Law Times

Law Times • March 30, 2015 Page 5 www.lawtimesnews.com lawyer concerned about 'inordinate delay' in mortgage case Seven-year timeline suggests larger problem in law society probes: James Morton By yamri Taddese Law Times Toronto lawyer is blast- ing the Law Society of Upper Canada for "a scandalously shoddy" misconduct investigation that spanned six years before making a decision to bring an application against his client. James Morton said John Ab- bott, a lawyer disbarred early this year for knowingly assisting in mortgage fraud based on wil- ful blindness, suffered prejudice as a result of the length of time it took the law society to bring the application. Morton says the in- vestigation should have taken a few months instead of six years. Abbott is appealing his dis- barment in part on the grounds of delay. "We say this particular case cries out for a finding that the de- lay was inordinate, that the delay brings the discipline process into disrepute," Morton told an ap- peal panel on March 24. The law society started in- vestigating Abbott's matter in March 2007. Morton says the "inordinate delay" speaks to a larger problem the law society has in investigating mortgage cases. "This is not the only case in which there's been lengthy delays in investigations of what were otherwise straightforward mort- gage matters," Morton tells Law Times. "This is just one example of a number of cases." The process the law soci- ety followed in this case was "shoddy" because the file went through several people with virtually no progress before the regulator finally brought in an outside investigator, Glenn Stu- art, who was able to wrap things up in three to four months, ac- cording to Morton. While matters related to mortgage fraud can be complex, "this case was not one of them," Morton told the panel, adding his client had also been co-oper- ative during the investigation. The delay, which meant Ab- bott's disciplinary process took more than seven years, caused the lawyer anxiety, stress, re- duced income, and "general up- set," Morton noted. But law society counsel Chris Donovan said inordinate delay itself isn't sufficient grounds for a stay of proceedings. The delay, he suggested, must result in "signifi- cant prejudice" to the respondent as well. "It's a two-part question," said Donovan, adding there's a lack of significant prejudice in the Abbott case. He also said the hearing panel had heard about the psychological impact of the delay on Abbott but noted it didn't find a causal relationship. That finding "should not be disrupted on appeal" since the hearing panel had heard the evi- dence and the appeal tribunal hasn't, according to Donovan. Donovan didn't deny, how- ever, that the delay was exces- sive. "There was a lot of delay and it was not ideal. . . . But we also have to look at the resource is- sues the law society had at the time," he said, adding the regu- lator must prioritize investiga- tions based on the risk to the public. In January, law society chief executive officer Robert Lapper told Convocation the regulator receives four to five mortgage fraud complaints every month, a number then-bencher Adriana Doyle called "staggering." Lap- per also reported the law society had 80 mortgage fraud investi- gations involving 102 cases in its inventory at the time. The law society frequently cites the complexity of mort- gage matters as the reason be- hind the lengthy timelines for its investigations. "I reject the idea that any mortgage case is a simple matter," Donovan told the panel. But according to Morton, the fact Stuart was able to review the case and recommend an application against Abbott in less than four months shows it's not complexity but the law soci- ety's faulty investigation process that's to blame. "It's a failure, we feel, of the law society to treat the case seri- ously," says Morton. According to Donovan, how- ever, the justification for staying a proceeding like the Abbott matter must trump the public's interest in continuing it. "This is a proceeding about the very integrity of this profes- sion," he said at the hearing. In Morton's view, the law so- ciety failed both Abbott and the public interest. "If this is a matter that justi- fies revocation, then why would the law society let it rest for over six years?" he asks. Before the appeal panel, Mor- ton likened the matter to train- ing a puppy. A pet owner doesn't spank a puppy three weeks after it committed a transgression be- cause "the puppy won't get it," he said. The appeal panel has re- served its decision in the case. In 2013, a hearing panel dismissed a matter against an- other real estate lawyer, Eugenio Totera, who argued he suffered severe psychological damage from a probe that took five years. In particular, he said he suffered from chronic depression, insom- nia, an increase in teeth grinding, and anxiety. But the Law Society Tribunal allowed the regulator's appeal in that case last year and ordered a new hearing. The hearing panel, it found, had "erred in its analysis of whether the delay directly caused significant psychological harm to the lawyer." LT NEWS Untitled-1 1 2015-02-05 2:53 PM A 'This is not the only case in which there's been lengthy delays in investigations of what were otherwise straightforward mortgage matters,' says James Morton.

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