Law Times

August 7, 2017

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Page 2 August 7, 2017 • LAw times NEWS Before the restructuring, the law society had found that 60 per cent of files being sent to investigators from intake were being closed. Karen Manarin, executive director of the law society's Pro- fessional Regulation Division, says the changes have been ef- fective in decreasing backlogs in the system. She says the division had 42 per cent fewer files at the end of May 2017 compared with the same time last year. "What we're trying to do is free up the time of the investi- gators and the discipline coun- sel to work on the more serious matters," she says. The law society, however, said numbers for the median age of complaints from the beginning of 2017 were not available. The changes also includ- ed integrating the functions of the investigation and discipline departments. This means that investigators receive integrated legal advice throughout the pro- cess. Manarin blamed the in- crease of the median age of com- plaints in 2016 on an attempt to deal with old complaints. "When you deal with the older cases, the ones that have been around a little longer, that means your median age is going to go up," she says. In addition to being a burden for lawyers under investigation, Watson says prolonged investi- gation periods can open up the law society to potential liability to the complainant, to whom the regulator can owe a duty of care. As the median age of com- plaints went up from 2015 to 2016, there was not a significant rise in the number of complaints received, and the number of complaints transferred for in- vestigation decreased. Manarin says the law society allocates the resources available to priority files. "We deal with whatever budget is given to us and on that basis we allocate our limited re- sources to the number of files that we get and we manage risk," she says. Watson says law society in- vestigations seem to be con- ducted with a high degree of variability. Some remain open and uninvestigated for years, while others are expedited and completed quickly. Daniel Naymark, a lawyer who represents accused practi- tioners in law society proceed- ings, says the law society needs to be mindful of the tension be- tween public image and fairness to lawyers it investigates and charges. Naymark represented lawyer Doug Keshen, who faced alleg- ations by the law society that he had exploited several dozen survivors of Indian Residential Schools. The law society ended up dismissing the prosecution two years after it filed charges, but by this time, Naymark says, his client's life had been ruined. Naymark blames the pre- mature prosecution on the fact that the law society was facing media criticism at the time for its handling of other cases con- cerning lawyers exploiting vul- nerable clients. He says this pushed the LSUC to charge Keshen before it had properly finished its in- vestigation. Naymark adds that as a result of the law society pub- licizing the charges, Keshen had the accusations hanging over him for longer than he should have. "There is a tension between the law society's self-interest in its public image on the one hand, in being seen as respond- ing swiftly and aggressively to threats to the public from bad lawyers, and on the other hand its moral duty to lawyers against whom it levels damaging accu- sations," he says. "Unfortunately, our regula- tor has not always navigated that tension especially well." Since Keshen's matter was dismissed, the law society has set up an internal review to examine how the regulator's complaint and hearing process affects indigenous people. LT real cause of action," he says. Myers says that vexatious claims cannot simply be long- shot cases. They need to be frivolous on their face, he says. The motion judge had found that the plaintiff 's statement of claim provided "no particulars whatsoever" of his allegations that included breaches of fidu- ciary duty and negligence, fraud and misappropriation. The Court of Appeal, how- ever, determined that the mo- tion judge had erred by "trun- cating the normal process" and that it would be inappropriate to bring the action to an end through rule 2.1. "As distasteful as the allega- tion might be, it is not entirely implausible," said the decision. "A cautious approach must be taken." The court determined that the claim did not have any of the "hallmarks" of vexatious litiga- tion, and that there was no sug- gestion in his submissions that he would abuse the process of the court if confronted by other motions, such as one for sum- mary judgment. Timothy Duggan, a lawyer with Horlick Levitt Di Lella LLP, who was not involved in the case, says the decision is a re- minder that rule 2.1 is reserved for only cases where the claim is manifestly devoid of merit on its face. "What this case brings back home is that the application of rule 2.1 requires the court to focus on the pleadings and to focus on what the face of the pleadings say rather than the underlying information about the litigant and the fact that the claim might be farfetched," he says. "Something may be farfetched, but [it] could also be true." He adds that the decision shows that the Court of Appeal will push back on the expansion of rule 2.1 beyond the grounds that have already been accepted. If a claim is not properly pleaded but the court can dis- cern a cause of action from a generous reading, then the rem- edy is to bring a pleadings mo- tion rather than a request under rule 2.1, he says. The Court of Appeal also awarded $3,000 in costs to the plaintiff for the appeal and $2,000 for the lower court mo- tion. Myers says it is extremely rare to see courts awarding such costs to self-represented liti- gants. "This is very unusual because self-reps don't incur costs," he says. "They incur some out of pocket . . . but, typically, costs are to compensate the parties' legal bills and self-reps don't have legal bills." Myers says the decision to award $5,000 in costs against the law firms is a message to lawyers not to use rule 2.1 unless the situation fits within the law around the rule. "The cost award is indicative of the court's frustration with lawyers trying to use this rule improperly," he says. Louis Covens, the lawyer representing Devry Smith Frank LLP, declined to comment. Robin Moodie, the lawyer representing Krylov Lam & Company LLP, did not respond to requests for comment. The self-represented litigant in the case could not be reached for comment. LT Continued from page 1 Rules should be applied only in 'clearest of cases' Age of complaints increasing Continued from page 1 © 2017 Thomson Reuters Canada Limited 00244SZ-A87345-CE Start stronger. Finish faster. SECONDARY SOURCES ON WESTLAWNEXT® CANADA Confidently take on complicated matters and leverage the topical expertise from world-class authors, including practitioners, law professors, and judges, who know and shape the law to quickly get the answers you need. Explore what's new to Secondary Sources on WestlawNext Canada.

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