Williams (by Williams) v. Hertzberg, 2024 BCHRT 310
Date Issued: November 5, 2024
File: CS-001346/19909
Indexed as: Williams (by Williams) v. Hertzberg, 2024 BCHRT 310
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Craig Williams (by Patricia Williams)
COMPLAINANT
AND:
Peter Hertzberg
RESPONDENT
REASONS FOR DECISION
Tribunal Member: Jessica Derynck
Agent for the Complainant: Patricia Williams
On their own behalf: Peter Hertzberg
Date of Hearing: March 9, 10, 22, April 28, 2023, with written submissions closing September 28, 2023
Location of Hearing: Videoconference
I INTRODUCTION
[1] Craig Williams is an Indigenous man and a member of the Cowichan Indian Band. He was in a serious motor vehicle accident [MVA] in 2014, which has physically and mentally impacted him to this day. He also has ongoing physical limitations and pain related to a spinal surgery in 2018. He has difficulty caring for himself and performing many everyday tasks. His mother, Patricia Williams, helps him in all aspects of his life.
[2] Mr. Williams was criminally charged with assault in August 2017. In May 2018 he needed a criminal lawyer to represent him in defending against this charge. He retained Peter Hertzberg through Legal Aid. Ms. Williams supported Mr. Williams in his interactions with Mr. Hertzberg, who was his lawyer from May 2018 to March 2019. Mr. Williams’ criminal case did not conclude during this time period.
[3] Ms. Williams filed a human rights complaint against Mr. Hertzberg on Mr. Williams’ behalf on October 2, 2019. The complaint alleges that Mr. Hertzberg discriminated against Mr. Williams because he is Indigenous and based on physical and mental disability. Mr. Williams claims that Mr. Hertzberg did not acknowledge his disabilities, aggressively communicated with him and Ms. Williams, stereotyped them during a phone call on June 28, 2018, and then did not communicate with him about his case again until shortly before a trial date of March 22, 2019. Mr. Williams alleges that at that court date, Mr. Hertzberg was again aggressive with him and Ms. Williams, ignored a previous letter in which Mr. Williams told Mr. Hertzberg that he no longer wanted his legal representation, and did not accept Ms. Williams’ necessary assistance to Mr. Williams.
[4] Mr. Hertzberg denies discriminating. He says all of his conduct and communication were for the purposes of understanding the case against Mr. Williams to represent him or meeting his duty to the court. He acknowledges a lapse in communication after June 2018 but says this was due to an administrative error and was unrelated to Mr. Williams being Indigenous or his disabilities.
[5] For the following reasons, I find that Mr. Hertzberg discriminated against Mr. Williams regarding a service customarily available to the public based on physical and mental disability, contrary to s. 8 of the Human Rights Code. I find that Mr. Hertzberg communicated with Mr. Williams in a negative and unsupportive way that did not account for Mr. Williams’ disabilities throughout their lawyer/client relationship. This led to Mr. Williams terminating the relationship before his case was concluded. I find this to be an adverse impact in which Mr. Williams’ disabilities were a factor. I find that Mr. Hertzberg has not established a justification for this adverse impact.
[6] I find that Mr. Hertzberg did not discriminate against Mr. Williams based on race or Indigenous identity.
[7] I apologize to the parties for the delay in issuing this decision.
II OVERVIEW
[8] Mr. Williams was 42 years old at the time of the hearing. He unfortunately has suffered from symptoms including chronic pain and cognitive impairments since his MVA, which were also complicated by his spinal surgery in June 2018. He relies on Ms. Williams’ support for everyday life activities like shopping, preparing meals, taking care of his son, and transportation.
[9] Mr. Williams has a Representation Agreement that was executed on May 4, 2018, under s. 7 of the Representation Agreement Act , which names Ms. Williams as his representative [RA7]. The RA7 gives Ms. Williams the authority to assist Mr. Williams to make decisions or to make decisions on his behalf, including those related to routine management of his financial affairs, obtaining legal services and instructing counsel, and consent for health care and personal care.
[10] Mr. Williams emailed Mr. Hertzberg on May 16, 2018, to say he was in a bind for a lawyer to deal with an assault charge. He said he was approved for a change of lawyer by Legal Aid because his previous lawyer did not respond to phone calls or meet with him a second time, and he needed to provide information. He explained some of the background to his assault charge, including that the alleged assault victim was the driver when he was in the MVA and he had an ongoing civil case against her. Mr. Williams said that his injuries from the MVA included a concussion, “PTSD”, chronic pain, short-term memory issues, and a “TBI”. PTSD stands for post-traumatic stress disorder and TBI stands for traumatic brain injury; Mr. Williams did not explain these acronyms in his email. He said that the alleged assault victim was harassing him, she had come to his house subsequent to the assault charge to try to have him charged with breaching a no contact order, and that he had called 911 twice to have her removed from his property.
[11] Mr. Williams told Mr. Hertzberg in his email that he went to court with Ms. Williams on May 15, 2018, and that Ms. Williams had an “RA7”; he did not explain what an RA7 is. He said Ms. Williams gave the judge the context around his assault charge and issues with the alleged victim. Mr. Williams explained that the judge said he did not see why the matter could not be resolved before trial and had told Mr. Williams to get a lawyer to speak to Crown. Mr. Williams said he was looking for a lawyer to speak to Crown and ideally resolve the case before May 22, 2018, and although he knew this was short notice he had to try to find someone.
[12] Mr. Hertzberg responded to Mr. Williams on May 18, 2018, and said he was happy to assist. He said he had spoken with Crown counsel and that the trial date was set for May 31, but that he could apply for an adjournment with Crown’s consent. Mr. Williams replied to Mr. Hertzberg and thanked him. The May 31 trial date was adjourned.
[13] Mr. Williams and Ms. Williams spoke with Mr. Hertzberg on June 28, 2018, on a phone call that lasted 50 minutes. Mr. Williams and Ms. Williams recorded this phone call. Mr. Hertzberg did not know at the time that it was being recorded. During the call Mr. Hertzberg asked Mr. Williams and Ms. Williams for information and context related to the assault charge. I explain further details of this phone call and Mr. Williams’ allegations related to this call in the analysis section below.
[14] Ms. Williams and Mr. Hertzberg spoke again on June 29, 2018, for about seven minutes. Again Ms. Williams recorded the conversation and Mr. Hertzberg was not aware that she was doing so. Mr. Williams was not on this call. During this call Mr. Hertzberg explained his intended next steps in Mr. Williams’ case, including that a date would be set for trial. I also set out further details of this phone call in the analysis below.
[15] On July 4, 2018, the court scheduled Mr. Williams’ trial date for March 22, 2019.
[16] Mr. Hertzberg did not inform Mr. Williams or Ms. Williams about the scheduled trial date. Mr. Hertzberg explained that this was due to an administrative error, which I detail in the analysis below.
[17] Ms. Williams emailed Mr. Hertzberg on September 24, 2018, for an update on the case. Mr. Hertzberg’s assistant responded and said they would be in touch when they had an update.
[18] There was no further contact between the parties until March 2019.
[19] Mr. Williams became aware of his upcoming trial date by March 12, 2019, likely because Mr. Hertzberg’s office contacted him about meeting in advance of the trial. Mr. Hertzberg did not know at this time that his office had failed to inform Mr. Williams of his trial date.
[20] Mr. Williams called Mr. Hertzberg on March 12, 2019, asked Mr. Hertzberg to send him his file, and said he wanted a new lawyer. Again, this phone call was recorded without Mr. Hertzberg’s knowledge and I set out details of the call in the analysis below.
[21] On March 15, 2019, Ms. Williams filed an application in court asking for Mr. Williams’ case to be dismissed because of delay [March 15 Application].
[22] Mr. Williams sent Mr. Hertzberg a letter dated March 18, 2019, setting out his reasons for terminating their lawyer/client relationship [Termination Letter], including that Mr. Hertzberg did not communicate with him for over seven months, Mr. Hertzberg made racial comments in their June 28, 2018, phone call, all documents related to his case had been withheld from him, and no one in the justice system had ever heard his side of the story.
[23] Mr. Williams and Ms. Williams went to court on the trial date of March 22, 2019. Mr. Hertzberg attended because he was still on record as Mr. Williams’ counsel. Mr. Hertzberg was removed from the record as Mr. Williams’ counsel on this date. I set out the details of Mr. Williams’ allegations related to this court date in the analysis below.
[24] Mr. Williams retained a new lawyer to deal with his assault charge and it was resolved by his agreement to a peace bond on July 2, 2019.
III ISSUES AND SUMMARY OF FINDINGS
[25] Section 8(1) of the Human Rights Code prohibits discrimination regarding a service customarily available to the public because of personal characteristics including physical or mental disability, race, or Indigenous identity.
[26] To establish discrimination based on physical or mental disability, Mr. Williams must establish that he has a disability, he experienced an adverse impact in a service customarily available to the public, and that his disability was a factor in the adverse impact. To establish discrimination based on his race or Indigenous identity he must establish that his being Indigenous was a factor in an adverse impact: Moore v. BC (Education), 2012 SCC 61 at para. 33.
[27] Mr. Hertzberg may defend against the complaint by proving that he had a bona fide and reasonable justification [BFRJ] for his conduct. To do this he has to show that: (1) his conduct was for a purpose or goal that was rationally connected to the function being performed, (2) he behaved in good faith, and (3) his behaviour was reasonably necessary to accomplish his purpose or goal, in the sense that he could not have accommodated Mr. Williams without undue hardship: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) , [1999] 3 SCR 868 at para. 20.
[28] There is no dispute that the Codeprotects Mr. Williams from discrimination based on race or Indigenous identity as an Indigenous man and member of the Cowichan Indian Band. Mr. Hertzberg also does not dispute that Mr. Williams has physical and mental disabilities. However, I found it necessary to decide whether he has established that he has a physical or mental disability protected under the Code and how any disability impacts his functioning when obtaining a lawyer’s services.
[29] Mr. Hertzberg acknowledges that there were issues with his communication and service, and he regrets that Mr. Williams did not get the representation that he deserved. I had to decide whether any of the issues were an adverse impact on Mr. Williams, and if so, whether any of his protected characteristics were factors.
[30] Finally, Mr. Hertzberg gave evidence about his explanations for his conduct, and it was necessary to decide whether he established a BFRJ.
[31] In this decision I find that:
a. Mr. Williams has physical and mental disabilities protected under the Code.
b. When Mr. Williams’ and Mr. Hertzberg’s lawyer/client relationship is considered in its full context, Mr. Hertzberg’s communication failures throughout the relationship made his legal services inaccessible to Mr. Williams and resulted in Mr. Williams terminating the lawyer/client relationship. This constitutes an adverse impact.
c. Mr. Williams’ disabilities impact how well he is able to function and communicate in a service relationship with a lawyer and were a factor in the adverse impact.
d. Mr. Williams being Indigenous was not a factor in the adverse impact. In their phone call on June 28, 2018, Mr. Hertzberg spoke about Mr. Williams being Indigenous, but did not inappropriately consider this factor and did not stereotype him or Ms. Williams. Mr. Williams being Indigenous also was not a factor in any of the communication problems that followed the phone call or the interactions at court on March 22, 2019.
e. Mr. Hertzberg has not established a BFRJ for the adverse impact Mr. Williams experienced because of his disabilities. In particular, he has not established that he could not have accommodated Mr. Williams’ disabilities without experiencing undue hardship. This means he has not established a defence to the complaint.
[32] In short, I find that Mr. Hertzberg discriminated against Mr. Williams based on physical and mental disability, contrary to s. 8 of the Code. I explain the remedies I order at the end of this decision. I find no discrimination based on race or Indigenous identity.
IV EVIDENCE AND CREDIBILITY
[33] I heard this matter over four days. Three witnesses, including Ms. Williams, testified for Mr. Williams. Mr. Hertzberg testified and had no additional witnesses.
[34] Mr. Williams did not testify. Ms. Williams explained that Mr. Williams wished to introduce himself at the start of the hearing, but otherwise would not attend because it was too upsetting for him. Mr. Williams started to introduce himself but appeared to be quite stressed. Mr. Hertzberg offered to turn off his camera so it would be more comfortable for Mr. Williams to introduce himself, he did so, and Mr. Williams was able to introduce himself. Mr. Williams did not appear at the hearing again.
[35] This case involves different perspectives much more than disputed facts, but Ms. Williams’ credibility is essential because Mr. Williams’ case depends on whether I accept her evidence about his disabilities and how the events impacted him. I find that Ms. Williams did her best to provide an accurate recollection of events within her knowledge, and that her evidence was sincere and credible.
[36] Mr. Williams’ other witnesses were his chiropractor, Dr. Darren Burry, and Christine Smith, the director of an organization called Cowichan Brain Injury.
[37] Mr. Williams did not seek to introduce expert opinion evidence from Dr. Burry or Ms. Smith under the Tribunal’s Rules of Practices and Procedure .Though Mr. Hertzberg did not object to any of Dr. Burry or Ms. Smith’s evidence, some of their evidence strayed into expert opinion evidence. I decline to rely on their opinion evidence because Mr. Williams did not adduce it in keeping with the Rules. Section 27.2(1) of the Code gives the Tribunal discretion to admit evidence that would not be admissible in a court if the Tribunal deems it necessary and appropriate. Mr. Williams establishes his case of discrimination based on disability without the witnesses’ opinion evidence, and I do not find it necessary or appropriate to rely on their opinion evidence in these circumstances.
[38] I find that Mr. Hertzberg made some effort to provide reliable evidence, however, it is clear from documentary evidence, which I accept, that some of his testimony was not accurate. To some extent inaccurate recollections are understandable with the passage of time, but where his testimony clearly contradicts accepted documentary evidence, I find that he did not make a careful effort to give accurate evidence at the hearing. I treat his evidence with some caution for this reason. I also find that Mr. Hertzberg was not always cooperative during cross examination and became defensive at times. Some frustration and defensiveness are understandable in his position; the Tribunal’s process may be stressful for any party, and I do not expect respondents to a complaint of discrimination to give evidence with a complete lack of frustration or emotional response. However, in some instances Mr. Hertzberg became overly defensive, and I find that his evidence was not always sincere. Where Ms. Williams’ and Mr. Hertzberg’s evidence conflicts, I prefer Ms. Williams’ evidence. Where these factors impact how I assess Mr. Hertzberg’s evidence to make my decision I explain this in my analysis below.
[39] Mr. Williams entered recordings of phone calls with Mr. Hertzberg on June 28, 2018, June 29, 2018, and March 12, 2019, into evidence. Mr. Hertzberg did not know at the time of the phone calls that they were being recorded. The Tribunal has noted concerns with having surreptitious recordings in evidence: Chestacow v. Saanich School District No. 63 , 2014 BCHRT 165 at para. 38. In this case Mr. Hertzberg did not object to the recordings as exhibits. There is no dispute that each recording is of the entire phone call. I also find that the recordings are clear. I rely on them as necessary to make my decision. I note that Mr. Hertzberg testified that he could not always hear Mr. Williams and Ms. Williams as clearly in the June 28, 2018, call as they sound on the recording. I considered his evidence in considering the recordings. I explain my use of the recordings in the analysis below.
[40] Aside from the evidence that I consider to be opinion, as I explain above, I have considered all of the evidence admitted by the parties at the hearing. In my reasons below I recount only the evidence necessary to make my decision.
V ANALYSIS AND DECISION
A. Mr. Williams’ disabilities
[41] The Code does not define physical or mental disability. In Morris v. BC Rail, 2003 BCHRT 12 at para. 214, the Tribunal set out considerations for assessing whether an individual has a physical or mental disability, including any physical or mental impairment, any functional limitations resulting from an impairment, and the social, legislative, or other response to the impairment and/or limitations. The focus on the societal response is to be assessed in light of the concepts of human dignity, respect, and the right to equality.
[42] Ms. Williams testified about, and entered documentary evidence related to, Mr. Williams’ disabilities. She also entered evidence from Dr. Burry and Ms. Smith about treatment and services Mr. Williams received for his disabilities. This included evidence about impacts of the MVA and of a spinal surgery on Mr. Williams’ mobility and pain. I do not need to explain this evidence in detail because these are not the impacts of his disabilities that I find to be a factor in an adverse impact.
[43] In this section I explain aspects of Mr. Williams’ disabilities that I do find to be a factor in an adverse impact. I find that he has impairments that give rise to functional limitations, which impact his ability to communicate and function to benefit from the services of a lawyer/client relationship.
[44] When Mr. Williams was in the MVA in 2014 he was in the passenger seat of a vehicle that crashed at a high rate of speed. His head made direct contact with the windshield. The significant impacts of the MVA unfortunately continue to this day. These include impacts on his ability to function, which mean he relies on Ms. Williams in many aspects of his life.
[45] Mr. Williams said he had PTSD and a TBI in his initial email to Mr. Hertzberg on May 16, 2018. It is not clear on the evidence whether it was PTSD, which may be described as a mental disability arising from the trauma of the accident, a TBI, which may be described as a physical disability from impacts to his brain in the accident, or both, impacting his functioning at the times relevant to the complaint, but I find that it does not matter which of these two diagnoses impacted him in particular ways. I find that Mr. Williams has a disability that impairs his cognitive functioning following the MVA, from PTSD and/or a TBI, based on the following evidence.
[46] In June 2016 a registered psychologist assessed Mr. Williams to provide a medical legal perspective of his neuropsychological status following the MVA. I do not rely on the psychologist’s opinion to make my findings because the psychologist was not introduced as an expert witness at the hearing. Rather, I rely on the fact that Mr. Williams was assessed and diagnosed at this time, which is consistent with Ms. Williams’ evidence about his condition and the amount of support he needed from her.
[47] The psychologist provided a report diagnosing Mr. Williams with PTSD with delayed expression, which she explained means his symptoms developed gradually after the MVA. The psychologist said Mr. Williams likely sustained a mild TBI in the MVA, but at that time she could not assess whether Mr. Williams also had cognitive impairment due to a TBI because of the severity of his psychiatric distress. She explained that PTSD impacts cognitive functioning, including complex information processing, attention, and memory, whether or not the person has also experienced head trauma.
[48] In January 2018 Mr. Williams’ family physician wrote a letter with respect to an appeal for a disability application. Again, I do not rely on the physician’s opinion because the letter was not introduced as expert evidence. I consider the fact that Mr. Williams’ physician reported at this time that Mr. Williams missed many appointments in the past and needed constant reminders, but Ms. Williams stepped in to help him attend, resulting in a stark contrast in his attending the clinic. Similarly, in April 2018 another physician wrote that Mr. Williams has problems with short-term and long-term memory and would always need someone present to assist during any consultations or interactions, and that Ms. Williams filled this role and would probably continue to in the near future. This evidence is consistent with Ms. Williams’ evidence about how much support Mr. Williams needed from her during the time relevant to the complaint.
[49] Ms. Williams became Mr. Williams’ representative in accordance with the Representation Agreement Act under the RA7 on May 4, 2018. Ms. Williams explained that an Aboriginal organization helped her get the RA7 because they knew about Mr. Williams’ condition and that she could help him with his medical, financial, and legal affairs. She says she has the RA7 to show that she can speak on Mr. Williams’ behalf because she sees his condition 24/7 and knows how much he can take and when he needs support, and that she and Mr. Williams use the RA7 with all of his doctors and in his legal matters.
[50] Mr. Williams saw another psychologist in October 2018. The alleged victim in Mr. Williams’ assault charge had criminal charges of her own related to an alleged fraud against Ms. Williams, and Mr. Williams received a subpoena to testify at her trial. Ms. Williams called Mr. Hertzberg’s office about this on October 3, 2018. Mr. Hertzberg’s assistant’s notes say Ms. Williams called to ask about the subpoena and that she did not know how to go about the situation because Mr. Williams could not stand as a witness and be questioned, or he would have a “mental break down”. Mr. Hertzberg told Ms. Williams that he could not be involved in the other criminal proceeding, but if Ms. Williams thought Mr. Williams could not testify then she should talk to the Crown lawyer. This led to Mr. Williams’ psychological assessment at that time.
[51] In a letter dated October 10, 2018, the psychologist says he saw Mr. Williams three times after he was brought by his mother. The psychologist says he did not have the opportunity to complete a full assessment of Mr. Williams but provided an opinion that he was mentally and emotionally unable to act as a reliable and credible witness at that time. The psychologist said that Mr. Williams’ executive functioning skills, i.e. his ability to plan, organize his thoughts, memory, concentration, and attention, have been virtually non-existent. Again, I do not rely on this psychologist’s opinion to make my decision, rather, I consider that the psychologist providing this letter at this time is consistent with Ms. Williams’ evidence that Mr. Williams was not functioning well enough to participate in a legal process on his own at this time and needed her support.
[52] Mr. Williams began attending Cowichan Brain Injury in September 2021. It is not clear whether or when a physician diagnosed Mr. Williams with a TBI, but I accept Ms. Williams’ evidence that she understands at least some of Mr. Williams’ limitations to be from a TBI and that the services at this organization are helpful to him. Also in September 2021, the Canada Revenue Agency determined that Mr. Williams is eligible for the disability tax credit for the 2015 to 2026 tax years. This is also consistent with Ms. Williams’ evidence that Mr. Williams was not able to function on his own in 2018 and 2019, and needed her help.
[53] Finally, Mr. Williams and Ms. Williams said some things during the phone call on June 28, 2018, consistent with a finding that Mr. Williams had an impairment and functional limitations that affected his ability to communicate with Mr. Hertzberg and benefit from a lawyer/client relationship. I set out further details of this phone call in my analysis below, but I set out the comments relevant to my findings about Mr. Williams’ disabilities now.
[54] About 20 minutes into the call Mr. Williams said he was struggling with Mr. Hertzberg asking him to go back in time. Ms. Williams added that Mr. Williams has memory issues. Later in the call Mr. Williams paused, stuttered, said he felt like Mr. Hertzberg was trapping him, and said he thought he had phoned too soon. Ms. Willliams added that Mr. Williams had a psychiatrist who said he had “trauma on trauma” and had to be careful with his emotions, and Mr. Hertzberg said he understood that they were retraumatizing Mr. Williams. These comments in the phone call are consistent with Ms. Williams’ evidence at the hearing that Mr. Williams had a disability that impacted his ability to function and communicate.
[55] In short, I find that during the time period relevant to his complaint Mr. Williams’ ability to function independently was impaired from PTSD ,a TBI, or both,. He needed Ms. Williams’ support in areas that society generally expects adults to manage on their own, ranging from everyday tasks like meals and attending medical appointments to handling his legal affairs. This is the basis for my finding that Mr. Williams has physical and mental disabilities protected under the Code.
B. Adverse impact in a service customarily available to the public
[56] Mr. Hertzberg does not dispute that this complaint is in the context of a service customarily available to the public. This is consistent with the definition of the “public” for a service in human rights cases, which may be clients from a subset of the public eligible for a service: University of British Columbia v. Berg, [1993] 2 SCR 353.
[57] The basis of a service provider’s human rights obligations is the requirement that they provide their particular service without discrimination: Yaniv v. Various Waxing Salons (No. 2), 2019 BCHRT 222 at para. 23. The service Mr. Hertzberg provided to Mr. Williams was legal representation through legal aid in the context of a criminal charge.
[58] To decide whether Mr. Williams experienced an adverse impact I must consider the context of the service. Facing a criminal charge, certainly one as serious as assault, is inherently stressful and difficult. For his complaint to succeed, Mr. Williams must establish that some conduct on Mr. Hertzberg’s part created an adverse impact beyond the difficulties that were inherent to the criminal law process he was involved in.
[59] The Tribunal has found that individual incidents, viewed in isolation, may not constitute discrimination but may be viewed differently when considered together: Rana v. P.B. Distribution and others, 2005 BCHRT 166 at para. 41. In the context of a lawyer/client relationship, one lapse in communication due to an administrative error, or one difficult conversation that left a client feeling upset, offended, or confused, would not necessarily be an adverse impact (although it may be). If a lawyer communicates harshly to a client more than once, or fails to communicate important information to a client over a period of time, it may be more likely that the client experienced an adverse impact. Either way, the full context of the relationship is likely relevant to an analysis of whether certain conduct constitutes an adverse impact.
