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Divisional Court slams LSUC discipline decision

|Written By Robert Todd

The Ontario Divisional Court, in a strongly worded majority decision, has overturned a Law Society of Upper Canada appeal panel ruling against a Toronto lawyer accused of professional misconduct.

The panel ordered a new hearing panel be created to deal with the allegations against Toronto general practitioner Joseal Igbinosun. The Divisional Court majority used words such as “inexplicable,” “perplexing,” and “mystifying” in reference to an appeal panel’s decision to uphold a professional misconduct finding involving allegations of sexual assault.

A law society spokesperson tells Law Times in an e-mail LSUC is seeking leave to appeal the decision.

“The decision speaks for itself,” Igbinosun, who obtained a stay from the Divisional Court after the appeal panel decision and continues to practise, tells Law Times. “I’m grateful. I have faith in the system. We’ll just move on.”

Igbinosun was accused of sexual assault by three women in February 1998, but those criminal charges were stayed in December 2003 on grounds of delay, says the court’s written judgment released recently in Toronto.

Allegations of professional misconduct stemming from the allegations came forward in March 2004, and in September 2006 a hearing panel found him guilty of professional misconduct. He was disbarred and ordered to pay the society $82,042.80.

In October 2007, an appeal panel dismissed Igbinosun’s appeal, while reducing the cost award.

While Divisional Court justices Anne Molloy and John Jennings in a majority decision ruled the matter should be sent back to a hearing panel, dissenting Justice Romain Pitt found that the matter should be stayed.

Specifically, the majority ruled that Igbinosun was not given enough time to prepare for a penalty hearing, and that an adjournment application should have been granted.

“I was very disappointed with what I saw in this case, in terms of process,” says Igbinosun’s current lawyer, Tracey Tremayne-Lloyd of Gardiner Roberts LLP, who was not involved in the case until it reached Divisional Court.

“The whole case . . . creates a very disappointing picture for those of us who are supposed to be the defenders of the rule of law.”

According to the Divisional Court ruling, none of the complainants were clients of Igbinosun, but “all came in contact with him in his role as a lawyer.”

The law society’s proceedings authorization committee in February 2002 approved an investigation into the allegations. The criminal charges were stayed in December 2003, and in February 2004 PAC approved the closure of the monitoring file. But the complainants approached the law society the next month and said they wanted to go ahead with their allegations at the law society, says the judgment.

Igbinosun was told about the investigations in October 2004, and the judgment states, “No explanation has been provided for this delay in notifying Mr. Igbinosun that the investigation had been reopened.”

PAC in February 2005 approved a notice of application against Igbinosun.

Scheduling conflicts forced his first lawyer on the matter to withdraw from the case. With his second lawyer now retained, Igbinosun brought a stay application on Feb. 27, 2006. The motion was dismissed on April 27, 2006, with the panel chairman dissenting.

Igbinosun’s second lawyer in June 2006 notified the law society tribunals office that he would bring a motion to be removed as counsel, according to the written ruling.

The matter continued, and on Sept. 14, 2006, Igbinosun brought a motion for a four-month adjournment, which was dismissed.

Igbinosun retained a third lawyer, whose participation was contingent on a successful adjournment. On Sept. 18, 2006, the new lawyer appeared before the hearing panel and made a series of motions for adjournment, including a request to continue later the same day so he could deal with a previously scheduled pretrial, said the judgment.

All of those motions were denied, and the lawyer removed himself from the record, and Igbinosun was asked by the panel to proceed.

The panel agreed to delay the matter until later in the day so Igbinosun could get documents from his office. When he returned, he said he felt unable to represent himself and wouldn’t participate in the hearing.

The panel reconvened the following morning, without Igbinosun, said the judgment. Then they heard submissions from law society counsel, and found Igbinosun guilty of professional misconduct for sexually assaulting all three of the complainants.

The hearing panel decided to immediately determine the penalty, while law society counsel was unprepared to do so and told the panel that Igbinosun was entitled to a 10-day notice period and had not received a bill of costs. The hearing panel told the law society to give him “as much notice as possible,” according to the Divisional Court judgment.

Igbinosun was notified of the finding, and on the afternoon of Sept. 20, 2006, the panel went ahead in the matter without Igbinosun. The hearing panel proceeded to disbar him and order costs.

Igbinosun was granted a stay on the hearing panel order on Oct. 13, 2006.

The appeal took place on on June 26 and 27 and Aug. 31, 2007, during which time Igbinosun was represented by the last lawyer he had retained at the hearing panel. The appeal was dismissed on Oct. 30, 2007.

In the Divisional Court judgment, Molloy stated that part of the appeal panel’s decision was “inexplicable.” At one point the panel found that Igbinosun had not been given adequate notice of the penalty hearing, but later stated the opposite, said Molloy.

“There was a clear breach of natural justice in proceeding to the penalty phase without adequate notice to Mr. Igbinosun.” She added there was no need for the penalty phase to move ahead so quickly.

“This was a very serious matter, with potentially dire consequences for Mr. Igbinosun,” wrote Molloy, adding “the penalty imposed cannot stand.”

Molloy then addressed the panel’s Sept. 18, 2006 refusal to adjourn, and stated she found the appeal panel’s reasons to be “perplexing” and “mystifying.” She said the appeal panel decision did not analyze this aspect.

Molloy found that the panel erred in its decision that Igbinosun was not denied natural justice through the hearing panel’s refusal to adjourn on Sept. 18, 2006.

Molloy set aside the hearing panel’s findings and the penalty it ordered, and said Igbinosun is entitled to a new hearing.

In his dissenting opinion, Pitt stated, “I believe and find that the tribunal’s exercise of discretion in denying the stay on the grounds of delay was unreasonable.”

Tremayne-Lloyd says she will bring a motion of stay on the grounds of “completely unreasonable delay” if the law society returns the matter to a hearing panel.

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