In the final analysis it is the lawyer who is truly the guardian of our rights and freedoms. Re Baker and L.S.U.C. 2000 provides a splendid example of this fact. Mr. Baker, a lawyer, was prosecuted by the Law Society of Upper Canada(Society) for professional misconduct some ten years after the matters came to the attention of the Society. Mr. Chris Paliare, on behalf of Mr. Baker, brought a motion seeking a stay of those proceedings on the basis of abuse of process, breach of natural justice and fairness flowing from the delay in the proceedings. A Hearing Panel chaired by Mr. R. Yachetti, Q.C. allowed the motion and stayed the proceedings. The panel's reasons and analysis are sound and make for informative reading for administrative law lawyers, judges, adjudicators and even the common man. The ruling shows that asserting such claims are in fact in keeping with the best traditions and obligations of the profession.
It is noteworthy to the current discourse on abuse of process founded upon delay in the investigation and adjudication of either professional or judicial misconduct proceedings that the Yachetti Panel referenced Blencoe v. B.C. Human Rights Commission (1989) 160 D.L.R. (4th) 303 (B.C.C.A.). In that particular decision in the Blencoe series of cases the Court of Appeal stayed the proceedings against Mr. Blencoe on the basis of the delay. On further appeal to the Supreme Court of Canada, however, that decision was overturned. The basis on which the stay decision was overturned is significant. It was overturned on a finding that the delay did not prejudice Mr. Blencoe's ability to respond to the complaints against him.
The late Mr. E. Greenspan argued on behalf of the Law Society that the delay of 10 years in Baker was not problematic unless it could be demonstrated that there was actual prejudice to Mr. Baker in responding to the allegations. The Yachetti Panel rejected this argument and decided to infer prejudice. It is also noteworthy that the Yachetti Panel did not in fact hear all of the evidence to determine if delay may be found to have compromised the evidence.
The point of law stemming from cases like Baker and the Supreme Court of Canada's pronouncement in Blencoe v. B.C. Human Rights Commission is that the principles of natural justice, fairness and abuse of process are engaged when delay adversely impacts the reliability of evidence. In proceedings in which there is a prior investigation to the adjudicative phase of the proceedings a reviewing court will require the full record of the investigation and the evidence of witnesses at the hearing proper in order to review this point. However, where the tribunal undertakes to apply the Supreme Court of Canada's Blencoe analysis and fails to do so the legal error is evident in its reasons.
It is noteworthy to the current discourse on abuse of process founded upon delay in the investigation and adjudication of either professional or judicial misconduct proceedings that the Yachetti Panel referenced Blencoe v. B.C. Human Rights Commission (1989) 160 D.L.R. (4th) 303 (B.C.C.A.). In that particular decision in the Blencoe series of cases the Court of Appeal stayed the proceedings against Mr. Blencoe on the basis of the delay. On further appeal to the Supreme Court of Canada, however, that decision was overturned. The basis on which the stay decision was overturned is significant. It was overturned on a finding that the delay did not prejudice Mr. Blencoe's ability to respond to the complaints against him.
The late Mr. E. Greenspan argued on behalf of the Law Society that the delay of 10 years in Baker was not problematic unless it could be demonstrated that there was actual prejudice to Mr. Baker in responding to the allegations. The Yachetti Panel rejected this argument and decided to infer prejudice. It is also noteworthy that the Yachetti Panel did not in fact hear all of the evidence to determine if delay may be found to have compromised the evidence.
The point of law stemming from cases like Baker and the Supreme Court of Canada's pronouncement in Blencoe v. B.C. Human Rights Commission is that the principles of natural justice, fairness and abuse of process are engaged when delay adversely impacts the reliability of evidence. In proceedings in which there is a prior investigation to the adjudicative phase of the proceedings a reviewing court will require the full record of the investigation and the evidence of witnesses at the hearing proper in order to review this point. However, where the tribunal undertakes to apply the Supreme Court of Canada's Blencoe analysis and fails to do so the legal error is evident in its reasons.
Law Society of
Upper Canada Ontario Discipline Committee
IN THE
MATTER OF the Law Society Act, AND IN THE MATTER OF Thomas Bruce Baker, of the City of Etobicoke, a Barrister and
Solicitor The Complaint of Richard F. Tinksley
R. Yachetti, Q.C., Chair, S. Epstein and G. Mulligan
March 30, 2000
MOTION DECISION
This is a ruling in regard to an application by way
of Notice of Motion brought by counsel on behalf of the solicitor, Thomas Bruce
Baker and heard at Osgoode Hall on December 20, and 21, 1999. The Notice of
Motion dated November 22, 1999 is attached to
this Decision and marked as Schedule "A". The complaint against the
solicitor is also attached hereto and marked as Schedule "B".
The application is for dismissal of all of the
remaining counts in the complaint
against the solicitor being counts 2, 3, 4,
5,
6, and 7. Counts 8 and 9 were dismissed by another
Discipline Committee on May 16, 1997 when the Law Society elected to call no evidence. Essentially, the application is for dismissal due to breaches of the
fundamental principles of natural justice, procedural unfairness, and abuse of
process resulting from unreasonable and undue delay in the investigation and
the prosecution of the solicitor.
The Law Society opposes the application for the following reasons:
a)
That "pre-charge" delay should not be
included in a determination of the
issue regarding delay;
b)
That there is no prejudice shown to be suffered
in the materials filed by Mr. Baker;
c)
That the Society cannot be held responsible for
all of the delay that has occurred with respect to these proceedings; and,
d)
That the delay is reasonable
in all of the circumstances.
This Committee was presented with very lengthy and
complete factums, a vast amount of written material and two full days of
argument. Following argument, a complete transcript of the submissions of
counsel was made available for review by the Committee. This Committee is
indebted to all counsel for the very
high quality of their preparation and presentation.
DECISION
In all of the circumstances it is the decision of this Committee that the remaining counts in
the complaint against the solicitor
should be stayed for the reasons set out herein.
HISTORICAL REVIEW
Both factums
contained a history of the events leading to the hearing before this Committee.
Although dates and events are stated in mostly identical terms in both factums,
there is much more detail provided in
the solicitor's factum and, in many cases, the additional detail provided in
the solicitor's factum and borne out
by the documentation is very instructive and compelling.
Counsel for the solicitor
also provided the Committee with three
very helpful charts which are also attached to this Decision and identified as follows:
Table 1: Overview (Schedule C) Table 2: Investigatory
Delay (Schedule D) Table 3: Delay in the Hearing Phase (Schedule E)
We find that the factual account provided in the
solicitor's factum consisting of full review of most of the important facts relating to this case is as accurate
as one could expect, given the length
of time involved and the numerous, complex events which occurred. For that
reason, we are disposed to reproduce here paragraphs 15 to 171 of the
solicitor's factum:
SOLICITOR'S
FACTUM -PARAGRAPHS 15 - 171 PART II - OVERVIEW
15.
Thomas Baker is a solicitor who was called to
the Bar in Ontario in 1976. He practised law at the firm Campbell, Godfrey & Lewtas until March 1, 1988, at
which time he left private practice to become a businessman. Although he has
maintained his status as a member of the Law Society of Upper Canada, Baker
continues to be a businessman to this day.
16.
On October 16, 1989 the Law Society received a
Statement of Claim relating to an action in which Baker was a defendant and a
group of beneficiaries of an estate [the Rosbrooks] were the plaintiffs. This
claim was provided to the Law Society by the plaintiff's solicitor, without
further comment. In furtherance of
their claim, in the Statement of Claim the plaintiffs alleged Baker engaged in
certain improper conduct in 1987 and 1988. No formal complaint to the Law
Society was ever laid by the plaintiffs. [See Note 2 below] [Ed. Note: There is
no footnote numbered '1']
————————
Note 2: In early 1993 the plaintiff's solicitor was
contacted by the Law Society's investigator, Eric Fournie ("Fournie").
At that time he notified the Law
Society that the Rosbrook plaintiffs
were not to
be considered formal complainants and that he had delivered the statement of
claim to the Law Society "out of an abundance of caution" in order to
ensure that he had satisfied any duty he, as a solicitor, might have.
Reference: Record, Vol. X, p. 3516
————————
17.
By November 1989, the staff of the Law
Society's Discipline Department commenced an investigation into matters
relating to the issues raised in the Statement of Claim. As of that time, the Law Society was aware of all of the
essential factual allegations on
which the Complaint which was ultimately laid on February 20, 1995, was laid.
In fact, the counts relating to the Rosbrook matter are essentially a
transcription of certain paragraphs of the Statement of Claim.
18.
On September 17, 1990, eleven months after
receipt of the "Rosbrook complaint" (in the form of the Statement of
Claim), for reasons undisclosed to
Baker, Thomas Lockwood, of the firm Lockwood & Associates, was retained by
the Law Society to investigate the "Rosbrook complaint" against
Baker. The scope of this retainer has never been revealed to Baker. Lockwood
apparently delegated the investigation to one of his associates, Eric Fournie ("Fournie").
19.
Over the next two years, there is no evidence
that the Lockwood firm did a single thing to further the investigation of the Rosbrook complaint. In September of
1992, Fournie finally notified Baker's counsel, in writing, that the Lockwood
firm had been retained to
investigate the Rosbrook matter.
20.
In the 18 months following November 1992,
Fournie conducted a broad ranging
investigation into the affairs of Mr. Baker. The full scope of this
investigation is not known to Baker. However, many matters entirely unrelated to
the Rosbrook matter were investigated (often without proper notice to Baker),
largely at the instigation of Forder, an individual who was adverse in interest
to Baker in a number of civil litigation matters, and made no secret of his
deep personal animosity to Baker. It is unclear who, if anyone, at the Law
Society was directing or reviewing Fournie's exercise of the Law Society's
mandate. There is nothing in the materials filed to suggest that the Law Society directed Fournie to speed up his
investigation, or to narrow the issues under consideration. There is nothing in
the materials filed to suggest that the Law Society supervised Fournie's
investigation. In fact, Baker has not been provided with anything to suggest that any controls were placed on Fournie
whatsoever. It appears from material obtained through disclosure that the
Secretary of the Law Society completely (and improperly) delegated his
statutory function of receiving and investigating any complaints regarding
Baker to Fournie.
21.
One of the complaints formally made by Forder
to the Law Society involved Baker's relationship with Staff Inspector John
Jackson of
the Metropolitan Toronto Police Force (the "Jackson" complaints).
Long after the Complaint was laid, Baker received disclosure of information
that demonstrates that on November 11, 1992 Forder met with Fournie for the
purpose of providing particulars of his various complaints.On that date, and
subsequently, by telephone call on November 20, 1992, Forder fully informed
Fournie of all of the factual allegations on
which the counts in the Complaint related to Jackson are based. Fournie subsequently investigated these
matters further. [See Note 3 below]
————————
Note 3: Memorandum to File of Eric Fournie dated
November 12, 1992, (Interview with W. Forder), Volume V, p. 1732 @ 1737-8,
1741, as disclosed on Sept. 15, 1995; Memorandum to File of Eric Fournie dated
Nov. 20, 1992, (Telephone call from W. Forder regarding Jackson witnesses),
Volume V, p. 1743, as disclosed on Sept. 15, 1995, Memorandum to File of Eric
Fournie dated Jan. 20, 1993
(interview with Csaba Reider) Volume X, p. 3507 @ 3514, as disclosed on
February 26, 1997; Memorandum to file dated May 21, 1993, (Interview of R.
Stamler), Volume X, p. 3526
————————
22.
Four months after the Law Society had in its
possession Forder's complaint relating to Jackson and all of the relevant alleged facts, Jackson died.
[See Note 4 below]
————————
Note 4: Memorandum to file of Eric Fournie dated
March 16, 1993, Volume XXIII, tab
EEE. It should be noted that at the time, the Law Society's Rules of Procedure
directed that a hearing into a complaint that was sworn was to be conducted
within four months of the date of the complaint
————————
23.
Baker was never informed of the investigation
conducted by Fournie into the Jackson complaint prior to the Complaint being laid in 1995. [See Note 5 below] As
a result of Baker not being informed
of this investigation in a fair and prompt manner, he lost the opportunity to
secure the evidence of Staff Inspector Jackson for his defence, or even consult
Staff Inspector John Jackson about the allegations. The significant prejudice caused to Baker as a result is self-evident.
————————
Note
5: In fact, on numerous occasions both before and after the Complaint was laid, the Law Society asserted, to Baker and
more broadly, that the investigation of the Jackson matter only began following the publication of
certain newspaper articles in the spring of 1994. Even then, Baker was not
informed to that he was
being investigated in relation to any matters
involving Jackson until December, 1994.
————————
24.
On April 19, 1994, Lockwood
and Fournie provided their final
Investigation Report to the Law Society. (This report has not been disclosed.
It is one of the reports that is the subject Baker's disclosure motion. The Law
Society claims this investigation report is subject to solicitor-client
privilege, contrary to its long standing practice to disclose investigation reports to subject solicitors).
On April 19, 1994, Lockwood
and Fournie provided their final
Investigation Report to the Law Society. (This report has not been disclosed.
It is one of the reports that is the subject Baker's disclosure motion. The Law
Society claims this investigation report is subject to solicitor-client
privilege, contrary to its long standing practice to disclose investigation reports to subject solicitors).
25.
For reasons unknown to Baker, rather than acting
upon the findings reported in the Lockwood and Fournie report, the Law Society
took the unprecedented step of appointing another law firm to conduct a new
investigation into the same matters as were
investigated by the Lockwood firm. This appointment occurred on May 18, 1994 -
four and a half years after the Law Society
became aware of and started investigating concerns about Baker's
conduct. This investigation was conducted by Mr. Greenspan and his then
associate, Shayne Kert.
26.
On numerous occasions during the investigation
phase, Greenspan asserted that he was conducting a separate and completely
distinct investigation from the Lockwood/Fournie investigation, even though
Greenspan was investigating the same
matters. Evidently, the four and a half years of investigation that preceded
Greenspan's appointment as investigator had been entirely wasted.