[60] In this case I must consider all the evidence about Mr. Williams’ and Mr. Hertzberg’s lawyer/client relationship to determine whether Mr. Williams experienced an adverse impact. In doing so, I am not deciding whether Mr. Hertzberg did a good job representing Mr. Williams. The Tribunal does not assess the quality of a lawyer’s representation to decide how effective the representation was, or whether it could have been better. I am also not deciding whether Mr. Hertzberg met all his obligations a lawyer has to a client. I say this because Ms. Williams referred to excerpts of the Law Society of British Columbia’s Code of Professional Conduct at the hearing and entered them into evidence. The Code of Professional Conduct helped Ms. Williams to understand lawyers’ obligations to their clients, but it is not the Tribunal’s role to decide whether Mr. Hertzberg met those obligations.
[61] In reviewing the full context of Mr. Williams’ lawyer/client relationship with Mr. Hertzberg, I find that Mr. Hertzberg’s manner of communicating to Mr. Williams throughout the relationship caused Mr. Williams additional stress, did not allow him to explain what happened on the night he was charged with assault, and did not allow him to understand important information about his case. These communication failures included Mr. Hertzberg speaking harshly to Mr. Williams in the phone call on June 28, 2018, and in person on the trial date of March 22, 2019, failing to communicate with him between those dates, and failing to explain the reasons for his lack of communication. Mr. Williams terminated their relationship before his case was concluded as a result of these communication failures.
[62] When I consider these findings in context with each other and the whole relationship, I find that Mr. Williams was not able to benefit from the lawyer/client relationship, which resulted in him terminating the relationship before his charge was resolved. I find this to be an adverse impact. I set out the details of Mr. Hertzberg’s conduct that I find to be an adverse impact below, after a brief overview of why I find Mr. Williams’ disabilities to be a factor in the adverse impact.
C. Mr. Williams’ disabilities were a factor in the adverse impact; his being Indigenous was not a factor
1. Mr. Williams’ disabilities
[63] For a complaint to succeed a complainant must show a connection between their protected characteristic and the adverse impact. The protected characteristic does not need to be the only factor or a significant factor in the adverse impact, but it must be a factor: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center) , 2015 SCC 39 at paras. 45-52.
[64] Mr. Williams submits that Mr. Hertzberg ignored his disabilities and did not accommodate him, and that he did not have a voice in his own case as a result.
[65] I agree that this case is largely about accommodation, and my finding that Mr. Hertzberg breached the Code is as much about what he did not say and do as about what he did. However, the onus only shifts to Mr. Hertzberg to justify his conduct after Mr. Williams establishes that his disabilities were a factor in an adverse impact. This could be based on Mr. Hertzberg directly treating Mr. Williams badly because of his disabilities. This could also be indirect discrimination based on policies, conduct, or inaction that would otherwise be neutral, but impacted Mr. Williams because of his disabilities: Stewart v. Elk Valley Coal Corp. , 2017 SCC 30 at para. 24.
[66] I do not need to find that Mr. Hertzberg intended to discriminate against Mr. Williams to find that discrimination occurred: Code, s. 2. My analysis focuses on whether Mr. Williams was adversely impacted in connection with his disabilities or because he is Indigenous, not on Mr. Hertzberg’s intentions. This means that Mr. Hertzberg may have adversely impacted Mr. Williams without meaning to.
[67] I find that Mr. Hertzberg did not intentionally treat Mr. Williams badly because he has disabilities, but I find that Mr. Williams’ disabilities were a factor in the adverse impact he experienced, for two reasons.
[68] First, while all lawyers should clearly communicate important information to their clients, I find that the way Mr. Hertzberg communicated with Mr. Williams impacted him in a particularly negative way because of his functional limitations. Mr. Williams was traumatized and highly stressed at the time Mr. Hertzberg represented him. He also had problems with his memory and organizing his thoughts. His disabilities impacted his ability to fully and freely participate in a lawyer/client relationship, and to provide and understand information important to his defence. For these reasons, he was not able to tell his lawyer what happened the night of the alleged assault, understand what might happen as a result of the charge, or understand what Mr. Hertzberg was doing to represent him, without communication that happened with his limitations in mind.
[69] To the extent that Mr. Hertzberg’s communication failures with Mr. Williams happened when he communicated with Mr. Williams like he would communicate with other clients who do not have similar disabilities and limitations, this adversely impacted Mr. Williams because he was not able to communicate, understand, and function in the same way as others. This means Mr. Hertzberg did have a duty to accommodate his disabilities throughout the lawyer/client relationship.
[70] Second, Mr. Williams needed Ms. Williams’ assistance and support to interact with Mr. Hertzberg and participate in his case. I find that Mr. Hertzberg became frustrated, resentful, or defensive over Ms. Williams’ involvement at times, particularly during the phone call on June 28, 2018, and when they met at the courthouse on March 22, 2019, and this was a factor in Mr. Hertzberg treating Mr. Williams harshly at those times.
[71] I explain these findings in detail in my analysis of the parties’ communications below.
2. Indigenous identity and race
[72] I find that Mr. Williams being Indigenous was not a factor in the adverse impact.
[73] I considered that discrimination is often subtle rather than overt and is often proven by inference rather than direct evidence. Mr. Williams could establish that Indigenous identity and race were factors in adverse treatment if I were to infer this was the case based on the evidence of how Mr. Hertzberg spoke to him and perceived him, as well as stereotypes of Indigenous peoples: Smallboy v. Grafton Apparel, 2021 BCHRT 15 at para. 29. An inference of discrimination may arise “where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses”: Vestad v. Seashell Ventures Inc. , 2001 BCHRT 38 at para. 44; Kondolay v. Pyrotek Aerospace Ltd., 2020 BCHRT 208 at para. 108.
[74] In my analysis of the events below I explain that I do not find comments that Mr. Hertzberg made about Mr. Williams being Indigenous to be discrimination or evidence of stereotyping. I also find on the evidence that there is no basis to infer that Mr. Williams being Indigenous was a factor in the communication failures that meant Mr. Williams did not benefit from Mr. Hertzberg’s services and terminated the relationship.
[75] In the following sections of my decision, I explain the conduct that I find to be an adverse impact, and I explain why I find that Mr. Williams’ disabilities were a factor and his being Indigenous was not a factor.
D. June 28, 2018, phone call
1. Mr. Hertzberg’s comments about race and Indigenous identity were not discrimination
[76] I first address the part of the phone call Mr. Williams relies on for his claim of discrimination based on race and Indigenous identity.
[77] This phone call lasted 50 minutes. About 15 minutes into the phone call Mr. Hertzberg was asking Mr. Williams and Ms. Williams questions about Mr. Williams’ history with the alleged assault victim. Mr. Williams explained that the assault was not a domestic one because he and the alleged victim were not in a relationship and said that the alleged victim was living in the bush while he has his own place. In response, Mr. Hertzberg said, “I’m a white guy and I don’t use that in a racist term, listen carefully.” Mr. Hertzberg said he was fully aware that many Indigenous cultures use a different, circular, version of time, and that he did not mean this as a criticism but found it fascinating and intriguing interculturally. He said that when many of his First Nations clients are giving him a narrative they cycle back and forth in time, not intentionally, but he needed a linear timeline, and he would clarify this. He said, “please don’t take this as me being racist, it’s completely not”.
[78] Mr. Hertzberg went on to say that a lot of white lawyers are not aware of this timeline issue, but he was aware of it because of his experience with Indigenous clients. He said, “if I’m wrong about it with you tell me, but what I want you to do, Craig, is I want you to start, I want you to use linear timeline, and if you’re cycling back, tell me, and if you’re not and I wonder I may ask you.” He asked Mr. Williams to start at the time he and the alleged victim first knew each other and draw a straight line from then until the present and answer questions. Mr. Hertzberg then asked Mr. Williams whether the alleged victim is older or younger than him, and Mr. Williams answered that she is older.
[79] Mr. Williams submits that these comments were discrimination based on race and Indigenous identity. Ms. Williams explained at the hearing that Mr. Williams did not bring up his race, and that when Mr. Hertzberg did it was not in a positive light. Ms. Williams said that despite Mr. Hertzberg saying that he was not criticizing Indigenous culture, his comments really were critical, stereotyping, and disrespectful to Mr. Williams’ Indigenous identity. Ms. Williams said this contrasted with the lawyer Mr. Williams later retained to resolve his charge, who did not need to raise any issues with Mr. Williams’ race to represent him. Mr. Williams submits that Mr. Hertzberg presented himself to Mr. Williams as superior by making these comments, and that these comments had an air of arrogance and privilege.
[80] Mr. Hertzberg explained that during the first part of this phone call he was focused on getting a linear flow of the events in order. He said that in his experience working with Indigenous clients, Indigenous people refer to a non-Indigenous lawyer as a “white lawyer” and he identified himself in this way on the phone call to acknowledge that there is a difference between a lawyer who is Indigenous and a lawyer who is not. He explained that as a criminal defence lawyer it is important to know and consider a client’s Indigenous background and identity because this may be relevant at all stages of a criminal proceeding.
[81] I accept that Mr. Williams and Ms. Williams found Mr. Hertzberg’s comments to be disrespectful and that they felt Mr. Hertzberg was stereotyping them. Even if Mr. Hertzberg did not mean to offend Mr. Williams or Ms. Williams with his comments, the comments landed negatively. I considered, however, that not every negative comment that is connected to a protected characteristic is discrimination: Brito v. Affordable Housing Societies and another , 2017 BCHRT 270 at para. 41. I also considered that context is important when considering whether offensive comments are a breach of the Code : Applicant v. Independent Investigations Office of British Columbia (No. 2) , 2024 BCHRT 204 at para. 111.
[82] The context of Mr. Hertzberg’s obligations as Mr. Williams’ criminal defence lawyer is important in this case. It was essential for Mr. Hertzberg to know and understand that Mr. Williams is Indigenous and how this related to his criminal charge, including when gathering information for the purposes of representing him. I understand that Mr. Williams and Ms. Williams received these comments as generalizing Indigenous people with respect to how they may describe events and set out timelines. However, when I review Mr. Hertzberg’s words, particularly that “many” Indigenous cultures use a different version of time, and his invitation to Mr. Williams to tell him if this did not apply in his case, I find that Mr. Hertzberg was not stereotyping Mr. Williams as an Indigenous person, but was considering that Mr. Williams is Indigenous, that this was a relevant consideration for a client with a criminal charge, and that there may be cultural aspects to how he would tell his story.
[83] I find that Mr. Hertzberg’s comments did not land well not because he was stereotyping Mr. Williams or presenting himself as superior as a white lawyer, but because he could have done a better job communicating what he was trying to say. I accept Mr. Hertzberg’s evidence that he is aware of stereotypes about Indigenous peoples through his work with many Indigenous clients over his years as a lawyer. I also accept that a primary goal of his work has been to assist Indigenous clients to the best of his ability as a non-Indigenous lawyer in an “unhappy system”, where Indigenous people are unfortunately overrepresented. This goal and his previous experience do not preclude a finding that he discriminated against Mr. Williams despite his good intentions, but I accept his evidence that in this case he was attempting to properly consider that Mr. Williams is Indigenous and look for ways to keep this in mind to help with their communication. Unfortunately, he did not do this in a way that felt respectful to Mr. and Ms. Williams. However, for the reasons I set out above, it was not discrimination for Mr. Hertzberg to raise Mr. Williams’ Indigeneity in this context.
[84] In the next parts of my decision, I explain Mr. Hertzberg’s conduct that I find to be an adverse impact in which Mr. Williams’ disabilities were a factor. I find that the communication failures began with this phone call.
2. Mr. Hertzberg’s conduct during the June 28, 2018, phone call was part of a relationship-long failure to communicate, which created an adverse impact in which Mr. Williams’ disabilities were a factor
[85] During her direct evidence, Ms. Williams identified the recording of this phone call, and it was played in its entirety. I do not set out all details of the phone call in my decision. Instead, I summarize my findings about what Mr. Hertzberg did and did not say that contribute to my finding of discrimination.
[86] Mr. Hertzberg was frustrated at times during the phone call. I accept his evidence that he sometimes had trouble hearing Mr. Williams and Ms. Williams on the call. While this may explain frustration to some extent, it does not entirely explain his frustration. I also find that in some instances he harshly took his frustration out on Mr. Williams and Ms. Williams in ways that impaired their communication. For example, in the context of trying to determine the alleged victim’s age he asked Ms. Williams how old she was. Ms. Williams laughed and asked, “how old are you?”. When Mr. Hertzberg answered Ms. Williams said she was about the same age, and Mr. Hertzberg quickly said in a strong tone, “Tell me. Let’s not play games. How old are you? I’m asking for a reason.” Mr. Hertzberg became harsh when Ms. Williams asked a question before responding to him, although he had asked her a personal question that was not obviously relevant to Mr. Williams’ case. Mr. Hertzberg subsequently explained his reason for asking Ms. Williams her age – he thought Ms. Williams may be better able to compare the alleged victim’s age to her own and this would give him a better idea of the alleged victim’s age – but he was impatient and harsh before he explained this. This is an example of Mr. Hertzberg speaking harshly on the call, which I accept made the call stressful for Mr. Williams.
[87] I also find that Mr. Hertzberg pushed Mr. Williams to answer questions beyond what he could handle at times during the call. This included harshly pushing Mr. Williams and Ms. Williams to discuss issues that they said they said they were not allowed to talk about.
[88] About 20 minutes into the call Mr. Williams stuttered and said he had just had surgery. Ms. Williams added that he has memory issues. Mr. Hertzberg said this wasn’t an exam and that he would ask Ms. Williams to help so he could get a framework of what was going on between Mr. Williams and the alleged assault victim. Mr. Hertzberg then asked for some details about Mr. Williams’ MVA and who was involved besides Mr. Williams and the alleged victim. Ms. Williams said she was not sure she was supposed to be discussing this based on instructions from Mr. Williams’ lawyer for his civil claim. Mr. Hertzberg said he was not there to hurt them but was there to help, but that he would not push them beyond their comfort level until they could talk to Mr. Williams’ MVA lawyer.
[89] Mr. Williams then started to talk about interactions with a previous civil MVA lawyer and the alleged assault victim. Ms. Williams said there was an issue that was with the Law Society, and they were getting into an area that should not be discussed. Mr. Hertzberg then said they were going to get into it and told Ms. Williams to “stand down”. Mr. Hertzberg continued asking questions and Mr. Williams started to answer them. Ms. Williams tried to tell Mr. Hertzberg that she thought they were getting “off record”. Mr. Hertzberg sharply told her she was using the wrong term and to “just stop” and continued asking Mr. Williams questions. Mr. Williams answered some questions. At times he paused partway through a sentence and then tried to continue with Mr. Hertzberg interrupting him, then said “I feel like you’re trapping me”. Mr. Hertzberg said, “for heaven’s sakes, please take a breath”. Mr. Williams stuttered, and Ms. Williams said he could not talk anymore, and he was already upset. Mr. Williams said he thought he had phoned too soon.
[90] Ms. Williams said Mr. Williams’ psychiatrist said he had “trauma on trauma” and he had to be careful with his emotions. Mr. Hertzberg said he understood that they were retraumatizing Mr. Williams. He suggested that he could continue talking with Ms. Williams and she could give him a framework for how they could go forward, or they could stop and pick up again later. Mr. Williams said it was fine to continue as Mr. Hertzberg suggested.
[91] Mr. Hertzberg then acknowledged that telephone was a terrible way to communicate because they could not read each other’s body language, and it was hard to have a conversation. He said the three of them would have facetime at another date, and Ms. Williams said they had wondered about that. Mr. Hertzberg then said he wanted to move away from the assault charge for a moment, and he wanted to understand more about Mr. Williams’ medical situation. He asked whether Mr. Williams sustained a head injury in the MVA. Ms. Williams said yes and explained that he was assessed by a neuropsychologist in 2016 and was seeing a psychologist, but that had to stop because of his back condition. Mr. Hertzberg asked whether Mr. Williams was comatose after the MVA. Ms. Williams started to answer that there was little recollection after, and Mr. Hertzberg interrupted and said, “that’s not what I asked you”. He then asked more detailed questions, and Ms. Williams asked whether that was going to come up in Mr. Williams’ case. Mr. Hertzberg said “no, it’s me trying to assess my clients, and you don’t understand me.” He did not explain what he meant by assessing his clients. Ms. Williams went on to answer his questions.
[92] Mr. Hertzberg then asked Ms. Williams more questions about Mr. Williams’ history with the alleged assault victim. Ms. Williams said there was a police report about a separate incident, and she had asked for a copy of it. Mr. Hertzberg said he needed Ms. Williams to not do that anymore; he did not explain why. Mr. Hertzberg returned to that issue after a couple of minutes and asked Ms. Williams whether she was requesting police reports for herself or for Mr. Williams’ MVA lawyer. Ms. Williams said that was something she could not discuss as there was something happening that was separate from Mr. Williams’ case. Ms. Williams repeated several times that she was sorry, but she could not speak about the separate matter regarding what she was doing. Mr. Hertzberg asked whether her issue involved Mr. Williams or not, and she said it did not involve the assault. Mr. Hertzberg said “that’s not what I asked you. Here’s the problem, Patty.” He went on to say he knew Ms. Williams had worked with the alleged victim and may have separate issues and he did not much care about those. He said Mr. Williams apparently had a previous MVA lawyer and the Law Society was involved, and when lawyers hear the words “Law Society” they get shivers because the Law Society is not there to help lawyers. Mr. Hertzberg said he knew there was an earlier lawyer representing Mr. Williams on the assault charge who had gotten off the record, and now Ms. Williams was telling him there was an issue she could not talk about, and she was requesting copies of police reports. He said, “forgive me if I’m sounding paranoid, but I am.” He asked who the Law Society was involved with. Ms. Williams tried to return to talking about the assault charge and what she had told a judge when she was in court with Mr. Williams.
[93] Mr. Hertzberg again returned to his question about Law Society involvement and asked whether Ms. Williams had made a complaint to the Law Society about someone. Ms. Williams said she could not share that information, and it said so on a letter. Mr. Hertzberg asked, “what letter?”. Ms. Williams said, “it just sounds like…” and Mr. Hertzberg interrupted. He said “okay, listen to me.” He then asked Mr. Williams directly whether he had complained against his previous criminal lawyer. Mr. Williams said, “I am getting too confused with all this.” Mr. Hertzberg said “it’s really simple. It’s really simple. Why did your previous criminal lawyer withdraw from your case? I am entitled to know because I have taken you on. I must know that and if you are not prepared to tell me, then we’ll go the next step. Who was your previous criminal lawyer, please?”
[94] Ms. Williams and Mr. Williams answered with the name of the previous criminal lawyer. Mr. Hertzberg asked whether she withdrew, or Mr. Williams fired her. Ms. Williams answered that the other lawyer had not given Mr. Williams anything, met with him once for 15 minutes in seven months, and when the trial was coming up Mr. Williams did not know where he sat. Mr. Hertzberg again asked whether Mr. Williams had fired her, and said if he had fired his previous lawyer this would not prevent Mr. Hertzberg from representing him, it was not uncommon, and Mr. Williams would not have done anything wrong. Mr. Williams said, “I don’t think you fully understand where I am stuck here, and who is listening to who.” Mr. Hertzberg said “I don’t know what the hell is going on, why are the Law Society involved? And with whom?”
[95] Ms. Williams repeated that they could not say anything right now, and she was sorry. Mr. Williams said, “it’s nothing against you.” Mr. Hertzberg continued to pressure them and said that if they had filed a Law Society complaint against the previous lawyer on the case, he wanted to know why. He told Ms. Williams to get hold of the person who wrote the letter she referred to and say that he wanted to know what was involved, and that they had to decide whether they wanted him to continue or not. Mr. Williams said twice that he cannot trust anyone. Mr. Hertzberg kept talking, and Mr. Williams said, “he’s not listening”.
[96] Mr. Hertzberg said he was putting his professional reputation and years of experience on the line to defend Mr. Williams and that required him to have a client who would work with him, and he did not feel that was happening. Mr. Williams started to say, “I’ve got so much…” and Mr. Hertzberg interrupted to say he was going to end the call. He said that when Ms. Williams tells him that she stood up and started “beaking off” to the judge and the judge said it sounded like the case should be resolved, it sounded like maybe the case should not go ahead, but when he hears about the Law Society, he goes “hold the phone”. He said they were running out of time, he would be busy with work and holiday travel in the coming weeks, and he needed answers before the end of the week, so Ms. Williams needed to phone him the next day. He said Mr. and Ms. Williams needed to discuss where they take this, he was being focused so they were all on the same page, and they had to understand that he was not prepared to have them say “we can’t discuss this with you, we’re not allowed.” He said, “it doesn’t work that way in my world, so figure it out and call me.” Mr. Williams said “okay”. This was the end of the call.
[97] Ms. Williams’ evidence about this phone call was that Mr. Williams was expecting to get information about his criminal case from Mr. Hertzberg, but instead got many questions about other issues. She testified that Mr. Hertzberg was in a position of power as a lawyer, he initially ignored Mr. Williams when he said he had just had surgery and was struggling, and Mr. Williams ended up having a meltdown and crying. She testified that after Mr. Williams gave Mr. Hertzberg permission to ask Ms. Williams questions to continue, they ended up on the receiving end of a verbal attack.
[98] Mr. Hertzberg testified that he had reviewed the disclosure package for Mr. Williams’ case before the phone call, and his view was that the evidence against Mr. Williams was weak and he could clearly see a defence. He says he had a high level of confidence that the Crown would drop the charge, or at worst that Mr. Williams should enter a no contact peace bond. He did not explain why he did not give Mr. Williams this information during the phone call. He testified that Ms. Williams gave him helpful information during the call and he took copious notes. In his evidence at the hearing Mr. Hertzberg reiterated that a phone call was not the ideal way to communicate. He said that when Mr. Williams said he was not listening, the issue was actually that he could not hear him.
[99] Mr. Hertzberg testified that when Ms. Williams mentioned confidential documents that she could not tell him about, he switched from being focused and analytical to becoming alarmed. He says he had never had a conversation with a client where the client refused to give him information. He says he only realized after the call when he reviewed Law Society rules that Ms. Williams was correct in her understanding that she was not permitted to disclose information about a Law Society complaint to anyone.
[100] While Mr. Hertzberg obtained information on the call that was useful to him, he also acknowledges that the call was not ideal, and he regrets that no face-to-face meeting followed.
[101] I do not need to decide whether any specific comments or conduct in this phone call would be discrimination on their own, with the exception of Mr. Hertzberg’s comments about Indigenous cultures that I discussed above. I also do not need to decide whether Mr. Hertzberg’s communication during the phone call alone would be discrimination if Mr. Hertzberg had clearly and respectfully communicated with Mr. Williams and Ms. Williams in the months that followed the call and made his services accessible to Mr. Williams, because this is not what occurred. Here I explain why I find this phone call to be part of the context of an overall failure to communicate, which meant that Mr. Williams could not benefit from Mr. Hertzberg’s services, leading to the termination of the relationship.
[102] I find that Mr. Hertzberg was harsh and disrespectful during this phone call. Examples include, when he told Ms. Williams, “let’s not play games”, to “stand down”, to “just stop”, when he interrupted her twice to say “that’s not what I asked”, when he told Mr. Williams “this is not an exam”, and when he pressed on with questions, including some questions directly for Mr. Williams after Mr. Williams said he was struggling. Further examples include, when he pressured Ms. Williams and Mr. Williams to talk about a Law Society complaint and suggested that he would not continue to represent Mr. Williams if they did not do what he said, and when he said Ms. Williams had been “beaking off” to the judge in court. This finding is based on Mr. Hertzberg’s words as well as his tone during the call, which I found to be more frustrated and harsh than respectful or supportive. I find Mr. Hertzberg used harsh language or tone more often than not during the call, in the context of failing to communicate useful information to Mr. Williams about his case.
[103] What Mr. Hertzberg did not say during the phone call is just as important as what he did say and how he said it. Mr. Hertzberg did not explain why he was asking many of his questions, even when Mr. Williams had trouble with the questions and Ms. Williams asked whether they would come up in the case. When Mr. Hertzberg asked about Mr. Williams’ MVA he said he was “assessing his client” but he did not explain what that meant. He also did not give Mr. Williams any information about the possible outcomes of his case or what to expect from the process and his representation, and did not give Mr. Williams an opportunity to explain what happened on the day of the assault charge.
[104] I also find that Mr. Hertzberg was not responsive to Mr. Williams when he became concerned towards the end of the call. I considered Mr. Hertzberg’s evidence that he could not always hear Mr. Williams, and I considered that the volume and clarity of Mr. Williams’ voice in the recording may be different from what Mr. Hertzberg could hear during the call. I find that this does not fully explain Mr. Hertzberg’s lack of response to Mr. Williams when Mr. Williams said he was stuck, did not know who was listening to who, and could not trust anyone, and twice said that Mr. Hertzberg was not listening. By this point in the call Mr. Hertzberg acknowledges that he was alarmed at the idea that Mr. Williams or Ms. Williams may have made a Law Society complaint against another lawyer. He did not say that he could not hear Mr. Williams or Ms. Williams or ask them to repeat themselves. Rather, he dominated the conversation. I find that he was not trying to listen to Mr. Williams by that point in the call.
