Law Times

Page 12 April 23, 2018 • lAw Times www.lawtimesnews.com Lawyer who lost licence wants SCC to clarify remedies BY SHANNON KARI For Law Times A Toronto lawyer whose licence was revoked for mortgage fraud is asking the Supreme Court of Canada to clarify what remedies are available if there has been unreasonable delay by a regulator and to define the ju- risdiction of the appeal division of the Law Society of Ontario. John Paul Abbott is seeking leave of a Court of Appeal deci- sion that reinstated the original Law Society hearing penalty of revocation and set aside the two-year suspension imposed by the regulator's appeal divi- sion. "Tribunals are meant to fa- cilitate access to speedy justice. The ability to hold regulators accountable for dysfunction or negligence is essential to this role," says Frank Addario, the lawyer for Abbott, in written submissions filed with the Su- preme Court. The Court of Appeal in its ruling "stepped into the Ap- peal Division's shoes and sub- stituted its own reasoning. This interventionist approach was inconsistent with the principle of deference that guides review of expert tribunals," writes Ad- dario, who heads Addario Law Group LLP in Toronto. In response, the law soci- ety in its written submissions states that mortgage fraud by lawyers in Ontario had become an "epidemic" at the time the actions of Abbott were brought to the attention of the regulator. "The volume and complexity of mortgage fraud investigations temporarily overwhelmed the Society," write Sean Dewart and Chris Donovan of Dewart Glea- son LLP on behalf of the regula- tor in its leave submissions. "The only issue below was whether or not the delay in in- vestigating the applicant's mis- conduct justified the imposi- tion of a lesser penalty. That is, should the applicant have been favoured with a lesser penalty because he and so many lawyers were engaged in mortgage fraud that the Law Society could not keep up," they ask. "This conclu- sion cannot be justified on any standard of review." The Court of Appeal, in its decision in Abbott, noted that revocation of a lawyer's licence is the presumptive penalty for mortgage fraud. "There is, as yet, no prec- edent for a lower penalty than licence revocation for a lawyer who has knowingly partici- pated in mortgage fraud," wrote Justice Peter Lauwers, with jus- tices Robert Sharpe and Bradley Miller concurring. Only in "ex- ceptional circumstances" would there be justification for a pen- alty less than revocation for this type of misconduct, the Court of Appeal stressed. The Supreme Court of Can- ada in its decision in 2000 in Blencoe v. British Columbia (Human Rights Commis- sion) stated that there must be "proof of significant prejudice" as a result of delay for there to be an administrative law remedy such as a stay of proceedings. The investigation into Abbott's misconduct took six years to complete, notes Addario in his written submissions. "The Law Society did not attempt to justify or explain the delay," he writes. The "high bar" of the Blencoe test should be re-examined to permit rem- edies such as lesser penalties as a result of unreasonable delay by regulators, Addario suggests. "The proposed appeal invites the Court to bring the adminis- trative delay analysis in line with modern thinking about the ef- fect of delay on the legal system. Blencoe is nearly twenty years old and much has changed," Addario writes. "The public is increasingly preoccupied with delayed justice." Benjamin Kates, a lawyer at Stockwoods LLP in Toronto, says disciplinary panels are in a difficult position when there has been serious misconduct proven against a lawyer and also lengthy delays in the investiga- tion process by a regulator. "The focus is on maintaining public confidence in the legal profession," says Kates, who has previously acted for the LSO in other proceedings. "That is why the delay must be so bad that it overrides the public interest in revocation." The Supreme Court, in its 2016 ruling in Jordan, stated that it was setting time limits for cases to conclude, after which the delay was presumed unrea- sonable, because of a "culture of complacency" in the criminal courts. "I don't think there is a cul- ture of complacency" in terms of the law society's current han- dling of allegations of miscon- duct by lawyers, Kates says. The Court of Appeal, in its decision, indicated that delay will almost never be a reason to reduce the penalty for a lawyer found to have engaged in mort- gage fraud. FOCUS Frank Addario says tribunals are meant to 'facilitate access to speedy justice.' The focus is on maintaining public confidence in the legal profession. Benjamin Kates Available risk-free for 30 days Online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 © 2018 Thomson Reuters Canada Limited 00251CG-92276-NP Discover a better way to navigate and understand this complex area For 25 years, The Annotated Canada Business Corporations Act has been a cornerstone for research on federal corporate law. For this edition, Wayne Gray has made his original text easier to navigate and interpret statutes, regulations, and jurisprudence from across Canada. 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