The Role of Mental Illness in Lawyer Regulation (In Ontario)

Can a lawyer be disbarred for misconduct that is directly caused by mental illness? Until recently, my educated guess would have been no.

In May and June of 2026, a Hearing Panel of the Ontario Law Society Tribunal issued an important pair of decisions that carefully and deliberately resynthesize the role and impact of mental illness in lawyer regulation.[1] These decisions set out and apply a “unified approach” to alleged misconduct by lawyers where mental illness may be a factor.[2] At first glance, this new approach seems to reject case law, including case law by the Appeal Panel that was binding on the Hearing Panel. The approach actually clarifies – and to some extent, distinguishes – these precedents.

The conduct at issue included practicing despite an indefinite suspension for incapacity.[3] The Hearing Panel explicitly accepted expert evidence that the lawyer’s mental illness precluded him from recognizing the authority of the law society, including the suspension, and was a but-for cause of the conduct.[4] Nonetheless, the Hearing Panel found professional misconduct and revoked the lawyer’s licence.[5]

This approach and result appear to reject a long line of cases holding that, where a lawyer’s problematic conduct is caused by mental or other illness, that conduct cannot constitute professional misconduct. As recently as 2024 – as the Hearing Panel in these decisions recognized – an Appeal Panel re-affirmed that “[o]ur jurisprudence establishes that it is a defence to professional misconduct if the licensee is unable to comply with their obligations because of physical or mental illness.”[6] A 2002 decision by a Hearing Panel likewise held that “it simply cannot be misconduct where the licensee’s behaviour is explained by a physical or mental illness”.[7]

Despite the explicit and broad language in these precedents, the Hearing Panel held that such defences had only been recognized “where the misconduct has been at the lower end of severity”, and had not been recognized where “it was likely that the misconduct would continue”.[8] The Panel interpreted these precedents as meaning that there was merely a “discretion” to not find misconduct.[9] The Hearing Panel recognized a nuanced role for mental illness as a sometimes defence:

[M]ental illness cannot result in effectively unregulated conduct. Where mental illness is ended or is in remission or can be addressed by rehabilitative capacity orders, treating mental illness as a defence in a conduct application can advance the purposes of regulation of the professional conduct of lawyers and paralegals.

Accordingly, we conclude that mental illness is not invariably a defence to an allegation of professional misconduct but that it can be accepted as a defence taking into account the important personal rights and interests of licensees, the values of rehabilitation and respect for human dignity together with the need for effective conduct regulation of legal services in the public interest.[10]

This multifactorial and discretionary approach is in sharp contrast to the spirit of previous cases in which conduct caused by mental illness could never be professional misconduct.

The Hearing Panel also clarified the distinction between mental illness as a potential defence and mental illness as merely a potentially mitigating factor as to penalty where there was misconduct. Mental illness could be, but was not necessarily, a defence where the misconduct was “a result of their disability” (i.e., a but-for cause of the misconduct).[11] In contrast, mental illness could be, but was not necessarily, a mitigating factor as to penalty where “there is a connection between the misconduct and the disability” but not causation.[12]

The Hearing Panel, however, was noncommittal as to when mental illness would actually be a mitigating factor: “Where there is a finding of misconduct and there is a connection between the misconduct and disability, the disability and its connection to the proven misconduct may be considered at the penalty stage as may be appropriate.”[13] (In fairness to the Hearing Panel, since the mental illness in the matter before them was a but-for cause of the conduct, it was unnecessary to consider this mitigation issue any further.)

While the Hearing Panel rejected the submissions of the Law Society that the burden was necessarily on the lawyer to establish the mental illness and its relationship to the conduct,[14] it was not explicit as to who instead bears that burden:

As this case demonstrates, mental illness can interfere with a person’s ability to recognize disability and to show that a disability is connected to impugned conduct. The salient issue is not how, and by whom, a connection between a mental disorder and misconduct is shown, but rather whether the panel concludes that the required connection exists. As well, and as this case also demonstrates, the Law Society and the Tribunal can play a role in addressing the question of connection.[15]

In doing so, the Hearing Panel rejected a binding Appeal Panel decision that the lawyer bears the onus: “the onus is on the licensee to establish, on a balance of probabilities, that the disability precludes compliance”.[16] The Hearing Panel was explicit that “the panel must determine” these issues and that that is “ordinarily based on expert evidence”.[17] It remains unclear whether the Law Society or the Tribunal have some burden to inquire and what triggers that burden. (Again, in fairness to the Hearing Panel, it was unnecessary to consider this issue any further.)

