OTTAWA - The Ontario Court of Appeal has overruled a Law Society of Upper Canada hearing panel’s finding that Toronto personal injury lawyer Gary Neinstein sexually harassed two women on separate occasions more than 12 years ago.
In a ruling that was highly critical of the law society’s panel composed of an Ottawa lawyer, a law professor, and a lay bencher that heard the case in 2002, Justice David Doherty’s ruling in a unanimous decision last week said the reasons the original hearing panel gave for its findings were so inadequate they made a meaningful appeal review impossible and therefore constituted an error in law that had to be remedied.
Neinstein’s lawyer, Brian Greenspan, argues the LSUC should now drop the disciplinary matter.
The case included a bizarre and ironic twist concerning “fresh evidence” that Greenspan said demonstrated a reasonable apprehension of bias on the part of the chairman of the original panel, lawyer George Hunter.
In 2007, Hunter was found guilty of professional misconduct for carrying on a sexual affair with a client during the same period of time he and his panel were hearing Neinstein’s case.
Greenspan theorized Hunter knew at the time that his own misconduct might come to light and that in treating Neinstein harshly, would have hoped to create an image of himself as someone who wouldn’t tolerate sexual improprieties in a professional context. Doherty rejected that theory as stretching “the concept of a reasonable apprehension of bias beyond all practical limits.”
Doherty nonetheless strongly criticized the panel for failing to give adequate weight to or ignoring evidence and testimony from Neinstein, his wife, and other witnesses.
With agreement from justices Eileen Gillese and Susan Lang, Doherty allowed Neinstein’s appeal from a Divisional Court judgment that restored the hearing panel’s original decision after the Law Society Appeal Panel had earlier overturned it. He referred the case to a new hearing with a different panel.
For his part, Greenspan tells Law Times he hopes the LSUC will decide to drop the prosecution in part because of the eight years that have passed since the original disciplinary panel heard the evidence. The allegations related to events that allegedly took place between 1988 and 1998, according to the judgment.
“The original panel, just in terms of discipline matters, was on another planet,” Greenspan says of its ruling, which included an order that Neinstein be disbarred. The Divisional Court, while restoring the original finding,
reduced the disbarment to a three-month suspension.
“One would have to hope that in light of the judgment and the passage of time and the enormous adverse effect that the publicity has had on Mr. Neinstein’s career and his life, one would hope that the law society would be pretty circumspect before it chose to reprosecute,” Greenspan says.
The law society alleged that Neinstein had sexually harassed three women: C.T., a client; S.G., a secretary in his law office; and L.D., a family friend and client. The original panel rejected the claims by L.D.
“This was a classic ‘he said-she said’ case,” Doherty wrote. “The complainants testified about various acts of sexual harassment. The appellant denied those acts occurred. Other witnesses were called, and while their evidence was important, it was clearly secondary to the evidence of the main protagonists.”
C.T., who met Neinstein when he was acting for her brother, retained him in 1988 in a claim from an accident in which she was involved.
She testified that from the outset, he seemed “overly friendly,” made sexual comments, and touched her in inappropriate ways. She alleged she and Neinstein began a consensual sexual relationship in August 1990 that continued until mid-December of that year.
C.T. said she ended the relationship that month but kept him as her lawyer until 1991, when she settled her accident claim. She claimed she came to feel ashamed of the relationship but didn’t report him to the law society because Neinstein was still representing her brother.
She complained to the LSUC after Neinstein settled her brother’s lawsuit in 1997. Neinstein denied all of the allegations, including consensual sex, and testified she continued to retain him until 1994, when he settled her claim. He testified he did the best for her but said there were “significant problems” with her claim.
C.T. claimed she didn’t know Neinstein was married, despite testimony from his wife and secretary that there were numerous photos in his office of his entire family.
S.G., the second complainant, worked for Neinstein’s firm from September 1990 until May 1991. She claimed he had made inappropriate comments and gestures toward her, often while working late at night, and that at one point he said he would require sexual favours in return for a raise.
Neinstein denied those allegations.
In another odd twist in the case, Steve Ellis, the former Immigration and Refugee Board judge who is now on trial in Toronto for allegedly extracting sexual favours from a South Korean refugee claimant, was a lawyer at Neinstein’s firm during the period S.G. claimed she was sexually harassed.
S.G. testified she had mentioned some of Neinstein’s alleged advances to Ellis, who, she claimed, described Neinstein as “an old perv.” Ellis, who had been appointed by the federal Liberal government to the refugee board by the time the law society panel heard the allegations against Neinstein, denied speaking to S.G. about Neinstein’s conduct.
Doherty said the hearing panel gave no rationale or reasons for rejecting Neinstein’s version of events rather than those of C.T. and S.G. and “effectively excluded a large body of evidence from its credibility analysis.”
“There is no analysis of his evidence or the evidence of his witnesses,” Doherty wrote. “It can be fairly said that Mr. Neinstein, on a reading of the hearing panel’s reasons, would have absolutely no idea what, if anything, the hearing panel made of his evidence and that of his supporting witnesses.”