[105] Overall, I find that the June 28, 2018, phone call was the start of the failure in communication that I find prevented Mr. Williams from benefiting from his services. Mr. Williams’ disabilities were one factor in how Mr. Hertzberg treated him and communicated with him on this call because Mr. Hertzberg tried to push through the call even after Mr. Willliams became upset. Mr. Hertzberg did not communicate with Mr. Williams in a way that Mr. Williams could understand and handle. He pressured Mr. Williams to talk about the Law Society issue and suggested he would not be able to represent Mr. Williams otherwise, even after acknowledging that Mr. Williams was traumatized during the call and needed Ms. Williams’ help. Mr. Williams also needed his mother’s help to communicate, and Mr. Hertzberg’s frustration and distraction about the Law Society issue and Ms. Williams’ involvement with the case negatively impacted how he communicated to Mr. Williams.
E. June 29, 2018, phone call
[106] Mr. Hertzberg’s phone call with Ms. Williams on June 29, 2018, was brief but is important to the context of the parties’ relationship and overall communication.
[107] At the start of the call Ms. Williams said that Mr. Williams was asleep and would not be on the call. Mr. Hertzberg said that was fine. Mr. Hertzberg asked Ms. Williams whether she had given thought to what they had spoken about the previous day, and Ms. Williams said they did not have many thoughts, but they were concerned about a court date coming up on July 5. Mr. Hertzberg explained that July 5 was simply a court date to fix a new date for trial.
[108] Mr. Hertzberg said that once he got the date set, he would meet with Mr. Williams and Ms. Williams face to face and get some more history and detail about the assault allegation. He said he would also speak to Crown counsel and may in fact do that before meeting with Mr. Williams and Ms. Williams. Mr. Hertzberg said he wanted to find out whether the Crown wanted to proceed or not, or whether Crown may agree to resolve the charge if Mr. Williams agreed to enter into a peace bond, meaning that he would not be allowed to contact the alleged victim. He said, “by doing it in that manner, we may avoid even having to talk about all the other things that were concerning you, about freedom of information requests and confidential letters from lawyers, Law Society…we may be able to just bypass all of that.” Ms. Williams agreed. Mr. Hertzberg said that if the file were to “go away” because of his discussions with Crown, that would be the end of it and Mr. Williams could move along. Ms. Williams agreed again.
[109] Mr. Hertzberg said his assistant would notify Ms. Williams of when the trial date was scheduled and then he would speak to Crown and meet with her and Mr. Williams. He said that if Crown counsel wanted more details about Mr. Williams’ situation that he would tell her that and go from there. He asked Ms. Williams to tell Mr. Williams that he had it all in hand and to focus on his medical situation and that he would be in touch, but he would leave that to her as the person dealing with Mr. Williams with his head injury. Ms. Williams agreed and said Mr. Williams was getting a lot of outpatient help. Mr. Hertzberg told Ms. Williams to “dump the stress of the file” onto him, and he would be in touch to discuss the next steps. He said his assistant would call and send a letter to Mr. Williams once the trial date was set and would make a diary entry for him to review the file. He said there were times that he would be away but if there was anything Ms. Williams wanted him to know she could contact his assistant.
[110] Again, what Mr. Hertzberg did not say in this call is just as important as what he did say. After the call on the previous day, it was apparent to Mr. Hertzberg that Mr. Williams needed Ms. Williams’ help to communicate to some extent. At the hearing Mr. Hertzberg testified that by the time he spoke to Ms. Williams on June 29 he had reviewed Law Society rules and learned that Ms. Williams was correct that she was not supposed to talk about a Law Society complaint, so he did not go near that issue on the call. He did not explain why he did not tell Ms. Williams that he had been wrong to press her and Mr. Williams to talk about a Law Society complaint about another lawyer, or why he did not acknowledge that the issue was not relevant to Mr. Williams’ case or whether he could represent Mr. Williams. Instead, he said they may be able to avoid discussing this issue, among others. Mr. Hertzberg could have explained to Ms. Williams that she and Mr. Williams were correct not to talk about details of a Law Society complaint, and reassured her that Mr. Williams did not need to discuss confidential matters to benefit from his representation; this may have gone some distance to repair the relationship with Mr. Williams. He also could have communicated this to Mr. Williams in some other way if he preferred to do so directly. He did not do so.
[111] Mr. Hertzberg did give Ms. Williams some useful information about his intended next steps, but unfortunately this was his last communication to Mr. Williams or Ms. Williams about the case until shortly before the trial date in March 2019. The lack of communication after this phone call is part of Mr. Hertzberg’s conduct that I find created an adverse impact in which mental disability is a factor.
F. Communications Between June 29, 2018, and March 22, 2019
[112] After speaking to Ms. Williams on June 29, Mr. Hertzberg did not update Mr. Williams about whether he had any discussions with Crown or whether he needed to meet Mr. Williams again. He did not offer to meet Mr. Williams over facetime or in person, did not respond to a September 2018 email from Ms. Williams’ asking for an update with any information about the case, and did not tell Mr. Williams his trial date until shortly before the trial. When he eventually contacted Mr. Williams in March 2019, he did not explain his lack of communication.
[113] On July 4, 2018, the court trial scheduler set a date for Mr. Williams’ trial and subsequently cancelled the July 5 court appearance to fix a date. The trial was scheduled for March 22, 2019. Mr. Hertzberg explained that normally the trial scheduler would send his assistant a scheduling memo for a trial date, which would then prompt his assistant to contact the client, advise of the trial date, and ask the client to contact the office to arrange a time to meet. In this case, Mr. Hertzberg’s assistant emailed the court trial scheduler on July 5, 2018, to ask her to send a copy of the scheduling memo for the trial, but the trial scheduler did not do so, and the assistant did not contact Mr. Williams or Ms. Williams.
[114] Ms. Williams emailed Mr. Hertzberg on September 24, 2018, to say she and Mr. Williams were waiting for an update on the case. In her email Ms. Williams said that when they last spoke Mr. Hertzberg was going to speak to Crown and asked him to get back to them on how his communications with Crown were unfolding. Mr. Hertzberg’s assistant responded and said Mr. Hertzberg was in a trial until October 5 and they would be in touch when they had an update.
[115] Ms. Williams then called Mr. Hertzberg’s office on October 3, 2018, after Mr. Williams was subpoenaed to attend court on October 11 in the alleged victim’s own criminal trial for fraud charges. It is not clear whether Ms. Williams spoke to the assistant or left a voicemail. The assistant’s note says that Ms. Williams said, “We don’t know how to go about this, my son could not stand as a witness and be questioned because he would have a mental break down.” The assistant’s note also says, “I called and left a voicemail with all the information she needs and who she needs to call just like you said to do.”
[116] Mr. Hertzberg explained at the hearing that he could not be involved in the other criminal proceeding, but his view was that if Ms. Williams thought Mr. Williams would not be able to testify that she should contact the Crown counsel in that case. Ms. Williams did so, and obtained the psychologist’s letter dated October 10, 2018, which said that Mr. Williams was mentally and emotionally unable to be a reliable and credible witness.
[117] Mr. Hertzberg did not follow up with Mr. Williams about any impact of his mental state on his own case. He did not communicate to Mr. Williams about his case at all until about a week and a half before the March 22, 2019, trial date. The parties agree that Mr. Hertzberg’s office contacted Mr. Williams around this time to try to arrange for Mr. Williams to meet him before the trial date. It is likely that this is how Mr. Williams first learned that his trial date was approaching.
[118] Mr. Williams called Mr. Hertzberg on March 12, 2019. They spoke for about one minute. Mr. Williams again recorded the call without Mr. Hertzberg’s knowledge. Mr. Williams said he would like to get his file back and anything pertaining to his file. Mr. Hertzberg asked him why. Mr. Williams said his case was coming up and he had not heard anything from Mr. Hertzberg about the Crown’s stance. Mr. Hertzberg interrupted him and said, “You didn’t phone after you got my letter, Craig.” Mr. Williams asked, “what letter?” Mr. Hertzberg said, “The trial letter advising you of the trial and asking you to contact me regarding your trial.” Mr. Williams asked whether Mr. Hertzberg had emailed a letter or mailed it, and Mr. Hertzberg said he did not know. Mr. Williams said he did not get a letter, and Mr. Hertzberg told him to call his office during business hours and talk to his staff. Mr. Williams said he would do that. Mr. Hertzberg said he would happily give Mr. Williams his file so he could find another lawyer, but again directed Mr. Williams to phone during business hours.
[119] Subsequently, Mr. Hertzberg discovered that Mr. Williams did not get a letter informing him of his trial date. He did not tell Mr. Williams at any point that he was mistaken when he said Mr. Williams received a letter.
[120] I find Mr. Hertzberg’s evidence about the lack of communication during this time to be disingenuous for the following reasons.
[121] Mr. Hertzberg’s evidence in direct examination was that he took a day to arrange to meet Mr. Williams and Ms. Williams at a courthouse, but his emails to them were met with silence until Mr. Williams called him on March 12, 2019, to ask for his file. In cross examination Mr. Hertzberg said when he took a full day to meet Mr. Williams at the courthouse, he thought Mr. Williams might show up but he did not, and instead he spoke to the Crown lawyer about Mr. Williams’ case and learned that Ms. Williams had filed the March 15 Application, which she was not authorized to do. Mr. Hertzberg said he was looking forward to meeting them and they chose not to come, but “not me, I was there all day”. He did not explain why he would expect Mr. Williams to meet him on or after March 15 when Mr. Williams had called him on March 12 to ask for his file, Mr. Hertzberg told him he could get another lawyer, and Mr. Hertzberg did not follow up with him to tell him that he neglected to send a letter or otherwise explain his lack of communication.
[122] Mr. Hertzberg testified that if he had met Mr. Williams face-to-face, he would have been able to explain efforts he was making with Crown, and if he had known that the alleged assault victim’s charge related to alleged fraud against Ms. Williams had ended in a peace bond, this would have added fuel to his discussions with Crown. However, the only evidence Mr. Hertzberg introduced of any efforts he made on Mr. Williams’ case is a note in the file dated March 15, 2019, which says he spoke to Administrative Crown Counsel, who told him which Crown counsel had the file. If Mr. Hertzberg did make any efforts with Crown related to Mr. Williams’ case by the time he spoke to Mr. Williams on March 12, he did not provide any detail of what those efforts were, and he did not explain why he did not tell Mr. Williams about his efforts when Mr. Williams called him on March 12.
[123] If Mr. Hertzberg expected Mr. Williams to meet with him on March 15 and to update him on efforts he had made in Mr. Williams’ case on that date, this was not reasonable in the context of the March 12 phone call, after which Mr. Hertzberg should have discovered that Mr. Williams never received a letter with the trial date.
[124] Mr. Hertzberg testified that he takes full responsibility for the breakdown in communication during this time, but also said in his evidence that it was a “two way street communication breakdown”. He says he does not blame Ms. Williams to any extent, but he also said he cannot own someone else’s reasons for not reaching out, and in his closing submissions he says nothing stopped Ms. Williams from reaching out to his office in the fall to ask about a meeting. He does not address Ms. Williams’ email of September 24, 2018, asking for an update, or the fact that he told Ms. Williams on June 29, 2018, to leave things with him until she received an update. I return to this point in the justification analysis below, but for present purposes, I find that Mr. Hertzberg’s evidence that he takes full responsibility for the communication breakdown was not entirely sincere and that he attempted to understate his lack of communication to Mr. Williams.
[125] Up to the trial date on March 22, 2019, Mr. Hertzberg failed to communicate with Mr. Williams about his case so he could explain what happened when he was charged with assault, understand what might happen to him because of the charge, or understand what Mr. Hertzberg was doing to represent him. I find that Mr. Williams and Ms. Williams are not responsible for the lack of communication to any degree.
[126] I find that Mr. Williams’ disabilities are a factor in this lack of communication because his limitations affect how well he could communicate in a lawyer/client relationship and understand his case. I considered that the administrative error resulting in Mr. Williams not knowing his trial date or being invited to contact Mr. Hertzberg to prepare, and the lack of communication between June and March, would likely have some negative impact on any client in Mr. Williams’ circumstances, and I find that Mr. Williams was particularly impacted because his disabilities were a factor.
[127] The administrative error was one factor impacting the communication failure, but I find that the failure to send Mr. Williams a letter advising him of the trial date is not the sole reason for the failure, and that Mr. Williams’ disabilities were also a factor in how this impacted him. Even if Mr. Hertzberg had sent Mr. Williams a standard form letter advising him of the trial date and inviting Mr. Williams to contact him, which he normally would have done for any client, this alone would not have prevented the adverse impact on Mr. Williams. Mr. Hertzberg acknowledged during the June 28 phone call that Mr. Williams and Ms. Williams needed to meet him in person, but he did not take any steps to make that happen.
[128] Mr. Hertzberg also told Ms. Williams on June 29 to leave everything in his hands because of Mr. Williams’ stress and need to focus on his medical issues, and he would contact them with an update, but he did not follow through. Ms. Williams did email Mr. Hertzberg for an update in September even though she did not receive a letter with a trial date, and this did not prompt Mr. Hertzberg to communicate any update to Mr. Williams. After the June 29 phone call with his mother, Mr. Williams understood that Mr. Hertzberg would speak to Crown counsel to try to resolve the case. I accept that it was very stressful for him to learn of a trial date less than two weeks before that date. I find that his disabilities were a factor in the negative impact on him because they impacted how well he was able to understand what was happening with his case at this time.
[129] In short, Mr. Williams’ disabilities were a factor in Mr. Hertzberg’s failure to follow up with him after the difficult June 28 phone call to let him tell his story in a way he was able to, and to give him information to help him understand his case and what might happen to him.
G. March 22, 2019, courtroom interaction
[130] I find that Mr. Hertzberg did not communicate important information to Mr. Williams at court on March 22, 2019. This was a continuation of the communication failure culminating in the adverse impact on Mr. Williams. I find that Mr. Williams’ disabilities were a factor because, again, Mr. Williams especially needed essential information clearly communicated to him because of his disabilities, and this did not happen. I also find that Mr. Hertzberg was resentful towards Ms. Williams for her involvement in the case by this point. This resulted in Mr. Hertzberg not allowing Ms. Williams to assist Mr. Williams to communicate with him, and treating both of them harshly at court.
[131] Mr. Williams alleges that on March 22, 2019, Mr. Hertzberg tried to separate him from Ms. Williams, harassed and humiliated him and Ms. Williams by demanding that a sheriff search them in the courtroom, and tried to force the trial to proceed that day even though Mr. Williams was not ready for it to proceed.
[132] On September 3, 2021, Ms. Williams wrote notes in response to Mr. Hertzberg’s response to the complaint, which she entered into evidence at the hearing. She relies on these notes as her account of what happened. In her notes she says that a sheriff sat behind her and Mr. Williams throughout the court hearing because Mr. Hertzberg had pointed at them in the courtroom and said to the sheriff, in an angry and loud tone, “search them, they always record”. She says there was further conversation between Mr. Hertzberg and the sheriff that she could not hear because they lowered their voices.
[133] At the hearing, Ms. Williams explained that when she and Mr. Williams first went into the courtroom Mr. Hertzberg immediately approached them and loudly told Mr. Williams that he wanted to see him alone in the hallway. Ms. Williams says she responded to say no, Mr. Williams would not be talking to Mr. Hertzberg alone. She says Mr. Hertzberg then made his statement about searching them because they always record, and this drew attention to them. Ms. Williams testified that the sheriff spoke into his mic, another sheriff came to sit in front of them, and the first sheriff sat right behind them through the whole court proceeding.
[134] Mr. Hertzberg does not dispute that he asked Mr. Williams to speak to him alone, or that he said something to the sheriff to convey that Ms. Williams may be recording in the courtroom. He says other lawyers in the community had told him that Ms. Williams records things and he believed that his duty to the court as a lawyer extended to telling the sheriff that she may have a recording device in the courtroom. He denies directing the sheriff to search Ms. Williams and Mr. Williams and says he does not have the authority to tell the sheriff what to do but acknowledges he may have suggested that the sheriff may want to search them. He says he did not intend to speak loudly enough for anyone to hear him. He agrees he had further discussion with the sheriff that Mr. Williams and Ms. Williams could not hear, although he did not give evidence about the substance of that further discussion. He says it was the sheriff’s decision to sit behind Mr. Williams and Ms. Williams in the courtroom.
[135] I find that Mr. Hertzberg did not communicate any information to Mr. Williams about his case, or Mr. Hertzberg’s role in the case after Mr. Williams had told him that he wanted another lawyer, when he met Mr. Williams and Ms. Williams in the courtroom. This is a further continuation of the lack of communication to Mr. Williams that I find to be an adverse impact in which his disabilities were a factor.
[136] I also find that Mr. Hertzberg treated Mr. Williams and Ms. Williams harshly when he spoke to them and to the sheriff in the courtroom, and that this treatment itself was an adverse impact on Mr. Williams in which his mental disability was a factor.
[137] Mr. Hertzberg’s evidence about this interaction in cross examination was not sincere or reliable, and I find that he attempted to understate his conduct.
[138] In his response to the complaint, Mr. Hertzberg said Ms. Williams has a “known propensity to record conversations”. In cross examination he testified that by the trial date he was not aware that Mr. Williams and Ms. Williams had recorded their phone calls with him, but it was brought to his attention that people in the community knew that Ms. Williams recorded things. He said recordings and weapons are not allowed in the courtroom and that he had the same duty to tell the sheriff that Ms. Williams records things as he would have to tell the sheriff if he saw someone hiding a blade in their pocket before going into the courtroom. He testified that he told the sheriff that Ms. Williams was known to record but he did not direct the sheriff to search them, although he may have said “you might want to search them”. He says he did not have the authority to direct the sheriff to search them, but the sheriff had authority to “pat her down”.
[139] In cross examination, Ms. Williams asked Mr. Hertzberg who told him that she records conversations. Mr. Hertzberg refused to answer this question, initially claiming solicitor-client privilege because it was another lawyer who gave him the information. I asked him to clarify whether he was seeking legal advice when he received the information, and he said he was not correct to claim solicitor-client privilege, but that he wanted an opportunity to consult with the Law Society before answering the question. He then returned to his initial position that the identity of one lawyer who gave him this information was privileged, but confirmed that he relied on the information in response to the complaint because it was the basis for what he said to the sheriff in the courtroom. Mr. Hertzberg then gave evidence about a second lawyer he says told him that Ms. Williams records things.
[140] After Ms. Williams finished her other cross examination, I adjourned the hearing to give Mr. Hertzberg an opportunity to consult with the Law Society. He was not able reach the Law Society during the break, and I returned to his objection to Ms. Williams’ question. Mr. Hertzberg then said that the question had “an aspect of solicitor client privilege”, and that he may be required to give the other lawyer a “heads up”, so he was in a quagmire that he needed to speak to the Law Society about. He then raised an issue of whether Ms. Williams’ question was relevant, but when I asked him whether he was also objecting to the question based on relevance he said he was not. In any case, I would have found that the question was relevant and an appropriate cross examination question, because he relies on the information he received about Ms. Williams recording things to explain how he treated Mr. Williams and Ms. Williams in the courtroom.
[141] I reconvened the hearing on April 28, 2023. Mr. Hertzberg answered Ms. Williams’ question and identified the second lawyer who told him that Ms. Williams records things. In response to a subsequent question, Mr. Hertzberg testified that the other lawyer did not specifically tell him that Ms. Williams records court proceedings or conversations in courtrooms, but that he recalled the other lawyer saying something along the lines of “be careful, there are recordings” in the context of Mr. Hertzberg telling the other lawyer about difficulties he was having approaching the March 22 trial date. He said he did not ask the other lawyer where he got his information, but it was on his mind when he went into the courtroom on March 22 because he was concerned that “there might be a recording going on in some sense”, which is not allowed in court, and which he had a duty to raise.
[142] I return to this evidence in the justification analysis below, where I explain my finding that any concern Mr. Hertzberg had about his duty to the court does not justify his conduct. For the purposes of the analysis of whether Mr. Williams has established an adverse impact in which his mental disability was a factor, I prefer Ms. Williams’ evidence about what happened during this interaction.
[143] Mr. Hertzberg does not deny that he tried to speak to Mr. Williams alone, and I accept Ms. Williams’ evidence of how the interaction began. There is also no dispute that Mr. Hertzberg said something to the sheriff about searching Mr. Williams and Ms. Williams because they record. Whether or not this was his intention, Mr. Hertzberg said this loudly enough that Ms. Williams and Mr. Williams heard him. I accept Ms. Williams’ evidence that Mr. Hertzberg said something along the lines of “search them, they always record” in a loud voice and angry tone, rather than merely suggesting to the sheriff that he may wish to perform a search. Even if Mr. Hertzberg did not intend for others to hear, he did not make any attempt to be discreet. I accept that this interaction drew attention to Mr. Williams and Ms. Williams, and I accept that this was humiliating. I find that this was harsh treatment constituting an adverse impact on Mr. Williams.
[144] I find that Mr. Williams’ disabilities were a factor in Mr. Hertzberg’s conduct because Ms. Williams was assisting Mr. Williams with his case because of his disabilities, and it is more likely than not that Mr. Hertzberg resented Ms. Williams’ involvement by this point. I considered that Mr. Hertzberg immediately tried to speak to Mr. Williams alone despite knowing he needed Ms. Williams’ assistance during the June 28, 2018, phone call, spoke loudly and angrily to the sheriff after Ms. Williams refused, and accepted vague information from others warning him to be careful of Ms. Williams, which he believed warranted him drawing a sheriff’s attention to her in the courtroom. This evidence is consistent with a finding that Mr. Hertzberg more likely than not had a negative view of Ms. Williams’ involvement by this point, which was a factor in how he treated her and Mr. Williams in the courtroom.
[145] I also considered Mr. Hertzberg’s evidence about the March 15 Application, which Ms. Williams filed after Mr. Williams told Mr. Hertzberg that he wanted a new lawyer. He testified that Ms. Williams wrote in the application, which was an application to have the case against Mr. Williams dismissed for delay, that she had filed complaints with the Law Society about two lawyers, and although she did not name the lawyers, Mr. Hertzberg assumed that he was one of them. Mr. Hertzberg did not speak to Mr. Williams or Ms. Williams about the March 15 Application, did not explain his lack of communication between June and March to Mr. Williams, and did not explain his reasons for attending court despite Mr. Williams telling him that he no longer wanted his representation. Instead, he tried to speak to Mr. Williams without Ms. Williams, and when that did not occur, he drew attention to Mr. Williams and Ms. Williams in a negative way.
[146] Finally, I do not accept Mr. Hertzberg’s evidence that he simply needed to meet his duty to the court to advise that Ms. Williams or Mr. Williams may record in the courtroom. There is no evidence that Mr. Hertzberg had information from any source about either of them ever recording in a courtroom. I do not accept that his duty to the court was the same under the circumstances as it would have been if he saw someone hide a weapon in their pocket to bring into the courtroom. That is not a reasonable comparison, and this is offensive to Ms. Williams and Mr. Williams because it suggests that it was reasonable to treat them as if they posed some sort of physical danger or risk to others in the courtroom.
[147] If Mr. Hertzberg was concerned about a possibility that Mr. Williams or Ms. Williams may record court proceedings, he could have spoken to them about this instead of drawing attention to them in a humiliating way. If he believed that he had a duty to the court to advise a sheriff that they may record a court proceeding, he could have discreetly raised this. Raising this concern in the manner that he did was disproportionate to the situation, and his resentment of Ms. Williams’ involvement by this point, which was necessary because of Mr. Williams’ disabilities, contributed to this.
[148] Mr. Williams also alleges that Mr. Hertzberg stereotyped him as an Indigenous person in this interaction. If Mr. Williams’ Indigenous identity were a factor in Mr. Hertzberg’s conduct as well as his disabilities being a factor, I would find discrimination based on both grounds. However, I find that Mr. Williams being Indigenous was not a factor.
[149] I considered my finding that Mr. Hertzberg’s comments about Indigenous cultures in the June 28, 2018, phone call were not themselves stereotyping or discrimination. Those comments are not the basis for an inference that Mr. Hertzberg treated Mr. Williams as he did in the courtroom because he negatively stereotyped Mr. Williams as an Indigenous person.
