In an interesting decision released March 16, 2010, Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, the Court of Appeal for Ontario had occasion to consider the importance of reasons for judgment given by an administrative tribunal. The case arose out of allegations that lawyer Gary Neinstein had sex with a client and made untoward remarks to an employee at his firm. Mr. Neinstein categorically denied the allegations, in what the Court referred to as “a classic she said he said” case. A Law Society Hearing Panel determined that the allegations had been made out and ordered that Mr. Neinstein be disbarred. An Appeal Panel allowed the appeal, but a further appeal to the Divisional Court resulted in reinstatement of the Hearing Panel’s decision and the imposition of a three month suspension. The Court of Appeal allowed the appeal and ordered a new hearing on the basis that the Hearing Panel had failed to properly explain why it accepted the evidence of the complainants over that of Mr. Neinstein given substantial conflicts on disputed points in the evidence. The decision is noteworthy for its imposition of the same requirement for adequate reasons in the administrative law context as has been set out in the criminal law context.
The other interesting aspect of the decision relates to an application to admit fresh evidence brought by Mr. Neinstein. The chairman of the Hearing Panel, George Hunter, resigned from his position as Treasurer of the Law Society several years after the hearing as a result of a complaint, which he admitted, that he had consensual sex with a client which was ongoing at the time of the hearing. Mr. Neinstein argued that this gave rise to a reasonable apprehension of bias. Mr. Justice David Doherty of the Court of Appeal described the argument made by Mr. Neinstein’s counsel and the Court’s disposition of it in the following terms:
When asked how Mr. Hunter’s circumstances could give rise to a reasonable apprehension of bias in this matter, Mr. Greenspan offered the following scenario: a reasonable person, informed of Mr. Hunter’s misconduct, could conclude that Mr. Hunter could be disposed to deal harshly with Mr. Neinstein because he knew at the time he was presiding over Mr. Neinstein’s hearing that his own sexual misconduct might come to light and become the subject matter of a professional discipline inquiry at some future point. In treating Mr. Neinstein harshly, Mr. Hunter would hope to create an image of himself at the Law Society as someone who would not tolerate sexual misconduct in a professional context. That image, so goes the scenario painted by Mr. Greenspan, could potentially be seen by Mr. Hunter as helping him if his conduct ever became the subject matter of an investigation or a disciplinary proceeding.
The scenario painted by Mr. Greenspan cannot be dismissed as an outright impossibility. It is, however, based on speculation that goes well beyond the kinds of reasonable inferences that can be made in assessing a reasonable apprehension of bias claim. Individuals who sit in courts or tribunals and are required to make independent and impartial decisions have private lives. Some may do things in those private lives that may be improper or illegal. Those misdeeds may subsequently come to light and become the subject matter of some form of inquiry. To suggest that decision-makers could reasonably be viewed as being influenced by considerations of what might best serve their interests at some unknown future date if some past impropriety should come to light and become the subject of some form of inquiry is farfetched, and stretches the concept of a reasonable apprehension of bias beyond all practical limits. In so holding, I do not exclude the possibility that in a given case there may be evidence that elevates the speculation underlying Mr. Greenspan’s submissions to the level of legitimate inference. I do, however, reject the submission that the necessary link between Mr. Hunter’s personal misconduct and the appearance of partiality can be made on the abstract level presented on this appeal.
The proffered evidence is not capable of supporting a finding of a reasonable apprehension of bias as regards to Mr. Hunter. It is, therefore, irrelevant to these proceedings and should not be received on appeal.