Law Times

PAGE 2 NEWS December 13, 2010 • Law Times LAO seeks $570K over 'improper payments' to lawyer L BY MICHAEL McKIERNAN Law Times egal Aid Ontario is su- ing a Toronto immigra- tion and refugee lawyer in a bid to recover what it calls "improper payments" to him between 2003 and 2005. LAO launched the $570,000 claim in January 2009 after Robert Gertler, a member of the legal aid refugee panel since 1993, transferred his interest in two properties to his wife during a dispute over his billing prac- tices. They allegedly included double-billing for matters and continuing to bill after a certifi- cate had been cancelled. Gertler didn't file a defence but instead moved to strike the claim on the basis that the par- ties had already reached a settle- ment. He claims he accepted a settlement offer made in Sep- tember 2008. Under the deal, LAO agreed to keep the results of its investigation under wraps. But LAO insists the agree- ment wasn't binding because Gertler failed to accept all of the terms. In particular, it ar- gues in court documents that the transfer of the properties occurred just weeks before its settlement deadline of Dec. 31, 2008, in a bid to obstruct its claims. "The purported trans- fers were made with the intent to defeat, hinder, delay, defraud, and prejudice creditors or oth- ers, including LAO, of their just and lawful actions, suits, debts accounts, and damages," the claim filed with the Ontario Su- perior Court alleges. Gertler knew "at least since the summer of 2008 that a law- suit against him for recovery of the improper payments was inevitable absent a settlement," LAO claims in the lawsuit. None of the allegations have been proven in court. Cross-examination on Gertler's motion to strike the claim broke down in March of this year when his lawyer at- tempted to question an LAO witness on e-mails between both sides' previous counsel, which LAO claimed were irrel- evant and protected by settle- ment privilege. In a decision late last month, Master Robert Muir disagreed. "The plaintiff's witnesses shall between 2003 and 2005 raised a number of billing issues. According to LAO's claim, Gertler allegedly double-billed for some matters, continued to bill after a certificate had been cancelled, and failed to provide invoices for other cases. LAO was also concerned about bills for translation services pro- vided by a company owned by Gertler's wife, Shirley King. Almost $400,000 of the $570,000 in questionable ac- counts related to fees billed by by the settlement and implement the terms of the agreement, but the plaintiff was not." According to Pratt's affida- vit, Gertler wanted to be able to work with and assist lawyers who accepted legal aid certifi- cates. But Pratt said legal aid wouldn't allow that. "This was a critical element of the LAO-of- fered settlement which Gertler refused to accept," she wrote. In the meantime, the LAO statement of claim alleges that on Dec. 3, 2008, Gertler trans- But Aisenberg insists those communications were made without prejudice to his position that a binding settlement was already in place. In his own affidavit filed with the court, he said he was 'shocked' to see them reproduced by Pratt 'in violation of settlement privilege.' answer all proper questions arising from the subject e-mails and related discussions," he wrote before awarding Gertler $3,500 in costs. Mark Crane, a lawyer with Gowling Lafleur Henderson LLP who's representing LAO in the action, says his client won't com- ment on cases before the court. Ranjan Das, a partner with Berkow Cohen LLP repre- senting Gertler, says LAO has wrongfully commenced the ac- tion and hopes it will be dis- missed but declined to com- ment further on the case. LAO began to investigate Gertler in 2005 after an un- usually high number of his cer- tificate clients asked to switch lawyers, which raised "serious client service concerns," ac- cording to an affidavit filed by Tracy Pratt, the lawyer who represented LAO in the origi- nal settlement negotiations. A study of more than 1,000 of Gertler's accounts rendered Gertler for services provided by another lawyer, Ernest Dicker. In its claim, LAO said Gertler failed "to provide adequate sup- porting documentation, such as detailed dockets and work pro- duced for the Dicker services." LAO issued a notice to re- move Gertler from its panel in April 2008, after which dis- cussions began between the two sides over a settlement. By September, they had apparently reached an agreement when LAO's Etobicoke director wrote to the lawyer with an offer that Gertler accepted six days later. According to its terms, Gertler would pay $75,000 and resign from all panels. In turn, LAO wouldn't disclose the results of its investigation. Finally, the parties would "execute mutual releases satisfactory to counsel." It was on the last point that negotiations subsequently broke down. In a factum filed with the court, Gertler argues he was "ready, willing, and able to abide ferred his interest in the two properties to his wife: their home in Toronto and a $735,000 property in Gravenhurst, Ont. LAO wants the transfer declared void and has argued in its claim that the allegedly improper pay- ments it made to Gertler should be declared trust funds used to pay off the mortgage on the To- ronto home and purchase the Gravenhurst property in 2007. LAO claims it only found out about the transfer on Jan. 14, 2009. On Dec. 5, 2008, Pratt wrote to Gertler's lawyer in the negotiations, Ron Aisenberg, to tell him the settlement was dead. In her affidavit, she re- ferred to a voice mail message left by Aisenberg days later in which he asked for talks about a "brand new settlement" to back up her claim. She also quoted an e-mail from Aisen- berg on Jan. 5, 2009, in which he allegedly agreed that "no new settlement was concluded for this go-round." Three weeks later, LAO launched its claim. But Aisenberg insists those communications were made without prejudice to his position that a binding settlement was already in place. In his own affi- davit filed with the court, he said he was "shocked" to see them re- produced by Pratt "in violation of settlement privilege." When Das, Gertler's new counsel, attempted to cross-ex- amine another LAO witness on other e-mails in the exchange between Aisenberg and Pratt, LAO objected. It claimed they were irrelevant and cited settle- ment privilege, which lead to the motion before Muir. In a factum filed with the court, Gertler argued Pratt had selectively referred to just two out of 20 communica- tions between her and Aisen- berg during the second round of negotiations in her affidavit and that LAO couldn't avoid cross-examination on all 20 "by intentionally leaving out the other e-mail/communica- tions of the same nature." Muir found that by includ- ing Pratt's references to the "brand new" settlement in her affidavit, LAO admitted the discussions were relevant. He also found the settle- ment privilege ceased to apply because the matter at issue was the very existence of an agree- ment. In any case, Muir wrote, it was a matter of "procedural fairness" that Gertler be allowed to question on the e-mails con- sidering that it was LAO who had given an implied waiver of its settlement privilege by men- tioning them at all. Cross-examination on the motion to strike the claim will now continue. Das says he ex- pects the motion to be heard some time next year, although there's no date yet. LT www.lawtimesnews.com

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