[150] I also considered all of the evidence about the parties’ relationship to decide whether there is a basis for an inference that Mr. Williams being Indigenous was a factor in how Mr. Hertzberg treated him in the courtroom. Viewing the relationship in its full context, I do not find any evidence that is the basis for an inference that Mr. Williams being Indigenous was a factor in the interaction. Mr. Hertzberg’s poor communication leading up to this date and Ms. Williams’ need to assist her son because of his disabilities explain Mr. Hertzberg’s conduct in this interaction.
[151] Further, I find that Mr. Williams being Indigenous was not a factor in any of Mr. Hertzberg’s poor communication or treatment of Mr. Williams up to this point. I considered that discrimination based on Indigeneity or race is rarely voiced and is often subtle. As Mr. Williams submits, racial stereotyping and discrimination may even be a result of unconscious bias. However, while Mr. Hertzberg was aware that Mr. Williams is Indigenous, there is no evidence forming the basis of an inference that he consciously or unconsciously believed that Mr. Williams did not deserve effective representation as an Indigenous client. The adverse impact on Mr. Williams stemmed from a communication failure over the course of the relationship, partly due to an administrative error, partly due to frustration about the need for Ms. Williams’ assistance, and partly because Mr. Hertzberg’s usual way of working with clients did not meet Mr. Williams’ needs considering his disabilities. I find that this is the full explanation for the communication failure and adverse impact on Mr. Williams. While intention is not required to find a breach of the Code , in a case where the adverse impact was not intentional, but resulted from an administrative error and lack of attention, it may be less likely that conscious or even unconscious bias or stereotypes are a factor in the impact. It was necessary for Ms. Williams to assist Mr. Wiliams because of his disabilities, not because he is Indigenous. Mr. Williams was not less able to understand issues related to his case and communicate with Mr. Hertzberg about his case because he is Indigenous, but because of his disabilities. In short, Mr. Hertzberg did not fail to communicate with Mr. Williams because he was Indigenous.
[152] Finally, Mr. Williams submits that Indigenous peoples carry a disproportionate burden of the continued effects of colonialism and systemic racism, and that British Columbia recognizes this and has a goal of eliminating the overrepresentation of Indigenous people in the justice system. He says Indigenous men are at a disadvantage in the justice system due to historic cultural genocide and continued oppression that has affected generations, so he was in a vulnerable position, and Mr. Hertzberg’s conduct of leaving him in the dark and verbally attacking him deeply affected his well-being. Mr. Williams submits that unconscious discrimination and stereotyping of Indigenous people is widespread, and explains Mr. Hertzberg’s behaviour towards Mr. Williams.
[153] I agree with Mr. Williams’ submissions that the longstanding effects of colonialism and systemic racism continue to impact Indigenous men in Mr. Williams’ position in the justice system. This is not in question. However, it does not follow from the continued impacts of colonialism and systemic racism that Mr. Hertzberg discriminated against Mr. Williams based on his Indigeneity in this particular case. I have found that the adverse impact on Mr. Williams resulted from the communication failure throughout the relationship, and that this particularly impacted him because his disabilities impacted his ability to communicate with a lawyer and understand what was happening in his case. I have not found that Mr. Hertzberg consciously or unconsciously believed that Mr. Williams did not deserve good legal representation as an Indigenous client. His Indigeneity was not a factor in the adverse impact.
H. March 22, 2019, court appearance
[154] Mr. Williams alleges that when Mr. Hertzberg appeared in court on his case that Mr. Hertzberg disadvantaged him by advocating for the trial to go ahead on that date even though Mr. Williams was not prepared. He submits that this was further mistreatment and discrimination.
[155] The Court removed Mr. Hertzberg from the record as Mr. Williams’ counsel and adjourned the trial date. Mr. Hertzberg denies that he was trying to push for the trial to proceed. He says he was obligated to ask the Court for an order that he be removed from the record as Mr. Williams’ counsel and that he wanted to ensure that Ms. Williams did not inadvertently prejudice Mr. Williams’ defence.
[156] I find that Mr. Hertzberg was not trying to push Mr. Williams into a trial or attempting to prejudice his case in any way. I accept Mr. Hertzberg’s evidence that even though Mr. Williams no longer wanted his representation by March 22, 2019, he had a professional obligation to appear on this court date and ask to be removed from the record.
[157] I find that Mr. Hertzberg’s appearance at court was confusing to Mr. Williams. Mr. Hertzberg did not explain to Mr. Williams why he was appearing in court on his case after Mr. Williams terminated their lawyer/client relationship. He did not give Mr. Williams his file and did not explain why. He did not talk to Mr. Williams or Ms. Williams about next steps, such as whether the trial was likely to go ahead that day or they could find another lawyer to pick up where they left off. He did not explain why he believed he was obligated to speak in court to try to prevent Ms. Williams from inadvertently saying things that may prejudice Mr. Williams’ case. This was a continuation of Mr. Hertzberg’s overall communication failure with Mr. Williams, but I do not find any of Mr. Hertzberg’s conduct during the court appearance to be an adverse impact, aside from the fact that he did not tell Mr. Williams what he was doing or why.
[158] I have found that Mr. Hertzberg failed to communicate with Mr. Williams in a manner that would have allowed him to benefit from a lawyer/client relationship despite his disabilities. In light of this overall communication failure, it was reasonable for Mr. Williams to respond by terminating the lawyer/client relationship before his case was concluded. Even after this, Mr. Hertzberg failed to communicate with Mr. Williams to explain his lack of communication or what he would do from that point forward. Mr. Williams did not get the benefit of Mr. Hertzberg’s services. I have found this to be an adverse impact in which his disabilities were a factor. This means he has established his case. Next, I explain why I find that Mr. Hertzberg has not established a defence to the complaint.
I. Mr. Hertzberg has not established a BFRJ for the adverse impact in which Mr. Williams’ disabilities were a factor
[159] For the purposes of my analysis, I assume that Mr. Hertzberg’s way of communicating and working with Mr. Williams was for a purpose rationally connected to providing legal services, and that he acted in good faith. I find he does not establish a defence to the complaint because he has not established that he could not have accommodated Mr. Williams’ disabilities without undue hardship.
[160] I considered Mr. Hertzberg’s evidence that he had limited understanding of Mr. Williams’ disabilities at the time he was representing him. In his submissions Mr. Hertzberg says he was alarmed to learn about Mr. Williams’ communication needs, including greater listening patience, through this proceeding.
[161] A decision about whether a respondent has met the duty to accommodate a complainant to the point of undue hardship will always be specific to the facts of the particular case. In some cases a complainant may need to request a particular form of accommodation for the respondent to understand their disability-based needs. In other cases, respondents should reasonably be aware of the need for accommodation, or a possible need for accommodation, based on the information available to them at the time: Ng v. Vancouver (City), 2023 BCHRT 161 at para. 76.
[162] I find that part of Mr. Hertzberg’s duty to accommodate Mr. Williams’ disabilities was to inquire about his communication needs when he knew or ought to have known Mr. Williams lived with a disability. Mr. Williams also had a responsibility to participate in his own accommodation, and I find that he did so by informing Mr. Hertzberg of his disabilities at the outset. In his first email to Mr. Hertzberg, he said the woman accusing him of assault was the driver when he was in an MVA, and that his injuries were “TBI, Concussion, PTSD, Whiplash, Chronic Back Pain Whiplash, short term memory” [as written], and that he was currently seeing a psychiatrist. He also said that he attended court with Ms. Williams, “who has a RA7 and spoke on my behalf”.
[163] Mr. Hertzberg cannot reasonably be expected to fully understand Mr. Williams’ disabilities and how to accommodate them at the outset of the lawyer/client relationship, but in the circumstances where Mr. Williams informed him of his disabilities and some of his resulting difficulties, and some of his limitations from his disabilities were apparent on their first phone call, Mr. Hertzberg had a duty to inquire into Mr. Williams’ need for accommodation.
[164] Mr. Hertzberg did not know that an RA7 is a representation agreement that allowed Ms. Williams to make decisions for Mr. Williams or assist him in making decisions in his legal affairs, the extent of her rights and responsibilities under the RA7, or the extent to which Mr. Williams would need her help in the criminal legal process. Mr. Hertzberg assumed that “RA7” meant that Ms. Williams was assisting Mr. Williams as a care aide, not that she was able to assist him with decision making. He also did not understand the extent to which Mr. Williams’ disabilities impacted his ability to communicate and understand his case and the criminal law process.
[165] I find that Mr. Williams gave Mr. Hertzberg enough information at the outset for Mr. Hertzberg to make efforts to accommodate Mr. Williams and meet his communication needs without undue hardship. The information in Mr. Williams’ first email about having PTSD and a TBI, having suffered a concussion, and noting an issue with short term memory, should have sparked an inquiry. If Mr. Hertzberg did not know the meaning of RA7, PTSD, or TBI, or how Mr. Williams’ condition would impact his ability to communicate and understand, he could have asked Mr. Williams and Ms. Williams for more information.
[166] Mr. Hertzberg did not make any inquiries into how to accommodate Mr. Williams’ disabilities. He acknowledges that he proceeded with the June 28, 2018, phone call as he would have in other cases for other clients. During the call it was apparent to him that Mr. Williams seemed stressed, traumatized, and needed Ms. Williams’ assistance. This did not prompt him to ask Mr. Williams or Ms. Williams about how to accommodate him. Other than the limited extent to which he allowed Ms. Williams to assist, he did not adapt his approach in any way to allow Mr. Williams to get the full benefit of his representation. He acknowledged on the call that they should meet again on facetime, and he acknowledged at the hearing that a face-to-face meeting may have improved communication, but he did not take steps to set either of these up.
[167] Mr. Hertzberg submits that he became genuinely alarmed towards the end of the June 28 phone call when Ms. Williams referred to confidential communications. I find that this does not justify his way of speaking to Mr. Williams and Ms. Williams at the end of the call. It also does not explain why he did not tell Mr. Williams or Ms. Williams once he learned they were correct to keep information about Law Society complaints confidential. His concern on the June 28 call also does not explain why he did not try to accommodate Mr. Williams after the call.
[168] Mr. Hertzberg also says he made efforts to communicate with Crown counsel about Mr. Williams’ case but issues in their office made this difficult, he was busy with travel and a lengthy trial in fall 2018, and his legal assistant was in the midst of a difficult pregnancy.
[169] I find these issues do not mean that Mr. Hertzberg could not have accommodated Mr. Williams without undue hardship. He has not explained why he could not have sent Mr. Williams even brief updates during this time period, or set up an in person or video meeting at any time before March 2019. Being busy does not explain why he could not have spoken respectfully and in a manner appropriate to someone living with mental, emotional, and cognitive impairments when they were speaking. Accommodating Mr. Williams was ultimately his responsibility, not his legal assistant’s. He had some information about Mr. Williams’ disabilities and a limited understanding of Mr. Williams’ need for assistance communicating after the June 28 phone call. The issues in the Crown office and his office, including the administrative error relating to the trial date, do not amount to undue hardship preventing him from communicating with Mr. Williams even to update him so he was able to understand what was happening.
[170] Mr. Hertzberg submits that “Communication, as The Law Society noted, is a two-way street.” Although he says he takes responsibility for the lapse in communication, he effectively asks me to place some of that responsibility on Ms. Williams. He also says Ms. Williams should have told him that she presented medical letters to the court in the alleged assault victim’s own trial related to Mr. Williams’ inability to testify, and about the outcome of that other trial. Further, Mr. Hertzberg says that Ms. Williams filing the March 15 Application was “alarming” and interfered with his ability to represent Mr. Williams.
[171] At the hearing Mr. Hertzberg said that the Law Society had addressed some issues between the parties that he was not permitted to say anything more about. I find that his submission about the Law Society noting that communication is a two-way street is not helpful. I explained above that I am not making decisions about whether Mr. Hertzberg met professional standards in this case. My decision is about whether he breached the Code . In the context of the accommodation analysis, as I noted above, the jurisprudence is clear that complainants have a duty to participate in their own accommodation. I have already found that Mr. Williams did that by informing Mr. Hertzberg of his disabilities. As the service provider, Mr. Hertzberg has the ultimate responsibility to accommodate Mr. Williams, and it is an insufficient answer in this case to suggest that Mr. or Ms. Williams could or should have communicated better.
[172] I have explained that Mr. Williams provided Mr. Hertzberg with enough information at the outset for Mr. Hertzberg to make efforts to accommodate his disabilities. Ms. Williams also emailed Mr. Hertzberg to ask for an update on discussions with Crown in September 2018 and contacted Mr. Hertzberg’s office in October 2018 to say that Mr. Williams was asked to testify in another trial but could not do so without having a “mental break down”. Either of these communications could have further prompted Mr. Hertzberg to seek more information about Mr. Williams’ disability related accommodation needs in their lawyer-client relationship. There is no lack of participation on Mr. Williams’ or Ms. Williams’ part that could be the basis for a finding that Mr. Hertzberg could not have accommodated Mr. Williams’ disabilities without undue hardship.
[173] Further, I find I cannot place responsibility on Ms. Williams for not informing Mr. Hertzberg of the medical letters she submitted in court, the outcome of the alleged assault victim’s trial, or filing the March 15 Application. When Ms. Williams told Mr. Hertzberg’s office about her concern about Mr. Williams being called to testify, the message she received was that Mr. Hertzberg could not be involved in that trial and she should contact Crown, which she did. It was Mr. Hertzberg’s responsibility to update Mr. Williams and set up an opportunity for him to provide information and tell his story, and he did not do this.
[174] I also find that any concern Mr. Hertzberg had about his duty to the court on March 22, 2019, does not justify his treatment of Mr. Williams and Ms. Williams in the courtroom. Mr. Hertzberg could have spoken to Mr. Williams and Ms. Williams about any concerns he had, including about whether they might record any part of court proceedings. In any case, his concerns appear to have been based on gossip about Ms. Williams, which he obtained by speaking to other lawyers about her and Mr. Williams’ case without speaking to them.
[175] Mr. Hertzberg submits that he has never been surreptitiously recorded before Mr. Williams’ case, and that the recordings suggest a level of suspicion inconsistent with a mutual agreement of solicitor/client trust.
[176] Mr. Hertzberg did not know while he was representing Mr. Williams that his conversations with Mr. Williams were recorded. At most he may have suspected this was the case by the time he spoke to other lawyers about Ms. Williams before the trial date. As I understand Mr. Hertzberg’s submission, he suggests that there was a lack of trust in the relationship from the outset. I considered whether any efforts made to accommodate Mr. Williams may not have made a difference in this circumstance.
[177] First, it is speculative to suggest that Mr. Williams and Ms. Williams recording the conversations means there was a lack of trust at the outset. Ms. Williams did not explain their reasons for recording the calls in her evidence, and Mr. Hertzberg did not ask her to explain their reasons in cross examination. This means I cannot make findings of fact about why they recorded the calls. However, Ms. Williams did explain that she was managing many complicated medical and legal issues for Mr. Williams. Another possible reason for recording conversations may have been to simply keep track. Mr. Hertzberg also submits that any lack of trust may have been related to the historic plight of Indigenous peoples in Canada.
[178] All of this is speculation, but there is no basis on which to find that the surreptitious recordings mean that there was suspicion and mistrust beyond repair from the start of the relationship. It may have benefited the relationship for Mr. Williams to tell Mr. Hertzberg that he was recording their discussions and why, but I find that Mr. Hertzberg did not accommodate Mr. Williams or otherwise communicate with him in a way that would have given him or Ms. Williams an opportunity to raise this. Mr. Williams and Ms. Williams wanted Mr. Hertzberg’s representation to result in a quick resolution of the assault charge. They did put trust in Mr. Hertzberg after he spoke to Ms. Williams on June 29, 2018. I appreciate Mr. Hertzberg’s discomfort at learning that his client recorded conversations with him without letting him know this, but the relationship broke down because of Mr. Hertzberg’s communication failures, not because the conversations were recorded.
[179] I find that Mr. Hertzberg could have accommodated Mr. Williams to allow him to understand what was happening in his case, and to tell his story, without incurring undue hardship. This means Mt. Hertzberg has not established a defence. He discriminated against Mr. Williams based on physical and mental disability contrary to s. 8 of the Code.
[180] In the next section I explain the remedies I order for this breach of the Code.
VI REMEDY
[181] I have found Mr. Williams’ complaint of discrimination based on physical and mental disability to be justified. I declare that Mr. Hertzberg contravened s. 8 of the Code and order him to refrain from committing the same or a similar contravention: Code, s. 32(2)(a) and (b).
A. Expenses
[182] Mr. Williams seeks expenses of $4,480 of legal fees, which he paid a new lawyer after discharging Mr. Hertzberg. Mr. Williams submits that if not for the discrimination, he would not have had to retain another lawyer and incur this expense.
[183] At the hearing Mr. Hertzberg questioned whether it was necessary for Mr. Williams to incur this expense when he could have received services from legal aid at no cost.
[184] Ms. Williams explained that by the time he hired a new lawyer in May 2019, Mr. Williams had received a settlement payment from ICBC for his MVA, so was not eligible for Legal Aid.
[185] I find Mr. Williams’ legal fees of $4,480 to be an expense incurred by the contravention of the Code: s. 37(2)(d)(ii). I accept Ms. Williams’ evidence that Mr. Williams did not seek representation from legal aid again because he knew he would no longer qualify at that time. I also accept that he would not have incurred these fees but for the discrimination. The solicitor-client relationship was poisoned by Mr. Hertzberg’s conduct and Mr. Williams acted reasonably when he ended that retainer and engaged new counsel.
[186] Mr. Williams also seeks reimbursement for fees of $407.93 and $64.58 for court transcripts. The first from Mr. Williams’ court proceedings on March 22, 2019, when Mr. Hertzberg appeared on his case after he ended their relationship. The second on July 2, 2019, when his new lawyer represented him and he entered a peace bond to conclude his case, to use as evidence in this hearing.
[187] Mr. Hertzberg did not object to the transcripts being entered as evidence, and both were entered as exhibits. I reviewed the transcripts, but did not need to rely on them to make any findings. I relied on the parties’ evidence about what happened in court on March 22, 2019, including Mr. Hertzberg’s evidence of his reasons for appearing. I relied on Ms. Williams’ evidence about how Mr. Williams’ new lawyer handled his case. I understand that Ms. Williams views Mr. Hertzberg’s conduct through the lens of a comparison to how Mr. Williams’ new lawyer communicated with him and concluded his case, but my decision is based on my analysis of the evidence about Mr. Hertzberg’s conduct without comparing him to the other lawyer. In short, the transcripts ultimately were not necessary for Mr. Williams’ case. However, Mr. Williams and Ms. Williams could not have known this. I find the costs of obtaining the transcripts to be an expense arising from the contravention, similar to legal expenses or the expense of obtaining expert evidence: Gichuru v. Law Society of BC, 2011 BCHRT 185 at paras. 238 to 242.
[188] In summary, I order Mr. Hertzberg to pay Mr. Williams a total of $4,952.51 for expenses arising from the contravention of the Code .
B. Injury to dignity, feelings, and self-respect
[189] Mr. Williams seeks an order of $30,000 in compensation for injury to his dignity, feelings, and self-respect as a result of the discrimination based on his disabilities. I grant his request for the following reasons.
[190] The Tribunal has discretion under s. 37(2)(d)(iii) of the Code to order compensation “for injury to dignity, feelings and self respect or to any of them.” The purpose of an award for injury to dignity is to compensate the person who experienced discrimination, not to punish a respondent: Silver Campsites Ltd. v. James, 2013 BCCA 292 at para. 41. The Tribunal described the principles underlying this compensation in Young Worker v. West Indian Trading Co. (cob Heirloom) , 2023 BCHRT 137 at paras. 115 to 116:
A violation of a person’s human rights is a violation of their dignity. The purpose of an injury to dignity award is to address this very harm: Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137 [Nelson] at para. 33. In making an injury to dignity award, the Tribunal often considers several factors: the nature of the discrimination, the social context in which the discrimination occurred, and the specific effect that the discrimination had on the complainant: Nelsonat para. 33. Determining an injury to dignity award’s amount depends on the specific facts and circumstances in any given case: Gichuru v. Law Society of British Columbia (No. 2), 2011 BCHRT 185, upheld in 2014 BCCA 396 at para. 260. At the same time, for the purposes of consistency and fairness, it is often helpful to consider the range of awards made in similar cases: Mr. D v. Path General Contractors and another, 2023 BCHRT 46 at para. 55….
…Discrimination over months or years may be viewed by the Tribunal as discrimination of a more severe or serious nature: RR. No. 6at para. 398; Francis v. BC Ministry of Justice (No. 5), 2021 BCHRT 16 [Francis No. 5] at paras. 155 and 160. However, the frequency and duration of the discrimination are not necessarily determinative. The Tribunal may determine that other factors heighten the seriousness of the discrimination: Nelsonat para. 34; Campbell No. 4at para. 151.
[191] Mr. Hertzberg did not make submissions on an appropriate amount of compensation under this heading if the complaint or part of the complaint were to be allowed.
[192] I am not aware of any cases awarding compensation for injury to dignity for discrimination in similar circumstances where a complainant with disabilities was not able to benefit from legal representation in the face of a criminal charge. I must exercise my discretion based on the facts of this particular case. I also consider that, generally, awards for injury to dignity in British Columbia have been trending upwards in recent years: L.J. v. D.M., 2020 BCHRT 129 at para. 216.
[193] I find that the position Mr. Williams was in of having a criminal charge against him, needing representation, and depending on Mr. Hertzberg to represent him and communicate with him about his case only to learn that his trial date was upcoming without receiving any communication from Mr. Hertzberg for months, weighs towards a significant award.
[194] The nature of the discrimination in this case is the failure to communicate to Mr. Williams in a way that would allow him to benefit from legal representation despite his disabilities in what was already a very stressful situation. Mr. Hertzberg’s communication failure stretched over a nine-month period, during which Mr. Williams did not know where he stood in his criminal case. Although I dismiss his complaint of discrimination based on race and Indigenous identity, I consider how the discrimination based on his disabilities impacted him as an Indigenous man with multiple physical and mental disabilities.
[195] I accept Ms. Williams’ evidence of the impacts on Mr. Williams. I accept that when Mr. Hertzberg did not communicate with him and he did not understand what was happening with his case, Mr. Williams was afraid that he was going to jail. While the legal process would have been stressful in any case, and he was also experiencing stress related to his MVA civil action, the subpoena he received to testify at the alleged victim’s own trial, and his multiple disabilities, I find that the discrimination added significant additional stress that could have been avoided if Mr. Hertzberg had communicated to him in a way that would have allowed him to understand what he was doing to represent him, his assessment of the case, and possible and likely outcomes. I accept that this added to Mr. Williams’ anxiety until he retained a new lawyer who communicated with him effectively and resolved his charge within weeks.
[196] Mr. Williams had nine months of additional and significant stress in his life because of the discrimination he experienced. I accept Ms. Williams’ evidence that she tried to shield Mr. Williams from the stress of not knowing what might happen with his case, and then the belief that he would be in trial on March 22, 2019, with no preparation. I accept that it was not possible to relieve Mr. Williams’ stress when she did not know herself what Crown was saying about the case or what would happen.
[197] Considering these factors, I find that the amount Mr. Williams seeks is appropriate. I order Mr. Hertzberg to pay Mr. Williams $30,000 compensation for injury to dignity, feelings, and self-respect for discrimination based on his mental and physical disabilities.
C. Apology
[198] Finally, Mr. Williams seeks a public apology within the Cowichan Tribes Territory at his choice of location.
[199] In other cases, the Tribunal has declined to order a respondent apologize for discrimination. The Tribunal has questioned whether it has jurisdiction to order a party to apologize: Cha v. Hollyburn Estates Ltd. , 2005 BCHRT 409 at para. 12. In any case, it is questionable whether an apology that is ordered has any value to a complainant. It is not possible to know whether an apology made in compliance with an order is sincere: Hart v. University of British Columbia and others, 2019 BCHRT 225 at para. 59.
[200] For these reasons, I decline to order Mr. Hertzberg to apologize to Mr. Williams.
VII ORDER
[201] Mr. Williams’ complaint of discrimination based on physical and mental disability is allowed.
[202] I declare that Mr. Hertzberg contravened s. 8 of the Code and order him to refrain from committing the same or a similar contravention: Code, s. 32(2)(a) and (b).
[203] I order Mr. Hertzberg to pay Mr. Williams a total of $4,952.51 for expenses arising from the contravention of the Code.
