Law Times

Law Times • JuLy 23, 2018 Page 5 www.lawtimesnews.com Website 'reflects someone playing fast and loose with the truth' Law clerk awarded damages in dispute with lawyer BY ANITA BALAKRISHNAN Law Times A law clerk can collect damages from a lawyer after the two gave dif- fering accounts of how their business dissolved, the Su- perior Court of Justice said in a recent decision. In Curley v. Taafe, 2018 ONSC 3150, law clerk Antoi- nette Curley sued Oshawa law- yer Lesley Mary Taafe for breach of a business agreement. The two had an arrangement where Curley would refer real estate clients to Taafe. However, after the two had a conf lict and Taafe alleged Cur- ley had stolen files and misused the lawyer's letterhead, the clerk sued Taafe for breaching their business agreement and said that Taafe had misrepresented the clerk's conduct to the Dur- ham Regional Police. Ultimately, Justice Mark Ed- wards sided with the clerk and said that Taafe's evidence was "a tangled weave of inconsistencies and untruths," based in part on information on Taafe's website. Edwards granted Curley, the law clerk, $7,500 in general damages, $50,000 in general damages for malicious pros- ecution and $25,000 in punitive damages, according to the deci- sion. "While her representations to the world at large ref lected on her website may be seen as a collateral issue in these pro- ceedings, her evidence ref lects a complete lack of candour on her part. Anyone looking for a lawyer in the Durham Region would have concluded the De- fendant had 20 years' experience practicing as a family lawyer, and that she had been a barrister in England. Neither were true," Edwards wrote. As part of the dispute, Taafe said that Curley refused to re- turn client files after the two had dissolved their agreement and that Curley used and altered Ta- afe's letterhead without permis- sion, said the ruling. However, Curley said that she returned the files and had not received Taafe's notice that their agreement was ending. Jean-Claude Killey, a part- ner at Paliare Roland Rosenberg Rothstein LLP, says the break- down of the business agreement was a relatively small aspect of the monetary claim. The bulk award was for mali- cious prosecution, including the allegation by Curley that Taafe had made deliberate misrepre- sentations to the police, which Edwards supported. "There are obligations that go beyond the ordinary con- sumer protections of not mak- ing misleading or false state- ments — they ref lect on the profession as a whole and they undermine public trust in the profession," says Killey. In the ruling, Edwards also pointed to evidence that Taafe had acted on a real estate trans- action for a husband and wife with respect to the sale of a mat- rimonial home, even though Taafe stated under oath that she had never acted for two parties where she was in a conf lict of interest. "When caught in a lie or inconsistency, the Defendant [Lesley Taafe] placed the blame on her lawyers who had not properly prepared her for her discovery and who had made a mistake in the drafting of her statement of defence," said Ed- wards in his decision. "Even her website ref lects someone playing fast and loose with the truth. As a lawyer the Defendant should know the im- portance of telling the truth, the whole truth and nothing but the truth." The ruling also says that, before October 2017, Taafe's website stated that Taafe has been practising predominantly in family law for more than 20 years, although she was called to the Ontario bar in 2011, after coming to Canada from Eng- land in 2004. That wording is no longer on the website. "The Defendant is a lawyer, and she should have come to this court and told the truth. In my view, she did not," said Ed- wards in the ruling. "The Defendant is an officer of this court, quite independent of her role as a litigant within these proceedings. This is a case where an award of puni- tive damages is appropriate to ref lect the Defendant's miscon- duct so as to achieve objectives of retribution, deterrence and denunciation." Curley's counsel declined to comment on the case because the parties are in the process of making written submissions to the court regarding costs. Cur- ley, Taafe and Taafe's counsel did not respond to a request for comment. Lawyers say the case also shows the way an attorney presents themselves online can undermine their credibility in court. "It's always the case that the things that lawyers put out there — as advertisement and as promotion and as their own personal resumé on their web- site — every lawyer should be putting that on the internet thinking about whether every- thing they are saying is accu- rate," says Lidiya Yermakova, an associate at Koziebrocki Law in Toronto, who was not involved in the case. "I think this case is a remind- er of that." Edward Marrocco, partner at Stockwoods Barristers LLP, says it's becoming standard practice to present any parties in lawsuits about postings online. "Anyone who is being exam- ined or cross-examined or dis- covered in the course of a piece of litigation should be prepared to be confronted with things they've posted on social media or on the web at large, especially when those things can be attrib- uted to them — when it's some- thing that they have put their own name on," Marrocco says. "Certainly, if you're prepar- ing someone for a court case, and they are a party or a witness, it's common practice now. You have got to vet your social me- dia; you've got to vet your web presence and be prepared to be confronted." LT NEWS Untitled-1 1 2018-06-28 12:05 PM A recent Superior Court decision ordered an Oshawa lawyer to pay damages to a law clerk for malicious prosecution. www.lso.ca Malcolm M. Mercer has been elected as the Law Society of Ontario's 67th Treasurer. The Treasurer is the top-elected of- ficial of the Law Society, which regulates Ontario's lawyers and paralegals in the public interest. Treasurer Mercer is a partner and general counsel of McCarthy Tétrault LLP. He was first elected a Bencher of the Law Society in 2011. As a Bencher, he has chaired the Advertising and Fee Arrangements Issues Working Group and the Professional Regulation Committee and has co-chaired the Alternative Business Structures Working Group. Treasurer Mercer has also chaired the Ethics and Professional Responsibility Committee of the Canadian Bar Association, and serves as a member of the National Committee on Accreditation of the Federation of Law Societies of Canada. He is also a director of Pro Bono Law Ontario and the Victorian Order of Nurses Canada. He was called to the Ontario Bar in 1984. Malcolm M. Mercer Treasurer of the Law Society of Ontario SUC_LT_July23_18.indd 3 2018-07-17 1:46 PM You have got to vet your social media; you've got to vet your web presence and be prepared to be confronted. Edward Marrocco

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