Legal Feeds Blog
A Toronto area real estate lawyer has lost his bid to dismiss a Law Society of Upper Canada disciplinary panel finding of knowingly assisting in fraud but won’t be disbarred.
|The Divisional Court has ruled investigative delays by the LSUC mean a lawyer should be suspended rather than disbarred.|
A tribunal panel gave Abbott a two-year licence suspension, despite the gravity of the trangression, because of inordinate delays by the LSUC in its investigation against the lawyer. The standard penalty for knowing assistance in real estate fraud is revocation of a lawyer’s licence to practise.
In Law Society of Upper Canada v. Abbott, Justice Harriet Sachs, with justices Julie Thorburn and Brian Abrams agreeing, upheld an LSUC Appeal Division penalty of a two-year suspension.
“In deciding to impose the penalty of a two-year suspension, rather than revocation, the Appeal Division took into account the inordinate and unacceptable delay that had occurred in this case,” Sachs wrote.
The ruling noted Abbott held no responsibility for the delays, had been co-operative throughout the seven-year investigation against him, and, save a four-month period when the eight real estate transactions in question occurred, Abbott practised law without incident while also expressing remorse.
“In my view, the reasons given adequately support the Appeal Division’s decision on penalty and display a line of analysis that could reasonably lead it from the evidence that was before it to its conclusion,” wrote Sachs. “In other words, it was a reasonable decision.”
Abbott’s counsel, James Morton, of Morton Karrass LLP, says while his client still believes the court has erred in finding he knowingly assisted in fraud, Abbott is pleased to be able to retain his licence to practise after serving his suspension.
“It certainly is a partial vindication; the incredible delay was so extraordinary as to take this out of the ordinary course,” says Morton.
“I was surprised that this matter even went to application simply because it had taken so long. At some point you have to come to the conclusion they’re [the LSUC] just not interested at all and certainly they didn’t seem interested in this matter at all for years and years.
“It was simply irresponsible for the law society to let this matter drag on the way they did if indeed there was a concern for the public,” he adds.
In the original February 2015 LSUC disciplinary hearing that ended with Abbott’s licence being pulled, the lawyer was found to have knowingly assisted in real estate fraud relating to eight transactions made between September 2006 and January 2007.
The investigation against Abbott had been authorized in February 2007 but it wasn’t until more than six years later that notice was served to Abbott. According to the LSUC, the delay was due to staff changes and a lack of resources.
The Divisional Court ruling notes, after notice was served, Abbott’s disciplinary hearing still did not start until August 2014, again due to delays on the part of the LSUC. The disciplinary hearing panel eventually ruled for revocation, finding the delay did not cause significant prejudice to the lawyer.
“While both divisions agreed that the ultimate goal of a penalty in this context is to reassure the public as to the integrity of the profession, the Appeal Division, unlike the Hearing Division, found that achieving this goal involved more than just the individual circumstances of the lawyer,” Sachs wrote.
“It also involved considering the harm to the public’s confidence in the legal profession’s ability to regulate itself — which, in turn, impacts the profession’s integrity — that is caused by repeated delays.”
The lawyer appealed the findings and the revocation of his licence to the LSUC’s appeal division, which dismissed the first portion but did overturn his revocation for a two-year suspension.
“In this case, the Appeal Division was faced with what it found to be a period of unwarranted delay that exceeded seven years, none of which was the fault of the appellant,” Sachs wrote. “There is no issue that delay does not justify a stay can be a mitigating factor in penalty. The only issue was whether such a delay could be a factor that turned a penalty of revocation into one that did not involve the lawyer leaving the profession.
“The Appeal Division’s reasoning on this issue was justifiable, transparent and intelligible and the conclusion it came to fell within the ‘range of possible, acceptable outcomes which are defensible in respect to the facts and the law.’”
The LSUC, through spokesperson Orli Giroux Namian, says, “the law society is reviewing the decision and considering next steps.”
Morton says Abbott has been serving his suspension since after the appeal division’s ruling in 2015 and is looking forward to returning to practice as soon as possible.
“He’s looking at his options, but he’s very glad to remain a member of the law society and looks forward to returning to practice,” says Morton.