[204] I order Mr. Hertzberg to pay Mr. Williams $30,000 compensation for injury to dignity, feelings, and self-respect for discrimination based on his mental and physical disabilities.
[205] Mr. Williams’ complaint of discrimination based on his race and Indigenous identity is dismissed pursuant to s. 37(1) of the Code .
Jessica Derynck
Tribunal Member
I INTRODUCTION
[1] Craig Williams is an Indigenous man and a member of the Cowichan Indian Band. He was in a serious motor vehicle accident [MVA] in 2014, which has physically and mentally impacted him to this day. He also has ongoing physical limitations and pain related to a spinal surgery in 2018. He has difficulty caring for himself and performing many everyday tasks. His mother, Patricia Williams, helps him in all aspects of his life.
[2] Mr. Williams was criminally charged with assault in August 2017. In May 2018 he needed a criminal lawyer to represent him in defending against this charge. He retained Peter Hertzberg through Legal Aid. Ms. Williams supported Mr. Williams in his interactions with Mr. Hertzberg, who was his lawyer from May 2018 to March 2019. Mr. Williams’ criminal case did not conclude during this time period.
[3] Ms. Williams filed a human rights complaint against Mr. Hertzberg on Mr. Williams’ behalf on October 2, 2019. The complaint alleges that Mr. Hertzberg discriminated against Mr. Williams because he is Indigenous and based on physical and mental disability. Mr. Williams claims that Mr. Hertzberg did not acknowledge his disabilities, aggressively communicated with him and Ms. Williams, stereotyped them during a phone call on June 28, 2018, and then did not communicate with him about his case again until shortly before a trial date of March 22, 2019. Mr. Williams alleges that at that court date, Mr. Hertzberg was again aggressive with him and Ms. Williams, ignored a previous letter in which Mr. Williams told Mr. Hertzberg that he no longer wanted his legal representation, and did not accept Ms. Williams’ necessary assistance to Mr. Williams.
[4] Mr. Hertzberg denies discriminating. He says all of his conduct and communication were for the purposes of understanding the case against Mr. Williams to represent him or meeting his duty to the court. He acknowledges a lapse in communication after June 2018 but says this was due to an administrative error and was unrelated to Mr. Williams being Indigenous or his disabilities.
[5] For the following reasons, I find that Mr. Hertzberg discriminated against Mr. Williams regarding a service customarily available to the public based on physical and mental disability, contrary to s. 8 of the Human Rights Code. I find that Mr. Hertzberg communicated with Mr. Williams in a negative and unsupportive way that did not account for Mr. Williams’ disabilities throughout their lawyer/client relationship. This led to Mr. Williams terminating the relationship before his case was concluded. I find this to be an adverse impact in which Mr. Williams’ disabilities were a factor. I find that Mr. Hertzberg has not established a justification for this adverse impact.
[6] I find that Mr. Hertzberg did not discriminate against Mr. Williams based on race or Indigenous identity.
[7] I apologize to the parties for the delay in issuing this decision.
II OVERVIEW
[8] Mr. Williams was 42 years old at the time of the hearing. He unfortunately has suffered from symptoms including chronic pain and cognitive impairments since his MVA, which were also complicated by his spinal surgery in June 2018. He relies on Ms. Williams’ support for everyday life activities like shopping, preparing meals, taking care of his son, and transportation.
[9] Mr. Williams has a Representation Agreement that was executed on May 4, 2018, under s. 7 of the Representation Agreement Act , which names Ms. Williams as his representative [RA7]. The RA7 gives Ms. Williams the authority to assist Mr. Williams to make decisions or to make decisions on his behalf, including those related to routine management of his financial affairs, obtaining legal services and instructing counsel, and consent for health care and personal care.
[10] Mr. Williams emailed Mr. Hertzberg on May 16, 2018, to say he was in a bind for a lawyer to deal with an assault charge. He said he was approved for a change of lawyer by Legal Aid because his previous lawyer did not respond to phone calls or meet with him a second time, and he needed to provide information. He explained some of the background to his assault charge, including that the alleged assault victim was the driver when he was in the MVA and he had an ongoing civil case against her. Mr. Williams said that his injuries from the MVA included a concussion, “PTSD”, chronic pain, short-term memory issues, and a “TBI”. PTSD stands for post-traumatic stress disorder and TBI stands for traumatic brain injury; Mr. Williams did not explain these acronyms in his email. He said that the alleged assault victim was harassing him, she had come to his house subsequent to the assault charge to try to have him charged with breaching a no contact order, and that he had called 911 twice to have her removed from his property.
[11] Mr. Williams told Mr. Hertzberg in his email that he went to court with Ms. Williams on May 15, 2018, and that Ms. Williams had an “RA7”; he did not explain what an RA7 is. He said Ms. Williams gave the judge the context around his assault charge and issues with the alleged victim. Mr. Williams explained that the judge said he did not see why the matter could not be resolved before trial and had told Mr. Williams to get a lawyer to speak to Crown. Mr. Williams said he was looking for a lawyer to speak to Crown and ideally resolve the case before May 22, 2018, and although he knew this was short notice he had to try to find someone.
[12] Mr. Hertzberg responded to Mr. Williams on May 18, 2018, and said he was happy to assist. He said he had spoken with Crown counsel and that the trial date was set for May 31, but that he could apply for an adjournment with Crown’s consent. Mr. Williams replied to Mr. Hertzberg and thanked him. The May 31 trial date was adjourned.
[13] Mr. Williams and Ms. Williams spoke with Mr. Hertzberg on June 28, 2018, on a phone call that lasted 50 minutes. Mr. Williams and Ms. Williams recorded this phone call. Mr. Hertzberg did not know at the time that it was being recorded. During the call Mr. Hertzberg asked Mr. Williams and Ms. Williams for information and context related to the assault charge. I explain further details of this phone call and Mr. Williams’ allegations related to this call in the analysis section below.
[14] Ms. Williams and Mr. Hertzberg spoke again on June 29, 2018, for about seven minutes. Again Ms. Williams recorded the conversation and Mr. Hertzberg was not aware that she was doing so. Mr. Williams was not on this call. During this call Mr. Hertzberg explained his intended next steps in Mr. Williams’ case, including that a date would be set for trial. I also set out further details of this phone call in the analysis below.
[15] On July 4, 2018, the court scheduled Mr. Williams’ trial date for March 22, 2019.
[16] Mr. Hertzberg did not inform Mr. Williams or Ms. Williams about the scheduled trial date. Mr. Hertzberg explained that this was due to an administrative error, which I detail in the analysis below.
[17] Ms. Williams emailed Mr. Hertzberg on September 24, 2018, for an update on the case. Mr. Hertzberg’s assistant responded and said they would be in touch when they had an update.
[18] There was no further contact between the parties until March 2019.
[19] Mr. Williams became aware of his upcoming trial date by March 12, 2019, likely because Mr. Hertzberg’s office contacted him about meeting in advance of the trial. Mr. Hertzberg did not know at this time that his office had failed to inform Mr. Williams of his trial date.
[20] Mr. Williams called Mr. Hertzberg on March 12, 2019, asked Mr. Hertzberg to send him his file, and said he wanted a new lawyer. Again, this phone call was recorded without Mr. Hertzberg’s knowledge and I set out details of the call in the analysis below.
[21] On March 15, 2019, Ms. Williams filed an application in court asking for Mr. Williams’ case to be dismissed because of delay [March 15 Application].
[22] Mr. Williams sent Mr. Hertzberg a letter dated March 18, 2019, setting out his reasons for terminating their lawyer/client relationship [Termination Letter], including that Mr. Hertzberg did not communicate with him for over seven months, Mr. Hertzberg made racial comments in their June 28, 2018, phone call, all documents related to his case had been withheld from him, and no one in the justice system had ever heard his side of the story.
[23] Mr. Williams and Ms. Williams went to court on the trial date of March 22, 2019. Mr. Hertzberg attended because he was still on record as Mr. Williams’ counsel. Mr. Hertzberg was removed from the record as Mr. Williams’ counsel on this date. I set out the details of Mr. Williams’ allegations related to this court date in the analysis below.
[24] Mr. Williams retained a new lawyer to deal with his assault charge and it was resolved by his agreement to a peace bond on July 2, 2019.
III ISSUES AND SUMMARY OF FINDINGS
[25] Section 8(1) of the Human Rights Code prohibits discrimination regarding a service customarily available to the public because of personal characteristics including physical or mental disability, race, or Indigenous identity.
[26] To establish discrimination based on physical or mental disability, Mr. Williams must establish that he has a disability, he experienced an adverse impact in a service customarily available to the public, and that his disability was a factor in the adverse impact. To establish discrimination based on his race or Indigenous identity he must establish that his being Indigenous was a factor in an adverse impact: Moore v. BC (Education), 2012 SCC 61 at para. 33.
[27] Mr. Hertzberg may defend against the complaint by proving that he had a bona fide and reasonable justification [BFRJ] for his conduct. To do this he has to show that: (1) his conduct was for a purpose or goal that was rationally connected to the function being performed, (2) he behaved in good faith, and (3) his behaviour was reasonably necessary to accomplish his purpose or goal, in the sense that he could not have accommodated Mr. Williams without undue hardship: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) , [1999] 3 SCR 868 at para. 20.
[28] There is no dispute that the Codeprotects Mr. Williams from discrimination based on race or Indigenous identity as an Indigenous man and member of the Cowichan Indian Band. Mr. Hertzberg also does not dispute that Mr. Williams has physical and mental disabilities. However, I found it necessary to decide whether he has established that he has a physical or mental disability protected under the Code and how any disability impacts his functioning when obtaining a lawyer’s services.
[29] Mr. Hertzberg acknowledges that there were issues with his communication and service, and he regrets that Mr. Williams did not get the representation that he deserved. I had to decide whether any of the issues were an adverse impact on Mr. Williams, and if so, whether any of his protected characteristics were factors.
[30] Finally, Mr. Hertzberg gave evidence about his explanations for his conduct, and it was necessary to decide whether he established a BFRJ.
[31] In this decision I find that:
a. Mr. Williams has physical and mental disabilities protected under the Code.
b. When Mr. Williams’ and Mr. Hertzberg’s lawyer/client relationship is considered in its full context, Mr. Hertzberg’s communication failures throughout the relationship made his legal services inaccessible to Mr. Williams and resulted in Mr. Williams terminating the lawyer/client relationship. This constitutes an adverse impact.
c. Mr. Williams’ disabilities impact how well he is able to function and communicate in a service relationship with a lawyer and were a factor in the adverse impact.
d. Mr. Williams being Indigenous was not a factor in the adverse impact. In their phone call on June 28, 2018, Mr. Hertzberg spoke about Mr. Williams being Indigenous, but did not inappropriately consider this factor and did not stereotype him or Ms. Williams. Mr. Williams being Indigenous also was not a factor in any of the communication problems that followed the phone call or the interactions at court on March 22, 2019.
e. Mr. Hertzberg has not established a BFRJ for the adverse impact Mr. Williams experienced because of his disabilities. In particular, he has not established that he could not have accommodated Mr. Williams’ disabilities without experiencing undue hardship. This means he has not established a defence to the complaint.
[32] In short, I find that Mr. Hertzberg discriminated against Mr. Williams based on physical and mental disability, contrary to s. 8 of the Code. I explain the remedies I order at the end of this decision. I find no discrimination based on race or Indigenous identity.
IV EVIDENCE AND CREDIBILITY
[33] I heard this matter over four days. Three witnesses, including Ms. Williams, testified for Mr. Williams. Mr. Hertzberg testified and had no additional witnesses.
[34] Mr. Williams did not testify. Ms. Williams explained that Mr. Williams wished to introduce himself at the start of the hearing, but otherwise would not attend because it was too upsetting for him. Mr. Williams started to introduce himself but appeared to be quite stressed. Mr. Hertzberg offered to turn off his camera so it would be more comfortable for Mr. Williams to introduce himself, he did so, and Mr. Williams was able to introduce himself. Mr. Williams did not appear at the hearing again.
[35] This case involves different perspectives much more than disputed facts, but Ms. Williams’ credibility is essential because Mr. Williams’ case depends on whether I accept her evidence about his disabilities and how the events impacted him. I find that Ms. Williams did her best to provide an accurate recollection of events within her knowledge, and that her evidence was sincere and credible.
[36] Mr. Williams’ other witnesses were his chiropractor, Dr. Darren Burry, and Christine Smith, the director of an organization called Cowichan Brain Injury.
[37] Mr. Williams did not seek to introduce expert opinion evidence from Dr. Burry or Ms. Smith under the Tribunal’s Rules of Practices and Procedure .Though Mr. Hertzberg did not object to any of Dr. Burry or Ms. Smith’s evidence, some of their evidence strayed into expert opinion evidence. I decline to rely on their opinion evidence because Mr. Williams did not adduce it in keeping with the Rules. Section 27.2(1) of the Code gives the Tribunal discretion to admit evidence that would not be admissible in a court if the Tribunal deems it necessary and appropriate. Mr. Williams establishes his case of discrimination based on disability without the witnesses’ opinion evidence, and I do not find it necessary or appropriate to rely on their opinion evidence in these circumstances.
[38] I find that Mr. Hertzberg made some effort to provide reliable evidence, however, it is clear from documentary evidence, which I accept, that some of his testimony was not accurate. To some extent inaccurate recollections are understandable with the passage of time, but where his testimony clearly contradicts accepted documentary evidence, I find that he did not make a careful effort to give accurate evidence at the hearing. I treat his evidence with some caution for this reason. I also find that Mr. Hertzberg was not always cooperative during cross examination and became defensive at times. Some frustration and defensiveness are understandable in his position; the Tribunal’s process may be stressful for any party, and I do not expect respondents to a complaint of discrimination to give evidence with a complete lack of frustration or emotional response. However, in some instances Mr. Hertzberg became overly defensive, and I find that his evidence was not always sincere. Where Ms. Williams’ and Mr. Hertzberg’s evidence conflicts, I prefer Ms. Williams’ evidence. Where these factors impact how I assess Mr. Hertzberg’s evidence to make my decision I explain this in my analysis below.
[39] Mr. Williams entered recordings of phone calls with Mr. Hertzberg on June 28, 2018, June 29, 2018, and March 12, 2019, into evidence. Mr. Hertzberg did not know at the time of the phone calls that they were being recorded. The Tribunal has noted concerns with having surreptitious recordings in evidence: Chestacow v. Saanich School District No. 63 , 2014 BCHRT 165 at para. 38. In this case Mr. Hertzberg did not object to the recordings as exhibits. There is no dispute that each recording is of the entire phone call. I also find that the recordings are clear. I rely on them as necessary to make my decision. I note that Mr. Hertzberg testified that he could not always hear Mr. Williams and Ms. Williams as clearly in the June 28, 2018, call as they sound on the recording. I considered his evidence in considering the recordings. I explain my use of the recordings in the analysis below.
[40] Aside from the evidence that I consider to be opinion, as I explain above, I have considered all of the evidence admitted by the parties at the hearing. In my reasons below I recount only the evidence necessary to make my decision.
V ANALYSIS AND DECISION
A. Mr. Williams’ disabilities
[41] The Code does not define physical or mental disability. In Morris v. BC Rail, 2003 BCHRT 12 at para. 214, the Tribunal set out considerations for assessing whether an individual has a physical or mental disability, including any physical or mental impairment, any functional limitations resulting from an impairment, and the social, legislative, or other response to the impairment and/or limitations. The focus on the societal response is to be assessed in light of the concepts of human dignity, respect, and the right to equality.
[42] Ms. Williams testified about, and entered documentary evidence related to, Mr. Williams’ disabilities. She also entered evidence from Dr. Burry and Ms. Smith about treatment and services Mr. Williams received for his disabilities. This included evidence about impacts of the MVA and of a spinal surgery on Mr. Williams’ mobility and pain. I do not need to explain this evidence in detail because these are not the impacts of his disabilities that I find to be a factor in an adverse impact.
[43] In this section I explain aspects of Mr. Williams’ disabilities that I do find to be a factor in an adverse impact. I find that he has impairments that give rise to functional limitations, which impact his ability to communicate and function to benefit from the services of a lawyer/client relationship.
[44] When Mr. Williams was in the MVA in 2014 he was in the passenger seat of a vehicle that crashed at a high rate of speed. His head made direct contact with the windshield. The significant impacts of the MVA unfortunately continue to this day. These include impacts on his ability to function, which mean he relies on Ms. Williams in many aspects of his life.
[45] Mr. Williams said he had PTSD and a TBI in his initial email to Mr. Hertzberg on May 16, 2018. It is not clear on the evidence whether it was PTSD, which may be described as a mental disability arising from the trauma of the accident, a TBI, which may be described as a physical disability from impacts to his brain in the accident, or both, impacting his functioning at the times relevant to the complaint, but I find that it does not matter which of these two diagnoses impacted him in particular ways. I find that Mr. Williams has a disability that impairs his cognitive functioning following the MVA, from PTSD and/or a TBI, based on the following evidence.
[46] In June 2016 a registered psychologist assessed Mr. Williams to provide a medical legal perspective of his neuropsychological status following the MVA. I do not rely on the psychologist’s opinion to make my findings because the psychologist was not introduced as an expert witness at the hearing. Rather, I rely on the fact that Mr. Williams was assessed and diagnosed at this time, which is consistent with Ms. Williams’ evidence about his condition and the amount of support he needed from her.
[47] The psychologist provided a report diagnosing Mr. Williams with PTSD with delayed expression, which she explained means his symptoms developed gradually after the MVA. The psychologist said Mr. Williams likely sustained a mild TBI in the MVA, but at that time she could not assess whether Mr. Williams also had cognitive impairment due to a TBI because of the severity of his psychiatric distress. She explained that PTSD impacts cognitive functioning, including complex information processing, attention, and memory, whether or not the person has also experienced head trauma.
[48] In January 2018 Mr. Williams’ family physician wrote a letter with respect to an appeal for a disability application. Again, I do not rely on the physician’s opinion because the letter was not introduced as expert evidence. I consider the fact that Mr. Williams’ physician reported at this time that Mr. Williams missed many appointments in the past and needed constant reminders, but Ms. Williams stepped in to help him attend, resulting in a stark contrast in his attending the clinic. Similarly, in April 2018 another physician wrote that Mr. Williams has problems with short-term and long-term memory and would always need someone present to assist during any consultations or interactions, and that Ms. Williams filled this role and would probably continue to in the near future. This evidence is consistent with Ms. Williams’ evidence about how much support Mr. Williams needed from her during the time relevant to the complaint.
[49] Ms. Williams became Mr. Williams’ representative in accordance with the Representation Agreement Act under the RA7 on May 4, 2018. Ms. Williams explained that an Aboriginal organization helped her get the RA7 because they knew about Mr. Williams’ condition and that she could help him with his medical, financial, and legal affairs. She says she has the RA7 to show that she can speak on Mr. Williams’ behalf because she sees his condition 24/7 and knows how much he can take and when he needs support, and that she and Mr. Williams use the RA7 with all of his doctors and in his legal matters.
[50] Mr. Williams saw another psychologist in October 2018. The alleged victim in Mr. Williams’ assault charge had criminal charges of her own related to an alleged fraud against Ms. Williams, and Mr. Williams received a subpoena to testify at her trial. Ms. Williams called Mr. Hertzberg’s office about this on October 3, 2018. Mr. Hertzberg’s assistant’s notes say Ms. Williams called to ask about the subpoena and that she did not know how to go about the situation because Mr. Williams could not stand as a witness and be questioned, or he would have a “mental break down”. Mr. Hertzberg told Ms. Williams that he could not be involved in the other criminal proceeding, but if Ms. Williams thought Mr. Williams could not testify then she should talk to the Crown lawyer. This led to Mr. Williams’ psychological assessment at that time.
[51] In a letter dated October 10, 2018, the psychologist says he saw Mr. Williams three times after he was brought by his mother. The psychologist says he did not have the opportunity to complete a full assessment of Mr. Williams but provided an opinion that he was mentally and emotionally unable to act as a reliable and credible witness at that time. The psychologist said that Mr. Williams’ executive functioning skills, i.e. his ability to plan, organize his thoughts, memory, concentration, and attention, have been virtually non-existent. Again, I do not rely on this psychologist’s opinion to make my decision, rather, I consider that the psychologist providing this letter at this time is consistent with Ms. Williams’ evidence that Mr. Williams was not functioning well enough to participate in a legal process on his own at this time and needed her support.
[52] Mr. Williams began attending Cowichan Brain Injury in September 2021. It is not clear whether or when a physician diagnosed Mr. Williams with a TBI, but I accept Ms. Williams’ evidence that she understands at least some of Mr. Williams’ limitations to be from a TBI and that the services at this organization are helpful to him. Also in September 2021, the Canada Revenue Agency determined that Mr. Williams is eligible for the disability tax credit for the 2015 to 2026 tax years. This is also consistent with Ms. Williams’ evidence that Mr. Williams was not able to function on his own in 2018 and 2019, and needed her help.
[53] Finally, Mr. Williams and Ms. Williams said some things during the phone call on June 28, 2018, consistent with a finding that Mr. Williams had an impairment and functional limitations that affected his ability to communicate with Mr. Hertzberg and benefit from a lawyer/client relationship. I set out further details of this phone call in my analysis below, but I set out the comments relevant to my findings about Mr. Williams’ disabilities now.
[54] About 20 minutes into the call Mr. Williams said he was struggling with Mr. Hertzberg asking him to go back in time. Ms. Williams added that Mr. Williams has memory issues. Later in the call Mr. Williams paused, stuttered, said he felt like Mr. Hertzberg was trapping him, and said he thought he had phoned too soon. Ms. Willliams added that Mr. Williams had a psychiatrist who said he had “trauma on trauma” and had to be careful with his emotions, and Mr. Hertzberg said he understood that they were retraumatizing Mr. Williams. These comments in the phone call are consistent with Ms. Williams’ evidence at the hearing that Mr. Williams had a disability that impacted his ability to function and communicate.
[55] In short, I find that during the time period relevant to his complaint Mr. Williams’ ability to function independently was impaired from PTSD ,a TBI, or both,. He needed Ms. Williams’ support in areas that society generally expects adults to manage on their own, ranging from everyday tasks like meals and attending medical appointments to handling his legal affairs. This is the basis for my finding that Mr. Williams has physical and mental disabilities protected under the Code.
B. Adverse impact in a service customarily available to the public
[56] Mr. Hertzberg does not dispute that this complaint is in the context of a service customarily available to the public. This is consistent with the definition of the “public” for a service in human rights cases, which may be clients from a subset of the public eligible for a service: University of British Columbia v. Berg, [1993] 2 SCR 353.
[57] The basis of a service provider’s human rights obligations is the requirement that they provide their particular service without discrimination: Yaniv v. Various Waxing Salons (No. 2), 2019 BCHRT 222 at para. 23. The service Mr. Hertzberg provided to Mr. Williams was legal representation through legal aid in the context of a criminal charge.
[58] To decide whether Mr. Williams experienced an adverse impact I must consider the context of the service. Facing a criminal charge, certainly one as serious as assault, is inherently stressful and difficult. For his complaint to succeed, Mr. Williams must establish that some conduct on Mr. Hertzberg’s part created an adverse impact beyond the difficulties that were inherent to the criminal law process he was involved in.
[59] The Tribunal has found that individual incidents, viewed in isolation, may not constitute discrimination but may be viewed differently when considered together: Rana v. P.B. Distribution and others, 2005 BCHRT 166 at para. 41. In the context of a lawyer/client relationship, one lapse in communication due to an administrative error, or one difficult conversation that left a client feeling upset, offended, or confused, would not necessarily be an adverse impact (although it may be). If a lawyer communicates harshly to a client more than once, or fails to communicate important information to a client over a period of time, it may be more likely that the client experienced an adverse impact. Either way, the full context of the relationship is likely relevant to an analysis of whether certain conduct constitutes an adverse impact.
[60] In this case I must consider all the evidence about Mr. Williams’ and Mr. Hertzberg’s lawyer/client relationship to determine whether Mr. Williams experienced an adverse impact. In doing so, I am not deciding whether Mr. Hertzberg did a good job representing Mr. Williams. The Tribunal does not assess the quality of a lawyer’s representation to decide how effective the representation was, or whether it could have been better. I am also not deciding whether Mr. Hertzberg met all his obligations a lawyer has to a client. I say this because Ms. Williams referred to excerpts of the Law Society of British Columbia’s Code of Professional Conduct at the hearing and entered them into evidence. The Code of Professional Conduct helped Ms. Williams to understand lawyers’ obligations to their clients, but it is not the Tribunal’s role to decide whether Mr. Hertzberg met those obligations.
