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Law Times • sepTember 27, 2010 NEWS PAGE 3 Man facing libel suit for LSUC complaint Yaroslav Mikitchook calls letter a bid to bolster small claims case BY MICHAEL McKIERNAN Law Times A Mississauga, Ont., man is facing a libel suit by a Toronto law- yer claiming he defamed him in a complaint to the Law So- ciety of Upper Canada about his conduct. In a statement of claim filed last month, Yaroslav Miki- tchook asks for $100,000 in damages against Darren John for "serious injury and damage to his character, reputation as a lawyer, and standing in the community." John, representing himself in two Small Claims Court ac- tions in Brampton, Ont., faced Mikitchook as counsel for op- posing parties in both cases and describes the libel action as "nonsense." In his statement of claim, Mikitchook says his interven- tion in the cases scuppered John's hopes for speedy resolu- tion to his actions, which the lawyer describes in his claim as "spurious." According to Mikitchook's lawsuit, John's subsequent complaint was a bid to cre- ate the impression with the law society that he had lied in court, was mentally challenged and unscrupulous, and had breached his obligations as an officer of the court. In his state- ment of claim, Mikitchook also says John alleged the lawyer will stop at nothing to win and "uses his job title to manipulate the system." John's complaint, he al- leges, was "fabricated by him for the contemplated purpose of causing the plaintiff such embarrassment" that he would remove himself from the case, "thus making the defendant's claim against the plaintiff's cli- ents easier to prosecute." None of the allegations against either Mikitchook or John have been proven. According to Toronto media lawyer Brian MacLeod Rogers, Mikitchook could struggle to win his case because the al- legedly defamatory statements came about in a complaint let- ter to the LSUC. "I'd be of the view that any complaint letter to a regulatory body such as the law society would be privileged," he says. However, MacLeod Rog- ers concedes that the courts have yet to settle the type of privilege afforded to complaint letters and says there could be an argument over whether the comments fall under absolute privilege — as do those made in Parliament or court — or qualified protection. Privilege in the latter cat- egory is lost when the person made the statements mali- ciously. Mikitchook pointed to that notion when he said in his statement of claim that John's complaint was "motivated by malice." Still, MacLeod Rogers says the case law in other common law jurisdictions has accepted the notion that complaints to a regulatory body fall under ab- solute privilege and believes he could make a "good argument for it" here in Canada. "You want to encourage people to come forward with complaints without fearing that they will end up on the wrong end of litigation," Ma- cLeod Rogers says. When lawyers or other pro- fessionals are facing a complaint they believe to be false, Ma- cLeod Rogers says the courts aren't the most appropriate fo- rum to settle the dispute. "I would suggest the way to deal with it is in the context of that professional body, in other words [by] convincing the law society that the complaint is ill-founded." Mikitchook declined to comment on the case when reached by Law Times. "I really don't want to dis- cuss it as it's before the courts," he says. "It's going to be adju- dicated in due course, and the issues will come out." In a statement of defence filed last week, John refutes all of Mikitchook's claims and alleges the lawyer launched the libel ac- tion because he was offended by the LSUC complaint. "He felt trapped, and his only line of defence would be to try to intimidate Mr. John into a retraction," the state- ment of defence claims. "Yaro- slav believed John would be overwhelmed by the Superior Court process and it would be financially taxing on him." The libel case is the latest development in an increasingly bitter small claims case brought by John against the owners of a car dealership. John, who owned an auto body shop in Mississauga, bought a car from the dealer- ship and claimed the owners had misinformed him about the mileage and accident re- cord of the vehicle. John says that after the "bad blood" be- tween the two parties escalated in the wake of disputes about the service of documents, he ended up suing two parale- gals for allegedly damaging his property. In February, Mikitchook took on the owners of the car dealership and one of the para- legals as his clients. Then in April, John made his complaint to the law society. Mikitchook claims John made the complaint "as a tacti- cal device" to gain leverage in his Small Claims Court cases and alleges he declined to back up his complaint with evidence when the law society contacted him. "He repeatedly tried to put into evidence proof of his complaint about the plain- tiff in order to gain whatever tactical or other advantage he could . . . knowing at all times the LSUC would not proceed without fur- ther substantiation," Mikitchook's claim states. But in an interview, John tells Law Times the com- plaint remains ongoing and says he has been in touch with the law society to pro- vide more details. At the same time, he's unrepentant about making Mikitchook's conduct an issue in his court battles with the lawyer. "He hates it when I bring up his complaint history in court," John says. Mikitchook's complaint history includes findings of professional misconduct by the law society on seven occasions since the early 1990s, most recently in Jan- uary 2009. It has punished him for inadequate bookkeeping; failing to respond to clients; failing to pass on files to new lawyers in cases where his re- tainer was terminated; and Darren John, above, is facing a $100,000 lawsuit for allegedly damag- ing the reputation of Toronto lawyer Yaroslav Mikitchook. failing to respond to the law society. During a hearing in 2008, Mikitchook presented evidence from a psychiatrist indicating he suffered from two personal ity disorders that drove him to self-sabotaging behaviour. Mikitchook regained his licence in January after con- vincing a panel that the psy- chological conditions caus- ing his errors were under control. Currently, the law society has restricted his practice, ac- cording to a statement from LSUC spokeswoman Jane Withey. "He is able to practise but only under the supervision of another lawyer licensed to practise law in Ontario who has been approved by the di- rector of professional regula- tion," she said. In his statement of de- fence, John says he feared Mikitchook was "regressing" and wished only for the law- yer to "seek help." Then, "after a number of inaccurate statements and odd behaviour," he went to the law society to complain, according to the defence. LT Law Times congratulates the 145 new lawyers who were called to the bar last Wednesday. A ceremony to mark the occasion was held at Roy Thomson Hall in Toronto. 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