27.
Greenspan completed his new investigation, and
submitted a second investigation report on January 25, 1995 (which has also not
been disclosed and is also subject of the disclosure motion).
28.
On February 20, 1995 the Complaint was laid. It
contains three counts of alleged incidents of professional misconduct related
to events occurring in 1987 and 1988, and five counts of conduct unbecoming a solicitor, relating to events alleged
to have occurred between March, 1988 and January, 1992.
29.
Mr. Baker was served with the Complaint on
February 20, 1995. At the same time
he was served with a Notice, as required by the Rules of the Discipline
Process, that indicated, inter alia, that
the Law Society's counsel was ready to make disclosure in the case. In addition
to the Notice, he was also provided with a copy
of the Rules of the Discipline Process, as adopted by Convocation of the Law Society. Those rules indicated that the hearing
of the Complaint against him was to
take place within four months of the
date of the Complaint. Five years later, the hearing of the merits of the
Complaint has yet to begin.
30.
The extraordinary delay that has marked this
case since the Complaint was laid is
attributable to the following factors:
(a)
Failure of prosecution
counsel to provide full, proper and timely disclosure in keeping with its
undisputed obligations: Although Baker was told on February 20, 1995 that the prosecutors were ready to provide
disclosure, such that he could know the case against him, this was not the
case. Partial disclosure was provided in March, 1995. On the advice of the
prosecutor that this was complete disclosure, dates for hearing were set for
the fall of 1995. Upon review of the disclosure received, it became apparent
that the disclosure was not complete. As a result, counsel for Baker began a
protracted battle to secure the disclosure that their client is entitled to
under the law. Following the initial disclosure packages, the Law Society
produced 18 subsequent disclosure packages, the final one of which was not
received until March, 1997 - two years after the Law Society indicated that its
counsel was prepared to provide disclosure. Much of the material provided following
the initial disclosure is highly relevant to Baker's ability to make full
answer and defense to the Complaint, and all of the documentation was in the possession of the Law Society before
the complaint was served.
Failure of prosecution
counsel to provide full, proper and timely disclosure in keeping with its
undisputed obligations: Although Baker was told on February 20, 1995 that the prosecutors were ready to provide
disclosure, such that he could know the case against him, this was not the
case. Partial disclosure was provided in March, 1995. On the advice of the
prosecutor that this was complete disclosure, dates for hearing were set for
the fall of 1995. Upon review of the disclosure received, it became apparent
that the disclosure was not complete. As a result, counsel for Baker began a
protracted battle to secure the disclosure that their client is entitled to
under the law. Following the initial disclosure packages, the Law Society
produced 18 subsequent disclosure packages, the final one of which was not
received until March, 1997 - two years after the Law Society indicated that its
counsel was prepared to provide disclosure. Much of the material provided following
the initial disclosure is highly relevant to Baker's ability to make full
answer and defense to the Complaint, and all of the documentation was in the possession of the Law Society before
the complaint was served.
(b)
Failure of the Law Society to produce a list of
the documents that it refused to
provide by way of disclosure on the basis that
they were subject to some kind of privilege, or were irrelevant: Baker's motion
for further and better disclosure was heard, in part, on January 24 through 26,
1996. On January 26, 1996 the Discipline Panel ordered the Law Society's
prosecutors to produce a list which
detailed the documents which it objected to producing on the grounds of
privilege, together with an explanation of the grounds of privilege asserted in
respect of each document, to assist the Panel's assessment of Baker's request
for disclosure. This part of the order was never challenged by the Law
Society's prosecutors. The Law Society's prosecutors did not prepare their
final version of this list (which was essentially equivalent to an affidavit of
documents) until August of 1997 - nearly 18 months after ordered to do so.
Finalization of this list was required in order for Baker's disclosure motions
to continue. In an effort to cajole the prosecution into compliance with the
order, Baker's counsel brought (in March, 1997), and eventually argued (in
August, 1997) a motion asking the
panel to state a case to the Divisional Court
citing the for non-compliance with the January order. Between November 14, 1996
and mid August, 1997 the prosecution provided on 18 occasions 28 versions of
the draft and revised lists. The final list was delivered on the eve of the
hearing into whether the Discipline Committee should state a case. Despite
having spent five years and four months investigating Baker, the Law Society's
list of allegedly privileged documents that was required in order for the
hearing to move forward was not produced until 2 1/2 years after the Complaint
was laid.
(c)
The singularly aggressive position that the Law
Society's prosecutors have taken on disclosure issues. It is worth noting that Baker's motion for disclosure
is not frivolous. It is the
Law
Society's normal practice to disclose the reports of its investigators to
solicitors under investigation. In the case at hand, for what appears to be the
first time in history, the Law Society has claimed the investigator's reports
relating to Baker's case are subject to privilege, and cannot be disclosed to Baker. The lists of documents over
which the Law Society is claiming privilege contain many other startling
examples of an extremely aggressive approach to non- disclosure. The law Society has refused to produce
communications between the Law Society's investigators and the media, claiming
that such communications are governed by solicitors' work product privilege.
Similarly, the Law Society has claimed privilege over communications between discipline counsel and E & O
counsel responsible for matters involving Baker, as well as communications
between the Law Society investigators and third parties, such as the police.
The Law Society has been highly creative in the types of privilege that it has
claimed, and has claimed privilege on the basis of doctrines such as public
interest immunity and privilege held by third parties, sometimes in
contradiction to their own historical
positions and policies.
(d)
Failure by the Discipline Committee to render
timely decisions: On January 26, 1996 the Discipline Committee issued an oral decision. At that time, it
indicated that it would provide a
written decision that would provide greater clarity the reasoning behind its oral ruling. In February, 1996, as no
written reason had been issued, Baker's counsel wrote to the Panel asking if
they intended to issue a written decision, as they had indicated. He received no response. No written reasons were ever
issued by the Panel in relation to the January 26th Order. Had the Panel
produced more clear reasons in writing, as promised, much of the subsequent
litigation about the meaning of its January Order might have been avoided.
In August, 1997, because of the failure of the Law
Society's prosecutors to abide by the Order of January 26, 1996 on a timely basis, Baker's counsel argued a
motion in which they requested that the Panel state a case to the Divisional
Court, citing the Law Society in contempt of its earlier order. Baker's counsel
also asked for a re-articulation and clarification of the January, 1996 Order,
such that the matter could proceed in a more
organized manner. At the time the motion was argued, the Panel recognized that
it would be issuing its decision in short order, and recognized that the
reasons for its decision were required for the hearing to proceed. The Panel
did not issue its reasons until the end of July, 1998, - 11 1/2 months later.
In the interim period virtually nothing was accomplished in relation to the
furtherance of the prosecution of this matter.
(e)
Failure by the Law Society to schedule hearing
dates, even when requested to do so by Baker's counsel: Between January 26,
1996 and November 27, 1996, no hearing dates were scheduled by the Discipline
Committee to deal with matters associated with this Complaint, even though
Baker's counsel requested that dates
be set, and
there were matters to be dealt with that had no relevance to any court process.
The November 27, 1996 date, which
involved a very brief appearance, was only scheduled because Baker's counsel
requested that the prosecution seek the scheduling of a date after Baker's
counsel's direct requests to the Panel were ignored. No explanation was
provided for the failure to set dates.
Similarly,
in the period from January 15, 1999 (at which point the initial panel of the
Discipline Committee was prohibited from
continuing with the Complaint, as it had created a reasonable apprehension of
bias) until October, 1999, no attempt was made
by the Law Society or its prosecutors to schedule any hearing dates in
relation to this matter. This was despite the fact that by January 1999 this
complaint had been outstanding for close to four years, and had gone nowhere in
that time despite the many efforts made by Baker's counsel to move the matter
forward. No explanation has been received from the Law Society for this period
of complete inactivity following the January, 1999 decision of the Divisional
Court. At a time when the Law Society should have been making extra efforts to
get this case "back on the rails", the matter languished.
(f)
Cancellation of Hearing Dates: The Discipline
Committee unilaterally adjourned many scheduled hearing days in order to accommodate their own schedules.
(g)
Failure of the prosecution to accept the
Panel's lawful ruling on disclosure: The Law Society's prosecutors sought, for
the first time in the history of the Law Society, judicial review of a ruling of its own Discipline
Panel namely, the January, 1996
decision of the Panel requiring, inter alia, disclosure. That judicial review
was heard in November, 1996, and a decision was rendered in January, 1997. The
Law Society's prosecutors were unsuccessful and the judicial review was
dismissed. This did not lead to immediate compliance with the January, 1996
order despite assurances from
prosecution counsel that it would. Rather, the prosecution sought
reconsideration by the Panel of certain elements of the January 1996 Order, and
otherwise failed to comply with that Order on a timely basis. As a result, much
time was spent before the Panel arguing about what was required of the Law Society under the January 1996
Order, and enquiring into when
compliance would be achieved. This caused considerable delay in this hearing
process. While it may be within the rights of the prosecution to seek judicial
review and reconsideration of the rulings that it does not like, it must be
recognized that delay caused through these tactics will be counted in favour of
the person who is being subjected to the vicissitudes and vexations of
defending a professional discipline complaint.
(h)
The prosecution's failure to recognize the
emergency nature of Baker's
application for judicial review in July, 1998: In July, 1998 the Panel released
its decision in relation to the August, 1997 motion to state a case to the
Divisional Court.
Baker's
counsel asked for a very brief adjournment to review and consider the
implications of the decision. The Discipline Committee refused to grant the
adjournment, and as a result, Baker's counsel sought immediate judicial review
for the purpose of securing a very brief adjournment. The Law Society's
prosecution counsel insisted that this was a matter which should be heard by
the full Panel of the Divisional Court, on a non- emergency basis. In response
to this request, the single judge hearing the emergency application put the
matter over to a full panel, and stayed the proceeding on an interim basis. As
a result of that tactical decision
on the part of the prosecution, there was a further six month delay in this case.
31.
Thus,
after five years of proceedings, the Law Society has yet to deal with Baker's
initial disclosure motion. The previous Panel estimated that it would take
approximately 63 hearing days to adjudicate the Law Society's privilege claims.
The prosecution did not object to
this number of days being scheduled for the disclosure/privilege issues.
32.
After the disclosure and privilege issues have
been finally resolved, Baker's motion to quash the Complaint on grounds of
abuse of process (which was first served on September 19, 1995 and adjourned by
the Panel in January 1996 pending disposition
of the disclosure motion) must be heard.
33.
Baker has received a great
deal of negative attention from the
media as a result of Complaints and protracted LSUC proceedings. This attention
is ongoing.
PART III -
STATEMENT OF FACTS
A.
Events Leading up to The Sworn Complaint: The Initial Investigation of the Rosbrook Complaint
(a)
Law Society Received the Rosbrook Statement of
Claim in October 1989
34.
On October 16, 1989 the Law Society received a
Statement of Claim relating to an
action in which Baker was named as a defendant. [See Note 6 below] The
Statement of Claim related to matters
involving the Rosbrook Estate. [See Note 7 below] The Claim was provided to the
Law Society by the plaintiffs' solicitor, without further comment. In
furtherance of their claim, the Plaintiffs alleged in their Statement of Claim
that Baker engaged in certain improper conduct in 1987 and 1988. No formal
complaint to the Law Society was ever made by the Plaintiffs in respect of
Baker's alleged conduct.
————————
Note 6: Letter from Cole to the
Law Society dated October 16, 1989,
Linden Affidavit, Vol. 2, Tab 3
Note 7: Exhibit 2
to the Linden Cross-Examination
————————
(b) Law Society Had All of the Relevant Factual Allegations Regarding the Rosbrook
Complaint in October 1989
35. The
Law Society has had all of the relevant factual allegations regarding the
Rosbrook complaint since October 1989. In fact, the Complaint sworn in 1995 is
essentially a transcription of certain paragraphs of the Statement of Claim. As stated by Kelly during the
cross-examination of Linden: "In answer to your question, the Statement of
Claim is the basis of the allegations contained in the Notice of
Complaint". [See Note
The
Law Society has had all of the relevant factual allegations regarding the
Rosbrook complaint since October 1989. In fact, the Complaint sworn in 1995 is
essentially a transcription of certain paragraphs of the Statement of Claim. As stated by Kelly during the
cross-examination of Linden: "In answer to your question, the Statement of
Claim is the basis of the allegations contained in the Notice of
Complaint". [See Note
8 below]
————————
Note 8: Linden
Cross-Examination (December 10, 1999)
————————
36.
There are no allegations in
the Complaint that post-date 1988
and the Law Society does not take issue with the fact that all of the information contained in the
Complaint "was available to the Society as at 1989" when it received
a copy of the Rosbrook Statement of Claim. [See Note 9 below]
————————
Note 9: Linden
Cross-Examination (December 10, 1999)
————————
(c) Law Society Commenced Its Investigation into
the Rosbrook Allegations in October 1989
37.
By letter dated November 7, 1989, Baker was
notified that the Law Society was in
receipt of the Rosbrook Statement of Claim in which Baker was a named
defendant. It is the usual practice of the Law Society to provide a member with
a copy of any complaints made about
him or her and to provide him or her with an opportunity to respond. [See Note
10 below] The letter from Law Society stated as follows:
————————
Note
10: Proctor Affidavit, para. 62, Vol. IV, Tab 21, p. 1269, Reports of the Special Committee on Complaints Procedures
("Callwood Committee") dated March 22, 1990 and June 22, 1990
————————
It is our usual policy to ask a solicitor member against
whom a complaint has been made to
respond thereto in writing.
Accordingly, we would ask for your comments on the matter.
We recognize that professional conduct issues raised
by the claim are closely interwoven
with the issues to be prove at trial.
Accordingly,
we may well choose not to take concrete steps
until the court action is disposed of in some fashion [See Note 11
below].
