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The Court of Appeal of B.C. has tossed out findings of professional misconduct against a lawyer after his mental health condition was not considered by a Law Society of BC panel of adjudicators.
Bijan Ahmadian, a senior business and tax lawyer at Wiebe Wittmann Robertson LLP, was cited by the society’s executive director on July 26, 2021 for concerns about trust shortages, funds borrowed from clients, and non-compliance with trust accounting requirements. A panel ultimately decided on April 5 that Ahmadian’s actions in seven instances constituted professional misconduct and a “marked departure from the behaviour that is expected from lawyers.”
However, Ahmadian appealed the decision arguing the panel failed to adequately assess the society’s allegations. With his successful appeal Ahmadian is expected to face reconsideration of a new hearing.
A chief concern of Ahmadian was that the panel concluded that medical evidence he put forth was irrelevant to the question of whether his actions constituted professional misconduct.
Ahmadian submitted via his doctors that he was diagnosed with a depressive disorder and an anxiety disorder and these disorders in turn caused an impairment of decision-making and cognitive function.
The society, for its part, argued past instances of medical conditions being irrelevant to findings of professional misconduct; however, those instances did not put forth the argument that Ahmadian did — that the condition directly impacted his actions.
The panel also ruled that the doctors were family doctors and not mental health professionals.
“In my view, the unfortunate failure to recognize the evident qualifications of Drs. Ranger and Dawkins to diagnose and treat mental illness, and to weigh their evidence, undermines the Panel’s conclusion that the appellant engaged in professional misconduct,” wrote Justice Peter Willcock, who noted it would still have been possible for the panel “to conclude that the evidence was insufficient to establish the appellant was suffering from a condition …that may have precluded him from fulfilling his obligations.”
Ignoring the possible impact of Ahmadian’s mental health on his actions was not the only problem with the panel’s decision, according to Willcock; the judge also poked holes in other manners by which the panel came to the conclusion Ahmadian committed professional misconduct.
As part of the decision, the judge agreed with Ahmadian that the panel ought to have also listened to and accepted the evidence of Ahmadian’s witness Kent Wiebe, a lawyer specializing in real estate conveyance.
For not accepting Weibe’s evidence, Willcock called the manner in which the panel dealt with Weibe, “problematic.”
As for an allegation that Ahmadian misappropriated money from a trust account, Willcock found the panel ought not to have described the possible misconduct as misappropriation.
Nevertheless, Willcock did not rule out that Ahmadian did not commit misconduct at any rate.
Willcock did find the panel erred in law with respect to an eighth allegation that was a breach of rules and not the more serious act of professional misconduct. As such, the judge tossed aside that finding; however, the seven dismissed allegations were ordered remitted to the law society for reconsideration.
Justices Elizabeth Bennett and Bruce Butler concurred with Willcock’s ruling on Dec. 14.
