Tuesday, February 27, 2018
The Tribunal Appeal Division of the Upper Canada Law Society has dismissed the appeal of an attorney who sought costs after he had successfully defended against bar charges
These proceedings arise out of a conduct application. Following 56 days of hearing, and shortly after a lengthy cross-examination of the complainant had been concluded, the Law Society determined that there was no reasonable prospect that finding of misconduct would be made and sought to withdraw the application. The hearing panel agreed with the Law Society’s assessment, but rather than permitting the withdrawal of the application, it granted the request of the Lawyer for a dismissal of the application. Following the dismissal of the conduct application, the Lawyer brought a motion before the hearing panel that heard the conduct application requesting his costs of the application (“the First Costs Motion”). However, before the motion was heard, one of the hearing panel members was appointed to the bench, and the motion proceeded before the two remaining panel members. Unfortunately, those members could not agree on how to dispose of the motion. A new panel was constituted to rehear the costs motion. The Lawyer then amended his motion to include a claim for costs of the First Costs Motion. The Lawyer also brought a motion for disclosure of the [Proceedings Authorization Panel] Memorandum.
The new hearing panel dismissed all of the motions. It found that the proceeding was warranted at the outset, based on the evidence available at the time that the proceedings were authorized. It found that the available evidence did not demonstrate that the complainant’s evidence was flawed in a fundamental way. To the contrary, it found that this was one of those classic cases where the public interest demanded a hearing so that the serious allegations the complainant made against the Lawyer could be publicly aired and determined. Finally, the hearing panel found that the proceedings had not become unwarranted at some point after the hearing commenced and before the Law Society sought to withdraw the application, or that the Law Society wasted costs by undue delay, negligence or other default. The hearing panel dismissed the motion for disclosure of the PAC Memorandum on the basis that it was privileged and not relevant. Finally, the hearing panel awarded the Law Society its costs of the Disclosure Motion and the Second Costs Motion.
The complaint involved a concert series
The events underlying the conduct application centered on a project to stage a concert series in China in and around the August 2008 Beijing Olympic and Paralympic Games (the “Beijing Project”). The Beijing Project was the brainchild of the complainant, Sylvia Sweeney (“Sweeney”).
The Lawyer is a sole practitioner and businessman who worked on the Beijing Project in various capacities during 2007 and 2008, although his exact role and responsibilities were hotly contested during the conduct hearing.
The tribunal found the charges were warranted even if eventually unproven
We conclude that the process of undermining Sweeney’s credibility at the hearing was gradual and did not turn on any particular issue or document. At the conclusion of Sweeney’s cross-examination, Law Society counsel obviously concluded that her credibility had been fatally eroded and that there was no longer any reasonable prospect of a finding of professional misconduct. We are not satisfied, based on the evidence before us, that this should have been apparent to the Law Society at any earlier point in the hearing.
Imposing costs has its costs
In concluding, we would be remiss if we did not share our concern about the time‑consuming and extensive nature of these costs proceedings. In Chan, the appeal panel expressed caution about turning a motion for costs against the Law Society into a wide-ranging forensic exploration of potential prosecutorial misconduct:
Applications against the Society pursuant to Rule 14.03 are not free-standing, but tied to the conduct proceeding in relation to the licensee. While a licensee is entitled to pursue a costs application, and provide the hearing panel with support for that application, there are necessarily limits upon the scope of evidence that will be heard in support. Simply put, a costs application is not, by its nature, designed to overshadow the conduct proceeding itself, or permit a wide-ranging exploration of potential prosecutorial misconduct. Such an application is designed to be a fairly summary way in which a hearing panel can decide the issue of costs.
We agree. In motions such as this one, where there are no allegations that the proceeding was initiated maliciously, in bad faith, or for a collateral purpose, a hearing panel which is asked to consider whether a proceeding was “unwarranted” under Branch 1 should focus on whether the totality of the evidence reasonably available to the Law Society, at the time when the proceedings were authorized, was so clearly deficient that any proceeding based on that evidence would be unwarranted.
For the above reasons, the appeal is dismissed. Should the Law Society seek its costs of this appeal, the Law Society shall provide its written costs submissions to the panel (costs submissions not to exceed five pages) within 14 days of the release of this order. The Lawyer shall have 28 days from the release of this order within which to respond (responding submissions not to exceed five pages).