————————
Note 11: Letter to Baker
from Howard Maker, staff lawyer, LSUC
dated November 7, 1989, Vol. XXIII, Tab 1(CCC), Exhibit CCC to the Chandran Affidavit.
————————
A
similar letter was sent from the Law Society to Campbell Godfrey & Lewtas,
another named defendant in the Rosbrook Statement of Claim. In that letter, the Law Society
indicated that it "will in all likelihood be prepared to await the outcome of the legal proceeding before
taking any steps from a professional conduct view point [See Note 12 below]".
————————
Note 12: Letter to Campbell Godfrey & Lewtas from
Howard Maker, staff lawyer, LSUC,
dated November 7, 1989, Vol. X, Tab 38(22)(B), p. 3566
See also letter to Clifford Cole form Maker dated
November 7, 1989, Vol. X, Tab
38(22)(A), p. 3491
————————
38. Contrary to the suggestion in its letter that
the Rosbrook complaint would be held in abeyance, the Law Society commenced an investigation into the Rosbrook matters
in 1989 [See Note 13 below]
————————
Note 13: Linden Cross-Examination (December 10,
1999); LSUC's Index to Privileged Documents, Record, Vol. XIII, p. 4591; Letter from Tunley to Paliare dated May
8, 1998, Record, Vol. XIII, p.
4679
The investigation was undertaken pursuant to
subsection 9(1) of Regulation 708 which provides that where information comes
to the attention of the Law Society
that indicates that a member may have been guilty of misconduct, the Secretary
of the Law Society shall conduct such preliminary investigations as he or she
considers proper and, where in his or her opinion there are reasonable grounds
for doing so, the Secretary shall refer the matter promptly to the Discipline
Committee, or the chair or vice chair
of that Committee, for further directions. According to s. 9(2) (a) of
Regulation 708, upon being advised of a decision to proceed with a formal
complaint, the Secretary prepares and completes or causes to be completed under
oath a complaint, which
is then served upon the
member. (The Discipline Committee then
proceeds with a hearing to consider the complaint, pursuant to section 9(1) of Regulation 708)
————————
39.
Several
months later, the Law Society confirmed that it had changed its course of action. In early March, 1990, the Law
Society stated that:
Several
months later, the Law Society confirmed that it had changed its course of action. In early March, 1990, the Law
Society stated that:
The serious
nature of the allegations dictate that the Society conduct its investigations
forthwith. I am sure you realized that
the public interest requires that a matter such as this not be held in abeyance
pending the outcome of civil litigation which might not be resolved for several
years [See Note 14 below].
————————
Note 14:
[Emphasis added] Letter to dated March 1, 1990
from Discipline counsel, LSUC to John Laskin, Record, Vol. X, Tab 38(D), p. 3703
————————
In
fact, as detailed below, the investigation proceeded at a snail's pace. The
Rosbrook Estate civil litigation was settled
in March 1992 and the action was dismissed without costs in March 1992 -
almost three years before the Law Society initiated the formal Complaint
against Baker [See Note 15 below].
————————
Note 15: Proctor Affidavit, para. 24, Record, Vol.
IV, p. 1254; Linden Cross-Examination
(December 10, 1999): p. 87
————————
B.
Events Leading up to the Sworn Complaint: Lockwood/Fournie Investigation
(a)
Law Society Retained the Lockwood Firm to Investigate Rosbrook Complaint
40.
In
September 1990, after eleven months of conducting its own internal investigation, the Law Society retained the firm
Lockwood & Associates to "investigate Rosbrook complaint" [See
Note 16 below]. Lockwood apparently delegated the investigation to one of his
associates, Eric Fournie ("Fournie").
————————
Note 16: The retainer is described by the prosecutors
in a chronology for privilege issues appended to Tunley's letter to Paliare
dated May 5, 1998 as "Retainer of Lockwood to investigate Rosbrook Complaint": Record, Vol. XIII, p. 4679
————————
41.
The Law Society has refused to answer why,
after conducting its own eleven-month investigation into allegations in respect of which the necessary information was
readily available in 1989, it
retained an outside investigator to look into the matter. [See Note 17 below]
The Law Society prosecutors also refused to answer
whether the Law Society asked for status updates on the progress of the
investigation at the time they turned this matter over to Lockwood in
September, 1990 [See Note 18 below]. There is
nothing in the material before this Panel (or in any material disclosed
to Baker) to suggest that the Law Society asked for or received status updates
from its investigators prior to Lockwood's interim
report dated May 12, 1993. There is nothing to suggest that the Law Society
imposed any time restrictions on Lockwood in respect of this investigation.
Again, the prosecutors have refused to answer any questions in respect of this.
[See Note 19 below]
The Law Society has refused to answer why,
after conducting its own eleven-month investigation into allegations in respect of which the necessary information was
readily available in 1989, it
retained an outside investigator to look into the matter. [See Note 17 below]
The Law Society prosecutors also refused to answer
whether the Law Society asked for status updates on the progress of the
investigation at the time they turned this matter over to Lockwood in
September, 1990 [See Note 18 below]. There is
nothing in the material before this Panel (or in any material disclosed
to Baker) to suggest that the Law Society asked for or received status updates
from its investigators prior to Lockwood's interim
report dated May 12, 1993. There is nothing to suggest that the Law Society
imposed any time restrictions on Lockwood in respect of this investigation.
Again, the prosecutors have refused to answer any questions in respect of this.
[See Note 19 below]
————————
Note 17: Linden
Cross-Examination (December 10, 1999)
Note 18: Linden
Cross-Examination (December 10, 1999)
Note 19: Linden
Cross-Examination (December 10, 1999)
————————
(b) 25-Months of Inactivity: September 1990 to
October 1992
42.
The material disclosed by
Baker suggests that for the first
16 months - from time
that Lockwood was retained in September, 1990 to January 1992 - nothing
transpired in respect of the Complaint or the investigation. Counsel for Baker
has asked the Law Society to make inquiries as to what, if anything, the Law
Society investigators did during this period, but the Law Society prosecutors have refused to do
so, simply stating that "the lists
speak for themselves. I think the conclusion you reach is the accurate one.
You've got time on your side". [See Note
20 below]
————————
Note 20: Linden
Cross-Examination (December 10, 1999)
————————
43.
It appears that in January
1992, after doing nothing for 16 months, the Law Society investigator conducted
an "analysis regarding a concurrent complaint and civil action" [See
Note 21 below]. In other words, 16 months after being retained, the Law Society
investigator re-visited an issue that the Law Society had determined years ago: the Law Society had already concluded
that the Complaint would not be held in abeyance pending civil litigation
because the public interest dictated that the investigation proceed
"forthwith". [See Note 22
below]
————————
Note 21: LSUC
Privilege List, Record, Vol. XIII, p. 4620;
Note 22: The
Record suggests that the only other activity that occurred in January 1992 was
a request from Fournie for a copy of
the Campbell Godfrey & Lewtas E&O file from the Errors and Omissions
Department at the Law Society. See LSUC Privilege List, Record, Vol. XIII, p.
4592
————————
44.
We have been unable to locate anything in the
material that indicates that the Law Society investigators did anything between January and May 1992. Again, the
Law Society prosecutors refused to make any inquiries in this regard:
"Well, again, the material speaks for itself. I doubt that there's
anything else that we're going to find out that answers this question, so I am
going to refuse at this point to answer it". [See Note 23 below]
————————
Note 23: Linden
Cross-Examination (December 10, 1999)
————————
45.
The Record reveals that in May 1992 there was a
telephone conversation between Lockwood and a lawyer who represented Forder,
regarding further potential complaints against Baker. In his memorandum dated May 27, 1992, Lockwood acknowledged
that complaints against Baker had been with the Law Society for "a long
period of time". In addition, Lockwood made reference to an outstanding complaint received by the
Law Society from Forder in respect
of Baker and indicated that Forder wished to make a further complaint:
He said that he had called Gavin MacKenzie [then
senior in-house Discipline Counsel to the Law Society] because he had a complaint against Mr. Baker which he
wished to make. Gavin said that we were handling the file and had been for a
long period of time and he didn't
know the current status of the file.
He said that Dr. Forder had an outstanding complaint
against Mr. Baker but now there is a
new complaint. [See Note 24 below]
————————
Note 24: Lockwood's Memo to File dated May 27, 1992,
Record, Vol. X, p. 3492
————————
46.
As of May, 1992, Baker had not been informed of
any complaints involving Forder, or even that the Lockwood firm had been retained to investigate any
allegations against him.
47.
After noting the one
telephone discussion on May 27, 1992, it
appears that the Law Society investigators did nothing until September 1, 1992,
on which date the Lockwood firm first communicated with Baker's counsel. By
letter dated September 1, 1992, Baker's counsel was informed for the first time
that the Law Society had retained outside counsel to investigate into the
Rosbrook complaint:
After noting the one
telephone discussion on May 27, 1992, it
appears that the Law Society investigators did nothing until September 1, 1992,
on which date the Lockwood firm first communicated with Baker's counsel. By
letter dated September 1, 1992, Baker's counsel was informed for the first time
that the Law Society had retained outside counsel to investigate into the
Rosbrook complaint:
Re:
Thomas Baker ats Rosbrook, et al We have been retained by the Law Society of Upper Canada (the
"Society") with respect to the professional conduct complaint made
against Thomas Baker. We have been
asked by the Society to investigate this matter and report with respect to the
discipline concerns.
Kindly advise us as to the current status of the
action initiated by the executors of
the estate of Frederick T. Rosbrook. Further we request copies of any
affidavits filed by or on behalf of Thomas Baker and any transcripts taken from
examinations. Your assistance is appreciated. [See Note 25 below]
————————
Note 25: Letter from Fournie to Keefe dated September
1, 1992, Exhibit 3 to the Linden Cross-Examination
————————
48.
Two years after the Lockwood firm was retained
to investigate into the Rosbrook
complaint, Baker was notified. Even at this time, Baker was not notified that
there was, apparently, an outstanding complaint from Forder which had been
outstanding prior to May 27, 1992.
49.
As set out below, in November 1992, the Law
Society began investigating matters relating to Baker's relationship with Staff Inspector Jackson and other
complaints of Forder [See Note 26 below].
————————
Note 26: Memo from Fournie to file dated November 12, 1992, Record, Vol. V, p. 1732
Memo from Fournie to file dated November 20, 1992,
Record, Vol. V, p. 1743
————————
50.
We have been unable to locate anything in the
Record that reveals anything further happening in relation to the Rosbrook
investigation until January 1993. In January 1993, Fournie had a telephone
discussion with Cole (the lawyer for who had forwarded the Rosbrook Statement
of Claim to the Law Society on October 16,
1989). This appears to be the Law Society's first request for information from
Cole or his clients. Fournie's memo to file states, in part:
Cole's
interpretation of his letter was not so much that it was a formal complaint and he was not convinced that his clients
were formal complainants to the Society. Cole felt that the notice was given from an abundance of caution
because of any duty he may have [as a solicitor] to report the conduct... [See
Note 27 below]
————————
Note 27: Memorandum to file from Fournie dated
January 28, 1993, Record, Vol. X, p. 3516
————————
51.
It appears that in the first 28 months of the
Lockwood investigation into the Rosbrook matter all that occurred was:
1.
Fournie revisited the issue of concurrent civil
litigation and complaint, despite the
fact that the Law Society had determined this issue during the course of its
own investigation in 1989 - 1990 [See Note 28
below];
————————
Note 28: LSUC
Privilege List, Record, Vol. XIII, p. 4592
————————
2.
a telephone conversation between Lockwood and
Forder's counsel, in respect of matters completely unrelated to the Rosbrook complaint [See Note 29 below];
————————
Note 29: Memorandum to file from Lockwood dated May
27, 1992, Record, Vol. X, p. 3492
————————
3.
Fournie wrote a letter to Baker's counsel
advising (finally) that the Lockwood
firm had been retained by the Law Society to investigate the Rosbrook complaint
[See Note 30 below]; and
————————
Note 30: Letter from Fournie to Keefe dated September
1, 1992, Exhibit 3 to Linden Cross-Examination
————————
4.
Fournie had the Law Society's first telephone
discussion with Cole, in which Cole
indicated that the Rosbrooks were not formal
complainants to the Law Society [See Note 31
below].
————————
Note 31: Memorandum to file from Fournie dated
January 23, 1993, Record, Vol. X, p. 3516
————————
(c)
The Scope of the
Lockwood/Fournie Investigation Expands:
The Scope of the
Lockwood/Fournie Investigation Expands:
52.
As said above, in May, 1992 Lockwood received a
telephone call from a lawyer representing Forder, indicating that he had been
directed to Lockwood by Gavin MacKenzie, and that his client had an outstanding complaint to make against Baker, and
wished to make further complaints.
Lockwood indicated that Forder could write out his complaints, which would then
be forwarded to Baker for a response, or he could be interviewed, and the
interview would form the basis for the formal complaint. [See Note 32 below]
————————
Note 32: Lockwood's memo to file dated May 27, 1992,
Record, Vol. X, p. 3492
————————
53.
No further contact appears to have occurred
until November 1992. On November 12, 1992, Fournie interviewed Forder, and on
the basis of this interview, began to investigate multiple allegations against
Baker [See Note 33 below]. In January, 1993,
Fournie interviewed Mele.
————————
Note 33: Memorandum to file from Fournie dated
November 12, 1992, Record, Vol. V, p. 1732
————————
54.
Baker was never provided with a written
complaint based on either Forder's or Mele's statement. Rather, on January 29, 1993, Baker was informed that Fournie had
received further complaints about his conduct. Instead of proper notice, Baker
was given the title of proceeding of a number of civil proceedings without
further particulars. A response was demanded [See Note 34 below].
————————
Note 34: Letter from Fournie to Moore dated January
29, 1993, Record, Vol. IV, p. 1380
————————
55.
The pleadings in the referenced lawsuits were
numerous, lengthy and regularly amended. Baker's counsel frequently asked for
particulars of the complaints in order to be able to respond to Fournie's demand. Fournie was always unwilling to
give Baker the benefit of particulars - despite providing both a written
Complaint and a detailed cover letter to another
lawyer who was being investigated on the basis of some of the same allegations.