Liberals break promise to implement firearm-marking rules, Canadian Press
- Outrageous remarks not necessarily a sign of anti-lawyer culture
One Edmonton correctional officer’s outrageous alleged remarks about female lawyers smuggling narcotics in their uteruses is not necessarily a sign of an anti-lawyer culture in the city’s jails.
|'I couldn’t believe what was coming out of this guard’s mouth, allegedly,' says Kelly Dawson.|
Dawson was nonetheless shocked by the openness with which Edsel Lim, a guard at the Edmonton remand centre, allegedly defamed the law office of Thomas Engel and one of his colleagues.
“I couldn’t believe what was coming out of this guard’s mouth, allegedly,” he says.
The remarks came to light after Engel Law, which is well-known for pursuing abuse complaints against police and correctional officers, filed a statement of claim on Monday for $75,000 in punitive damages. Engel tells Legal Feeds the firm did not move to sue immediately but sent repeated complaints before deciding to file statement of claim.
“We made a complaint to the government and we got the brush-off. We were told it was investigated and that appropriate action was taken, but they wouldn’t tell us what it was. And then we made a complaint to the new justice minister, Kathleen Ganley, and also to the premier, Rachel Notley, and didn’t even get so much as the courtesy of a reply," sayd Engel. "And so it was decided, all right, that’s not going to work, so we’re going to deal with it this way, especially when we found out that this guy is still in the same position.”
According to the statement of claim Lim told criminology students on a tour of the facilities in 2014 that lawyers were to blame for routine smuggling of drugs into the jail — and particularly female lawyers, who were stashing contraband in their uteruses.
“The issue is with you people,” Lim is alleged to have said, while pointing to female students. “If vaginas can fit a baby, they can suitcase drugs.”
Beyond general statements about his dislike for lawyers, Lim is also alleged to have referenced Engel Law specifically when he said that “the firm that always sues us” and “the female lawyer that sued him” were smuggling drugs into the centre.
One of the members of the student tour in 2014 was the sister of one of the members of Engel’s firm, he says, so that is how they found out about the comments.
Dawson says, if the guard made those statements, it’s obvious who he was talking about.
“It’s common knowledge. People reading the paper, they see Mr. Engel’s name in there on a routine basis conducting these files, and he’s also sued and involved the remand centre in a lot of litigation over the years. . . . Pretty much, he is the go-to guy in this province and the one who gets all the press in terms of any such involvement with the police.”
Engel and his firm have become notorious in the province for filing more complaints about police abuses and mistreatment of prisoners than any other firm. Police have retaliated by filing dozens of complaints against Engel, none of which has succeeded to date.
In recent years, Dawson says Engel has tried to smooth over the animosity by reaching out to Edmonton’s police chiefs — both individually and on behalf of ACTLA — and by inviting them once a year for a candid discussion with the association’s lawyers.
That being said, Dawson acknowledges that some resentment may have built up over the years among rank-and-file police officers.
“There’s a history of a lot of rancour between them and Tom because they’re the ones directly affected,” he says. “The remand centre guards are not police officers, but they are certainly part of the law enforcement apparatus and they probably have a lot of sympathy for some of the police officers being attacked in this way.”
Dawson, however, insists that one correctional officer’s vulgar alleged remarks should not be used to smear the entire institution.
“Tom is well known for being a thorn in their side, but I have spoken to remand centre guards in the past who know him and grudgingly respect what he does.”
Updaet 4:10 pm: Comments from Thomas Engel added.
Dennis Oland faces sentencing for murder in Saint John, Canadian Press
The Canadian Bar Association plans to pass a resolution this month to urge the government of New Brunswick to reconsider its decision to close four provincial courts.
|The courthouse in St. Stephen, N.B., is scheduled for closure. (Photo: Google Streetview)|
The CBA’s draft resolution, which will be discussed at the association’s upcoming mid-winter meeting, says the closure of these courts “undermines access to justice for local residents, in particular the most vulnerable and impoverished residents who cannot travel great distances to attend court.”
If the resolution passes, the CBA will also call on the attorney general of the province to conduct “a comprehensive review of the justice system with a view of maintaining courts in local communities and determining where savings might be made that could additionally fund the justice system in New Brunswick.”
The bar association will also encourage federal, provincial, and territorial governments to consult with it before considering whether to close any court.
