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January 30, 2017

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Page 2 January 30, 2017 • Law Times "If that choice defeated all privacy interests, the deemed undertaking would not exist," stated the Superior Court judge. Sari Feferman, who is acting for the complainant in the civil proceeding, says it is an impor- tant ruling in this area. "Justice Matheson has found there are still privacy consider- ations even when information is compelled," says Feferman, a lawyer at Linden & Associates in Toronto. The actions of the lawyers for the defendant are concern- ing because they appear to be an attempt to do an "end run" on privacy protections in the Criminal Code for sexual as- sault complainants, says Joanna Birenbaum, a Toronto lawyer who regularly acts for plaintiffs in this area in civil and adminis- trative proceedings. Birenbaum was not involved in the case. "Sexual assault complain- ants are going to have to think very carefully about the timing of production," says Birenbaum, when there is also a parallel criminal proceeding. The two lawyers acting for the defendant are Chris Kinnear Hunter, an associate at Lenczner Slaght LLP, in the civil proceeding and Eric Neubauer, a sole practi- tioner based at Simcoe Chambers in Toronto, in the criminal case. They did not respond to re- quests for comment by Law Times. Will McDowell, a senior part- ner at who acted for the defendant in the hearing before Matheson, says an appeal of the Superior Court ruling will be filed. As a result, he says he cannot provide further comment. The court heard that the doc- uments produced by the young woman as part of the civil dis- covery process included medical and counselling records. "The level of private infor- mation in these records is very high," wrote Matheson. In the spring of 2016, on the eve of pre-trial motions in the Toronto criminal trial, there were discussions between Hunt- er and Neubauer about the in- formation within the woman's productions. Hunter also sent a copy by email of all of the docu- ments to Neubauer. Under the Rules of Practice and Procedure, the law society can only be ordered to pay costs in disciplinary proceedings if it is deemed "unwarranted" or if the regulator has "caused costs to be incurred without reason- able cause or to be wasted by undue delay, negligence or other default." Radnoff says these rules do not give the law society good incentive to settle discipline matters. "A lot of matters probably go to trials or hearings that shouldn't," he says. "This is probably a pret- ty good example of one that shouldn't have gone to trial, but that wasn't the basis on which the appeal panel awarded costs. It was because of the conduct during the trial." The hearing panel found the proceedings were not unwar- ranted at the beginning, and that it only became so after the law society failed to provide expert evidence to contradict an expert witness brought by the lawyers, who provided testimony that they were following standard practice in the corporate bar. The appeal division agreed that the proceedings were not unwarranted at the outset, but it found that the lawyers were owed costs for 110 days of the hearings that it said were unwarranted. The appeal panel also awarded an additional $17,500 in costs to each lawyer for the appeal. "The hearing should never have taken nearly 140 days. The Law Society bears the lion's share of the responsibility of that," said the decision of the panel. The panel consists of five benchers: David Wright, Marion Boyd, Adriana Doyle, Howard Goldblatt and Heather Ross. "Its definition of the issues, its approach to cross-examination, and its lack of focus on the legal test for conf licts of interest were the largest factors in a hearing whose time and cost were gross- ly disproportionate to the issues at stake," said the decision. Radnoff says that while the decision is heartening, he does not expect it will make it easier to get costs against the law soci- ety, as the appeal panel affirms well-established law. "It made some very signifi- cant findings about how the law society conducted the hearing and how that conduct unneces- sarily lengthened the hearing and wasted costs," he says. "That situation is not always going to arise." In its decision, the appeal panel noted the toll the proceed- ings took on Sukonick and De- Merchant. "Costs under our system can only compensate for legal fees," the decision said. "However, we think it im- portant that our reasons explic- itly acknowledge the stress these proceedings put on Ms. DeMer- chant and Mr. Sukonick, given the pall that hung over their ca- reers for longer than it should have, the months they spent in the hearing room dealing with these allegations and the evi- dent strain of so many days on the witness stand under cross- examination." Ian Smith, the lawyer who represented Sukonick in the matter, says the decision puts an end to what he says has been a difficult ordeal for his client. The matter lasted a span of 11 years, he says, from the initial in- vestigation to the appeal decision that was rendered on Jan. 20. The hearings themselves took place between 2010 and 2012. "It certainly ref lects a fairly serious failing on the part of the law society to conduct this pros- ecution in a way that was reason- able and timely," says Smith. Sukonick no longer works for Torys, as he left the firm in 2015. Philip Campbell, the lawyer representing DeMerchant, said in an email statement, "[I]t's gratifying that the Appeal Di- vision recognized the extraor- dinary human costs of this case while writing its ruling on the financial costs." A spokeswoman for the law society said the regulator is re- viewing the decision. LT NEWS An excerpt from Rule 30.1.01 was included in the email and Hunter wrote that this provision permitted the use of the docu- ments for impeachment purpos- es in another proceeding. This view was rejected by Matheson and she concluded that the impeachment excep- tion to the deemed undertaking rule does not explicitly authorize what was done in this case or su- persede other legal restrictions that may apply. The fact that the private in- formation had been forwarded was not discovered until Octo- ber 2016 when Neubauer cross- examined the complainant on information in her medical re- cords. At that point, the criminal trial was adjourned. The requirement to seek di- rections from a court first is sig- nificant, says Feferman. "The concern is that without judicial notice, plaintiffs will have no idea that these docu- ments have been shared and shared without consent," Fefer- man says. The Criminal Code has strict rules related to the test that a de- fendant must meet for disclosure of private records of a complain- ant in a sexual assault trial, which were upheld in 1999 in R v. Mills by the Supreme Court. "The right of the accused to make full answer and defence is a core principle of fundamental justice, but it does not automati- cally entitle the accused to gain access to information contained in the private records of com- plainants and witnesses," wrote Justices Beverley McLachlin and Frank Iacobucci for the majority in Mills. The ruling by Matheson is important, yet privacy concerns remain for sexual assault com- plainants, says Birenbaum. The judge suggested it would be appropriate for a defendant who learns of the details in the productions to convey what is in them orally to their defence counsel. "What troubles me is that it is the information that is to be pro- tected, not the piece of paper," says Birenbaum. LT Continued from page 1 Documents in one case used in another Lawyers exonerated, says panel Continued from page 1 SKIMMING THE SURFACE IS FINE UNTIL A DEEPER DIVE IS REQUIRED. Start with Practical Law Canada. Whether you need a surface view or a deeper understanding of a legal issue, Practical Law Canada offers up-to-date, straightforward how-to guides, annotated standard documents, checklists, and more. Our expert lawyer-editors have significant practice experience. They create and maintain hundreds of practical resources to match the needs of practitioners in the following practice areas: • Capital Markets & Securities • Corporate and M&A • Commercial Transactions • Employment • Competition • Finance • Corporate & Commercial Litigation For more information or to sign up for a free trial, visit © 2016 Thomson Reuters Canada Limited 00242CZ-85651-NK Untitled-5 1 2017-01-24 2:23 PM

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