In its penalty decision, the Hearing Panel explicitly found that the lawyer was ungovernable and that the cause of that ungovernability did not affect that finding or disbarment as the necessary consequence of that finding: “That his belief is the result of mental illness does not change the fact that he is ungovernable. Being a licensee requires being governable as such…. It is unfortunate that mental illness has caused [the lawyer] to be ungovernable, but we conclude that [the lawyer] cannot continue to be licensed.”[18] Intriguingly, the Hearing Panel explicitly recognized that this was an unusual kind of ungovernability, because it was not a failure of the culmination of progressive discipline, but nonetheless it was clear that the lawyer did not recognize the authority of the law society.[19] The Hearing Panel explicitly and very importantly recognized that, if the lawyer’s illness and its impact improved in the future, the lawyer could apply for re-admission.[20]

Subject to further clarification about when and why mental illness connected to the conduct will be an “appropriate” mitigating factor, as well as when and how the Law Society or the Tribunal should raise the possibility of mental illness, this new framework provides a clear, if open-ended and multifactorial, way forward.

With great respect to the Hearing Panel, however, I am not convinced that it was necessary to distinguish the precedents – stating that conduct caused by mental illness cannot be misconduct – so drastically. The facts of this matter were very particular. There would appear to be viable alternatives that would allow for the necessary result in this case without such a pronounced change in the law. For example, the Hearing Panel could have held that conduct caused by mental illness will only constitute misconduct in exceptional circumstances. Or that there is a strong but rebuttable presumption that conduct caused by mental illness cannot be misconduct. Or even that a misconduct finding is only appropriate when the remedy from a capacity application has proven inadequate (or more narrowly, where there is non-compliance with a suspension). The Hearing Panel is correct that “whether a capacity application is brought, or not, is for the Law Society to decide under the Act. Neither the Tribunal nor the licensee can divert to the capacity stream if the Law Society does not agree.”[21] But the Tribunal could nonetheless make it clear to Law Society counsel that where the conduct is caused by a disability, a Panel will only find misconduct if they are satisfied that a capacity proceeding would not have been sufficient in the circumstances. (Amendments to the Law Society Act may be appropriate or necessary for this last approach.[22])

Ultimately, the test adopted by the Hearing Panel can be applied in a manner consistent with compassion and understanding for licensees with mental illness.[23] However, it is not obvious that it must or will be applied in such a manner. (I am by no means suggesting that this Hearing Panel lacked compassion and understanding.) The invocation of rehabilitation and dignity is important, but on its own its impact is difficult to predict. Moreover, while the protection of the public must always be paramount, a different framing of the test would continue to protect the public while sending a strong and valuable signal about mental illness – not only to licensees with mental illness, but to all licensees, the courts, the public, and the media.

More generally, the language used by the Hearing Panel appears to be more tentative that it needed to be. For example, the Hearing Panel observes that “[w]here mental illness is ended or is in remission or can be addressed by rehabilitative capacity orders, treating mental illness as a defence in a conduct application can advance the purposes of regulation of the professional conduct of lawyers and paralegals.”[24] Again with respect, in those circumstances such a defence does advance the purposes of regulation, except in the situation where the licensee refuses treatment.

I understand that where misconduct is caused by mental illness, disbarment cannot be absolutely impossible and will sometimes be necessary. The unusual facts in this case demonstrate that reality. I nonetheless hope that such disbarment will be rare.

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[1] Law Society of Ontario v Bogue, 2026 ONLSTH 91 [Bogue merits], 2026 ONLSTH 109 [Bogue penalty].

[2] Bogue merits, supra note 1 at para 128.

[3] Ibid at para 9. There was also a citation around civility, which was also established, but seemed to play little role in the analysis: paras 38-48.

[4] Ibid at para 32.

[5] Ibid at para 147; Bogue penalty, supra note 1 at paras 15-16.

[6] Law Society of Ontario v McLennan, 2024 ONLSTA 10 at para 21 [McLennan], quoted in Bogue merits, supra note 1 at para 81.

[7] Law Society of Ontario v Phillips, 2022 ONLSTH 2 at para 38, quoted in Bogue merits, supra note 1 at para 81.

[8] Bogue merits, supra note 1 at para 112.

[9] Ibid at para 82.

[10] Ibid at paras 115-116 [emphasis added].

[11] Ibid at paras 128, 129 (quotation is from 128)

[12] Ibid at para 129.

[13] Ibid at para 129 [emphasis added].

[14] Ibid at para 119.

[15] Ibid at para 122.

[16] McLennan, supra note 6 at para 21, quoted in Bogue merits, supra note 1 at para 81.

[17] Ibid at para 128.

[18] Bogue penalty, supra note 1 at paras 12, 15.

[19] Ibid at paras 10-12.

[20] Ibid at para 16.

[21] Bogue merits, supra note 1 at para 124.

[22] Law Society Act, RSO 1990, c L.8.

[23] Bogue merits, supra note 1 at para 129: “Where misconduct results from disability, this approach permits, but does not require, a determination other than a finding of professional misconduct. This approach permits, but does not require, diversion to the capacity stream where misconduct results from disability. Where there is a finding of misconduct and there is a connection between the misconduct and disability, the disability and its connection to the proven misconduct may be considered at the penalty stage as may be appropriate.”

[24] Ibid at para 115 [emphasis added].