Law Times

Page 2 April 13, 2015 • Law Times www.lawtimesnews.com NEWS Alexandra Hoy, Ontario Court of Appeal Justice Russell Jurian- sz, and Superior Court justices Lois Roberts and David Stinson. A 2013 endorsement pur- portedly handed down by Stra- thy doubled the $3-million or- der Nicholson had previously concocted. "I would ask that the plain- tiff 's counsel contact my registrar when the defendant in relation to this order makes payment to the plaintiff. If no such payment is made, the fine as assessed by Justice Roberts shall and hereby is ordered doubled by an additional $3,000,000," the fake order says. Nicholson admitted to the fab- rication in an agreed statement of facts. He also filed a report from psychotherapist Natasha Sharma saying the lawyer has, among other difficulties, self-esteem is- sues, poor judgment, and a "self- centred personality." Sharma noted that in one of his four sessions with her, Nicholson said he had difficulty separating himself from clients and that "in order to be a good lawyer, you have to take on their problems as your own." Sharma wrote: "This some- what misguided perception and belief with respect to working with clients may also have resulted in Mr. Nicholson's decisions. It's my opinion that at the time, and in his view, Mr. Nicholson truly believed that he was acting in the best interest of his client." Nicholson tells Law Times he was going through a personal crisis at the time following a di- vorce and his father's death. He also said he was acting out of fear of disappointing his client. "Some of the evidence that wasn't included in the agreed statement of facts was that the cli- ent was overbearing and threaten- ing at times," he says. Asked if it would have been easier to do the work instead of writing numerous elaborate endorsements and fake e-mails, Nicholson said he was acting out of a "fear of failure." The client in the case was a friend of Nicholson's, according to the agreed statement of facts. Sharma said at the time of his actions, Nicholson was lonely and wanted to please the client and friend "at all costs." Maunder said Sharma's report offers "no comfort" that Nicholson wouldn't repeat his misconduct nor does it provide a causal explanation for what happened. At a brief hearing at the law society last Tuesday, both par- ties agreed Nicholson should no longer practise law. But instead of revocation of his licence, Nicholson's lawyer, John Kalina, asked for a chance for his client to resign "with dignity." "Certainly, he acknowledges the dishonour he has brought himself and the profession," said Kalina. "This is not the end of it," he added, noting his client is also fac- ing criminal charges and a pos- sible term of imprisonment. Kalina also said Nicholson had admitted his wrongdoings to his client himself, something he suggested was a sign of his re- morse. But Maunder said Nich- olson had confessed only because his "misrepresentations became inescapable." In the end, there was no $3 million in the client's bank account, said Maunder. At one point, Nichol- son faked an e-mail from an RBC agent named Naja who confirmed receipt of $3 million to the lawyer's trust account. "In regards to the file, the re- spondent admitted misleading the client. He did not deny creat- ing the false orders and endorse- ments. He admitted that the e- mail purporting to be confirma- tion from RBC that $3,000,000 had been deposited in his trust account was not real," the agreed statement of facts states. The client complained to the law society after Nicholson con- fessed. The client then hired an- other lawyer who found out the court had dismissed the dormant matter in May 2013. Nicholson paid the client $25,000 out of his own pocket as restitution. In a second matter involv- ing another client, Nicholson admitted to having claimed he had issued a statement of claim in Brampton, Ont., when he didn't. He also falsified a mo- tion record he had never actu- ally brought in Toronto. At the hearing last week, the hearing panel unanimously agreed to revoke Nicholson's li- cence to practise law. LT 2015 Bencher Election – Voting Now Open Voting is now open in the Law Society of Upper Canada's bencher election. Forty lawyers will be elected as benchers to sit in Convocation. Information about the election, including access to the Voting Guide for information about the candidates, is available on the Law Society's website at www.lsuc.on.ca/bencher-election-2015 If you have not already received your voting instructions, you must contact Computershare, the company providing the online voting site, at 1-888-344-2805 (or 514-982-2391 if outside Canada or the United States) to receive this information to vote. Voting closes at 5:00 p.m. EDT on April 30, 2015. 