[61] In reviewing the full context of Mr. Williams’ lawyer/client relationship with Mr. Hertzberg, I find that Mr. Hertzberg’s manner of communicating to Mr. Williams throughout the relationship caused Mr. Williams additional stress, did not allow him to explain what happened on the night he was charged with assault, and did not allow him to understand important information about his case. These communication failures included Mr. Hertzberg speaking harshly to Mr. Williams in the phone call on June 28, 2018, and in person on the trial date of March 22, 2019, failing to communicate with him between those dates, and failing to explain the reasons for his lack of communication. Mr. Williams terminated their relationship before his case was concluded as a result of these communication failures.
[62] When I consider these findings in context with each other and the whole relationship, I find that Mr. Williams was not able to benefit from the lawyer/client relationship, which resulted in him terminating the relationship before his charge was resolved. I find this to be an adverse impact. I set out the details of Mr. Hertzberg’s conduct that I find to be an adverse impact below, after a brief overview of why I find Mr. Williams’ disabilities to be a factor in the adverse impact.
C. Mr. Williams’ disabilities were a factor in the adverse impact; his being Indigenous was not a factor
1. Mr. Williams’ disabilities
[63] For a complaint to succeed a complainant must show a connection between their protected characteristic and the adverse impact. The protected characteristic does not need to be the only factor or a significant factor in the adverse impact, but it must be a factor: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center) , 2015 SCC 39 at paras. 45-52.
[64] Mr. Williams submits that Mr. Hertzberg ignored his disabilities and did not accommodate him, and that he did not have a voice in his own case as a result.
[65] I agree that this case is largely about accommodation, and my finding that Mr. Hertzberg breached the Code is as much about what he did not say and do as about what he did. However, the onus only shifts to Mr. Hertzberg to justify his conduct after Mr. Williams establishes that his disabilities were a factor in an adverse impact. This could be based on Mr. Hertzberg directly treating Mr. Williams badly because of his disabilities. This could also be indirect discrimination based on policies, conduct, or inaction that would otherwise be neutral, but impacted Mr. Williams because of his disabilities: Stewart v. Elk Valley Coal Corp. , 2017 SCC 30 at para. 24.
[66] I do not need to find that Mr. Hertzberg intended to discriminate against Mr. Williams to find that discrimination occurred: Code, s. 2. My analysis focuses on whether Mr. Williams was adversely impacted in connection with his disabilities or because he is Indigenous, not on Mr. Hertzberg’s intentions. This means that Mr. Hertzberg may have adversely impacted Mr. Williams without meaning to.
[67] I find that Mr. Hertzberg did not intentionally treat Mr. Williams badly because he has disabilities, but I find that Mr. Williams’ disabilities were a factor in the adverse impact he experienced, for two reasons.
[68] First, while all lawyers should clearly communicate important information to their clients, I find that the way Mr. Hertzberg communicated with Mr. Williams impacted him in a particularly negative way because of his functional limitations. Mr. Williams was traumatized and highly stressed at the time Mr. Hertzberg represented him. He also had problems with his memory and organizing his thoughts. His disabilities impacted his ability to fully and freely participate in a lawyer/client relationship, and to provide and understand information important to his defence. For these reasons, he was not able to tell his lawyer what happened the night of the alleged assault, understand what might happen as a result of the charge, or understand what Mr. Hertzberg was doing to represent him, without communication that happened with his limitations in mind.
[69] To the extent that Mr. Hertzberg’s communication failures with Mr. Williams happened when he communicated with Mr. Williams like he would communicate with other clients who do not have similar disabilities and limitations, this adversely impacted Mr. Williams because he was not able to communicate, understand, and function in the same way as others. This means Mr. Hertzberg did have a duty to accommodate his disabilities throughout the lawyer/client relationship.
[70] Second, Mr. Williams needed Ms. Williams’ assistance and support to interact with Mr. Hertzberg and participate in his case. I find that Mr. Hertzberg became frustrated, resentful, or defensive over Ms. Williams’ involvement at times, particularly during the phone call on June 28, 2018, and when they met at the courthouse on March 22, 2019, and this was a factor in Mr. Hertzberg treating Mr. Williams harshly at those times.
[71] I explain these findings in detail in my analysis of the parties’ communications below.
2. Indigenous identity and race
[72] I find that Mr. Williams being Indigenous was not a factor in the adverse impact.
[73] I considered that discrimination is often subtle rather than overt and is often proven by inference rather than direct evidence. Mr. Williams could establish that Indigenous identity and race were factors in adverse treatment if I were to infer this was the case based on the evidence of how Mr. Hertzberg spoke to him and perceived him, as well as stereotypes of Indigenous peoples: Smallboy v. Grafton Apparel, 2021 BCHRT 15 at para. 29. An inference of discrimination may arise “where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses”: Vestad v. Seashell Ventures Inc. , 2001 BCHRT 38 at para. 44; Kondolay v. Pyrotek Aerospace Ltd., 2020 BCHRT 208 at para. 108.
[74] In my analysis of the events below I explain that I do not find comments that Mr. Hertzberg made about Mr. Williams being Indigenous to be discrimination or evidence of stereotyping. I also find on the evidence that there is no basis to infer that Mr. Williams being Indigenous was a factor in the communication failures that meant Mr. Williams did not benefit from Mr. Hertzberg’s services and terminated the relationship.
[75] In the following sections of my decision, I explain the conduct that I find to be an adverse impact, and I explain why I find that Mr. Williams’ disabilities were a factor and his being Indigenous was not a factor.
D. June 28, 2018, phone call
1. Mr. Hertzberg’s comments about race and Indigenous identity were not discrimination
[76] I first address the part of the phone call Mr. Williams relies on for his claim of discrimination based on race and Indigenous identity.
[77] This phone call lasted 50 minutes. About 15 minutes into the phone call Mr. Hertzberg was asking Mr. Williams and Ms. Williams questions about Mr. Williams’ history with the alleged assault victim. Mr. Williams explained that the assault was not a domestic one because he and the alleged victim were not in a relationship and said that the alleged victim was living in the bush while he has his own place. In response, Mr. Hertzberg said, “I’m a white guy and I don’t use that in a racist term, listen carefully.” Mr. Hertzberg said he was fully aware that many Indigenous cultures use a different, circular, version of time, and that he did not mean this as a criticism but found it fascinating and intriguing interculturally. He said that when many of his First Nations clients are giving him a narrative they cycle back and forth in time, not intentionally, but he needed a linear timeline, and he would clarify this. He said, “please don’t take this as me being racist, it’s completely not”.
[78] Mr. Hertzberg went on to say that a lot of white lawyers are not aware of this timeline issue, but he was aware of it because of his experience with Indigenous clients. He said, “if I’m wrong about it with you tell me, but what I want you to do, Craig, is I want you to start, I want you to use linear timeline, and if you’re cycling back, tell me, and if you’re not and I wonder I may ask you.” He asked Mr. Williams to start at the time he and the alleged victim first knew each other and draw a straight line from then until the present and answer questions. Mr. Hertzberg then asked Mr. Williams whether the alleged victim is older or younger than him, and Mr. Williams answered that she is older.
[79] Mr. Williams submits that these comments were discrimination based on race and Indigenous identity. Ms. Williams explained at the hearing that Mr. Williams did not bring up his race, and that when Mr. Hertzberg did it was not in a positive light. Ms. Williams said that despite Mr. Hertzberg saying that he was not criticizing Indigenous culture, his comments really were critical, stereotyping, and disrespectful to Mr. Williams’ Indigenous identity. Ms. Williams said this contrasted with the lawyer Mr. Williams later retained to resolve his charge, who did not need to raise any issues with Mr. Williams’ race to represent him. Mr. Williams submits that Mr. Hertzberg presented himself to Mr. Williams as superior by making these comments, and that these comments had an air of arrogance and privilege.
[80] Mr. Hertzberg explained that during the first part of this phone call he was focused on getting a linear flow of the events in order. He said that in his experience working with Indigenous clients, Indigenous people refer to a non-Indigenous lawyer as a “white lawyer” and he identified himself in this way on the phone call to acknowledge that there is a difference between a lawyer who is Indigenous and a lawyer who is not. He explained that as a criminal defence lawyer it is important to know and consider a client’s Indigenous background and identity because this may be relevant at all stages of a criminal proceeding.
[81] I accept that Mr. Williams and Ms. Williams found Mr. Hertzberg’s comments to be disrespectful and that they felt Mr. Hertzberg was stereotyping them. Even if Mr. Hertzberg did not mean to offend Mr. Williams or Ms. Williams with his comments, the comments landed negatively. I considered, however, that not every negative comment that is connected to a protected characteristic is discrimination: Brito v. Affordable Housing Societies and another , 2017 BCHRT 270 at para. 41. I also considered that context is important when considering whether offensive comments are a breach of the Code : Applicant v. Independent Investigations Office of British Columbia (No. 2) , 2024 BCHRT 204 at para. 111.
[82] The context of Mr. Hertzberg’s obligations as Mr. Williams’ criminal defence lawyer is important in this case. It was essential for Mr. Hertzberg to know and understand that Mr. Williams is Indigenous and how this related to his criminal charge, including when gathering information for the purposes of representing him. I understand that Mr. Williams and Ms. Williams received these comments as generalizing Indigenous people with respect to how they may describe events and set out timelines. However, when I review Mr. Hertzberg’s words, particularly that “many” Indigenous cultures use a different version of time, and his invitation to Mr. Williams to tell him if this did not apply in his case, I find that Mr. Hertzberg was not stereotyping Mr. Williams as an Indigenous person, but was considering that Mr. Williams is Indigenous, that this was a relevant consideration for a client with a criminal charge, and that there may be cultural aspects to how he would tell his story.
[83] I find that Mr. Hertzberg’s comments did not land well not because he was stereotyping Mr. Williams or presenting himself as superior as a white lawyer, but because he could have done a better job communicating what he was trying to say. I accept Mr. Hertzberg’s evidence that he is aware of stereotypes about Indigenous peoples through his work with many Indigenous clients over his years as a lawyer. I also accept that a primary goal of his work has been to assist Indigenous clients to the best of his ability as a non-Indigenous lawyer in an “unhappy system”, where Indigenous people are unfortunately overrepresented. This goal and his previous experience do not preclude a finding that he discriminated against Mr. Williams despite his good intentions, but I accept his evidence that in this case he was attempting to properly consider that Mr. Williams is Indigenous and look for ways to keep this in mind to help with their communication. Unfortunately, he did not do this in a way that felt respectful to Mr. and Ms. Williams. However, for the reasons I set out above, it was not discrimination for Mr. Hertzberg to raise Mr. Williams’ Indigeneity in this context.
[84] In the next parts of my decision, I explain Mr. Hertzberg’s conduct that I find to be an adverse impact in which Mr. Williams’ disabilities were a factor. I find that the communication failures began with this phone call.
2. Mr. Hertzberg’s conduct during the June 28, 2018, phone call was part of a relationship-long failure to communicate, which created an adverse impact in which Mr. Williams’ disabilities were a factor
[85] During her direct evidence, Ms. Williams identified the recording of this phone call, and it was played in its entirety. I do not set out all details of the phone call in my decision. Instead, I summarize my findings about what Mr. Hertzberg did and did not say that contribute to my finding of discrimination.
[86] Mr. Hertzberg was frustrated at times during the phone call. I accept his evidence that he sometimes had trouble hearing Mr. Williams and Ms. Williams on the call. While this may explain frustration to some extent, it does not entirely explain his frustration. I also find that in some instances he harshly took his frustration out on Mr. Williams and Ms. Williams in ways that impaired their communication. For example, in the context of trying to determine the alleged victim’s age he asked Ms. Williams how old she was. Ms. Williams laughed and asked, “how old are you?”. When Mr. Hertzberg answered Ms. Williams said she was about the same age, and Mr. Hertzberg quickly said in a strong tone, “Tell me. Let’s not play games. How old are you? I’m asking for a reason.” Mr. Hertzberg became harsh when Ms. Williams asked a question before responding to him, although he had asked her a personal question that was not obviously relevant to Mr. Williams’ case. Mr. Hertzberg subsequently explained his reason for asking Ms. Williams her age – he thought Ms. Williams may be better able to compare the alleged victim’s age to her own and this would give him a better idea of the alleged victim’s age – but he was impatient and harsh before he explained this. This is an example of Mr. Hertzberg speaking harshly on the call, which I accept made the call stressful for Mr. Williams.
[87] I also find that Mr. Hertzberg pushed Mr. Williams to answer questions beyond what he could handle at times during the call. This included harshly pushing Mr. Williams and Ms. Williams to discuss issues that they said they said they were not allowed to talk about.
[88] About 20 minutes into the call Mr. Williams stuttered and said he had just had surgery. Ms. Williams added that he has memory issues. Mr. Hertzberg said this wasn’t an exam and that he would ask Ms. Williams to help so he could get a framework of what was going on between Mr. Williams and the alleged assault victim. Mr. Hertzberg then asked for some details about Mr. Williams’ MVA and who was involved besides Mr. Williams and the alleged victim. Ms. Williams said she was not sure she was supposed to be discussing this based on instructions from Mr. Williams’ lawyer for his civil claim. Mr. Hertzberg said he was not there to hurt them but was there to help, but that he would not push them beyond their comfort level until they could talk to Mr. Williams’ MVA lawyer.
[89] Mr. Williams then started to talk about interactions with a previous civil MVA lawyer and the alleged assault victim. Ms. Williams said there was an issue that was with the Law Society, and they were getting into an area that should not be discussed. Mr. Hertzberg then said they were going to get into it and told Ms. Williams to “stand down”. Mr. Hertzberg continued asking questions and Mr. Williams started to answer them. Ms. Williams tried to tell Mr. Hertzberg that she thought they were getting “off record”. Mr. Hertzberg sharply told her she was using the wrong term and to “just stop” and continued asking Mr. Williams questions. Mr. Williams answered some questions. At times he paused partway through a sentence and then tried to continue with Mr. Hertzberg interrupting him, then said “I feel like you’re trapping me”. Mr. Hertzberg said, “for heaven’s sakes, please take a breath”. Mr. Williams stuttered, and Ms. Williams said he could not talk anymore, and he was already upset. Mr. Williams said he thought he had phoned too soon.
[90] Ms. Williams said Mr. Williams’ psychiatrist said he had “trauma on trauma” and he had to be careful with his emotions. Mr. Hertzberg said he understood that they were retraumatizing Mr. Williams. He suggested that he could continue talking with Ms. Williams and she could give him a framework for how they could go forward, or they could stop and pick up again later. Mr. Williams said it was fine to continue as Mr. Hertzberg suggested.
[91] Mr. Hertzberg then acknowledged that telephone was a terrible way to communicate because they could not read each other’s body language, and it was hard to have a conversation. He said the three of them would have facetime at another date, and Ms. Williams said they had wondered about that. Mr. Hertzberg then said he wanted to move away from the assault charge for a moment, and he wanted to understand more about Mr. Williams’ medical situation. He asked whether Mr. Williams sustained a head injury in the MVA. Ms. Williams said yes and explained that he was assessed by a neuropsychologist in 2016 and was seeing a psychologist, but that had to stop because of his back condition. Mr. Hertzberg asked whether Mr. Williams was comatose after the MVA. Ms. Williams started to answer that there was little recollection after, and Mr. Hertzberg interrupted and said, “that’s not what I asked you”. He then asked more detailed questions, and Ms. Williams asked whether that was going to come up in Mr. Williams’ case. Mr. Hertzberg said “no, it’s me trying to assess my clients, and you don’t understand me.” He did not explain what he meant by assessing his clients. Ms. Williams went on to answer his questions.
[92] Mr. Hertzberg then asked Ms. Williams more questions about Mr. Williams’ history with the alleged assault victim. Ms. Williams said there was a police report about a separate incident, and she had asked for a copy of it. Mr. Hertzberg said he needed Ms. Williams to not do that anymore; he did not explain why. Mr. Hertzberg returned to that issue after a couple of minutes and asked Ms. Williams whether she was requesting police reports for herself or for Mr. Williams’ MVA lawyer. Ms. Williams said that was something she could not discuss as there was something happening that was separate from Mr. Williams’ case. Ms. Williams repeated several times that she was sorry, but she could not speak about the separate matter regarding what she was doing. Mr. Hertzberg asked whether her issue involved Mr. Williams or not, and she said it did not involve the assault. Mr. Hertzberg said “that’s not what I asked you. Here’s the problem, Patty.” He went on to say he knew Ms. Williams had worked with the alleged victim and may have separate issues and he did not much care about those. He said Mr. Williams apparently had a previous MVA lawyer and the Law Society was involved, and when lawyers hear the words “Law Society” they get shivers because the Law Society is not there to help lawyers. Mr. Hertzberg said he knew there was an earlier lawyer representing Mr. Williams on the assault charge who had gotten off the record, and now Ms. Williams was telling him there was an issue she could not talk about, and she was requesting copies of police reports. He said, “forgive me if I’m sounding paranoid, but I am.” He asked who the Law Society was involved with. Ms. Williams tried to return to talking about the assault charge and what she had told a judge when she was in court with Mr. Williams.
[93] Mr. Hertzberg again returned to his question about Law Society involvement and asked whether Ms. Williams had made a complaint to the Law Society about someone. Ms. Williams said she could not share that information, and it said so on a letter. Mr. Hertzberg asked, “what letter?”. Ms. Williams said, “it just sounds like…” and Mr. Hertzberg interrupted. He said “okay, listen to me.” He then asked Mr. Williams directly whether he had complained against his previous criminal lawyer. Mr. Williams said, “I am getting too confused with all this.” Mr. Hertzberg said “it’s really simple. It’s really simple. Why did your previous criminal lawyer withdraw from your case? I am entitled to know because I have taken you on. I must know that and if you are not prepared to tell me, then we’ll go the next step. Who was your previous criminal lawyer, please?”
[94] Ms. Williams and Mr. Williams answered with the name of the previous criminal lawyer. Mr. Hertzberg asked whether she withdrew, or Mr. Williams fired her. Ms. Williams answered that the other lawyer had not given Mr. Williams anything, met with him once for 15 minutes in seven months, and when the trial was coming up Mr. Williams did not know where he sat. Mr. Hertzberg again asked whether Mr. Williams had fired her, and said if he had fired his previous lawyer this would not prevent Mr. Hertzberg from representing him, it was not uncommon, and Mr. Williams would not have done anything wrong. Mr. Williams said, “I don’t think you fully understand where I am stuck here, and who is listening to who.” Mr. Hertzberg said “I don’t know what the hell is going on, why are the Law Society involved? And with whom?”
[95] Ms. Williams repeated that they could not say anything right now, and she was sorry. Mr. Williams said, “it’s nothing against you.” Mr. Hertzberg continued to pressure them and said that if they had filed a Law Society complaint against the previous lawyer on the case, he wanted to know why. He told Ms. Williams to get hold of the person who wrote the letter she referred to and say that he wanted to know what was involved, and that they had to decide whether they wanted him to continue or not. Mr. Williams said twice that he cannot trust anyone. Mr. Hertzberg kept talking, and Mr. Williams said, “he’s not listening”.
[96] Mr. Hertzberg said he was putting his professional reputation and years of experience on the line to defend Mr. Williams and that required him to have a client who would work with him, and he did not feel that was happening. Mr. Williams started to say, “I’ve got so much…” and Mr. Hertzberg interrupted to say he was going to end the call. He said that when Ms. Williams tells him that she stood up and started “beaking off” to the judge and the judge said it sounded like the case should be resolved, it sounded like maybe the case should not go ahead, but when he hears about the Law Society, he goes “hold the phone”. He said they were running out of time, he would be busy with work and holiday travel in the coming weeks, and he needed answers before the end of the week, so Ms. Williams needed to phone him the next day. He said Mr. and Ms. Williams needed to discuss where they take this, he was being focused so they were all on the same page, and they had to understand that he was not prepared to have them say “we can’t discuss this with you, we’re not allowed.” He said, “it doesn’t work that way in my world, so figure it out and call me.” Mr. Williams said “okay”. This was the end of the call.
[97] Ms. Williams’ evidence about this phone call was that Mr. Williams was expecting to get information about his criminal case from Mr. Hertzberg, but instead got many questions about other issues. She testified that Mr. Hertzberg was in a position of power as a lawyer, he initially ignored Mr. Williams when he said he had just had surgery and was struggling, and Mr. Williams ended up having a meltdown and crying. She testified that after Mr. Williams gave Mr. Hertzberg permission to ask Ms. Williams questions to continue, they ended up on the receiving end of a verbal attack.
[98] Mr. Hertzberg testified that he had reviewed the disclosure package for Mr. Williams’ case before the phone call, and his view was that the evidence against Mr. Williams was weak and he could clearly see a defence. He says he had a high level of confidence that the Crown would drop the charge, or at worst that Mr. Williams should enter a no contact peace bond. He did not explain why he did not give Mr. Williams this information during the phone call. He testified that Ms. Williams gave him helpful information during the call and he took copious notes. In his evidence at the hearing Mr. Hertzberg reiterated that a phone call was not the ideal way to communicate. He said that when Mr. Williams said he was not listening, the issue was actually that he could not hear him.
[99] Mr. Hertzberg testified that when Ms. Williams mentioned confidential documents that she could not tell him about, he switched from being focused and analytical to becoming alarmed. He says he had never had a conversation with a client where the client refused to give him information. He says he only realized after the call when he reviewed Law Society rules that Ms. Williams was correct in her understanding that she was not permitted to disclose information about a Law Society complaint to anyone.
[100] While Mr. Hertzberg obtained information on the call that was useful to him, he also acknowledges that the call was not ideal, and he regrets that no face-to-face meeting followed.
[101] I do not need to decide whether any specific comments or conduct in this phone call would be discrimination on their own, with the exception of Mr. Hertzberg’s comments about Indigenous cultures that I discussed above. I also do not need to decide whether Mr. Hertzberg’s communication during the phone call alone would be discrimination if Mr. Hertzberg had clearly and respectfully communicated with Mr. Williams and Ms. Williams in the months that followed the call and made his services accessible to Mr. Williams, because this is not what occurred. Here I explain why I find this phone call to be part of the context of an overall failure to communicate, which meant that Mr. Williams could not benefit from Mr. Hertzberg’s services, leading to the termination of the relationship.
[102] I find that Mr. Hertzberg was harsh and disrespectful during this phone call. Examples include, when he told Ms. Williams, “let’s not play games”, to “stand down”, to “just stop”, when he interrupted her twice to say “that’s not what I asked”, when he told Mr. Williams “this is not an exam”, and when he pressed on with questions, including some questions directly for Mr. Williams after Mr. Williams said he was struggling. Further examples include, when he pressured Ms. Williams and Mr. Williams to talk about a Law Society complaint and suggested that he would not continue to represent Mr. Williams if they did not do what he said, and when he said Ms. Williams had been “beaking off” to the judge in court. This finding is based on Mr. Hertzberg’s words as well as his tone during the call, which I found to be more frustrated and harsh than respectful or supportive. I find Mr. Hertzberg used harsh language or tone more often than not during the call, in the context of failing to communicate useful information to Mr. Williams about his case.
[103] What Mr. Hertzberg did not say during the phone call is just as important as what he did say and how he said it. Mr. Hertzberg did not explain why he was asking many of his questions, even when Mr. Williams had trouble with the questions and Ms. Williams asked whether they would come up in the case. When Mr. Hertzberg asked about Mr. Williams’ MVA he said he was “assessing his client” but he did not explain what that meant. He also did not give Mr. Williams any information about the possible outcomes of his case or what to expect from the process and his representation, and did not give Mr. Williams an opportunity to explain what happened on the day of the assault charge.
[104] I also find that Mr. Hertzberg was not responsive to Mr. Williams when he became concerned towards the end of the call. I considered Mr. Hertzberg’s evidence that he could not always hear Mr. Williams, and I considered that the volume and clarity of Mr. Williams’ voice in the recording may be different from what Mr. Hertzberg could hear during the call. I find that this does not fully explain Mr. Hertzberg’s lack of response to Mr. Williams when Mr. Williams said he was stuck, did not know who was listening to who, and could not trust anyone, and twice said that Mr. Hertzberg was not listening. By this point in the call Mr. Hertzberg acknowledges that he was alarmed at the idea that Mr. Williams or Ms. Williams may have made a Law Society complaint against another lawyer. He did not say that he could not hear Mr. Williams or Ms. Williams or ask them to repeat themselves. Rather, he dominated the conversation. I find that he was not trying to listen to Mr. Williams by that point in the call.
