Law Times

Law Times • march 21, 2016 Page 5 www.lawtimesnews.com NEWS LSUC investigation caused trauma, counsel says Lawyer may not practise again after delay in case BY MICHAEL MCKIERNAN For Law Times A sole practitioner who spent a decade in career limbo while the Law Soci- ety of Upper Canada investigated and then prosecuted a disciplin- ary case against him may never return to the practice of law de- spite finally managing to get the conduct application tossed for delay, according to his lawyer. Eugenio Totera, a Richmond Hill, Ont. lawyer, first got word that he was under investigation when a law society official contacted him in March 2006 and told him he was suspected of involvement in fraudulent activity. However, it wasn't until five years later, in Feb- ruary 2011, that the law society is- sued its notice of application, alleg- ing misconduct by Totera relating to 12 fraudulent mortgage deals. A hearing began before a dis- ciplinary panel in February 2012, but Totera convinced them that the case should be dismissed for inordinate delay. at result was overturned by a law society ap- peal panel in October 2014, be- fore finally, on March 8, the Di- visional Court sided with Totera, and restored the original hearing panel decision. "He's relieved that it's all over," says Brad Teplitsky, a Toronto liti- gator who acted for Totera at the Divisional Court and the earlier law society hearings. "He's happy that his reputation is at least not as impaired as it was, and that he has the option of being able to contin- ue as a lawyer if he wishes." However, Teplitsky says it's un- likely Totera will ever take up that option, thanks to the trauma of the last 10 years. "He no longer really works as a lawyer. His primary occupation is as a butcher in the family busi- ness, because of this experience with the law society. It's a very un- fortunate situation," Teplitsky says. "But he has the dignity of having that right to continue maintained, which was important to him." e law society declined to comment on the Divisional Court ruling, and spokeswoman Susan Tonkin said it has yet to decide whether or not to request leave to appeal the decision to the prov- ince's highest court. Totera had an earlier stint at the family butcher shop in the early 1990s while applying to law school, before earning his JD in the U.S. at a Louisiana university. He later re- turned to Canada and was called to the bar in Ontario in 2000. According to the Divisional Court ruling, he practised fam- ily law at a small firm before strik- ing out alone in 2002 because the work was too stressful. A mentor from his previous firm referred Totera work, including the real estate transactions that would ulti- mately land him in trouble. Totera had already reported himself to LawPRO when the law society opened its investigation in March 2006, believing he and the bank had fallen victim to a mort- gage fraud ring. He turned over a number of files to the law society when asked for them in May 2006, but it was February 2008 before he heard from anyone again about the matter, when a new investigator was assigned to the case. She cop- ied a large number of Totera's files and asked to meet with him, but the meeting did not actually hap- pen until another two years had passed, in September 2010. A no- tice of application accusing Totera of participating or knowingly as- sisting clients in fraudulent con- duct followed in February 2011. Although he was allowed to continue practising, Totera said in an affidavit filed with the hear- ing that his "mental and physical health began to deteriorate" from the moment of the law society's first contact in 2006. e hearing panel found Totera made no contribution to the delay, blaming "systemic problems" with the law society's under-funded mortgage investigation unit. In fact, he had been a co-operative subject, it noted, and even testified on behalf of the Crown in criminal proceedings related to the frauds. Panel chairman James Ward- law wrote that the five-year delay in proceeding with the notice of application was "unacceptable and inordinate," adding that the pub- lic interest would not be harmed by the dismissal for a number of reasons, including that none of the lenders had complained about his conduct. In addition, he said the panel would have cleared Totera of the most serious allegations any- way, having heard all the evidence on the merits of the application. "e Society has an obligation to protect the public. It also has an obligation to treat its licensees in a fair manner," Wardlaw wrote in the January 2013 decision. e delay amounted to an abuse of process, the panel concluded, because it exacerbated Totera's pre- existing anxiety disorder "in a seri- ous and profound manner." A law society appeal panel then overturned the decision and ordered a fresh hearing before a new panel aer finding that the original one had failed to consider evidence from Totera in cross-ex- amination that weakened his case that he had suffered psychological harm as a result of the delay. However, the Divisional Court ruled on March 8 that the ap- peal panel had overstated the importance of the missing cross- examination evidence, and failed to show deference to the hearing panel's decision. "With or without the evidence on his cross-examination, the unchallenged expert evidence and the evidence of the Appel- lant before the Hearing Panel was that he suffered serious psy- chological and physical harm re- sulting from the inordinate delay in this investigation," wrote On- tario Superior Justice Julie or- burn on behalf of a unanimous three-judge panel. Teplitsky says the decision has implications well beyond law so- ciety hearings, with applicability to a swathe of administrative tri- bunals. LT THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES NEW EDITION Perfectbound Published December each year On subscription $80 One time purchase $83 L88804-764 Multiple copy discounts available Plus applicable taxes and shipping & handling. 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Untitled-3 1 2016-03-09 8:31 AM "Just being charged criminally does not get you there. You have to conduct your own investigation to prove the person did what they are accused of on the standard of a balance of probabilities," says Kuzz. "An employer must also determine if it is possible to do a proper investigation." Another option is to wait for the outcome of the court proceeding if there is a criminal charge. As well, the employer should determine if the conduct could harm the reputation of the company. "Can they show a nexus," Kuzz explains. A frequently cited ruling on this issue is Kelly v. Linamar. In 2005, Ontario Superior Court Justice Casimir Her- old found that it was appropriate for a company to dismiss an employee aer learning he had been charged with pos- session of child pornography. While each case turns on its specific facts, "the degree or responsibility exercised by the employee will be a signifi- cant issue," the judge wrote. "So too will it be necessary to examine the company's notoriety and the degree to which if at all, its reputation in the community will likely be affected," he stated. Nicole Simes, a lawyer at the MacLeod Law Firm in To- ronto, says there is a "nuance" to establishing that there has been harm to the employer's reputation. "It needs to be serious misconduct that goes to the heart of the relationship between the employer and the employ- ee," says Simes. If it is off-duty conduct that is not criminal and may be found on social media, for example, she says a "progressive discipline policy" should be in place. Many of the previous decisions in this area have been in the context of a union workforce, she notes. As a result, the collective agreement and other provi- sions may govern what actions employers can take. For example, three Toronto police officers charged more than a year ago with an off-duty gang sexual assault of a female parking enforcement colleague continue to be suspended with pay pending trial. In that case, the employer is restricted by the Police Ser- vices Act, notes Simes. e provincial statute does not distinguish between on- or off-duty misconduct and only permits suspen- sions without pay if an officer is convicted of a criminal of- fence and sentenced to a jail term. In a non-union setting, a company may want to include terms in its employment contracts that permit a paid suspension in certain circum- stances, such as a criminal charge, says Ellen Low, a partner at Whitten & Lublin LLP in Toronto. "Depending on the nature of the charge, the employer may say we don't want you in the workplace," says Low. "A suspension may be the safest route." Employers tend to take action more swily if the con- duct has been publicized in the media, says Low. In that case, if there is a criminal charge as well, an individual "may need an employment lawyer as well as a criminal lawyer, as soon as possible," says Low. e lawyer representing Tigercat in the Merritt litiga- tion did not respond to a request for comment. LT Suspension safest route for unhappy employers? Continued from page 1

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