Law Times

Law timeS • September 19, 2011 NEWS PAGE 3 Lawyer seeks stay over 'fundamental unfairness' BY MICHAEL McKIERNAN Law Times Markham, Ont., lawyer facing disciplinary action over her debt-collection practice wants the Law Society of Upper Canada proceedings against her stayed over what she alleges is an abuse of process. Deanna Natale claims she was unfairly strung along during negotiations with the law soci- ety. Her lawyer, Graeme Ham- ilton, told a hearing on Sept. 12 that the law society repeatedly expressed its desire to settle the matter without a full hearing but broke off discussions in April when a resolution looked close, a situation that resulted in "funda- mental unfairness to Ms. Natale." "Th ere was no bona fi de in- tention on the part of the law society between December 2010 and April 2011 to resolve this," Hamilton told a law society panel. "What had in fact oc- curred at the law society was that it had predetermined this matter could not be settled without a conduct hearing." According to Hamilton, the A parties agreed to enter discus- sions under the guidance of Bencher Mark Sandler in De- cember 2010. By April, Sandler had recommended converting the case from a conduct applica- tion to a less serious public in- vitation to appear. Sandler also agreed that he'd write guidance for lawyers conducting a similar practice to Natale. But discussions broke down when Zeynep Onen, the law society's director of professional regulation, rejected the deal. According to Onen, it wouldn't meet the law society's regulatory goals. Natale claims that explanation is inconsistent with evidence of Onen's active involvement in the fi le since then. She also argues media attention on her case has infl uenced the prosecution. In the meantime, Hamilton said the delay left Natale facing "great mental distress." "Ms. Natale reasonably ex- pected that by putting off the hearing and making further rep- resentations, those eff orts could lead to a resolution short of a conduct hearing," he said. "And indeed, there was great prejudice that arose to her in that time. Her reputation has been irreparably harmed, her family have received death threats, and the whole pro- cess has been tremendously costly to her fi nances." Natale also accuses the law society of being unduly and improperly infl uenced by Mark Silverthorn, a former collections lawyer who has complained to the LSUC about Natale's prac- tice after he switched to helping consumers. In documents fi led with the hearing, Natale says Silverthorn wrote to law society discipline counsel encouraging them to widen their investigation and ac- cuses him of "tacitly threatening negative media publicity for the law society if Ms. Natale was not aggressively prosecuted." Natale also accuses Silverthorn of using her proceedings to pro- mote his own book on collections practices as well as another he's planning on her case. In addition, she says the law society failed to investigate Silverthorn despite be- ing aware of his actions that she alleges could potentially amount to a breach of the rules of profes- sional conduct. Silverthorn, who was at the hearing, denies those allega- tions. "Th e idea that I would threaten the law society with bad publicity is ridiculous," he tells Law Times. Th e law society argues that the stay motion came about be- cause Natale was unhappy with the outcome of the negotiations as the law society had failed to settle on her terms. Natale's lawyers, who were at the hearing to ask for more disclosure to bolster their claim of abuse of process, acknow- ledged that most of their evi- dence so far is circumstantial. After a story on the case ap- peared on CBC's Th e National in October 2010, Onen wrote to notify then-law society CEO Malcolm Heins. Under cross-examination, Onen said it was usual for her to let Heins know when a case generated media attention but said there was "nothing unique about the media attention" in Natale's case. Natale wants the law society to turn over all correspondence related to her between LSUC discipline counsel, Onen, and Heins. She also wants notes on meetings that discussed the case. Th e law society has claimed much of the correspondence re- quested is privileged. According to Hamilton, the news stories on the case, which fi rst appeared last fall, sparked a change in attitude from the KEEP PACE WITH THE EVOLVING LANGUAGE OF THE LAW NEW EDITION POCKET DICTIONARY OF CANADIAN LAW, 5TH EDITION DAPHNE A. DUKELOW, B.Sc., J.D., SLL.M. Find a quick reference to current Canadian legal definitions with the Pocket Dictionary of Canadian Law, 5th Edition. 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Sending draft statements of claim is an eff ective collec- tions tactic, but some critics, including Silverthorn, 'The idea that I would threaten the law society with bad pub- licity is ridiculous,' says Mark Silverthorn. law society. After that, he said, its "goalposts kept moving." "Once these stories appeared, preconditions to a resolution started to mount," he noted. Natale's collection practice allege that until very recently, it was illegal under now-repealed sec- tions of the Ontario Debt Col- lectors Act. Natale maintains her prac- tice conforms to the rules of professional conduct. In the meantime, Hamilton said Sandler's guidance would have cleared up any confusion over when it's appropriate for a lawyer to send out draft state- ments of claim.

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• LSUC Fracas
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• Focus On Business/Competition Law