56.
Baker is
not aware of the full scope of Fournie's investigations. However, disclosure
received long after the complaint was laid suggests Fournie was given the
discretion to investigate all
allegations raised by Forder and his acquaintances, regardless of whether a
complaint had been delivered to the Secretary of the Law Society, or whether Baker had been put on proper notice that
the allegations were the subject of complaints under investigation.
Baker is
not aware of the full scope of Fournie's investigations. However, disclosure
received long after the complaint was laid suggests Fournie was given the
discretion to investigate all
allegations raised by Forder and his acquaintances, regardless of whether a
complaint had been delivered to the Secretary of the Law Society, or whether Baker had been put on proper notice that
the allegations were the subject of complaints under investigation.
57.
As is set out above, disclosure received in the
fall of 1995 and subsequently has
made it apparent that Fournie conducted a full investigation into the Jackson
allegations as a result of a formal
complaint by Forder, prior to Jackson dying. The Law Society's delay in
informing Baker of this investigation has caused irreparable prejudice to
Baker's ability to make full answer and defence. When viewed in light of the
Law Society's later adamant claims that it did not begin investigating the
Jackson complaints until long after his death, the fairness of these entire
proceedings comes into stark question.
58.
Fournie's investigation notes also reveal that
the Law Society was fully apprised of the facts underlying the Mele and Forder counts in the Complaint by
January, 1993, at the latest. The
Complaint was not laid for a full 2 years following the acquisition of these facts.
59.
The lack of control placed on the scope of the
Fournie investigation, (in terms of both timing and scope) along with Fournie's
discriminatory refusal to provide Baker with any clear indication of what allegations he was investigating such
that Baker could respond, inevitably contributed to the substantial delay
experienced in the investigatory phase of this
matter.
(d)
Lockwood's Interim Report: May 12, 1993
60.
Lockwood's first report to the Law Society was
on May 12, 1993, some 32 months after his firm was retained and some 44 months
after the Law Society had received the Rosbrook complaint. Baker has not been informed of its content.
(e)
Lockwood's Final Report: April 19, 1994
61.
Three and a half years after Lockwood was
retained, in April 1994 the Lockwood
investigation was completed. At that time, an investigation report was provided
to David Scott ("Scott"), then
the Chair of the Discipline Committee and Harvey Strosberg
("Strosberg"), the former Chair of the Discipline Committee [See Note 35 below]. Baker has not been
provided with a copy of this report, despite the Law Society's usual practice
of providing solicitors under investigation with a copy of the reports. This
report is one of the documents that is the subject of Baker's disclosure
motion. It is one of the documents over which the Law
Society claims privilege, despite the Law Society's long-standing practice to release such
reports in discipline matters.
————————
Note 35:
Affidavit of John Monger, para. 9, Vol. XVII, Tab 73(2)
————————
62.
For reasons unknown to Baker, the Law Society
did not see fit to utilize the
report. Apparently, the four and a half years spent investigating Baker had
produced nothing of value to LSUC.
C.
Events Leading up to the Sworn Complaint: Greenspan Investigation
63.
Following receipt of the investigation report
prepared by the Lockwood firm, on May
18, 1994, the law firm of Greenspan & Buhr was retained to launch a new
investigation, and provide another investigation report. [See Note 36 below]
————————
Note 36: Letter from Tinsley to Greenspan dated May
18, 1994, as described in the Law
Society Privilege Lists, Record, Vol. XIII,
p. 4593; the retainer was, apparently, confirmed by
letter from Strosberg to Greenspan
dated May 20, 1994, as described in the Law Society Privilege Lists, Record,
Vol. XIII, p. 4593
————————
64.
The Record indicates that Greenspan did not
commence any activity on this investigation until several months after his retainer.
65.
Prior to Greenspan commencing activity on this
third Law Society investigation into matters involving Baker, Richard Tinsley,
the secretary of the Law Society ("Tinsley"), wrote a letter to Chief McCormick of the
Metropolitan Toronto Police regarding the Jackson matter. In this letter (dated
June 28, 1994), Tinsley stated:
The Law Society of Upper Canada has retained Mr.
Edward Greenspan to investigate the
conduct of one of its members, Thomas Bruce Baker.
One
aspect of our investigation is the relationship between Mr. Baker and the late Staff Inspector John Jackson of the
Metropolitan Police.
As you are aware the relationship between Mr. Baker
and Inspector Jackson was the subject
of a newspaper article by Mr. Kevin Donovan of the Toronto Star on April 30, 1994.
The article raises serious concerns about the
professional conduct of Mr. Baker and the Law Society would appreciate you
cooperating with Mr. Greenspan and his associate, Ms.
Shayne Kert, in their investigation of this matter. [See Note 37 below]
————————
Note 37:
Letter dated June 28, 1994 from Tinsley to Chief
McCormick, Record, Vol. X, p. 3744
————————
66.
This letter is troubling for several reasons.
Firstly, as of the date of Tinsley's letter, nobody from the Law Society had
given Baker any notice that mattes relating to Jackson were under investigation by the Law Society.
Indeed, Baker did not receive notice of this aspect of the investigation for a
further six months. Secondly, contrary to Law Society policy dictates that a
member is to be notified if the Law Society contacts the police in respect of
the member's activity, the Law Society did not notify Baker of Tinsley's letter
to Chief McCormick. Baker's counsel received a copy of this letter, for the
first time, in a supplementary disclosure package provided by the prosecution team on March 3, 1997. Thirdly, Tinsley's
letter suggests that the investigation into Baker's relationship with Jackson
arose as a result of an article published in the Toronto Star (a position
subsequently adopted by Greenspan, in no uncertain terms). It is clear from the
Record that the Law Society began investigating the Jackson matter in the fall
of 1992, during the Lockwood investigation.
67.
Greenspan's first activity on the investigation
appears to have occurred at the end of July, 1994. The Record reveals that on
July 27, 1994, Kert (Greenspan's associate) met with Fournie regarding the
Jackson investigation. Kert's notes of that meeting
are described as "Handwritten notes of Kert re: meeting with Fournie re:
interviews and the prosecution of Jackson" [See Note
38 below]. Thus, the Greenspan firm certainly knew of
the Fournie/Lockwood investigation into the Jackson matter by the end of July, 1994. Nevertheless, the Law
Society did not notify Baker that the
Jackson matter was under investigation at this
time.
————————
Note 38: Law
Society Privilege Lists, Record, Vol. XIII, p.
4616
————————
68.
Baker's counsel were not informed that
Greenspan had been retained to do anything, until August, 1994. Greenspan did not mention the Jackson matter at that time.
69.
The first notice provided to Baker indicating
that the Law Society was investigating anything relating to Jackson was in
Greenspan's letter to Moore dated December 21, 1994. [See Note 39 below] In that letter, Greenspan
identified five questions that he intended to ask Baker in respect of Staff
Inspector Jackson.
In a
subsequent letter (dated January 6, 1995) Greenspan confirmed that he had
"narrowed [his] areas of concern to those stated in [his] letter of
December 21, 1994" [See Note 40 below].
None of the five questions listed in Greenspan's letter of December 21, 1994
pertain to the allegations of conspiracy or improper investigations that
subsequently appear in the Complaint
sworn on February 20, 1995. During Greenspan's interview of Baker on January 15, 1995, Greenspan did
disclose additional aspects of the
investigation into matters involving Jackson; however, the full scope of the
Law Society's investigation relating to Jackson
was not revealed until served with the formal Complaint in February 1995.
————————
Note 39: Letter from Greenspan to Moore dated
December 21, 1994, Linden Affidavit,
Vol. 2, Tab 21
Note 40: Letter from Greenspan to Moore dated January
6, 1995, Linden Affidavit, Vol. 2,
Tab 23
————————
70.
On December 15, 1994, Greenspan wrote to
Lockwood to request a complete transfer of the file documents. From the
material filed with this Panel, it appears that Lockwood did not respond to
this letter. The prosecutors have refused to make inquiries in this regard [See Note 41 below].
————————
Note 41: Linden
Cross-Examination (December 10, 1999)
————————
71.
On January 25, 1995, upon conclusion of
whatever investigation he conducted, Greenspan prepared and submitted an
investigation report to Scott, as Chair of the Discipline Committee [See Note
42 below]. This report has not been disclosed
to Baker and is subject to the same motion and privilege claims as the Lockwood report.
————————
Note 42:
Affidavit of John Monger, para. 9, Vol. XVII, Tab 73 (2)
————————
D.
The Complaints
72.
On February 20, 1995, Tinsley (Secretary to the
Law Society) swore a formal
complaint against Baker. The Complaint contains a total of eight counts:
(a)
three counts of alleged incidents of
professional misconduct related to
events occurring in 1987 and 1988; and
(b)
five counts of alleged conduct unbecoming a
solicitor, relating to events alleged to have occurred between March 1988 and January 1992.
73.
The
counts in the Complaint have been classified above into three categories: the Rosbrook allegations, the Jackson
allegations, and the Forder/Mele allegations.
The
counts in the Complaint have been classified above into three categories: the Rosbrook allegations, the Jackson
allegations, and the Forder/Mele allegations.
74.
On February 23, 1995 the Complaint was served
on Baker. The Notice served together with the Complaint, as required by the
Rules of the Discipline Process, stated that the Law Society was "prepared to make
disclosure" [See Note 43 below].
————————
Note
43: Letter from Tinsley to Baker dated February 20, 1995, Exhibit 6 to the
Proctor Affidavit, Vol. IV, Tab 21(6), p. 1289;
Notice Pursuant to Section 16 (Signed by Tinsley), Vol. V, p.
1991
————————
75.
The cover letter from Tinsley also indicated
that Baker's counsel should contact the Law Society to receive "full
disclosure". In addition to the Complaint and the Notice, Baker was
provided with a copy of the Rules of the Discipline Process, as adopted by
Convocation ("Rules"). The Rules indicated that the hearing of the Complaint was to take
place within four months of the date of the Complaint. Five years later, the
preliminary issue of disclosure has yet to be
determined.
E.
Greenspan's Assertions Regarding the Jackson Investigation
76.
In response to the request of Baker's counsel
for "copies of all of the
letters of complaint and any further follow-up communication from or on behalf
of any of the complainants with respect to the allegations of misconduct"
[See Note 44 below], Greenspan asserted that:
————————
Note 44: Letter from Paliare to Greenspan dated
August 28, 1995, Linden Affidavit,
Vol. 2, Tab 46
————————
The investigation into possible misconduct in
relation to Mr. Baker's association with Mr. Jackson did not result from a formal complaint to the Law Society. [See
Note 45 below]
————————
Note 45: Letter from Greenspan
to Paliare dated September 15, 1995,
Linden Affidavit, Vol. 2, Tab 47
————————
77.
By letter dated September 26, 1994, Greenspan
elaborated on how the Jackson issue
came to the attention of the Law Society:
You have
also been previously advised that Mr. Baker's alleged misconduct arising out of
his association with John Jackson did not result from a formal complaint to the
Law Society. Anyone who reads the
Toronto Star, and who reads the feature stories on Mr. Baker, written by Kevin
Donovan, would wonder how the Law Society
of Upper Canada could fail to conduct an investigation into the allegations
contained in the articles relative to John Jackson.
Are
you suggesting that the Law Society of Upper Canada should read such articles
and then sit back and wait for whatever you define as a "formal
complaint" on this issue, and if such a complaint does not arrive, that
the Law Society of Upper Canada
should simply ignore the alleged conduct? [See Note 46 below]
————————
Note 46: Letter from Greenspan
to Paliare dated September 26, 1994,
Linden Affidavit, Vol. 2, Tab 49
————————
78.
Greenspan further expanded on how the Jackson
issue came to the attention of the
Law Society by letter dated December 14, 1995:
At page 6 of your letter, you still complain that you
have not been told how the Jackson matter came to the notice of the Law Society
of Upper Canada. I thought I had explained that in my last letter to you but so
that there is no misunderstanding, the Toronto Star published a series of
articles in connection with Mr. Baker and John Jackson that put the Law Society
on notice. It was those articles that
caused the full investigation to be made in connection with the Jackson matter.
You can take whatever position you want as to the method in which this
complaint came to the notice of the Law Society, but let me make this very clear to you. It is my view that The Law
Society of Upper Canada would have been grossly negligent not to have caused an
investigation to be made in the Jackson matter after the articles were
published. If you were to read Gavin MacKenzie's book, Lawyers & Ethics:
Professional Responsibility and Discipline, you would see that he indicates at page 26-6 that complaints come to The
Law Society of Upper Canada from various sources, including media coverage.
[See Note 47 below]
————————
Note 47: Letter from Greenspan
to Paliare dated December 14, 1995,
Linden Affidavit, Vol. 2, Tab 56
————————
79.
The Law Society prosecutors admitted that the article published in the Toronto Star
referred to by Greenspan is
probably the same article referred to by Tinsley in
his letter to Chief McCormick. That
article is dated April 30, 1994. [See Note
48 below]
————————
Note 48:
Linden Cross-Examination (December 10, 1999)
————————
80.
However, it is now also admitted by the Law
Society prosecutors that the Law Society knew of the matters relating to Jackson at least by November 12, 1992:
Your question is did they know as of 1992, clearly
this memo [dated November 12, 1992 [See Note 49 below]] sets out that they knew about the Jackson problem in
1992, so what's your question? [See
Note 50 below]
————————
Note 49: Memorandum to File from Fournie dated
November 12, 1992, Record, Vol. V.,
p. 1732 at 1737
Note 50: Linden Cross-Examination
(December 10, 1999)
————————
81.
Indeed, the Record demonstrates that the Law
Society investigators were actively investigating the matters relating to Jackson in November 1992.
82.
Not only did the Law Society fail to advise
Baker in a timely manner that the
Jackson matter was being investigated, but when the Law Society eventually
informed Baker of the investigation, the information provided to him was wrong.
