Law Times

Page 4 September 5, 2016 • Law timeS www.lawtimesnews.com NEWS "You don't want the prosecution worrying about costs in the event they lose the case." Beth DeMerchant and Dar- ren Sukonick, the Torys LLP lawyers cleared of conf lict of interest misconduct allega- tions surrounding their roles in deals involving Conrad Black's company Hollinger, achieved the largest and highest-profile award for costs back in 2014. A panel concluded the law society should have discontinued its prosecution and awarded the pair $500,000 between them, a total that paled in comparison with the $4 million they actu- ally spent on their defence. The LSUC's Rules of Prac- tice and Procedure also allow lawyers to recoup some costs wasted as a result of undue de- lay or negligence caused by the law society during proceedings. This type of procedural costs award is also rare, according to Moore, who has had some recent success in the area. He and co-counsel Brian Radnoff convinced a law society appeal panel majority to award their client Luigi Savone $12,500 in costs against the law society af- ter it stuck to a restrictive view of its disclosure obligations in the face of case law that con- f licted with its position. The appeal panel had earlier granted Ottawa real estate law- yer Savone a new hearing on allegations he was involved in fraudulent deals between 2000 and 2003 as a result of the inad- equate disclosure. The society's position on the relevance of the documents "was not tenable" and caused "costs to be incurred without reasonable cause," the panel concluded on May 27. Savone also claimed the en- tire costs of his original hear- ing, but the panel reserved that decision until the end of his new hearing. Moore says his client's case provides the "perfect ex- ample" as to why costs against the law society should be easier to achieve. "If he succeeds in clearing his name, it will be a Pyrrhic vic- tory. It has been financially dev- astating and his career has been irretrievably damaged by the publicity surrounding the case," Moore says. Disclosure issues also plagued the case of Richard Watson, a Toronto lawyer who was last month denied the costs of his hearing despite seeing the law society withdraw its own case against him 56 days into a public hearing. A law society notice of ap- plication issued in 2009 ac- cused Watson, among other things, of fabricating corporate documents and misappropri- ating funds received on behalf of a company set up to provide a series of concerts in China to coincide with the 2008 Bei- jing Olympic Games. However, Watson, who declined an op- portunity to comment, claimed he never acted as a lawyer in re- lation to any of the events, and he insisted he was in fact autho- rized to act as a business partner of the company's principal, Syl- via Sweeney, the complainant in the case. After Sweeney's 27-day cross-examination by Watson's counsel, the law society moved to withdraw its application. Ac- cording to the hearing panel de- cision, Watson accepted the case against him was not launched maliciously, but he argued that a more thorough and balanced investigation would have turned up the inconsistencies in Swee- ney's story at the preliminary stages, eliminating the need for a hearing. LSUC spokewoman Susan Tonkin reiterated the position taken by the society that the pro- ceedings against Watson were warranted and that issues of credibility should be left to hear- ing panels, not investigators, to decide. Applying hindsight to the issue of whether proceedings are unwarranted is not appropriate, the society said in an argument endorsed by the panel. LT Continued from page 1 'Law society prosecutions aren't like civil cases' money. It just has not been a priority for the government, he says. "It's an embarrassment and it costs money for practicing lawyers and causes great chal- lenges to the judiciary and, of course, all that comes back to the client who ends up paying the cost," he says of the paper- based system. "I want to make e-filing a pri- ority for this government and I want to hold them to account for that." Sterns says the state of the court system in general has been a portfolio the government has neglected for many years. "It's time for them to invest in a proper functioning court in- frastructure," he says. Sterns, who is a litigation law- yer at Sotos LLP, also called for the provincial government to hire more assessment officers to help deal with a backlog in the Toronto Superior Court's assess- ment office. Delays in the office have got so bad that it can often take up to a year just to get a preliminary hearing. "That is bread and butter for lawyers. If you can't get an as- sessment, you can't get paid," he says. "And, likewise, if a client has a problem with a lawyer's account, they shouldn't have to wait years and years to get a hearing." Sterns says a large part of the problem was rooted in the fact that assessment officers have not been replaced when they retire or quit. Another area Sterns says he would like to tackle is the amount of time the disciplinary tribunal process takes at the Law Society of Upper Canada. He says it can sometimes take years to disbar lawyers in instances where there is credible evidence of misappropriation on their part. "That's bad for the public and that's very bad for lawyers," he says. He commended the law so- ciety's work, but he says the lengthy discipline process needs to change. Sterns grew up in Kings- ton, Ont., the bilingual son of a French teacher, and attended McGill University before he was called to the bar in both Quebec and Ontario. 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