse of process” and observed that “You can easily correct this matter by scheduling timelines for my motion to dismiss” in accordance with her position.
On April 5, 2025, Ms. Desrocher emailed the Treasurer of the Law Society, with a copy to me, the Tribunal, discipline counsel and two benchers. She stated “You need to do something about Mr. Mercer’s conduct. He needs to be fired and replaced with someone who has integrity, ethics and morals” and “You will see that I copied the UN Special Rapporteurs on my email to Malcolm Mercer regarding his racism, bias, abuse of process, and actual misconduct”. Ms. Desrochers also stated:
I want a hearing date set immediately and I am reserving the right to file my factum until 10 days before the hearing date of my motion to dismiss as stipulated in Rule 8.2(2). (emphasis in the original)
On April 8, 2025, Ms. Desrochers emailed a letter to me, copied to the Treasurer and others. In her cover email, she refers to the Treasurer and certain other unnamed benchers as “culprits” and states that the “legal profession has been calling on [them] to resign”. Her letter repeats allegations described above and concludes saying:
Please recuse from my case as I need a hearing date set for my motion so that I can file my factum according to the timeline set out in Rule 8.2(2), which is at least 10 days before the hearing of my motion. (emphasis added)
(Mike Frisch)