St. Andrews, N.B., lawyer David Bartlett, who is pursuing a judicial review of the government’s decision on behalf of the Charlotte County Barristers’ Society, says he lauds the CBA’s plan to get involved.
“They keep saying there is a huge saving to be had,” Bartlett says of the government’s decision to shut down the courts. He adds the province is suggesting there’s a shortage of resources needed to maintain a certain level of security at the courts.
“They’re effectively trading security for access to justice,” he says.
Despite suggestions the court closures will save cash, Bartlett says this decision is in fact costing the province elsewhere.
“Now the RCMP and police cars are being used to transport witnesses to and from Saint John,” he says. “Police officers are being lost to policing work because they’re now traveling an hour-and-a-half to get to court, an hour-and-a-half to get back.”
Without access to the courts in St. Stephen and Grand Manan, it takes the average resident about an hour-and-a-half to attend court in the city, says Bartlett. Those who do not have cars have no other options because there is no public transportation, he adds.
When Bartlett brought a motion for judicial review of the decision in October 2015, the province challenged it on the basis it is statute barred. After the minister of finance mentioned plans to close the courts in a budget speech in March 2015, Bartlett and the barristers’ society failed to bring the judicial review application within the 90-day deadline, the province said. But Bartlett argued the budget speech is a political speech and not an official public announcement of the closures.
A lower court judge agreed with Bartlett and allowed the matter to proceed, but the province will challenge that decision at the court of appeal in March.
Montreal taxi drivers plan city-wide blockades to protest Uber, Globe and Mail
A British Columbia Human Rights Tribunal has dismissed a complaint against a law firm made by a former employee because the woman lied about when she found out she was pregnant.
|Making up a story about when she found out about her pregnancy proved to be a black mark for a B.C. law firm employee. (Photo: Shutterstock)|
Opp was hired by Mackoff & Co. as a legal administrative assistant and started working Nov. 17, 2014. On that first morning, an excited Opp spoke with a man in the office building elevator and told him it was her first day at her new job.
She whispered to him that she was pregnant, noting she had just found out. He asked if she was going to tell the firm, at which point she said, “No. I don’t know.”
The man suggested she work for the firm for a while before telling them about her pregnancy. She laughed and agreed. A few days later, she also told a firm legal admin assistant that she was pregnant.
She noted she was worried because she had just started and asked if the assistant thought it would affect her employment. The assistant said she doubted it, since they would probably hire someone to cover her in her absence — something the firm had done several times in the past.
On Dec. 12, 2014, Opp informed the firm’s senior paralegal she was pregnant. Opp said she had only learned of the pregnancy two weeks earlier when she said she was off sick and treated in hospital Dec. 1 to 3 for shortness of breath.
While Opp expressed concern to the senior paralegal about how the firm partners would react to her pregnancy news, she was told they had at least five women who had gone on maternity leave and returned to work. All were still employees of the firm.
A few days later, the senior paralegal learned Opp had told the legal assistant she was pregnant on her first day of work and an associate lawyer who was in the elevator with her the same day overheard her tell the man that she was pregnant but was not planning to advise the firm for a period of time.
When he learned of the information, Leslie J. Mackoff advised the senior paralegal he was concerned about Opp’s decision to fabricate the story about when she found out she was pregnant.
In a statement to the tribunal, Mackoff said:
“I concluded that I could not repose any confidence in Ms. Opp to act honestly in a situation arising on a file where perhaps she omitted to do something and rather than simply tell us of her error would invent a story or swear a false affidavit to conceal her mistake. I informed [the senior paralegal] that I had decided that I needed to terminate Ms Opp due to her consciously dishonest conduct. After considering the matter I felt that by concocting a story, Ms Opp had undermined the employer/employee relationship.”
Opp was fired Dec. 22 and Mackoff made it “very clear” the reason for termination had nothing to do with her pregnancy and everything to do with willingness to “concot a falsehood and how that negatively impacted my ability to trust her judgment and her honesty.”
Medical records for Opp showed she tested positive for pregnancy on Nov. 3, 2014 but records did not record her receiving medical care or visiting hospital in the period from Dec. 1 to 3.
Opp argued she decided not to disclose her pregnancy until she was confident she wouldn’t have a miscarriage, having suffered two previously — in 2006 and 2008.
