Saturday, June 9, 2018

Baptism Of Fire

A motion for discovery was dismissed by the Tribunal Hearing Division of the Upper Canada Law Society

The respondent had an on and off relationship with Complainant A, and she is the mother of his child. The Notice of Application alleges that he attempted to intimidate her in the Law Society’s investigation of her complaint against him by threatening to file a professional discipline complaint against her with the College of Nurses if she did not withdraw her complaint against him to the Law Society. The Law Society also alleges that Mr. Fuhgeh engaged in a pattern of vexatious and harassing conduct towards the complainant in the course of their family law dispute to influence that litigation. Two aspects of his alleged harassment are: (a) filing an unfounded professional discipline complaint against Complainant A with the College of Nurses alleging that she had certain health issues; and (b) writing a letter to an Ottawa church about their son alleging that Complainant A was malicious and dishonest in actions relating to the son’s baptism.

Mr. Fuhgeh seeks: detailed medical records from Complainant A; communications between Complainant A and her family and the church; and information about whether their son was baptized, which was a subject of his letter to the church.

Mr. Fuhgeh argues that the medical information would help show that the complaint he made about Complainant A to the College of Nurses was true and well-founded, and that the information about the baptism and communications with the church would show that his comments in the letter were true. He says that the issues in this part of the case are fundamentally about credibility and reliability and that the documents he seeks would assist him in proving that what he says is true, and that what Complainant A says is false.

What is at issue in this professional discipline case before the Law Society Tribunal, however, is whether Mr. Fuhgeh’s actions were conduct unbecoming in light of what he knew at the time. Whether he can now show that what he alleged was in fact true is not likely relevant to whether his actions were harassment and/or an improper attempt to influence the court process. The key issue is the reasonableness of what Mr. Fuhgeh did and his own state of mind, not what his former partner did. The complainant’s credibility will be tested at the hearing through cross-examination, if she is called, on the key issues that are before the Tribunal. What are alleged to be credibility issues here are collateral issues and we find Mr. Fuhgeh has not shown that the documents sought from her are likely relevant.

We note that Mr. Fuhgeh will receive a witness statement from the Law Society setting out her anticipated evidence before the Tribunal if it decides to call Complainant A as a witness.

Accordingly, the motion for production from Complainant A is dismissed.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2018/06/the-respondent-had-an-on-and-off-relationship-with-complainant-a-and-she-is-the-mother-of-his-child-the-notice-of-applicati.html

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