Contrary to the adamant assertions by Greenspan that the matter came to the
attention to the Law Society as a result of media coverage, which the prosecutors now admit was
likely in April 1994, and that an investigation was commenced as a result of
that coverage, the Record reveals that, in fact:
(a)
the Jackson matter first came to the attention
of the Law Society no later than
November 12, 1992 (as opposed to April 1994);
(b)
the Jackson matter came to the attention of the
Law Society as a result of Fournie's meeting with the complainant, Forder, on November 12, 1992 (as opposed to media coverage);
(c)
the Law Society had conducted an active
investigation into the Jackson matter by November 1992 and were aware of all of the material facts relied upon in the
Complaint as of that time - months prior to Jackson's death. (as opposed to
some time after April 1994);
(d)
Tinsley communicated the fact of the Jackson
investigation to the Chief of the
Metropolitan Toronto Police six months before Baker was told of the
allegations; and
(e)
the
Greenspan firm was aware of the Fournie investigation into the Jackson matter by
July 1994, when Shayne Kert met with
Fournie to discuss his investigation in that regard (being two month prior to
Greenspan's first letter asserting otherwise).
the
Greenspan firm was aware of the Fournie investigation into the Jackson matter by
July 1994, when Shayne Kert met with
Fournie to discuss his investigation in that regard (being two month prior to
Greenspan's first letter asserting otherwise).
83.
Baker only discovered that this matter had been investigated in 1992 as a result of
reviewing material in a late disclosure package.
84.
In the recent cross-examination of Linden,
enquiries were made about the Law Society's concern about the prejudice that
might have been caused as a result of the Law Society's approach to notice of the complaint:
MR.
PALIARE: Was there ever a discussion with the chair of discipline, either at
the time of the Lockwood report or the Greenspan report that there was
prejudice to Mr. Baker because he had
not been made aware of this investigation at a time when staff inspector
Jackson was alive.
MS. KELLY: That's beautiful submission, Mr. Paliare
but we won't answer the question, if
there is one. R/F.
MR. PALIARE: And follow up to that, was the issue of
the two year delay in notifying Mr.
Baker about the investigation into the Jackson allegations ever discussed or
considered in relation to the laying of the
charges.
MS. KELLY:
Again, won't answer it, nice submissions, though. R/F.
MR. PALIARE: Why not, either the
prejudice question or last question.
MS. KELLY:
Prejudice is for the panel to decide.
MR. PALIARE: I
want to know if there was a discussion.
MS. KELLY: I am not going to tell you what the
discussions with counsel.
MR. PALIARE: I didn't necessarily say they were
between counsel and the client, it's whether there was a discussion did the chair of discipline turn its mind to
this, I didn't put it that way, or
were they apprised of it, I want to make that as broad as I could. Is there
anything they ever turned their mind to.
MS. KELLY: Okay.
MR.
PALIARE: And the answer's no. You're not going to answer it? MS. KELLY: Right R/F [See Note 51 below]
————————
Note 51: Linden
Cross-Examination (December 10, 1999)
————————
85.
Greenspan suggested that the
Law Society would have been "grossly negligent" if it failed to
investigate the matter after the
newspaper articles were published. In the circumstances, where the Law Society
received an actual complaint and conducted
an investigation (without telling the Solicitor) and then did nothing until the
newspaper articles were written (and again, failed to notify the Solicitor for
six months), one must wonder how to characterize the conduct of the Law Society.
Greenspan suggested that the
Law Society would have been "grossly negligent" if it failed to
investigate the matter after the
newspaper articles were published. In the circumstances, where the Law Society
received an actual complaint and conducted
an investigation (without telling the Solicitor) and then did nothing until the
newspaper articles were written (and again, failed to notify the Solicitor for
six months), one must wonder how to characterize the conduct of the Law Society.
F.
The Solicitor's March 8, 1995 Letter
86.
On March 8, 1995, Moore wrote to the Law
Society and requested disclosure in accordance with the decision in R. v.
Stinchcombe [See Note 52 below]. Up to and including the January 1996 hearing before the first Panel, the Law Society
never suggested that Baker was entitled to anything other than Stinchcombe-type disclosure.
————————
Note 52: Letter dated March 8, 1995 from Moore to
Tinsley, Exhibit 7 to the Proctor Affidavit, Vol. IV, Tab 21(7), p 1290
————————
87.
The March 8, 1995 letter also asked Tinsley to
tell Moore when Baker had been notified of the Jackson allegations. Tinsley indicated that Baker had been put
on notice of the Jackson allegations by the enquiries Greenspan had made of
Baker in January, 1995.
G.
Scheduling Hearings in 1995
88.
The first attendance before the Law Society
Hearings Assignment Tribunal ("Assignment Tribunal") in this matter
was on March 13, 1995, at which time
"the matter was adjourned for three
weeks to allow the Solicitor to review disclosure and to bring on whatever other proceedings are
sought". At that attendance, the Assignment Tribunal indicated the
"the Law Society is trying very
hard these days to move hearings along promptly" and that "the goal
is to have hearing dates set as quickly as possible" [See Note 53 below].
————————
Note 53: Transcript dated March 13, 1995, Vol. XXIV,
Tab 1, p.
6739, 1.25-28
————————
89.
The next attendance before
the Assignment Tribunal was on April 3, 1995. At that hearing, the Law Society
prosecutor provided Moore with further disclosure. The prosecutor advised the
Assignment Tribunal and Moore that, as of that morning, she had provided Moore
with "the final disclosure" [See Note 54 below] in this case. The
Assignment Tribunal adjourned the matter
to April 18, 1995, endorsing the record as follows:
The next attendance before
the Assignment Tribunal was on April 3, 1995. At that hearing, the Law Society
prosecutor provided Moore with further disclosure. The prosecutor advised the
Assignment Tribunal and Moore that, as of that morning, she had provided Moore
with "the final disclosure" [See Note 54 below] in this case. The
Assignment Tribunal adjourned the matter
to April 18, 1995, endorsing the record as follows:
————————
Note 54: Transcript dated April 3, 1995, Vol. XXIV,
Tab 2, p.
6742, 1.9-13
————————
Solicitor
only received certain disclosure this morning and needs time to get instructions on the possibility of other
proceedings and to review all disclosure before setting a hearing date. The Law
Society opposes further adjournment. Adjourned to the April 18, '95 to set a
date [See Note 55 below].
————————
Note 55: Transcript dated April 3, 1995, Vol. XXIV,
Tab 2, p.
6751, 1 .4-9
————————
90.
Also at the April 3, 1995 Assignment Tribunal
hearing, Moore requested that this matter be transferred to the complex track so that the parties could appear before a
procedural management bencher. This request was denied [See Note 56 below].
————————
Note 56: Transcript dated April 3, 1995, Vol. XXIV,
Tab 2, p.
6744, 1.6-10, p. 6747, 1. 16-19
————————
91.
The next attendance before the Assignment
Tribunal was on April 18, 1995. At that appearance, the hearing was scheduled to proceed on September 5-8, 1995 and at
least one week of October
23 to November 3, 1995 [See Note 57 below]. At that
hearing, Moore informed the Panel that Chris Paliare ("Paliare") had been retained as co-counsel on behalf of
Baker and requested that the week of
September 5 - 8 not be set due to Paliare's unavailability. The Assignment
Tribunal indicated that the Law Society had institutional difficulties in
scheduling lengthy hearings and fixed the September dates. [See Note 58 below]
————————
Note 57: Chandran
Affidavit, para. 34, Vol. XXIII, Tab 1
Note 58: Transcript dated April 18, 1995, Vol. XXIV,
Tab 3, p.
6756, l. 11-14
————————
92.
The parties next attended
before the Assignment Tribunal on
June 12, 1995. At that hearing, Greenspan recognized the pre- charge delay in
this matter.
The parties next attended
before the Assignment Tribunal on
June 12, 1995. At that hearing, Greenspan recognized the pre- charge delay in
this matter.
I can't say with a straight face that this matter has
proceeded from the beginning of the investigation with great haste and as a result, Mr. Baker has been under
investigation for quite some time before these matters were brought. Secondly,
as I understand it, he's in the
private sector and has been for some time and so the sense of urgency, although
the matter should be dealt with, obviously, the sense of urgency is not one
that I can honestly submit to you that we should somehow proceed when counsel
has made other arrangements in advance. I'm satisfied that those arrangements
are not frivolous. [See Note 59 below]
————————
Note 59: Transcript dated June 12, 1995, Vol. XXIV,
Tab 4, p.
6760, 1. 13-16
————————
93.
Paliare made it clear that the request for a 3
1/2 week adjournment was not for the purpose of delaying the proceedings.
This isn't a question of delay. As Mr. Greenspan says,
Mr. Baker isn't practising. It isn't as though from a public protection point
of view that you have to have concerns on that front. I agree it's got to be
dealt with and no one is attempting to slow this thing down but I would be
grateful if I could fulfil the commitment that I made about this conference.
[See Note 60 below]
————————
Note 60: Transcript dated June 12, 1995, Vol. XXIV,
Tab 4, p.
6762, 1. 5-11
————————
94.
The Assignment Tribunal again referenced the institutional problems in scheduling lengthy hearings:
My
problem is that I think it is unrealistic to expect us to get two consecutive weeks of hearings
with a volunteer panel [See Note 61 below].
————————
Note 61: Transcript dated June 12, 1995, Vol. XXIV,
Tab 4, p.
6761, 1. 5-8
————————
95.
At the
June 12, 1995 Assignment Tribunal appearance, the September 1995 dates were
adjourned to the first week of October
1995, on consent, to accommodate Paliare's schedule [See Note 62 below]
At the
June 12, 1995 Assignment Tribunal appearance, the September 1995 dates were
adjourned to the first week of October
1995, on consent, to accommodate Paliare's schedule [See Note 62 below]
————————
Note 62: Chandran
Affidavit, para. 34, Vol. XXIII, Tab 1
————————
96.
The parties next attended before Assignment
Tribunal on October 10, 1995. The dates scheduled for the first week of October
1995 date did not proceed because the prosecutor objected to the lack of adequate notice of the Solicitor's
preliminary motion for disclosure and a stay (which was served while the
prosecutor's law firm was in the process of moving offices). While the
prosecutors were well aware that Baker's counsel had developed serious concerns
about the adequacy of disclosure and intended to seek the assistance of the
Panel, and also knew that Baker's counsel was considering his remedies for
alleged abuses that arose in the investigation stage of this matter, they were
not prepared to deal with the motions when particulars were provided on the
Friday before the scheduled Monday commencement of the hearing. As a result,
all four scheduled days were adjourned.
97.
The scheduled dates from October 30 to November
3, 1995 were cancelled without explanation to Baker's counsel [See Note 63
below]. On October 10, 1995, the parties consented to dates in January 1996,
marked peremptory for both sides for the purpose of arguing Baker's preliminary motions [See Note 64 below]. Also
at that hearing, the prosecutor made reference to institutional difficulties in
selecting a panel willing to commit the necessary
time to this case [See Note 65 below].
————————
Note 63: Chandran
Affidavit, para. 34, Vol. XXIII, Tab 1
Note 64: Transcript dated October 10, 1995, Vol.
XXIV, Tab 5, p.
6769, 1. 25-30, p. 6766, 1. 9-14, p. 6767, 1. 25-29
Note 65: Transcript dated October 10, 1995, Vol.
XXIV, Tab 5, p.
6769, 1. 11-13
————————
H.
The January 1996 Proceedings: The Disclosure Motion
98.
The Panel first convened to deal with the
Complaint on January 24, 25 and 26, 1996. At that time, the Panel had before it
a motion initiated by the Solicitor seeking an order that the
Complaint be quashed or the proceedings be stayed on
the basis that:
(a)
the investigation conducted by the Law Society was incomplete, biased, and unfair;
(b)
the Law Society had violated
its own rules, policies, and
regulations;
the Law Society had violated
its own rules, policies, and
regulations;
(c)
Baker had been treated in a discriminatory
manner; and
(d)
the decision of the Law Society to initiate
proceedings against Baker was fundamentally flawed (the "Motion to Quash"). [See Note 66 below]
————————
Note 66: Factum of Thomas Bruce Baker filed January
23, 1996 ("January 23, 1996
Factum"), Vol. VIII, p. 2989
————————
The Motion to Quash was supported by extensive
affidavit material which was
uncontradicted. [See Note 67 below]
————————
Note
67: Affidavit of Roger Proctor sworn October 19, 1995 ("Proctor
Affidavit"), Vol. IV, Tab 21, pp. 1242-1276 (plus exhibits)
————————
99.
Alternative relief sought by Baker on the
motion was an order requiring the Law
Society prosecutors to provide additional disclosure. [See Note 68 below]
Correspondence filed at the January 1996 hearing revealed that Baker's counsel
had raised concerns relating to the adequacy of the disclosure and that Baker's
counsel continued to express those concerns from the time of the issuance of the complaint until the hearing before
the panel. The prosecutors had advised Baker's counsel on April 3, 1995 that he
had been provided with the "final disclosure" in respect of these
proceedings [See Note 69 below]. However, the Record indicates that the Law
Society continued to provide disclosure (notwithstanding numerous assurances
that full disclosure had previously been given) up to the eve of the January
1996 hearing, that further disclosure was provided by the Law Society at the hearing itself, and that even more
documents were provided immediately after the January hearings were concluded
[See Note 70 below].
————————
Note 68: Transcript of the Hearing January 24-26,
1996 ("January 1996
Transcript"), Vol. 1, Tabs 2-4, pp. 52-330
Note 69: Transcript dated April 3, 1995, Vol. XXIV,
Tab 2, p.
6742, 1. 9-13
Note 70:
Proctor Affidavit, Vol. IV, Tab 21, Transcript of the Hearing on January 24-26,
1996, Vol. 1, Tabs 2-4 January 23, 1996
Factum, Vol. VIII, p. 2989
————————
100.
