Law Times

Law Times • JuLy 10, 2017 Page 3 www.lawtimesnews.com Ruling sets aside lower court finding Court of Appeal revokes lawyer's licence BY ALEX ROBINSON Law Times T he Court of Appeal has reinstated the revoca- tion of a lawyer's licence in a long-running dis- ciplinary matter that has ping- ponged up through the courts. The ruling set aside a Divi- sional Court finding that up- held the reinstating of lawyer John Abbott's licence. The Law Society Tribunal Appeal Division had reversed the regulator's Hearing Divi- sion's decision to revoke Ab- bott's licence while simultane- ously finding that he had know- ingly participated in mortgage fraud. In the recent decision in Law Society of Upper Cana- da v. Abbott, Court of Appeal Justice Peter Lauwers said the result of the Hearing Division's decision was "unprecedented" and "not justified on the facts of the law." Lawyers say the Court of Appeal decision confirms that professional regulatory hear- ing panels will be afforded sig- nificant deference, which means appeal panels and courts will not overturn findings in such matters unless they are unrea- sonable. "Whether it's an appeal tri- bunal panel or the Divisional Court, they're only to interfere particularly in questions of mixed fact and law if they first find that a hearing panel's find- ing is unreasonable," says Chris- topher Wirth, a partner with Keel Cottrelle LLP, who was not involved in the case. The mortgage transactions in question during the disci- pline hearings happened over a four-month period in 2006- 2007. A complaint from one of Ab- bott's lender clients to the law society spurred an investiga- tion, which culminated in hear- ings in 2014. The Hearing Division found Abbott had knowingly assisted in mortgage fraud in seven transactions, which amounted to approximately $625,000 in losses, according to the deci- sion. When Abbott appealed, the law society's Appeal Division unanimously agreed that the lawyer had engaged in profes- sional misconduct, but on a split decision it decided to reduce his penalty to a two-year suspen- sion because of what it said was unacceptable delay in the inves- tigation and prosecution. The appeal division panel de- cided that the delays constituted exceptional circumstances that could mitigate the penalty. It found that delays in in- vestigation and prosecution "may be as harmful to public confidence in the legal profes- sion's ability to regulate itself as Mr. Abbott's continued right to practise law." The law society then ap- pealed that decision to the Divi- sional Court, which upheld the Appeal Division's findings. The Court of Appeal ruled that the Appeal Division should have deferred to the Hearing Di- vision's decision on penalty and that it failed to consider its rea- sons as a whole. The court also found that the Appeal Division failed to "consider whether the Hearing Division's penalty fell within the range of possible, acceptable and defensible outcomes that were open on the evidence." The Court of Appeal found that the Appeal Division would need to find the penalty im- posed unreasonable before im- posing its own and that there was no precedent for issuing a lower penalty than licence re- vocation for a lawyer who has been found to have knowingly participated in mortgage fraud. Lauwers said the Appeal Di- vision erred by not deferring to the Hearing Division's find- ings. "The findings of the Appeal Division that the Hearing Divi- sion made errors of law ref lect its strong resolve to impose a lesser penalty than revocation on Mr. Abbott in order to send a message to the Law Society that delay is unacceptable, as the dissent pointed out," he wrote in the decision. He found that in doing so, the Appeal Division "exceeded its responsibility as an adjudica- tive body" and "actively sought to subvert" the Hearing Divi- sion's reasoning. The Court of Appeal found the Divisional Court should have shown deference to the Hearing Division, as it was an expert panel that heard live evi- dence and the revocation pen- alty was a question of mixed fact and law. The only way an appeals panel or the Divisional Court could deter from the original panel was if they found its deci- sion was unreasonable. Wirth says that if the Divi- sional Court's decision was up- held it would have meant that appeals tribunals or the Divi- sional Court would be more likely to interfere with hearing panel decisions. He says lawyers defending professionals in such disciplin- ary matters should take note of the decision. "Your best chance for a suc- cessful outcome will be before the hearings panel because ap- peals are going to be more dif- ficult," he says. Robert Centa, manag- ing partner at Paliare Roland Rosenberg Rothstein LLP, who was not involved in the case, says the decision is a reminder that courts will protect the pub- lic interest very aggressively. "Ultimately, I don't think delay, even the type of delay in that case, really serves to reduce a penalty of revocation where the public interest is clearly af- fected unless it rises to the level justifying a stay of proceedings," he says. In addition to reinstating the revocation of Abbott's licence, the Court of appeal awarded $15,000 in costs against him. James Morton, the law- yer representing Abbott in the proceedings, says Abott is disappointed with the decision and is considering his options at the moment. "It would appear that the de- cision permits rather lengthy delays by the law society to have no effect on the ultimate penalty imposed," he says. "And that is an issue that may be subject to further exploration elsewhere." A spokeswoman for the law society refused to comment on the decision. LT NEWS The Court of Appeal has revoked a law- yer's licence, after a long-running battle through the courts. Your best chance for a successful outcome will be before the hearings panel because appeals are going to be more difficult. Christopher Wirth 12th Annual Canadian Lawyer InHouse General Counsel Roundtable Visit canadianlawyermag.com/inhouse to see our video coverage of these topics: Top challenges of managing in-house, online July 10 Managing external counsel, July 17 AlternaƟ ve fee arrangements, July 24 Hiring for tomorrow, online July 31 IH-Roundtable_LT_July10_17.indd 1 2017-06-30 11:40 AM www.mckellar.com We would like to thank all those who took part in THE 19 TH ANNUAL McKELLAR CHARITY GOLF DAY on Monday, June 19th, 2017. This event raised $19,950.00 for wicc (women in insurance cancer crusade) for use and support in their fight against cancer. A special thanks goes out to our sponsors for this event: TITLE SPONSOR FINANCIAL HORIZONS GROUP PLATINUM SPONSORS SUN LIFE FINANCIAL MANULIFE FINANCIAL GOLD SPONSOR BMO LIFE ASSURANCE COMPANY BRONZE SPONSOR THE RIORDON DESIGN GROUP INC. We appreciate your support! ntitled-2 1 2017-06-29 2:35 PM

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