[105] Overall, I find that the June 28, 2018, phone call was the start of the failure in communication that I find prevented Mr. Williams from benefiting from his services. Mr. Williams’ disabilities were one factor in how Mr. Hertzberg treated him and communicated with him on this call because Mr. Hertzberg tried to push through the call even after Mr. Willliams became upset. Mr. Hertzberg did not communicate with Mr. Williams in a way that Mr. Williams could understand and handle. He pressured Mr. Williams to talk about the Law Society issue and suggested he would not be able to represent Mr. Williams otherwise, even after acknowledging that Mr. Williams was traumatized during the call and needed Ms. Williams’ help. Mr. Williams also needed his mother’s help to communicate, and Mr. Hertzberg’s frustration and distraction about the Law Society issue and Ms. Williams’ involvement with the case negatively impacted how he communicated to Mr. Williams.
E. June 29, 2018, phone call
[106] Mr. Hertzberg’s phone call with Ms. Williams on June 29, 2018, was brief but is important to the context of the parties’ relationship and overall communication.
[107] At the start of the call Ms. Williams said that Mr. Williams was asleep and would not be on the call. Mr. Hertzberg said that was fine. Mr. Hertzberg asked Ms. Williams whether she had given thought to what they had spoken about the previous day, and Ms. Williams said they did not have many thoughts, but they were concerned about a court date coming up on July 5. Mr. Hertzberg explained that July 5 was simply a court date to fix a new date for trial.
[108] Mr. Hertzberg said that once he got the date set, he would meet with Mr. Williams and Ms. Williams face to face and get some more history and detail about the assault allegation. He said he would also speak to Crown counsel and may in fact do that before meeting with Mr. Williams and Ms. Williams. Mr. Hertzberg said he wanted to find out whether the Crown wanted to proceed or not, or whether Crown may agree to resolve the charge if Mr. Williams agreed to enter into a peace bond, meaning that he would not be allowed to contact the alleged victim. He said, “by doing it in that manner, we may avoid even having to talk about all the other things that were concerning you, about freedom of information requests and confidential letters from lawyers, Law Society…we may be able to just bypass all of that.” Ms. Williams agreed. Mr. Hertzberg said that if the file were to “go away” because of his discussions with Crown, that would be the end of it and Mr. Williams could move along. Ms. Williams agreed again.
[109] Mr. Hertzberg said his assistant would notify Ms. Williams of when the trial date was scheduled and then he would speak to Crown and meet with her and Mr. Williams. He said that if Crown counsel wanted more details about Mr. Williams’ situation that he would tell her that and go from there. He asked Ms. Williams to tell Mr. Williams that he had it all in hand and to focus on his medical situation and that he would be in touch, but he would leave that to her as the person dealing with Mr. Williams with his head injury. Ms. Williams agreed and said Mr. Williams was getting a lot of outpatient help. Mr. Hertzberg told Ms. Williams to “dump the stress of the file” onto him, and he would be in touch to discuss the next steps. He said his assistant would call and send a letter to Mr. Williams once the trial date was set and would make a diary entry for him to review the file. He said there were times that he would be away but if there was anything Ms. Williams wanted him to know she could contact his assistant.
[110] Again, what Mr. Hertzberg did not say in this call is just as important as what he did say. After the call on the previous day, it was apparent to Mr. Hertzberg that Mr. Williams needed Ms. Williams’ help to communicate to some extent. At the hearing Mr. Hertzberg testified that by the time he spoke to Ms. Williams on June 29 he had reviewed Law Society rules and learned that Ms. Williams was correct that she was not supposed to talk about a Law Society complaint, so he did not go near that issue on the call. He did not explain why he did not tell Ms. Williams that he had been wrong to press her and Mr. Williams to talk about a Law Society complaint about another lawyer, or why he did not acknowledge that the issue was not relevant to Mr. Williams’ case or whether he could represent Mr. Williams. Instead, he said they may be able to avoid discussing this issue, among others. Mr. Hertzberg could have explained to Ms. Williams that she and Mr. Williams were correct not to talk about details of a Law Society complaint, and reassured her that Mr. Williams did not need to discuss confidential matters to benefit from his representation; this may have gone some distance to repair the relationship with Mr. Williams. He also could have communicated this to Mr. Williams in some other way if he preferred to do so directly. He did not do so.
[111] Mr. Hertzberg did give Ms. Williams some useful information about his intended next steps, but unfortunately this was his last communication to Mr. Williams or Ms. Williams about the case until shortly before the trial date in March 2019. The lack of communication after this phone call is part of Mr. Hertzberg’s conduct that I find created an adverse impact in which mental disability is a factor.
F. Communications Between June 29, 2018, and March 22, 2019
[112] After speaking to Ms. Williams on June 29, Mr. Hertzberg did not update Mr. Williams about whether he had any discussions with Crown or whether he needed to meet Mr. Williams again. He did not offer to meet Mr. Williams over facetime or in person, did not respond to a September 2018 email from Ms. Williams’ asking for an update with any information about the case, and did not tell Mr. Williams his trial date until shortly before the trial. When he eventually contacted Mr. Williams in March 2019, he did not explain his lack of communication.
[113] On July 4, 2018, the court trial scheduler set a date for Mr. Williams’ trial and subsequently cancelled the July 5 court appearance to fix a date. The trial was scheduled for March 22, 2019. Mr. Hertzberg explained that normally the trial scheduler would send his assistant a scheduling memo for a trial date, which would then prompt his assistant to contact the client, advise of the trial date, and ask the client to contact the office to arrange a time to meet. In this case, Mr. Hertzberg’s assistant emailed the court trial scheduler on July 5, 2018, to ask her to send a copy of the scheduling memo for the trial, but the trial scheduler did not do so, and the assistant did not contact Mr. Williams or Ms. Williams.
[114] Ms. Williams emailed Mr. Hertzberg on September 24, 2018, to say she and Mr. Williams were waiting for an update on the case. In her email Ms. Williams said that when they last spoke Mr. Hertzberg was going to speak to Crown and asked him to get back to them on how his communications with Crown were unfolding. Mr. Hertzberg’s assistant responded and said Mr. Hertzberg was in a trial until October 5 and they would be in touch when they had an update.
[115] Ms. Williams then called Mr. Hertzberg’s office on October 3, 2018, after Mr. Williams was subpoenaed to attend court on October 11 in the alleged victim’s own criminal trial for fraud charges. It is not clear whether Ms. Williams spoke to the assistant or left a voicemail. The assistant’s note says that Ms. Williams said, “We don’t know how to go about this, my son could not stand as a witness and be questioned because he would have a mental break down.” The assistant’s note also says, “I called and left a voicemail with all the information she needs and who she needs to call just like you said to do.”
[116] Mr. Hertzberg explained at the hearing that he could not be involved in the other criminal proceeding, but his view was that if Ms. Williams thought Mr. Williams would not be able to testify that she should contact the Crown counsel in that case. Ms. Williams did so, and obtained the psychologist’s letter dated October 10, 2018, which said that Mr. Williams was mentally and emotionally unable to be a reliable and credible witness.
[117] Mr. Hertzberg did not follow up with Mr. Williams about any impact of his mental state on his own case. He did not communicate to Mr. Williams about his case at all until about a week and a half before the March 22, 2019, trial date. The parties agree that Mr. Hertzberg’s office contacted Mr. Williams around this time to try to arrange for Mr. Williams to meet him before the trial date. It is likely that this is how Mr. Williams first learned that his trial date was approaching.
[118] Mr. Williams called Mr. Hertzberg on March 12, 2019. They spoke for about one minute. Mr. Williams again recorded the call without Mr. Hertzberg’s knowledge. Mr. Williams said he would like to get his file back and anything pertaining to his file. Mr. Hertzberg asked him why. Mr. Williams said his case was coming up and he had not heard anything from Mr. Hertzberg about the Crown’s stance. Mr. Hertzberg interrupted him and said, “You didn’t phone after you got my letter, Craig.” Mr. Williams asked, “what letter?” Mr. Hertzberg said, “The trial letter advising you of the trial and asking you to contact me regarding your trial.” Mr. Williams asked whether Mr. Hertzberg had emailed a letter or mailed it, and Mr. Hertzberg said he did not know. Mr. Williams said he did not get a letter, and Mr. Hertzberg told him to call his office during business hours and talk to his staff. Mr. Williams said he would do that. Mr. Hertzberg said he would happily give Mr. Williams his file so he could find another lawyer, but again directed Mr. Williams to phone during business hours.
[119] Subsequently, Mr. Hertzberg discovered that Mr. Williams did not get a letter informing him of his trial date. He did not tell Mr. Williams at any point that he was mistaken when he said Mr. Williams received a letter.
[120] I find Mr. Hertzberg’s evidence about the lack of communication during this time to be disingenuous for the following reasons.
[121] Mr. Hertzberg’s evidence in direct examination was that he took a day to arrange to meet Mr. Williams and Ms. Williams at a courthouse, but his emails to them were met with silence until Mr. Williams called him on March 12, 2019, to ask for his file. In cross examination Mr. Hertzberg said when he took a full day to meet Mr. Williams at the courthouse, he thought Mr. Williams might show up but he did not, and instead he spoke to the Crown lawyer about Mr. Williams’ case and learned that Ms. Williams had filed the March 15 Application, which she was not authorized to do. Mr. Hertzberg said he was looking forward to meeting them and they chose not to come, but “not me, I was there all day”. He did not explain why he would expect Mr. Williams to meet him on or after March 15 when Mr. Williams had called him on March 12 to ask for his file, Mr. Hertzberg told him he could get another lawyer, and Mr. Hertzberg did not follow up with him to tell him that he neglected to send a letter or otherwise explain his lack of communication.
[122] Mr. Hertzberg testified that if he had met Mr. Williams face-to-face, he would have been able to explain efforts he was making with Crown, and if he had known that the alleged assault victim’s charge related to alleged fraud against Ms. Williams had ended in a peace bond, this would have added fuel to his discussions with Crown. However, the only evidence Mr. Hertzberg introduced of any efforts he made on Mr. Williams’ case is a note in the file dated March 15, 2019, which says he spoke to Administrative Crown Counsel, who told him which Crown counsel had the file. If Mr. Hertzberg did make any efforts with Crown related to Mr. Williams’ case by the time he spoke to Mr. Williams on March 12, he did not provide any detail of what those efforts were, and he did not explain why he did not tell Mr. Williams about his efforts when Mr. Williams called him on March 12.
[123] If Mr. Hertzberg expected Mr. Williams to meet with him on March 15 and to update him on efforts he had made in Mr. Williams’ case on that date, this was not reasonable in the context of the March 12 phone call, after which Mr. Hertzberg should have discovered that Mr. Williams never received a letter with the trial date.
[124] Mr. Hertzberg testified that he takes full responsibility for the breakdown in communication during this time, but also said in his evidence that it was a “two way street communication breakdown”. He says he does not blame Ms. Williams to any extent, but he also said he cannot own someone else’s reasons for not reaching out, and in his closing submissions he says nothing stopped Ms. Williams from reaching out to his office in the fall to ask about a meeting. He does not address Ms. Williams’ email of September 24, 2018, asking for an update, or the fact that he told Ms. Williams on June 29, 2018, to leave things with him until she received an update. I return to this point in the justification analysis below, but for present purposes, I find that Mr. Hertzberg’s evidence that he takes full responsibility for the communication breakdown was not entirely sincere and that he attempted to understate his lack of communication to Mr. Williams.
[125] Up to the trial date on March 22, 2019, Mr. Hertzberg failed to communicate with Mr. Williams about his case so he could explain what happened when he was charged with assault, understand what might happen to him because of the charge, or understand what Mr. Hertzberg was doing to represent him. I find that Mr. Williams and Ms. Williams are not responsible for the lack of communication to any degree.
[126] I find that Mr. Williams’ disabilities are a factor in this lack of communication because his limitations affect how well he could communicate in a lawyer/client relationship and understand his case. I considered that the administrative error resulting in Mr. Williams not knowing his trial date or being invited to contact Mr. Hertzberg to prepare, and the lack of communication between June and March, would likely have some negative impact on any client in Mr. Williams’ circumstances, and I find that Mr. Williams was particularly impacted because his disabilities were a factor.
[127] The administrative error was one factor impacting the communication failure, but I find that the failure to send Mr. Williams a letter advising him of the trial date is not the sole reason for the failure, and that Mr. Williams’ disabilities were also a factor in how this impacted him. Even if Mr. Hertzberg had sent Mr. Williams a standard form letter advising him of the trial date and inviting Mr. Williams to contact him, which he normally would have done for any client, this alone would not have prevented the adverse impact on Mr. Williams. Mr. Hertzberg acknowledged during the June 28 phone call that Mr. Williams and Ms. Williams needed to meet him in person, but he did not take any steps to make that happen.
[128] Mr. Hertzberg also told Ms. Williams on June 29 to leave everything in his hands because of Mr. Williams’ stress and need to focus on his medical issues, and he would contact them with an update, but he did not follow through. Ms. Williams did email Mr. Hertzberg for an update in September even though she did not receive a letter with a trial date, and this did not prompt Mr. Hertzberg to communicate any update to Mr. Williams. After the June 29 phone call with his mother, Mr. Williams understood that Mr. Hertzberg would speak to Crown counsel to try to resolve the case. I accept that it was very stressful for him to learn of a trial date less than two weeks before that date. I find that his disabilities were a factor in the negative impact on him because they impacted how well he was able to understand what was happening with his case at this time.
[129] In short, Mr. Williams’ disabilities were a factor in Mr. Hertzberg’s failure to follow up with him after the difficult June 28 phone call to let him tell his story in a way he was able to, and to give him information to help him understand his case and what might happen to him.
G. March 22, 2019, courtroom interaction
[130] I find that Mr. Hertzberg did not communicate important information to Mr. Williams at court on March 22, 2019. This was a continuation of the communication failure culminating in the adverse impact on Mr. Williams. I find that Mr. Williams’ disabilities were a factor because, again, Mr. Williams especially needed essential information clearly communicated to him because of his disabilities, and this did not happen. I also find that Mr. Hertzberg was resentful towards Ms. Williams for her involvement in the case by this point. This resulted in Mr. Hertzberg not allowing Ms. Williams to assist Mr. Williams to communicate with him, and treating both of them harshly at court.
[131] Mr. Williams alleges that on March 22, 2019, Mr. Hertzberg tried to separate him from Ms. Williams, harassed and humiliated him and Ms. Williams by demanding that a sheriff search them in the courtroom, and tried to force the trial to proceed that day even though Mr. Williams was not ready for it to proceed.
[132] On September 3, 2021, Ms. Williams wrote notes in response to Mr. Hertzberg’s response to the complaint, which she entered into evidence at the hearing. She relies on these notes as her account of what happened. In her notes she says that a sheriff sat behind her and Mr. Williams throughout the court hearing because Mr. Hertzberg had pointed at them in the courtroom and said to the sheriff, in an angry and loud tone, “search them, they always record”. She says there was further conversation between Mr. Hertzberg and the sheriff that she could not hear because they lowered their voices.
[133] At the hearing, Ms. Williams explained that when she and Mr. Williams first went into the courtroom Mr. Hertzberg immediately approached them and loudly told Mr. Williams that he wanted to see him alone in the hallway. Ms. Williams says she responded to say no, Mr. Williams would not be talking to Mr. Hertzberg alone. She says Mr. Hertzberg then made his statement about searching them because they always record, and this drew attention to them. Ms. Williams testified that the sheriff spoke into his mic, another sheriff came to sit in front of them, and the first sheriff sat right behind them through the whole court proceeding.
[134] Mr. Hertzberg does not dispute that he asked Mr. Williams to speak to him alone, or that he said something to the sheriff to convey that Ms. Williams may be recording in the courtroom. He says other lawyers in the community had told him that Ms. Williams records things and he believed that his duty to the court as a lawyer extended to telling the sheriff that she may have a recording device in the courtroom. He denies directing the sheriff to search Ms. Williams and Mr. Williams and says he does not have the authority to tell the sheriff what to do but acknowledges he may have suggested that the sheriff may want to search them. He says he did not intend to speak loudly enough for anyone to hear him. He agrees he had further discussion with the sheriff that Mr. Williams and Ms. Williams could not hear, although he did not give evidence about the substance of that further discussion. He says it was the sheriff’s decision to sit behind Mr. Williams and Ms. Williams in the courtroom.
[135] I find that Mr. Hertzberg did not communicate any information to Mr. Williams about his case, or Mr. Hertzberg’s role in the case after Mr. Williams had told him that he wanted another lawyer, when he met Mr. Williams and Ms. Williams in the courtroom. This is a further continuation of the lack of communication to Mr. Williams that I find to be an adverse impact in which his disabilities were a factor.
[136] I also find that Mr. Hertzberg treated Mr. Williams and Ms. Williams harshly when he spoke to them and to the sheriff in the courtroom, and that this treatment itself was an adverse impact on Mr. Williams in which his mental disability was a factor.
[137] Mr. Hertzberg’s evidence about this interaction in cross examination was not sincere or reliable, and I find that he attempted to understate his conduct.
[138] In his response to the complaint, Mr. Hertzberg said Ms. Williams has a “known propensity to record conversations”. In cross examination he testified that by the trial date he was not aware that Mr. Williams and Ms. Williams had recorded their phone calls with him, but it was brought to his attention that people in the community knew that Ms. Williams recorded things. He said recordings and weapons are not allowed in the courtroom and that he had the same duty to tell the sheriff that Ms. Williams records things as he would have to tell the sheriff if he saw someone hiding a blade in their pocket before going into the courtroom. He testified that he told the sheriff that Ms. Williams was known to record but he did not direct the sheriff to search them, although he may have said “you might want to search them”. He says he did not have the authority to direct the sheriff to search them, but the sheriff had authority to “pat her down”.
[139] In cross examination, Ms. Williams asked Mr. Hertzberg who told him that she records conversations. Mr. Hertzberg refused to answer this question, initially claiming solicitor-client privilege because it was another lawyer who gave him the information. I asked him to clarify whether he was seeking legal advice when he received the information, and he said he was not correct to claim solicitor-client privilege, but that he wanted an opportunity to consult with the Law Society before answering the question. He then returned to his initial position that the identity of one lawyer who gave him this information was privileged, but confirmed that he relied on the information in response to the complaint because it was the basis for what he said to the sheriff in the courtroom. Mr. Hertzberg then gave evidence about a second lawyer he says told him that Ms. Williams records things.
[140] After Ms. Williams finished her other cross examination, I adjourned the hearing to give Mr. Hertzberg an opportunity to consult with the Law Society. He was not able reach the Law Society during the break, and I returned to his objection to Ms. Williams’ question. Mr. Hertzberg then said that the question had “an aspect of solicitor client privilege”, and that he may be required to give the other lawyer a “heads up”, so he was in a quagmire that he needed to speak to the Law Society about. He then raised an issue of whether Ms. Williams’ question was relevant, but when I asked him whether he was also objecting to the question based on relevance he said he was not. In any case, I would have found that the question was relevant and an appropriate cross examination question, because he relies on the information he received about Ms. Williams recording things to explain how he treated Mr. Williams and Ms. Williams in the courtroom.
[141] I reconvened the hearing on April 28, 2023. Mr. Hertzberg answered Ms. Williams’ question and identified the second lawyer who told him that Ms. Williams records things. In response to a subsequent question, Mr. Hertzberg testified that the other lawyer did not specifically tell him that Ms. Williams records court proceedings or conversations in courtrooms, but that he recalled the other lawyer saying something along the lines of “be careful, there are recordings” in the context of Mr. Hertzberg telling the other lawyer about difficulties he was having approaching the March 22 trial date. He said he did not ask the other lawyer where he got his information, but it was on his mind when he went into the courtroom on March 22 because he was concerned that “there might be a recording going on in some sense”, which is not allowed in court, and which he had a duty to raise.
[142] I return to this evidence in the justification analysis below, where I explain my finding that any concern Mr. Hertzberg had about his duty to the court does not justify his conduct. For the purposes of the analysis of whether Mr. Williams has established an adverse impact in which his mental disability was a factor, I prefer Ms. Williams’ evidence about what happened during this interaction.
[143] Mr. Hertzberg does not deny that he tried to speak to Mr. Williams alone, and I accept Ms. Williams’ evidence of how the interaction began. There is also no dispute that Mr. Hertzberg said something to the sheriff about searching Mr. Williams and Ms. Williams because they record. Whether or not this was his intention, Mr. Hertzberg said this loudly enough that Ms. Williams and Mr. Williams heard him. I accept Ms. Williams’ evidence that Mr. Hertzberg said something along the lines of “search them, they always record” in a loud voice and angry tone, rather than merely suggesting to the sheriff that he may wish to perform a search. Even if Mr. Hertzberg did not intend for others to hear, he did not make any attempt to be discreet. I accept that this interaction drew attention to Mr. Williams and Ms. Williams, and I accept that this was humiliating. I find that this was harsh treatment constituting an adverse impact on Mr. Williams.
[144] I find that Mr. Williams’ disabilities were a factor in Mr. Hertzberg’s conduct because Ms. Williams was assisting Mr. Williams with his case because of his disabilities, and it is more likely than not that Mr. Hertzberg resented Ms. Williams’ involvement by this point. I considered that Mr. Hertzberg immediately tried to speak to Mr. Williams alone despite knowing he needed Ms. Williams’ assistance during the June 28, 2018, phone call, spoke loudly and angrily to the sheriff after Ms. Williams refused, and accepted vague information from others warning him to be careful of Ms. Williams, which he believed warranted him drawing a sheriff’s attention to her in the courtroom. This evidence is consistent with a finding that Mr. Hertzberg more likely than not had a negative view of Ms. Williams’ involvement by this point, which was a factor in how he treated her and Mr. Williams in the courtroom.
[145] I also considered Mr. Hertzberg’s evidence about the March 15 Application, which Ms. Williams filed after Mr. Williams told Mr. Hertzberg that he wanted a new lawyer. He testified that Ms. Williams wrote in the application, which was an application to have the case against Mr. Williams dismissed for delay, that she had filed complaints with the Law Society about two lawyers, and although she did not name the lawyers, Mr. Hertzberg assumed that he was one of them. Mr. Hertzberg did not speak to Mr. Williams or Ms. Williams about the March 15 Application, did not explain his lack of communication between June and March to Mr. Williams, and did not explain his reasons for attending court despite Mr. Williams telling him that he no longer wanted his representation. Instead, he tried to speak to Mr. Williams without Ms. Williams, and when that did not occur, he drew attention to Mr. Williams and Ms. Williams in a negative way.
[146] Finally, I do not accept Mr. Hertzberg’s evidence that he simply needed to meet his duty to the court to advise that Ms. Williams or Mr. Williams may record in the courtroom. There is no evidence that Mr. Hertzberg had information from any source about either of them ever recording in a courtroom. I do not accept that his duty to the court was the same under the circumstances as it would have been if he saw someone hide a weapon in their pocket to bring into the courtroom. That is not a reasonable comparison, and this is offensive to Ms. Williams and Mr. Williams because it suggests that it was reasonable to treat them as if they posed some sort of physical danger or risk to others in the courtroom.
[147] If Mr. Hertzberg was concerned about a possibility that Mr. Williams or Ms. Williams may record court proceedings, he could have spoken to them about this instead of drawing attention to them in a humiliating way. If he believed that he had a duty to the court to advise a sheriff that they may record a court proceeding, he could have discreetly raised this. Raising this concern in the manner that he did was disproportionate to the situation, and his resentment of Ms. Williams’ involvement by this point, which was necessary because of Mr. Williams’ disabilities, contributed to this.
[148] Mr. Williams also alleges that Mr. Hertzberg stereotyped him as an Indigenous person in this interaction. If Mr. Williams’ Indigenous identity were a factor in Mr. Hertzberg’s conduct as well as his disabilities being a factor, I would find discrimination based on both grounds. However, I find that Mr. Williams being Indigenous was not a factor.
[149] I considered my finding that Mr. Hertzberg’s comments about Indigenous cultures in the June 28, 2018, phone call were not themselves stereotyping or discrimination. Those comments are not the basis for an inference that Mr. Hertzberg treated Mr. Williams as he did in the courtroom because he negatively stereotyped Mr. Williams as an Indigenous person.
[150] I also considered all of the evidence about the parties’ relationship to decide whether there is a basis for an inference that Mr. Williams being Indigenous was a factor in how Mr. Hertzberg treated him in the courtroom. Viewing the relationship in its full context, I do not find any evidence that is the basis for an inference that Mr. Williams being Indigenous was a factor in the interaction. Mr. Hertzberg’s poor communication leading up to this date and Ms. Williams’ need to assist her son because of his disabilities explain Mr. Hertzberg’s conduct in this interaction.