The Panel suggested and the parties agreed to
proceed with the disclosure issues
first because it was recognized that the outcome of these issues might yield
additional information relevant to the primary relief sought on the Motion to
Quash. [See Note 71 below]
————————
Note 71: January 1996 Transcript, Soriano Affidavit
#2, Exhibit A, Application Record,
Vol. III, Tab 1, p. 726-7
————————
I.
History of Non-Disclosure by the Law Society
Prior to January 24-26, 1996 Hearing:
101.
As detailed above, shortly after Moore's first
request for Stinchcombe disclosure on March 8, 1995, Moore attended on several
occasions before the Hearings Assignment Tribunal. As Baker had the right to
receive full and timely disclosure, Moore
took the position that a date should not be set until the Law Society had provided
full disclosure. During this period, Greenspan provided disclosure from time to
time. As at April 3, 1995, Baker was advised that the Law Society had completed
its disclosure and, as a result, on April 18, 1995, a hearing date for the
commencement of the case before the Discipline
Committee was fixed [See Note 72 below]
————————
Note 72: January 23, 1996 Factum, Vol. VIII, Tabs
9-3, p. 2991,
paras. 9-11
————————
102.
On August 12, 1995, Paliare advised the Law
Society of his concern regarding the apparent lack of completeness of disclosure of essential documentation and
information. On August 28, 1995, Paliare wrote to the Law Society formally
requesting further disclosure. Commencing September 15, 1995, and continuing up
to January 19, 1996, a series of letters was received by Paliare, each of which
provided further disclosure and each of which asserted that the Law Society had
"now" fulfilled its disclosure obligations. A chronology of these
letters and events is as follows:
(i)
A September 15, 1995 letter from Greenspan was
accompanied by numerous documents
and memoranda that had been in the Law Society's possession since late 1992 and
early 1993. In this letter, Greenspan stated:
I accept
that the Law Society has a duty to produce all relevant documents or
information in the Law Society's possession or
under its control or power, except to the extent that the documents are privileged. To that end, I believe
that inclusive of this letter and its contents, I have now fulfilled my
obligation in relation to the proceedings against Mr. Baker...However, I invite
you to come to my office to view all of the material that was generated during
the course of the investigation of the matters which are in issue, apart from
any documents which are clearly the subject of privilege... [See Note 73 below]
(underlining added)
————————
Note 73: Letter from Greenspan
to Paliare dated September 15, 1995,
Vol. IV, Tab 10, p. 1297
————————
(ii)
On September 20, 1995, counsel for Baker
attended at Greenspan's office in response to the above invitation. As a result
of this attendance, several new documents and other materials were discovered,
including statements of witnesses which had been in the Law Society's
possession since August, 1994 [See
Note 74 below].
————————
Note 74: See letters from Paliare to Greenspan dated September 27, 1995, Vol. IV, Tab 14, p.
1312, Tab 15, p. 1320
————————
(iii)
On September 26, 1995, Greenspan wrote to
Paliare providing additional
disclosure in response to further questions from Paliare regarding disclosure
and again stated:
I
believe that I have now fulfilled my disclosure obligations in relation to the
proceedings against Mr. Baker and that any complaint by Mr. Baker that he is
uncertain of the particulars of the
complaints against him is unfounded [See Note 75 below]. (underlining added)
————————
Note 75: Letter from Greenspan
to Paliare dated September 26, 1995,
Vol. IV, Tab 13, p. 1307
————————
(iv)
On September 27, 1995, counsel for Baker wrote
two letters to Greenspan inquiring
about the additional disclosure and
documents contained in the September 26, 1995 letter
and requesting further documents about which Baker's counsel was now aware and which had not been
previously disclosed [See Note 76 below].
————————
Note 76: See letters from Paliare to Greenspan dated September 27, 1995, Vol. IV, Tab 14, p.
1312, Tab 15, p. 1320
————————
(v)
On December 14, 1995, Greenspan responded to
the two letters of September 27,
1995. He provided most, but not all of the documents requested as a result of
the September 20, 1995 attendance at his office. In addition, the December
14th, 1995 letter contained new materials and information that had not
previously been disclosed to Baker and went on to state:
...what I have enclosed now covers everything that
the Law Society has in its possession relating to Mr. Baker's conduct in either
acting or not acting for Drs. Forder and Mele [two complainants] during the
course of the Genesco/Agnew transaction.
There's nothing more in our possession....you now have everything on the Rosbrook complaint that is relevant to the
investigation of Mr. Baker. [See Note 77 below]. (underlining added)
————————
Note 77: Letter dated December 14, 1995 from
Greenspan to Paliare, Vol. V, Tab
22(7), p. 1813
————————
(vi)
On January 9, 1996 [See Note 78 below], counsel
for Baker again wrote to Greenspan asking questions arising out of the new information and documents disclosed on
December 14, 1995 and reiterating earlier requests to which no response had
been made.
————————
Note 78: Letter dated January 9, 1996 from Paliare to Greenspan, Vol. V, Tab 22(8), p. 1828
————————
(vii)
On January 19, 1996, Greenspan wrote providing
still more information and documents
which had not been previously disclosed. These materials related both to the
Rosbrook and Forder/Mele complaints. Greenspan
stated:
You now have in your possession or have had a chance
to review all of the material related to the Rosbrook matter... Until recently,
I believe that we were in receipt of all of the material that the LSUC had
received from Mr. Roher [counsel for
Drs. Forder and Mele]. As a result of your inquiries, however,
Shayne Kert
attended at the offices of Lockwood and Associates to review any and all material in their possession. You are now
being sent any materials which we did not previously have in our possession.
You are now in receipt of all of the material in the possession of the LSUC and
all of its various representatives/investigators which reflect any statements
made or information conveyed by Mr. Roher, as well as any material dealing with
any allegations before the panel [See Note 79 below]. (underlining added)
————————
Note 79: January 23, 1996 Factum, Vol. VIII, Tab 9-3,
pp. 3010-
3011, para 50; Vol. V, Tab 22(9), p. 1840
————————
(viii)
At the appearance before the Law Society on
January 24, 1996, a further
disclosure package was provided to Baker's counsel.
J.
The Disclosure
Decision
103.
On January 26, 1996, after three days of
argument, the Panel gave an oral
ruling (the "Disclosure Decision") requiring the prosecution to
provide substantial additional disclosure which had not been provided to Baker.
The Disclosure Decision ordered the prosecution to submit the Lockwood and
Greenspan investigation reports to the Panel for its review. Eberts stated on
January 26, 1996:
Number
3 on exhibit 3 is copies of any reports which were prepared by you in
connection with the CGL investigations, excluding any legal opinions or legal
advice. And then we also have number 4, the Fournie and Greenspan reports of
their investigations on the Genesco-Agnew matter. We understand that the
primary basis for refusing production of these reports is that they are
protected by solicitor-client privilege obtaining between the Law Society and
its solicitors. We do not believe that we are, again, in a situation like that
of O'Connor where there must be established a threshold of some degree of relevancy in order to trigger the court's
inspection, but we are satisfied nonetheless that these reports are quite
relevant to the matters that are in these complaints.
Further, we have noted the Law Society's usual
practice of having a report of an
investigation followed by an authorization memo, and the usual practice further
of having the report of the investigation accessible to the solicitor, and only
the authorization memo cloaked by solicitor-client privilege. We consider it
inappropriate for the Society by collapsing those two stages and having them both done by a law firm to cloak the
investigation with solicitor-client privilege. We consider that the matters
that could be protected by solicitor-client privilege
are any matters relating to the advice or opinion of counsel, and
we will review these files once they are produced to
us and mask in some appropriate fashion the advice or opinion of counsel [See Note 80 below].
————————
Note 80:
Transcript of Proceedings dated January 26, 1996,
Record, Vol. I, Tab 4, p. 272
————————
104.
It is also required the Law Society provide
additional documents to counsel for Baker, including materials in the
possession of the Law Society with respect to contacts between its
investigators and police authorities. In addition, the Disclosure Decision
required the Law Society to provide a list of
those documents which it objected to producing on the grounds of privilege,
together with an explanation of the grounds of privilege asserted and a
description of documents to assist the Panel in assessing and the Solicitor's
counsel in responding to any such claims. Finally, the Disclosure Decision
directed that there be an expeditious follow up attendance before the Panel to
deal with a residual disclosure issue relating to one of the three principal
allegations contained in the Complaint. [See
Note
81 below]
————————
Note 81: Oral Reasons of the Panel dated January 26, 1996, ("Disclosure Decision"),
Vol. VIII, Tab 16, pp. 3097-3111
————————
105.
At the completion of the hearing, the Panel
indicated that more detailed written
reasons for its decision would be forthcoming [See Note 82 below].
————————
Note 82: Ibid.
————————
106.
Additional disclosure packages were delivered
to Baker's counsel on February 6, 1996, February 16, 1996 and February 22, 1996 [See Note 83 below].
————————
Note 83: Letters dated February 6, 16 & 22, 1996,
Vol. XVII, Tab 75(J), p. 5504, Tab
75(O), p. 5521, Tab 75(P), p. 5523
————————
K.
Judicial Review is sought by the Law Society
107.
After repeated inquiries to
find out the status of compliance with the Disclosure Decision, in early March,
1996, instead of complying with the Disclosure Decision, the Law Society
brought an application for Judicial Review to challenge the Panel's ruling.
[See Note 84 below] This was the first time in its history that the Law Society
had ever sought Judicial Review of its own tribunal. [See Note 85 below]
Convocation never gave its approval
to institute the Application for Judicial Review [See Note 86 below].
After repeated inquiries to
find out the status of compliance with the Disclosure Decision, in early March,
1996, instead of complying with the Disclosure Decision, the Law Society
brought an application for Judicial Review to challenge the Panel's ruling.
[See Note 84 below] This was the first time in its history that the Law Society
had ever sought Judicial Review of its own tribunal. [See Note 85 below]
Convocation never gave its approval
to institute the Application for Judicial Review [See Note 86 below].
————————
Note 84: Notice of Application for Judicial Review
dated March 12, 1996, Vol. XV, Tab
62-1, pp. 4924-4929
Note 85: Eagleson v. Law Society of Upper Canada, (28
June 1996) Panel of the Discipline
Committee, per Ruby, C. Chair, Vol.
XVIII, Tab 79-8, p.
5741
Note 86: Vol. XVIII, Tab 82(3), p. 5798, Tab 82(3),
p. 5793,
para. 10
————————
108.
On March 7, 1996, the Solicitor's counsel wrote
to the Panel inquiring about more
comprehensive reasons for the Disclosure Decision which the Solicitor had
understood would be forthcoming. In
addition, Baker's counsel requested that the follow-up disclosure attendance
(which was not the subject of the Law Society's Judicial Review proceeding) be
scheduled as soon as possible. Finally, the letter advised the Panel that the
Disclosure Decision had been filed for enforcement purposes pursuant to s.
19(1)(2) of the Statutory Powers Procedure Act (the "SPPA"). [See
Note 87 below] No response was received to these inquiries and requests. [See
Note 88 below]
————————
Note 87: R.S.O.
1990, Ch. S.22, s. 19(1)(2)
Note 88: Letter dated March 7, 1996 from Paliare to
Panel, Vol. XXI, Tab 106-2, p. 6416
————————
109.
On March 8, 1996 counsel for the Applicant
wrote to counsel for the Law Society
indicating that steps would be taken to enforce the Disclosure Decision. This
letter asked for the identity of the individuals responsible for the failure of
the Law Society to comply with the decision of the Panel "to ensure that
the appropriate officials are named in the application". [See Note 89 below]
————————
Note 89: Letter dated March 8, 1996 from Paliare to Greenspan, Vol. XXI, Tab 106-3, p. 6418
————————
By letter
dated March 11, 1996, the Law Society's counsel stated there was no need for this information:
I have your letter of March 8, 1996. I am writing to
advise you that my client in this matter is The Law Society of Upper Canada. Any relief that you may seek in
accordance with your recent correspondence is available to you in the absence
of my providing you with details of
the inner workings of the Law Society or the manner in which it corresponds
with its counsel. [See Note 90 below]
————————
Note 90: Letter dated 11 March 1996 from Greenspan to Paliare, Vol. XXI, Tab 106-4, p. 6419
————————
111.
On March 12, 1996, after being informed by
Paliare that the decision of the Panel had been filed with the Court for
enforcement purposes, the Law Society prosecutors commenced their application for judicial review.
The Law Society was identified as the Applicant, and Baker and the Panel were
named Respondents. The Law Society
advanced three arguments in relation to the ruling made by the Panel:
(i)
the panel had improperly attempted to insulate
itself from judicial review by
dictating a process by which the edited documents would be turned over to
Baker's counsel directly;
(ii)
the Panel had exceeded its jurisdiction by
ordering production and potential disclosure of allegedly solicitor and client documents; and
(iii)
the Panel had or would improperly violate or
dispense with alleged "public
interest" privilege [See Note 91 below].
————————
Note 91: Notice of Application for Judicial Review
dated March 12, 1996, Vol. XV, Tab
62-1, pp. 4924-4929
————————
112.
The Law Society did nothing to expedite the
hearing date of their application for
judicial review.
113.
The Law Society prosecutors did not challenge
the Panel's order that they produce a list of documents over which privilege
was being asserted. Following commencement of the application for judicial review, counsel for Baker
continued earlier efforts to
ascertain
whether and to what extent the Law Society had
complied with the Disclosure Decision. It was not until July, 1996 that
confirmation was received that the Disclosure Decision had not been complied
with, in a letter dated July 5, 1996 from Greenspan
to Paliare [See Note 92 below].
————————
Note 92: Letter dated July 5, 1996 from Greenspan to Paliare, Vol. IX, Tab 37-3, p. 3150
————————
In
response to your letter to me dated April 12, 1996, none of the items that are
listed in your letter had been provided to either the Panel or to you as each
is an aspect of the Panel's decision that is the subject of the judicial
review. More specifically, neither of the two "Greenspan reports"
(the main report ;and the letter report in relation to the complaints of Drs.