2015 BENCHER ELECTION 2015 ÉLECTION DES MEMBRES DU CONSEIL www.lsuc.on.ca/election-conseillers-2015 www.lsuc.on.ca/bencher-election-2015 Élection du Conseil 2015 – le vote est ouvert Le vote est maintenant ouvert à l'élection du Conseil du Barreau du Haut-Canada. Quarante avocats et avocates seront élus conseillers et conseillères. Vous trouverez des renseignements sur l'élection, y compris sur l'accès au guide électoral pour les descriptions des candidats, sur le site Web du Barreau à www.lsuc.on.ca/election-conseillers-2015. Si vous n'avez pas encore reçu vos consignes de vote, vous devez contacter Computershare, la société indépendante gérant le site de vote, au 1 888 344-2805 (ou 514 982-2391 en dehors du Canada ou des États-Unis) pour les recevoir. Le vote prend fin à 17 h HAE le 30 avril 2015. Untitled-2 1 2015-04-08 9:40 AM Continued from page 1 Lawyer faked bank e-mail confirming receipt of $3 million Justice minister ran into same hurdle decision and a declaration that it violates the Constitution. The commission "based its decision without regard for the material before it, by rendering a decision without regard to the specific duties performed by the applicant; instead, the [com- mission] based its decision on broad principles of prosecutorial discretion and the mandate of the entire office of the director of public prosecutions," the application says. When reached via e-mail, Taman declined to comment on the matter. MacKay says Taman's job is to handle prosecutions and notes her duties are "relatively routine." However, there are cases where it would be legitimate to deny a federal prosecu- tor leave to run for office, he says. "I could probably put together a particular prosecutor job description where we would be reluctant to perhaps take this battle on," adds MacKay, noting that would include "politically sensitive" jobs that involved dealing almost entirely with the Elections Act or the Lobbying Act. In 2004, another public prosecutor, Maureen Harquail, chal- lenged a decision by the commission denying her leave to seek a nomination in that year's federal election. By the time Federal Court had dealt with the matter, however, the election had come and gone and the application was moot. Still, the court found problems with how the commission had arrived at its decision. The commission ended up granting Harquail leave to run in the subsequent election and she's again running as a Conserva- tive candidate in Don Valley East in this fall's federal vote. "It's a shame that 10 years later, we're going through the same kind of arguments," says Harquail, who's now general counsel at the Ontario Racing Commission. "Frankly, that was one of the main reasons why I left the Department of Justice. I didn't want to go through this kind of battle every time I wanted to seek a nomination. I've been able to pursue a political life working with the Ontario government and it's been a much easier process," she adds. Harquail says she understands the concept of impartiality but feels that principle should apply to people holding more se- nior roles within the public prosecutor's office instead of stop- ping "line prosecutors" from putting their names on the ballot. "I'm very passionate about the ability of a public servant to seek office and to serve the public in another way," she says. "To limit someone's ability to put their name on a ballot, I mean that's what our country is made of. It's democracy and to not be able to put your name on a ballot, that's a big problem for me." Harquail says her duties in 2005, when the commission granted her leave to seek office, were the same as the work she was doing when it found otherwise a year earlier. Asked if she thinks her Federal Court challenge of the first decision inf lu- enced the second outcome, she says, "Who knows?" In 1997, current Justice Minister Peter MacKay ran into the same hurdle when he sought leave from his job as a Crown to pursue a Progressive Conservative nomination in Halifax. After a rejection by the prosecution services in Halifax and his subsequent challenge of that decision, the matter concluded in a settlement that permitted MacKay's political pursuit and promised a review of the statute. Len MacKay, then a provincial prosecutor in Halifax, was part of the committee that reviewed the legislation and made a recommendation that would effectively grant prosecutors the right to run for office if they seek a leave of absence. LT Continued from page 1

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