Law Times

Page 4 OctOber 6, 2014 • Law Times www.lawtimesnews.com Condo buyers seeking rule changes for lawyers By yamri taddeSe Law Times arrying a sign that reads "law society shame," purchasers of Toronto condominium units who lost their deposit funds held a protest last week to de- mand more protections for client funds in lawyers' trust accounts. The condo buyers collectively lost up to $14.9 million in deposit fees a lawyer, Meerai Cho, was holding in trust. Cho, who's now facing fraud charges, claims she transferred the money to devel- oper Joseph Lee in error. But standing outside Queen's Park on Sept. 29, a representative for the purchasers said they reject that idea. Thomas Ma said the group doesn't accept that Cho made a mistake due to her inex- perience when she transferred the funds to Lee. "This naive explanation, coupled with Canada's almost non-existent punishment for white-collar crime, would sug- gest sophisticated fraud," said Ma. "It's very dangerous that as lawyers, they know how to cheat their way through the system and protect themselves using their professional knowledge. It's a significant risk to the public." He added: "The case isn't the first one where trust money has gone missing. Last year, the Hey- dary group of law firms collapsed after lawyer Javad Heydary, now deceased, disappeared amid al- legations of missing client funds. It is evident that once an event like this is allowed to happen uncurbed, the perpetrators un- punished, fraud will occur again and again." The protesters handed over a petition to the Ontario govern- ment, police, and the Law Soci- ety of Upper Canada demand- ing stricter rules for trust funds. Ma said a system that requires more than one lawyer to sign off on a trust fund transfer would be helpful. "If more lawyers are involved, they will prevent that," he said. "But I think it's very impor- tant that we set up a rule for the bank to monitor the trust ac- count. If not, how [do you] say it's a trust account? There's no meaning." The current rules are insuf- ficient, he argued. "Now, we are too reliant on the particular law- yer's reputation. If she can move the money wherever she wants, then there's no control," he said, suggesting lawyers should get some sort of authority before re- leasing trust funds. Alka Sharma, one of the pro- testers, raised concerns about a "loophole in the system." "It just goes to show that in this case, the law has simply failed," she said as she stood be- hind a podium at Queen's Park. "The law society regulates law- yers, and [it] has been shown in the past that lawyers have gotten away with mishandling trust funds. This goes to show that there is a f law in the system and we need to get this fixed," said Sharma, who noted she lost $50,000 in "hard- earned" deposit fees. Meanwhile, some lawyers are worrying about a potential over- reaction from the Ontario gov- ernment and the law society to the calls for action. A Law Times online poll found 65 per cent of respondents felt a requirement for dual signa- tures on trust accounts would be impractical for sole practitioners and the legal profession shouldn't implement such a rule. As for the law society, it says it's aware of the protests. "We regularly review the ethical rules and requirements for lawyers and paralegals and amend where appropriate," said spokesman Roy Thomas. "A recent example is the adoption of the new Rules of Professional Conduct based on the Federation of Law Societ- ies' model code of professional conduct." LT NEWS Order # 986376-65203 $149 Softcover approx. 700 pages September 2014 978-0-7798-6376-1 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. 00221WX-A45131 Significantly revised and expanded, Musicians and the Law in Canada, 4th Edition remains your premier source of guidance from the country's leading entertainment lawyer on: • The Internet and its implications for musicians • Copyright, administration and licensing of copyright, Creative Commons licenses • Copyright infringement and remedies • Contractual rights, obligations and remedies • Status, function and role of labour organizations • Relationship of agents and managers • Crowd funding, government funding programs, sponsorship agreements, financing and other business-related issues • Income tax considerations • Trademarks, merchandising and endorsements • Websites, social media, domain names, house concerts • Digital royalties, downloading, streaming, ring tones, cloud computing • "360 deals" Understand the legalities of the music business New Edition Musicians and the Law in Canada, 4th Edition Paul Sanderson Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 C Thomas Ma is calling for a system that requires more than one lawyer to sign off on a trust fund transfer. Photo: Yamri Taddese Litigant got no hearing at all, judge finds By yamri taddeSe Law Times Superior Court judge has found a self-represented litigant didn't get a fair hearing, "or indeed any hearing," after the Crown and a justice of the peace denounced him for failing to present evidence but gave him no chance to do so. The self-represented litigant, only identified as N.N. in the ruling, was seeking a private prosecution in relation to claims of assault and forcible confinement against two security guards at a Costco store who had arrested him and his wife for shoplifting. The charges were later dropped. During his evidence, the plaintiff talked at length about one of the security guards, Wayne Ellison. "Stop talking, sir. Stop talking," said the Crown, who pointed out the plaintiff had neglected to talk about the evidence as it related to the second security guard, Michael Barr. "I mean, you would think he was a terrorist based on all of these charges that you've listed here and you haven't even mentioned him in your evi- dence," the Crown added. But instead of allowing the plaintiff to give evidence related to Barr, the Crown went into a long discussion about whether or not the theft charges against the plaintiff had been dropped. The justice of the peace didn't rectify the situation, the Superior Court noted in its Sept. 8 decision in R. v. N.N. "Rather than inform- ing Mr. N.N. that he had the right to brief ly articulate this evidence with respect to Michael Barr, the justice of the peace observed that she was aware that they were running out of time," wrote Justice Edward Then. "She observed that there was no excuse for unrepresented litigants presenting a private information not to be conversant with procedures so that they should either secure legal representation or educate them- selves quickly as it was not up to either the Crown or the court to do so," Then added. The justice of the peace went on to refuse to issue a process with re- spect to charges against Barr because the applicant hadn't presented the evidence in a clear manner, a responsibility she said falls squarely on the self-represented party. But Then said that if the applicant had received even "a minimum of assistance," the administration of justice could have been faster and more productive. "With respect, the responsibility to provide a fair hearing to any litigant and in particular to an unrepresented litigant, resides with the court," wrote Then. "While I recognize that there is a tension arising from the responsibility of the court to provide speedy and efficient pro- ceedings on the one hand and to provide assistance to unrepresented litigants on the other hand, this case serves to illustrate that if Mr. N.N. had been provided with a minimum of assistance, the goals of speedy and efficient proceedings would have been much better served." There's clear case law that speaks to the judicial duty to assist self- represented litigants, says Julie Macfarlane, a law professor at the University of Windsor. "I think the judicial duty to assist is clear in case law and has been further developed in documents from the Canadian Judicial Council," she says. "But I am not sure that every judge on the bench necessarily understands how to put that in action. I don't think they necessarily understand the extent of their responsibility of how clearly it's stated out in case law and in CJC statements and I'm not sure they know how to practise it in a way that's fair and efficient because it's difficult." Then's decision comes just a few weeks after a group of self-rep- resented litigants asked the judiciary to treat them with respect in an open letter. The self-represented litigants said they were tired of judges treating them as "annoying obstacles unworthy of compas- sion and understanding" when they stand before the courts. LT A

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