Forder and Mele regarding the other lawyers at Campbell, Godfrey & Lewtas)
nor the Fournie report to the Law Society, had been provided to the Panel for
their review; the LSUC investigative file (including correspondence, internal memos
and notes) has not been turned over to the Panel; the police contacts between Eric Fournie and the
police in relation to Mogul Holdings
have not been provided to you; no list of documents for which privilege is
claimed has been provided and only a portion of the Genesco-Agnew transaction
has been turned over as it was felt that the rest of the file (material
relative to the Randolph and Mogul complaints) was irrelevant.
When the judicial review process has concluded I
will, of course abide by any final
decision of the courts." [Emphasis added]
114.
Throughout the summer of 1996, Baker's counsel
maintained its request that the Panel reconvene as soon as possible to deal with residual disclosure issues
unrelated to the judicial review
application. In the Disclosure Decision, the Panel had directed that there be
an expeditious follow-up attendance; however, despite the requests of Baker's
counsel, such an attendance was not scheduled until the fall of 1996, when an
attendance was scheduled for November 27, 1996 "at the request of Mr.
Greenspan". [See Note 93 below]
————————
Note 93: Letter dated July 19, 1996 from Paliare to Greenspan, LSUC Record, Vol. 3, Tab 100
————————
115.
Proceedings in the Divisional Court included
Baker's application to quash the judicial review proceedings, a motion to cite the Law Society in contempt for
non-compliance with the Disclosure Decision, a motion by the Law Society for a
stay of
the
Disclosure Decision, and ultimately, a full hearing on the merits of the Law
Society's judicial review application. [See Note 94 below] The Law Society did
not attempt to stay the Disclosure Decision until Baker's counsel, in an
attempt to move matters forward,
brought the contempt motion. The motion for contempt and the motion for a stay
were heard on September 6, 1996.
————————
Note 94: Reasons for Decision of the Divisional Court
dated January 14, 1997 ("January 1997 Divisional Court Decision"), Vol.
XII, Tab 40-20, p.
4190
————————
116.
Although Mr. Justice Saunders found that the
Law Society had not complied with
the Decision of the Panel, he declined to cite the Law Society in contempt.
With respect to the cross-motion to stay, His Lordship ordered as follows:
1.
The order under review is stayed with respect
to those documents identified as privileged, provided that the documents shall be delivered forthwith to
the Committee, so that it may determine the issue of privilege in accordance
with the order.
2.
The stay referred to in paragraph 1 shall be
lifted if the Committee informs the Society of its decision with respect to
those documents, and gives it one week to consider its position, and to take such action as it may be advised prior to
making the documents available to Baker.
3.
The order will be stayed with respect to such
of the remaining documents ordered
to be produced that are specifically identified
and listed, and are delivered to the Committee before September 13, 1996 for
consideration of the issue of relevance. Those documents will be no longer
subject to the order under review, but shall be subject to such further order
as the Committee may decide to make [See Note 95 below].
————————
Note 95: Reasons for Decision of
the Honourable Mr. Justice Saunders,
September 6, 1996, Vol. XVI, Tab 66-H, p. 5191
————————
117.
Despite the
fact that its proceedings were not stayed and despite Paliare's requests that a
date be set, no hearing dates were scheduled by the Panel between January 26,
1996 and November 27, 1996. On
November 27, 1996, a brief appearance occurred during which the Law Society's
compliance (or non-compliance) with the Disclosure Decision was discussed. It
was apparent that the Law Society had failed to produce the list of privileged
documents that it was directed to produce on January 26, 1996 —
10 months earlier — and had only recently started the
process of preparing the lists. The institutional difficulties in scheduling a lengthy discipline
proceeding were alluded to by the Chair of the
Panel:
THE CHAIR:
We are not seized of the main matter as things
stand now. And for various reasons, I think I am concerned not to become
seized of the main matter.
As you know, I Chair the Legal Aid Committee which is
a very onerous responsibility, and the estimates are that this is going to be a very, or could be a very
long case [See Note 96 below].
————————
Note 96: Transcript dated November 27, 1996, Vol. 1,
Tab 5, p.
337, 1. 6-13
————————
L.
Law Society's Obfuscation of the Process
Envisioned Under the Order of
Saunders J.
118.
The Order of Saunders J. in the stay motion
established a regime to enable the Panel to begin its review of the allegedly
privileged documents, as contemplated in the Disclosure Decision, pending the argument of the Law Society's application
for judicial review on the merits. However, the manner by which the prosecution
team chose to "comply" with the Order of Saunders J., made it impossible for the Panel to
commence its review. The prosecutor provided boxes of allegedly privileged
documents to the Panel in a completely unorganized manner. Tunley acknowledged this, in his letters to the
Panel and in an appearance before the
Panel, as follows.
119.
Under cover letter dated September 11, 1996
Tunley forwarded to the Panel two
banker's boxes of allegedly privileged materials, one from Greenspan's office
and one from Fournie's office. Tunley noted that the boxes were delivered
pursuant to the Order of Justice Saunders; however, he further noted that:
At this time [sic], the materials are copied as they
appear in the firm files. I have not had an opportunity to review, list,
highlight, categorize, or organize the documents at this time. I propose to do so as quickly as
possible, and to provide list of the documents, by category to the Panel and to
Mr. Paliare. I would also propose to prepare a second, highlighted set of
documents, organized by category, if they would assist the Panel in its review and determination of
the privileged issues [See Note 97 below].
————————
Note 97: Letter from Tunley to Eberts dated September
11, 1996, Vol. VIII, Tab 36(11), p.
3075 [emphasis added]
————————
Under
cover letter dated September 12, 1996 Tunley
enclosed copies of further documents over which the Law Society was
claiming privilege. Tunley confirmed:
As indicated
in my letter yesterday, I will be re-organizing the documents to reduce overlap and duplication and to present
them to the Panel for consideration in a more organized format [See Note 98 below].
————————
Note 98: Letter from Tunley to Eberts dated September
12, 1996, Record, Vol. VIII, Tab
36(12), p. 3077
————————
121.
Under cover letter dated September 13, 1996,
Tunley forwarded to the Panel a single volume brief of documents over which the Law Society claimed
privilege [See Note 99 below].
————————
Note 99: Letter from Tunley to Eberts dated September
13, 1996, Record, Vol. IX, Tab 37(7),
p. 3160
————————
122.
Baker's counsel urged Tunley to proceed with
the necessary organization of the
documents so that the Panel could commence its review of them. By letter dated
September 18, 1996, Baker's counsel stated:
One final matter relates to the material you
forwarded to the Panel. It is obvious that the Panel will await the task of
reviewing the allegedly privileged documents until you provide the Panel with
the documents in a "re-organized" format. If the boxes of documents
are not in "readable" form, the Order of Justice Saunders is arguably
not being adhered to. Please advise us when you expect to have the documents
"re-organized" [See Note
100 below].
————————
Note 100: Letter from Paliare to Tunley dated
September 18, 1996, Record, Vol. IX,
Tab 37(8), p. 3164
————————
123.
In fact, the Law Society prosecution team did
not reorganize the documents for at
least seven months [See Note 101 below]. As acknowledged by Tunley, five months
after the Order of Justice Saunders and 13 months after the Panel's Disclosure
Decision, at the hearing on February 18, 1997:
————————
Note 101: Letter from Tunley to the Panel dated April
1, 1997, Record, Vol. XI, Tab
39(42), p. 3937
————————
It [the final list of documents over which LSUC
claims privilege, which, as of the
February 18, 1997 hearing, had not been prepared] will become, in effect, the
index to the documents that you need
to review. They're sitting in boxes in the Law
Society's possession, but I'll acknowledge it would be a daunting thing for any panel member to go through those
boxes and begin reviewing them. They're just not organized. [See Note 102 below]
————————
Note 102: Transcript dated February 18, 1997, Record,
Vol. II, Tab 6, p. 391, 1. 20-25,
[emphasis added]
————————
M.
Divisional Court Dismissed the Law Society's
Application for Judicial Review
124.
In January 1997 the Divisional Court issued
reasons for decision dismissing the Law Society's application for Judicial
Review. These reasons made it clear that the parties and the Court understood
that the Panel's Disclosure Decision had directed that a "cut and
paste" approach to the alleged privileged documents would be followed and
would result in the disclosure of edited versions of the Law Society
investigative reports. The Court concluded that the Panel's determination to proceed
in this way was within its jurisdiction and not patently unreasonable. [See Note 103 below]
————————
Note 103: January 1997 Divisional Court Decision,
Record, Vol. VIII, Tab 36-13, p. 3078
————————
N.
Law Society's Continued Non-Compliance with the Disclosure Decision: The Saga of the Lists
125.
In terms of the list the Law Society was
ordered to produce in the Disclosure Decision, Tunley suggested that he would
provide a draft list to Baker's counsel in October, 1996. Baker's counsel expressed grave concerns
with this, anticipating that the
process of providing drafts would lead to further delay:
In addition, the suggestion that we review
"draft" lists subject to a
final review or approval of some kind by Mr. Greenspan is also unattractive.
The reason for your suggestion appears to be that Mr. Greenspan's office has
not prepared the lists to date
and will not
be available to expeditiously review such lists as you produce prior to
releasing same to us. Apart from the uncertainty as to what types of
"errors" would be subject to ultimate correction by Mr. Greenspan, it
is clear that the procedure proposed by you cannot be definitively completed
until Mr. Greenspan and his associates have reviewed the lists. In our view,
this procedure will not save any time and has the potential to create additional issues, which we wish to avoid.
The direction to prepare these lists dates back to January 26, 1996. Since that
time, we have been doing everything possible to ensure that the Committee's directions were complied with.
Furthermore, four weeks have elapsed since our attendance before Justice
Saunders, at which time we understood that the process for reviewing and
organizing the documents was already underway. In these circumstances, we
believe that it is appropriate that a list(s) be prepared and provided to us as
soon as possible without the caveats and qualifications that your suggested
procedure would entail. In short, given the foregoing history, we do not understand why, at this
juncture, this should be a "slow" process as indicated in your
message. [See Note 104 below]
————————
Note 104: Letter from Paliare to Tunley dated October
4, 1996, Record, Vol. IX, Tab 37(9),
p. 3166
————————
126.
Despite Paliare's concern and express request
that he be provided with final list(s), the prosecution team began forwarding a
series of "draft" lists on November 14, 1996. [See Note 105 below]
The first draft lists were considered by the Panel on November 27, 1996 and
were found to be inadequate. The Panel again directed the prosecutors to
provide an index to the privileged files, identifying the nature of the alleged privilege claimed for the document and
identifying the portions for which privileged was being claimed. In addition,
the Panel directed the prosecution
to prepare an "inventory" of allegedly irrelevant documents. The
Panel directed the prosecution to provide both
the index and the inventory to Paliare. [See Note 106 below] It was
understood by all of the parties that these lists needed to be finalized in
order for Baker's disclosure motion to proceed.
————————
Note 105: Letter from Tunley to Paliare dated
November 14, 1996, Record, Vol. IX,
Tab 37(10), p. 3169
Note 106: Excerpt from Transcript dated November 27, 1996,
Record, Vol. IX, Tab 37(11), p. 3245, 1. 23 - p.
3247, 1.3, p.
3249, 1.4 - 24
————————
127.
Despite the direction of the
Panel, the prosecution team continued to provide further draft and revised
lists to Baker's counsel during the next nine months. On 18 separate occasions the prosecutors forwarded a total of 28
draft and revised lists to Baker's counsel. A summary of the exchange of
correspondence between counsel and follow-up attendances before the Panel during this period follows:
Despite the direction of the
Panel, the prosecution team continued to provide further draft and revised
lists to Baker's counsel during the next nine months. On 18 separate occasions the prosecutors forwarded a total of 28
draft and revised lists to Baker's counsel. A summary of the exchange of
correspondence between counsel and follow-up attendances before the Panel during this period follows:
January
31, 1997 Letter from Tunley to Paliare enclosing copy of Factual Summary and
indicating prosecution's intention to "get you [Paliare] a revised list
and categorization of the privileged
documents for review very shortly" [See Note 107 below].
————————
Note 107: Letter from Tunley to Paliare dated January
31, 1997, Record, Vol. IX, Tab 12, p. 3250
————————
February 4, 1997 Letter from Kelly to Paliare
enclosing three lists: - Complaints re John Jackson: Index to Documents Disclosed (7 pages) - The Jackson
Complaint: Index of Irrelevant/Arguably (2 pages) Relevant Documents - The
Royal Bank of Canada Litigation: Index to Irrelevant/Arguably Relevant
Documents (6 pages) [See Note 108 below]
————————
Note 108: Letter from Kelly to Paliare dated February
4, 1997, Record, Vol. IX, Tab 13, p. 3252
————————
February 4, 1997 Letter from Kelly to Paliare
enclosing: - list of documents re
Miscellaneous Litigation: Either Irrelevant or Privileged (38 pages) [See Note
109 below]
————————
Note 109: Letter from Kelly to Paliare dated February
4, 1997, Record, Vol. IX, Tab 14, p. 3268
————————
February
5, 1997 Letter from Tunley to Paliare enclosing: - list dated February 5, 1997: Draft Consolidated List of
Privileged Documents (50 pages) [See Note 110
below]
————————
Note 110: Letter from Tunley to Paliare dated
February 5, 1997, Record, Vol. IX,
Tab 15, p. 3307
————————
February 5,
1997 Letter from Kelly to Paliare enclosing: - list dated February 5, 1997:
Complaints re: The Rosbrook Estate, Index
of Documents Disclosed (25 pages) - list dated February 5, 1997: The Rosbrook
Estate: Index of Documents Irrelevant/Arguably Relevant (2 pages) [See Note 111 below]
————————
Note 111: Letter from Kelly to Paliare dated February
5, 1997, Record, Vol. IX, Tab 16, p. 3358
————————
February 7, 1997 Letter from Kelly to Paliare
enclosing: - list: The Forder/Mele Complaint: Index to Documents Disclosed (5 pages)
-
list: The Forder/Mele Complaint: Index to Documents Irrelevant/ Arguably Relevant (23 pages) [See Note 112 below]
————————
Note 112: Letter from Kelly to Paliare dated February
7, 1997, Record, Vol. IX, Tab 17, p. 3386
————————
February 12, 1997 Attendance before the Panel Counsel
provided a verbal report as to the
status of compliance with the Disclosure
Decision.The transcript indicates that the Law Society had not complied with
several aspects of the Disclosure Decision. In particular, the Law Society had
not delivered complete or final lists identifying the documents which it
objected to produce. It had not
provided detailed descriptions of the disputed
documents or the grounds of its objections. Moreover, the Law Society
had not delivered all of the disputed documents to the Committee nor had it delineated the factual parts of
all of the disputed documents from those portions which the Law Society claimed were legal advice or opinions, a step
which was necessary to enable the Panel's review of the said documents in
accordance with the principles set out in the then 13 month old Disclosure Decision. [See Note 113 below]
————————
Note 113: February 12, 1997 Transcript, Record, Vol.