The tribunal member dismissed the claim saying the firm had a good history of accommodating employees on maternity leave and that:
“I would certainly expect the Tribunal member hearing this matter would be prepared to accept that the fabrication which Ms. Opp appears to have engaged in respecting how she learned of her pregnancy, and the timing of her actual knowledge of the pregnancy, could present serious concerns to an employer, particularly where that employer is a law firm. It seems likely to me that the Tribunal would accept at a hearing of this matter that MLC has provided a reasonable, non-discriminatory explanation for the decision to terminate Ms. Opp’s employment.”
An Alberta judge has described the interest charged to an Edmonton woman by a moneylender as “shockingly high,” but said it’s not criminal.
In Settlement Lenders Inc. v. Blicharz, Lucyna Blicharz had filed an application with the Court of Appeal of Alberta to extend time to appeal and extend time to file appeal record.
The legal action related to a default judgment in December 2013 that ordered Blicharz to pay $38,881.50 to Settlement Lenders. The company advertises itself as “Canada’s original settlement lenders for auto accident, personal injury, malpractice, and estate claim,” and lends money to people pursuing legal actions.
Blicharz was advanced $10,625 in 2007 and 2008, after she executed three promissory notes. As part of her legal action against the company, Blicharz said the amount of interest on the loan was greater than 60 per cent, making it illegal under s. 347 of the Criminal Code.
She also said she’d only received $8,000. Blicharz had legal counsel when she executed the notes.
“In general, [Blicharz] alleged that she did not understand the significance of the amount of interest to which she had agreed. She alleged that she interpreted the promissory notes such that nothing would be due until she received all the settlement proceeds from her injury claims. The chambers judge concluded that these were not arguable defences, as she had counsel at the time she executed the promissory notes. Her subjective interpretation of the promissory notes was of no consequence as it was clear they were payable on demand,” said Justice Patricia Rowbotham in the ruling.
Rowbotham ruled against an appeal; stating that while there was “no application to restore the appeal . . . it seems to be me that I can consider her current applications as encompassing an application to restore the appeal.”
But the judge had some pointed words about the amount of interest Blicharz was charged.
“After reviewing this material, the chambers judge found that the monthly interest fee was not a criminal rate. The interest is not compounded. Had it been, it would have been greater than 60 per cent. There is no doubt that the interest of 48 per cent is shockingly high and a marked departure from conventional lending rates but this was the effective interest contemplated in the promissory notes,” said the ruling.
Rowbotham also noted Alberta’s Unconscionable Transactions Act, RSA 2000, c U-2 “was not raised in the proceedings below. It applies when ‘in respect of money lent, the court finds that having regard to the risk and all the circumstances, the cost of the loan is excessive and that the transaction is harsh and unconscionable.’
“The Act was applied in a case involving a lender with a similar business model to that of the respondent; a purported ‘advance’ against personal injury litigation proceeds. The judge held that ‘having regard to the risk and all the circumstances . . . the cost of the 2005 loan is excessive and the transaction is harsh and unconscionable and a marked departure from community standards of commercial morality.’”
Rowbotham said in Blicharz’s case, the fact she obtained legal advice was an important factor. She pointed to the 2005 case Cain v. Clarica Life Insurance Co.
“Given that Ms. Blicharz had legal advice before she proceeded with the loan and its onerous terms, Cain would be a complete answer. That said, these lending practices, which appear to prey on already vulnerable personal injury victims who are unable to use conventional lenders or contingency-based personal injury lawyers, are, in the words of Judge Ingram, ‘a marked departure from community standards of commercial morality,’” said Rowbotham.
Jennifer Babe, a partner at Miller Thomson LLP, says “it is clear that the borrower signed demand promissory notes, with interest at 48 per cent per annum, with the advice of counsel.”
“These were not payday loans, which are regulated in some provinces with capped rates per annum. And with interest at less than the 60 per cent per annum rate specified in the Criminal Code, these loans were not unenforceable by reason of illegality,” says Babe.
“There are many lenders in Canada working in the higher risk loan area, lending to Canadians who do not have good credit scores or have not collateral or like credit risk.”
Man found stabbed to death in Richmond Hill home, Canadian Press
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