[151] Further, I find that Mr. Williams being Indigenous was not a factor in any of Mr. Hertzberg’s poor communication or treatment of Mr. Williams up to this point. I considered that discrimination based on Indigeneity or race is rarely voiced and is often subtle. As Mr. Williams submits, racial stereotyping and discrimination may even be a result of unconscious bias. However, while Mr. Hertzberg was aware that Mr. Williams is Indigenous, there is no evidence forming the basis of an inference that he consciously or unconsciously believed that Mr. Williams did not deserve effective representation as an Indigenous client. The adverse impact on Mr. Williams stemmed from a communication failure over the course of the relationship, partly due to an administrative error, partly due to frustration about the need for Ms. Williams’ assistance, and partly because Mr. Hertzberg’s usual way of working with clients did not meet Mr. Williams’ needs considering his disabilities. I find that this is the full explanation for the communication failure and adverse impact on Mr. Williams. While intention is not required to find a breach of the Code , in a case where the adverse impact was not intentional, but resulted from an administrative error and lack of attention, it may be less likely that conscious or even unconscious bias or stereotypes are a factor in the impact. It was necessary for Ms. Williams to assist Mr. Wiliams because of his disabilities, not because he is Indigenous. Mr. Williams was not less able to understand issues related to his case and communicate with Mr. Hertzberg about his case because he is Indigenous, but because of his disabilities. In short, Mr. Hertzberg did not fail to communicate with Mr. Williams because he was Indigenous.
[152] Finally, Mr. Williams submits that Indigenous peoples carry a disproportionate burden of the continued effects of colonialism and systemic racism, and that British Columbia recognizes this and has a goal of eliminating the overrepresentation of Indigenous people in the justice system. He says Indigenous men are at a disadvantage in the justice system due to historic cultural genocide and continued oppression that has affected generations, so he was in a vulnerable position, and Mr. Hertzberg’s conduct of leaving him in the dark and verbally attacking him deeply affected his well-being. Mr. Williams submits that unconscious discrimination and stereotyping of Indigenous people is widespread, and explains Mr. Hertzberg’s behaviour towards Mr. Williams.
[153] I agree with Mr. Williams’ submissions that the longstanding effects of colonialism and systemic racism continue to impact Indigenous men in Mr. Williams’ position in the justice system. This is not in question. However, it does not follow from the continued impacts of colonialism and systemic racism that Mr. Hertzberg discriminated against Mr. Williams based on his Indigeneity in this particular case. I have found that the adverse impact on Mr. Williams resulted from the communication failure throughout the relationship, and that this particularly impacted him because his disabilities impacted his ability to communicate with a lawyer and understand what was happening in his case. I have not found that Mr. Hertzberg consciously or unconsciously believed that Mr. Williams did not deserve good legal representation as an Indigenous client. His Indigeneity was not a factor in the adverse impact.
H. March 22, 2019, court appearance
[154] Mr. Williams alleges that when Mr. Hertzberg appeared in court on his case that Mr. Hertzberg disadvantaged him by advocating for the trial to go ahead on that date even though Mr. Williams was not prepared. He submits that this was further mistreatment and discrimination.
[155] The Court removed Mr. Hertzberg from the record as Mr. Williams’ counsel and adjourned the trial date. Mr. Hertzberg denies that he was trying to push for the trial to proceed. He says he was obligated to ask the Court for an order that he be removed from the record as Mr. Williams’ counsel and that he wanted to ensure that Ms. Williams did not inadvertently prejudice Mr. Williams’ defence.
[156] I find that Mr. Hertzberg was not trying to push Mr. Williams into a trial or attempting to prejudice his case in any way. I accept Mr. Hertzberg’s evidence that even though Mr. Williams no longer wanted his representation by March 22, 2019, he had a professional obligation to appear on this court date and ask to be removed from the record.
[157] I find that Mr. Hertzberg’s appearance at court was confusing to Mr. Williams. Mr. Hertzberg did not explain to Mr. Williams why he was appearing in court on his case after Mr. Williams terminated their lawyer/client relationship. He did not give Mr. Williams his file and did not explain why. He did not talk to Mr. Williams or Ms. Williams about next steps, such as whether the trial was likely to go ahead that day or they could find another lawyer to pick up where they left off. He did not explain why he believed he was obligated to speak in court to try to prevent Ms. Williams from inadvertently saying things that may prejudice Mr. Williams’ case. This was a continuation of Mr. Hertzberg’s overall communication failure with Mr. Williams, but I do not find any of Mr. Hertzberg’s conduct during the court appearance to be an adverse impact, aside from the fact that he did not tell Mr. Williams what he was doing or why.
[158] I have found that Mr. Hertzberg failed to communicate with Mr. Williams in a manner that would have allowed him to benefit from a lawyer/client relationship despite his disabilities. In light of this overall communication failure, it was reasonable for Mr. Williams to respond by terminating the lawyer/client relationship before his case was concluded. Even after this, Mr. Hertzberg failed to communicate with Mr. Williams to explain his lack of communication or what he would do from that point forward. Mr. Williams did not get the benefit of Mr. Hertzberg’s services. I have found this to be an adverse impact in which his disabilities were a factor. This means he has established his case. Next, I explain why I find that Mr. Hertzberg has not established a defence to the complaint.
I. Mr. Hertzberg has not established a BFRJ for the adverse impact in which Mr. Williams’ disabilities were a factor
[159] For the purposes of my analysis, I assume that Mr. Hertzberg’s way of communicating and working with Mr. Williams was for a purpose rationally connected to providing legal services, and that he acted in good faith. I find he does not establish a defence to the complaint because he has not established that he could not have accommodated Mr. Williams’ disabilities without undue hardship.
[160] I considered Mr. Hertzberg’s evidence that he had limited understanding of Mr. Williams’ disabilities at the time he was representing him. In his submissions Mr. Hertzberg says he was alarmed to learn about Mr. Williams’ communication needs, including greater listening patience, through this proceeding.
[161] A decision about whether a respondent has met the duty to accommodate a complainant to the point of undue hardship will always be specific to the facts of the particular case. In some cases a complainant may need to request a particular form of accommodation for the respondent to understand their disability-based needs. In other cases, respondents should reasonably be aware of the need for accommodation, or a possible need for accommodation, based on the information available to them at the time: Ng v. Vancouver (City), 2023 BCHRT 161 at para. 76.
[162] I find that part of Mr. Hertzberg’s duty to accommodate Mr. Williams’ disabilities was to inquire about his communication needs when he knew or ought to have known Mr. Williams lived with a disability. Mr. Williams also had a responsibility to participate in his own accommodation, and I find that he did so by informing Mr. Hertzberg of his disabilities at the outset. In his first email to Mr. Hertzberg, he said the woman accusing him of assault was the driver when he was in an MVA, and that his injuries were “TBI, Concussion, PTSD, Whiplash, Chronic Back Pain Whiplash, short term memory” [as written], and that he was currently seeing a psychiatrist. He also said that he attended court with Ms. Williams, “who has a RA7 and spoke on my behalf”.
[163] Mr. Hertzberg cannot reasonably be expected to fully understand Mr. Williams’ disabilities and how to accommodate them at the outset of the lawyer/client relationship, but in the circumstances where Mr. Williams informed him of his disabilities and some of his resulting difficulties, and some of his limitations from his disabilities were apparent on their first phone call, Mr. Hertzberg had a duty to inquire into Mr. Williams’ need for accommodation.
[164] Mr. Hertzberg did not know that an RA7 is a representation agreement that allowed Ms. Williams to make decisions for Mr. Williams or assist him in making decisions in his legal affairs, the extent of her rights and responsibilities under the RA7, or the extent to which Mr. Williams would need her help in the criminal legal process. Mr. Hertzberg assumed that “RA7” meant that Ms. Williams was assisting Mr. Williams as a care aide, not that she was able to assist him with decision making. He also did not understand the extent to which Mr. Williams’ disabilities impacted his ability to communicate and understand his case and the criminal law process.
[165] I find that Mr. Williams gave Mr. Hertzberg enough information at the outset for Mr. Hertzberg to make efforts to accommodate Mr. Williams and meet his communication needs without undue hardship. The information in Mr. Williams’ first email about having PTSD and a TBI, having suffered a concussion, and noting an issue with short term memory, should have sparked an inquiry. If Mr. Hertzberg did not know the meaning of RA7, PTSD, or TBI, or how Mr. Williams’ condition would impact his ability to communicate and understand, he could have asked Mr. Williams and Ms. Williams for more information.
[166] Mr. Hertzberg did not make any inquiries into how to accommodate Mr. Williams’ disabilities. He acknowledges that he proceeded with the June 28, 2018, phone call as he would have in other cases for other clients. During the call it was apparent to him that Mr. Williams seemed stressed, traumatized, and needed Ms. Williams’ assistance. This did not prompt him to ask Mr. Williams or Ms. Williams about how to accommodate him. Other than the limited extent to which he allowed Ms. Williams to assist, he did not adapt his approach in any way to allow Mr. Williams to get the full benefit of his representation. He acknowledged on the call that they should meet again on facetime, and he acknowledged at the hearing that a face-to-face meeting may have improved communication, but he did not take steps to set either of these up.
[167] Mr. Hertzberg submits that he became genuinely alarmed towards the end of the June 28 phone call when Ms. Williams referred to confidential communications. I find that this does not justify his way of speaking to Mr. Williams and Ms. Williams at the end of the call. It also does not explain why he did not tell Mr. Williams or Ms. Williams once he learned they were correct to keep information about Law Society complaints confidential. His concern on the June 28 call also does not explain why he did not try to accommodate Mr. Williams after the call.
[168] Mr. Hertzberg also says he made efforts to communicate with Crown counsel about Mr. Williams’ case but issues in their office made this difficult, he was busy with travel and a lengthy trial in fall 2018, and his legal assistant was in the midst of a difficult pregnancy.
[169] I find these issues do not mean that Mr. Hertzberg could not have accommodated Mr. Williams without undue hardship. He has not explained why he could not have sent Mr. Williams even brief updates during this time period, or set up an in person or video meeting at any time before March 2019. Being busy does not explain why he could not have spoken respectfully and in a manner appropriate to someone living with mental, emotional, and cognitive impairments when they were speaking. Accommodating Mr. Williams was ultimately his responsibility, not his legal assistant’s. He had some information about Mr. Williams’ disabilities and a limited understanding of Mr. Williams’ need for assistance communicating after the June 28 phone call. The issues in the Crown office and his office, including the administrative error relating to the trial date, do not amount to undue hardship preventing him from communicating with Mr. Williams even to update him so he was able to understand what was happening.
[170] Mr. Hertzberg submits that “Communication, as The Law Society noted, is a two-way street.” Although he says he takes responsibility for the lapse in communication, he effectively asks me to place some of that responsibility on Ms. Williams. He also says Ms. Williams should have told him that she presented medical letters to the court in the alleged assault victim’s own trial related to Mr. Williams’ inability to testify, and about the outcome of that other trial. Further, Mr. Hertzberg says that Ms. Williams filing the March 15 Application was “alarming” and interfered with his ability to represent Mr. Williams.
[171] At the hearing Mr. Hertzberg said that the Law Society had addressed some issues between the parties that he was not permitted to say anything more about. I find that his submission about the Law Society noting that communication is a two-way street is not helpful. I explained above that I am not making decisions about whether Mr. Hertzberg met professional standards in this case. My decision is about whether he breached the Code . In the context of the accommodation analysis, as I noted above, the jurisprudence is clear that complainants have a duty to participate in their own accommodation. I have already found that Mr. Williams did that by informing Mr. Hertzberg of his disabilities. As the service provider, Mr. Hertzberg has the ultimate responsibility to accommodate Mr. Williams, and it is an insufficient answer in this case to suggest that Mr. or Ms. Williams could or should have communicated better.
[172] I have explained that Mr. Williams provided Mr. Hertzberg with enough information at the outset for Mr. Hertzberg to make efforts to accommodate his disabilities. Ms. Williams also emailed Mr. Hertzberg to ask for an update on discussions with Crown in September 2018 and contacted Mr. Hertzberg’s office in October 2018 to say that Mr. Williams was asked to testify in another trial but could not do so without having a “mental break down”. Either of these communications could have further prompted Mr. Hertzberg to seek more information about Mr. Williams’ disability related accommodation needs in their lawyer-client relationship. There is no lack of participation on Mr. Williams’ or Ms. Williams’ part that could be the basis for a finding that Mr. Hertzberg could not have accommodated Mr. Williams’ disabilities without undue hardship.
[173] Further, I find I cannot place responsibility on Ms. Williams for not informing Mr. Hertzberg of the medical letters she submitted in court, the outcome of the alleged assault victim’s trial, or filing the March 15 Application. When Ms. Williams told Mr. Hertzberg’s office about her concern about Mr. Williams being called to testify, the message she received was that Mr. Hertzberg could not be involved in that trial and she should contact Crown, which she did. It was Mr. Hertzberg’s responsibility to update Mr. Williams and set up an opportunity for him to provide information and tell his story, and he did not do this.
[174] I also find that any concern Mr. Hertzberg had about his duty to the court on March 22, 2019, does not justify his treatment of Mr. Williams and Ms. Williams in the courtroom. Mr. Hertzberg could have spoken to Mr. Williams and Ms. Williams about any concerns he had, including about whether they might record any part of court proceedings. In any case, his concerns appear to have been based on gossip about Ms. Williams, which he obtained by speaking to other lawyers about her and Mr. Williams’ case without speaking to them.
[175] Mr. Hertzberg submits that he has never been surreptitiously recorded before Mr. Williams’ case, and that the recordings suggest a level of suspicion inconsistent with a mutual agreement of solicitor/client trust.
[176] Mr. Hertzberg did not know while he was representing Mr. Williams that his conversations with Mr. Williams were recorded. At most he may have suspected this was the case by the time he spoke to other lawyers about Ms. Williams before the trial date. As I understand Mr. Hertzberg’s submission, he suggests that there was a lack of trust in the relationship from the outset. I considered whether any efforts made to accommodate Mr. Williams may not have made a difference in this circumstance.
[177] First, it is speculative to suggest that Mr. Williams and Ms. Williams recording the conversations means there was a lack of trust at the outset. Ms. Williams did not explain their reasons for recording the calls in her evidence, and Mr. Hertzberg did not ask her to explain their reasons in cross examination. This means I cannot make findings of fact about why they recorded the calls. However, Ms. Williams did explain that she was managing many complicated medical and legal issues for Mr. Williams. Another possible reason for recording conversations may have been to simply keep track. Mr. Hertzberg also submits that any lack of trust may have been related to the historic plight of Indigenous peoples in Canada.
[178] All of this is speculation, but there is no basis on which to find that the surreptitious recordings mean that there was suspicion and mistrust beyond repair from the start of the relationship. It may have benefited the relationship for Mr. Williams to tell Mr. Hertzberg that he was recording their discussions and why, but I find that Mr. Hertzberg did not accommodate Mr. Williams or otherwise communicate with him in a way that would have given him or Ms. Williams an opportunity to raise this. Mr. Williams and Ms. Williams wanted Mr. Hertzberg’s representation to result in a quick resolution of the assault charge. They did put trust in Mr. Hertzberg after he spoke to Ms. Williams on June 29, 2018. I appreciate Mr. Hertzberg’s discomfort at learning that his client recorded conversations with him without letting him know this, but the relationship broke down because of Mr. Hertzberg’s communication failures, not because the conversations were recorded.
[179] I find that Mr. Hertzberg could have accommodated Mr. Williams to allow him to understand what was happening in his case, and to tell his story, without incurring undue hardship. This means Mt. Hertzberg has not established a defence. He discriminated against Mr. Williams based on physical and mental disability contrary to s. 8 of the Code.
[180] In the next section I explain the remedies I order for this breach of the Code.
VI REMEDY
[181] I have found Mr. Williams’ complaint of discrimination based on physical and mental disability to be justified. I declare that Mr. Hertzberg contravened s. 8 of the Code and order him to refrain from committing the same or a similar contravention: Code, s. 32(2)(a) and (b).
A. Expenses
[182] Mr. Williams seeks expenses of $4,480 of legal fees, which he paid a new lawyer after discharging Mr. Hertzberg. Mr. Williams submits that if not for the discrimination, he would not have had to retain another lawyer and incur this expense.
[183] At the hearing Mr. Hertzberg questioned whether it was necessary for Mr. Williams to incur this expense when he could have received services from legal aid at no cost.
[184] Ms. Williams explained that by the time he hired a new lawyer in May 2019, Mr. Williams had received a settlement payment from ICBC for his MVA, so was not eligible for Legal Aid.
[185] I find Mr. Williams’ legal fees of $4,480 to be an expense incurred by the contravention of the Code: s. 37(2)(d)(ii). I accept Ms. Williams’ evidence that Mr. Williams did not seek representation from legal aid again because he knew he would no longer qualify at that time. I also accept that he would not have incurred these fees but for the discrimination. The solicitor-client relationship was poisoned by Mr. Hertzberg’s conduct and Mr. Williams acted reasonably when he ended that retainer and engaged new counsel.
[186] Mr. Williams also seeks reimbursement for fees of $407.93 and $64.58 for court transcripts. The first from Mr. Williams’ court proceedings on March 22, 2019, when Mr. Hertzberg appeared on his case after he ended their relationship. The second on July 2, 2019, when his new lawyer represented him and he entered a peace bond to conclude his case, to use as evidence in this hearing.
[187] Mr. Hertzberg did not object to the transcripts being entered as evidence, and both were entered as exhibits. I reviewed the transcripts, but did not need to rely on them to make any findings. I relied on the parties’ evidence about what happened in court on March 22, 2019, including Mr. Hertzberg’s evidence of his reasons for appearing. I relied on Ms. Williams’ evidence about how Mr. Williams’ new lawyer handled his case. I understand that Ms. Williams views Mr. Hertzberg’s conduct through the lens of a comparison to how Mr. Williams’ new lawyer communicated with him and concluded his case, but my decision is based on my analysis of the evidence about Mr. Hertzberg’s conduct without comparing him to the other lawyer. In short, the transcripts ultimately were not necessary for Mr. Williams’ case. However, Mr. Williams and Ms. Williams could not have known this. I find the costs of obtaining the transcripts to be an expense arising from the contravention, similar to legal expenses or the expense of obtaining expert evidence: Gichuru v. Law Society of BC, 2011 BCHRT 185 at paras. 238 to 242.
[188] In summary, I order Mr. Hertzberg to pay Mr. Williams a total of $4,952.51 for expenses arising from the contravention of the Code .
B. Injury to dignity, feelings, and self-respect
[189] Mr. Williams seeks an order of $30,000 in compensation for injury to his dignity, feelings, and self-respect as a result of the discrimination based on his disabilities. I grant his request for the following reasons.
[190] The Tribunal has discretion under s. 37(2)(d)(iii) of the Code to order compensation “for injury to dignity, feelings and self respect or to any of them.” The purpose of an award for injury to dignity is to compensate the person who experienced discrimination, not to punish a respondent: Silver Campsites Ltd. v. James, 2013 BCCA 292 at para. 41. The Tribunal described the principles underlying this compensation in Young Worker v. West Indian Trading Co. (cob Heirloom) , 2023 BCHRT 137 at paras. 115 to 116:
A violation of a person’s human rights is a violation of their dignity. The purpose of an injury to dignity award is to address this very harm: Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137 [Nelson] at para. 33. In making an injury to dignity award, the Tribunal often considers several factors: the nature of the discrimination, the social context in which the discrimination occurred, and the specific effect that the discrimination had on the complainant: Nelsonat para. 33. Determining an injury to dignity award’s amount depends on the specific facts and circumstances in any given case: Gichuru v. Law Society of British Columbia (No. 2), 2011 BCHRT 185, upheld in 2014 BCCA 396 at para. 260. At the same time, for the purposes of consistency and fairness, it is often helpful to consider the range of awards made in similar cases: Mr. D v. Path General Contractors and another, 2023 BCHRT 46 at para. 55….
…Discrimination over months or years may be viewed by the Tribunal as discrimination of a more severe or serious nature: RR. No. 6at para. 398; Francis v. BC Ministry of Justice (No. 5), 2021 BCHRT 16 [Francis No. 5] at paras. 155 and 160. However, the frequency and duration of the discrimination are not necessarily determinative. The Tribunal may determine that other factors heighten the seriousness of the discrimination: Nelsonat para. 34; Campbell No. 4at para. 151.
[191] Mr. Hertzberg did not make submissions on an appropriate amount of compensation under this heading if the complaint or part of the complaint were to be allowed.
[192] I am not aware of any cases awarding compensation for injury to dignity for discrimination in similar circumstances where a complainant with disabilities was not able to benefit from legal representation in the face of a criminal charge. I must exercise my discretion based on the facts of this particular case. I also consider that, generally, awards for injury to dignity in British Columbia have been trending upwards in recent years: L.J. v. D.M., 2020 BCHRT 129 at para. 216.
[193] I find that the position Mr. Williams was in of having a criminal charge against him, needing representation, and depending on Mr. Hertzberg to represent him and communicate with him about his case only to learn that his trial date was upcoming without receiving any communication from Mr. Hertzberg for months, weighs towards a significant award.
[194] The nature of the discrimination in this case is the failure to communicate to Mr. Williams in a way that would allow him to benefit from legal representation despite his disabilities in what was already a very stressful situation. Mr. Hertzberg’s communication failure stretched over a nine-month period, during which Mr. Williams did not know where he stood in his criminal case. Although I dismiss his complaint of discrimination based on race and Indigenous identity, I consider how the discrimination based on his disabilities impacted him as an Indigenous man with multiple physical and mental disabilities.
[195] I accept Ms. Williams’ evidence of the impacts on Mr. Williams. I accept that when Mr. Hertzberg did not communicate with him and he did not understand what was happening with his case, Mr. Williams was afraid that he was going to jail. While the legal process would have been stressful in any case, and he was also experiencing stress related to his MVA civil action, the subpoena he received to testify at the alleged victim’s own trial, and his multiple disabilities, I find that the discrimination added significant additional stress that could have been avoided if Mr. Hertzberg had communicated to him in a way that would have allowed him to understand what he was doing to represent him, his assessment of the case, and possible and likely outcomes. I accept that this added to Mr. Williams’ anxiety until he retained a new lawyer who communicated with him effectively and resolved his charge within weeks.
[196] Mr. Williams had nine months of additional and significant stress in his life because of the discrimination he experienced. I accept Ms. Williams’ evidence that she tried to shield Mr. Williams from the stress of not knowing what might happen with his case, and then the belief that he would be in trial on March 22, 2019, with no preparation. I accept that it was not possible to relieve Mr. Williams’ stress when she did not know herself what Crown was saying about the case or what would happen.
[197] Considering these factors, I find that the amount Mr. Williams seeks is appropriate. I order Mr. Hertzberg to pay Mr. Williams $30,000 compensation for injury to dignity, feelings, and self-respect for discrimination based on his mental and physical disabilities.
C. Apology
[198] Finally, Mr. Williams seeks a public apology within the Cowichan Tribes Territory at his choice of location.
[199] In other cases, the Tribunal has declined to order a respondent apologize for discrimination. The Tribunal has questioned whether it has jurisdiction to order a party to apologize: Cha v. Hollyburn Estates Ltd. , 2005 BCHRT 409 at para. 12. In any case, it is questionable whether an apology that is ordered has any value to a complainant. It is not possible to know whether an apology made in compliance with an order is sincere: Hart v. University of British Columbia and others, 2019 BCHRT 225 at para. 59.
[200] For these reasons, I decline to order Mr. Hertzberg to apologize to Mr. Williams.
VII ORDER
[201] Mr. Williams’ complaint of discrimination based on physical and mental disability is allowed.
[202] I declare that Mr. Hertzberg contravened s. 8 of the Code and order him to refrain from committing the same or a similar contravention: Code, s. 32(2)(a) and (b).
[203] I order Mr. Hertzberg to pay Mr. Williams a total of $4,952.51 for expenses arising from the contravention of the Code.
[204] I order Mr. Hertzberg to pay Mr. Williams $30,000 compensation for injury to dignity, feelings, and self-respect for discrimination based on his mental and physical disabilities.
[205] Mr. Williams’ complaint of discrimination based on his race and Indigenous identity is dismissed pursuant to s. 37(1) of the Code .
Jessica Derynck
Tribunal Member