II, Tab 6,
p.
382, in particular, pp. 385-394
————————
February 13, 1997 Letter from Kelly to Paliare to
advise that most of the documents contained on Tunley's list of privileged documents are also irrelevant
[See Note 114 below]
————————
Note 114: Letter from Kelly to Paliare dated February
13, 1997, Record, Vol. IX, Tab 18, p. 3416
February
13, 1997 Letter from Gowlings to Kelly enclosing a 21- page list of documents that are inadequately described on
the Consolidated Index of Privileged Documents [See Note 115 below]
————————
Note 115: Letter from Gowlings to Kelly dated
February 13, 1997, Record, Vol. IX,
Tab 18(A), p. 3418
————————
February 14, 1997 Letter from Kelly to Paliare
enclosing a list of documents that are in the irrelevant list that are "obviously privileged" in
addition to being irrelevant [See Note 116 below]
————————
Note 116: Letter from Kelly to Paliare dated February
14, 1997, Record, Vol. IX, Tab 19, p. 3442
————————
February 14, 1997 Letter from Gowlings to Kelly
advising that certain documents listed on the Law Society's "List of Documents Disclosed" had not, in
fact, been disclosed to Baker's counsel [See Note 117 below].
————————
Note 117: Letter from Gowlings to Kelly dated
February 14, 1997, Record, Vol. IX,
Tab 20, p. 3443
————————
February 25, 1997 List and letter from Kelly to
Paliare providing further disclosure
[See Note 118 below]
————————
Note 118: Letter from Kelly to Paliare dated February
25, 1997, Record, Vol. X, Tab 23, p. 3618
————————
February 26, 1997 Letter from Kelly to Paliare
enclosing: - documents disclosed under the list entitled "II.A. Contacts with Complainants" - documents
disclosed under the list entitled "II.B. Contacts with CGL and its
Counsel" - documents disclosed under the list entitled "II.E(6)
Contact with Canada Trust" [See
Note 119 below]
————————
Note 119: Letter from Kelly to Paliare dated February
26, 1997, Record, Vol. X, Tab 22, p. 3482
————————
February 26, 1997 List and letter from Kelly to
Paliare providing further disclosure
[See Note 120 below]
————————
Note 120: Letter from Kelly to Paliare dated February
26, 1997, Record, Vol. X, Tab 24, p. 3621
————————
February 26, 1997 Letter from Kelly to Paliare
enclosing list entitled "Documents Disclosed on 27 February 1997"
[all primary documentation relating
to Mogul] (8 pages), with bankers box of
disclosure [See Note 121 below]
————————
Note 121: Letter from Kelly to Paliare dated February
26, 1997, Record, Vol. X, Tab 25, p. 3627
————————
February 28, 1997 Letter/list from Kelly to Paliare
enclosing list of documents not previously disclosed from the "Jackson
Complaint Index of Documents Disclosed" together with copies of those documents [See Note 122 below]
————————
Note 122: Letter from Kelly to Paliare dated February
28, 1997, Record, Vol. X, Tab 26, p. 3634
————————
March
4, 1997 Letter from Tunley to Paliare enclosing six further lists: - list entitled "Further Disclosure: I D.
(3) Corporate Search Requisitions" - list entitled "Further
Disclosure: I G. Administrative Matters" - list entitled "Further
Disclosure: II
A.
Contacts with Complainants" - list
entitled "Further Disclosure: II B. Contacts with CGL - Irrelevant" -
documents disclosed under the list entitled:"Further Disclosure: II E. (1)
Contacts with Michael Graye" - list entitled "Further Disclosure: II C. Contacts with Law
Enforcement Agencies" [See Note 123 below]
————————
Note 123: Letter from Tunley to Paliare dated March
4, 1997, Record, Vol. X, Tab 27, p. 3636
————————
March 4, 1997 Letter from Paliare to Kelly requesting
revised and consolidated lists [See
Note 124 below]
Note 124: Letter from Paliare to Kelly dated March 4, 1997, Record, Vol. X, Tab 28, p. 3758
————————
March 5, 1997 Letter from Kelly to Paliare enclosing
list: Revised lists of allegedly irrelevant documents [See Note 125 below]
————————
Note 125: Letter from Kelly to Paliare dated March 5, 1997, Record, Vol. X, Tab 29, p. 3760
————————
March
10, 1997 Letter from Tunley to Paliare enclosing a Revised Consolidated Index of the Privileged File of Greenspan
and Fournie [See Note 126 below]
————————
Note 126: Letter from Tunley to Paliare dated March
10, 1997, Record, Vol. X, Tab 30, p. 3812
————————
March 13, 1997 Letter from
Tunley to Paliare enclosing list: Revised Consolidated Index of Privileged
Documents amended to reflect
additional disclosure, additional documents, and corrected or expanded
descriptions [See Note 127 below]
————————
Note 127: Letter from Tunley to Paliare dated March
13, 1997, Record, Vol. XI, Tab 31, p. 3835
————————
March 16, 1997 Letter from Kelly to Paliare enclosing
two relevant letters that had not been previously disclosed and which did not appear on any list [See
Note 128 below]
————————
Note 128: Letter from Kelly to Paliare dated March
16, 1997, Record, Vol. XI, Tab 32, p. 3873
————————
March 20, 1997 Letter from Paliare to Kelly setting out chronology of list production [See
Note 129 below]
————————
Note 129: Letter from Paliare to Kelly dated March
20, 1997, Record, Vol. XI, Tab 33, p. 3880
————————
March 20,
1997 Letter from Kelly to Paliare enclosing list of Undisclosed Irrelevant Documents [See Note 130 below]
————————
Note 130: Letter from Kelly to Paliare dated March
20, 1997, Record, Vol. XI, Tab 34, p. 3887
————————
March 21, 1997
Letter from Kelly to Paliare [See Note 131 below]
————————
Note 131: Letter from Kelly to Paliare dated March
21, 1997, Record, Vol. XI, Tab 35, p. 3893
————————
March
24, 1997 Letter from Paliare to Panel requesting the Panel to State a Case to
the Divisional Court pursuant to section 13 of
the SPPA or, in the alternative, asking the Panel to restate its Disclosure
Decision and direct full compliance with all of the aspects of that decision by
April 1, 1997 [See Note 132 below]
————————
Note 132: Letter from Paliare to Panel dated March
24, 1997, Record, Vol. XI, Tab 36, p. 3895
————————
March 24, 1997 Letter from Tunley to Paliare in which
LSUC, for the first time, claims
"public interest privilege" over the Greenspan and Fournie reports
[See Note 133 below]
————————
Note 133: Letter from Tunley to Paliare dated March
24, 1997, Record, Vol. XI, Tab 38, p. 3912
————————
March 25, 1997 Letter from Paliare to Kelly outlining continued non-compliance with Disclosure
Decision [See Note 134 below]
————————
Note 134: Letter from Paliare to Kelly dated March
25, 1997, Record, Vol. XI, Tab 39, p. 3918
————————
March 31, 1997 Letter from Tunley to Paliare advising
that an additional file of privileged
documents had been provided by Greenspan [See Note 135 below]
————————
Note 135:
Letter from Tunley to Paliare dated March 31,
1997, Record, Vol. XI, Tab 40, p. 3924
————————
April 1, 1997 Letter from Tunley to Panel responding
to the Solicitor's request for a Stated Case and indicating that the:
"Documents have not been carefully categorized,
organized and duplicated for view by the committee, and detailed lists
describing the nature and general content of the documents, their relevance or irrelevance, and the
basis on which privilege has been claimed, have been delivered to Mr. Paliare
and are to be filed with the Panel". [See Note 136 below]
————————
Note 136: Letter from Tunley to Panel dated April 1, 1997, Record, Vol. XI, Tab 39(42), P. 3937
————————
April 1 & 2,
1997 Attendance before the Panel
The
Panel refused to deal with the requests contained in Paliare's March 24, 1997
letter. Instead, the Panel heard argument, over the Solicitor's objection, as
to whether the disclosure of investigative reports should be through the
delivery of edited reports, as the Panel had ordered in the Disclosure Decision
which decision was upheld by the Divisional
Court, or whether such disclosure should be through a composite summary as desired by the Law Society. [See Note 137 below]
————————
Note 137: Decision of the Panel re
"Cut-and-Paste" dated May 15,
1997 ("Cut-and-Paste Decision"), Record, Vol. XIII, Tab 41(53), p. 4511
————————
By this time, in spite of the requests referred to in
the Baker's counsel's March 7, 1996
letter, and subsequent requests, the re- attendance to deal with the disclosure
issue which had been unaffected by the Law Society's Judicial Review
Application still had not taken
place. May 16, 1997 was finally fixed as the date for this attendance. Forder
and Mele, when faced with having to give evidence under oath, indicated that
they did not want to proceed, the Law Society offered no evidence in support of their
allegations and that part of the Complaint, counts 7
and 8, were dismissed. [See Note 138 below]
————————
Note 138:
Endorsement of the Panel on May 16, 1997, Record, Vo. XXI, Tab 105(Q), p. 6399.
Upon said dismissal the Solicitor's counsel indicated that costs would be
sought from the Law Society in
accordance with the Law Society rules and regulations. To date, the Solicitor's
inquiries of the Law Society to state its position regarding the payment of
said costs and requests to the Panel to deal with this issue remain unanswered.
See Letter from Paliare to Kelly dated June 5, 1997, Vol. XI, Tab 39(45), p. 3948
————————
April 7, 1997 Letter from Paliare to Tunley outlining continued non-compliance with Disclosure
Order [See Note 139 below]
————————
Note 139: Letter from Paliare to Tunley dated April
7, 1997, Record, Vol. XI, Tab 43, p. 3940
————————
April 8, 1997
Letter from Tunley to Paliare [See Note 140
below]
————————
Note 140: Letter from Tunley to Paliare dated April
8, 1997, Record, Vol. XI, Tab 44, p. 3944
————————
May 16, 1997 Mele and Forder complaints dismissed
[See Note 141 below]
————————
Note 141: Mele/Forder Complaints dated May 16, 1997,
Record, Vol. XIII, Tab 41(53), p. 4511
————————
June
5, 1997 Letter from Paliare to Kelly outlining non- compliance with Panel's
decision dated May 15, 1997 [See Note 142
below]
————————
Note 142: Letter from Paliare to Kelly dated June 5, 1997, Record, Vol. XI, Tab 45, p. 3948
————————
June 11, 1997 Letter from Tunley to Paliare enclosing list: Documents from E. Greenspan's File
[See Note 143 below]
————————
Note 143:
Letter from Tunley to Paliare dated June 11,
1997, Record, Vol. XI, Tab 46, p. 3955
————————
June 12, 1997
Attendance before the Panel
No substantive matters were dealt with on this
appearance. Although the Panel's Disclosure Decision was now 17 months old and
although the Law Society itself acknowledged that everyone had "been
inundated with a significant number of lists" since November, 1996 the Law
Society still had not completed its listing of all of the allegedly privileged
or irrelevant documents, nor had it delivered all of the said documents in a
useable form to the Panel. Counsel for the Law Society indicated that the Law
Society's final consolidated listing and description
of disputed documents would be provided to the Applicant by July 7, 1997, well
in advance of the next hearing on August 14 - 15, 1997, and that the parties
were to consult with the Panel on or about July 23, 1997 on the order in which
disclosure issues would be dealt
with, well in advance of the August hearing dates. The Panel also informed the
parties that it was unilaterally cancelling the hearings scheduled for July 23
and 24, 1997 to accommodate the Chair's schedule [See Note 144 below]
————————
Note 144: Transcript of the Discipline Hearing on
June 12, 1997, Record, Vol. XI, Tab
39(47), p. 3965
————————
July 16, 1997 Letter from Paliare to Kelly regarding
the Law Society's failure to provide final, consolidated list by the end of the
first week in July, as undertaken before the Panel on June 12, 1997, because Kelly had gone on vacation and would not
be returning until July 28, 1997 [See Note 145
below]
————————
Note 145: Letter from Paliare to Kelly dated July 16, 1997, Record, Vol. XI, Tab 48, p. 3969
————————
July
23, 1997 Letter from Paliare to Kelly setting out the ramifications of not
receiving the final, consolidated list until
the week commencing July 28, 1997, at the earliest:
We have now had an opportunity to consider carefully
the ramifications of our not receiving the list until, at the
earliest,
the week commencing July 28, 1997. You had previously indicated that the list
might eliminate some of the documents which are currently in issue and that, in
any; event, it would set out the specific basis for each claim of privilege on
a document by document basis, and would also contain improved descriptions of
the individual documents. Realistically, it is unlikely that we will have an
opportunity to review the revised list propery, discuss its contents and any
ongoing disagreements we may have with you regarding the order and manner of proceeding with the outstanding issues,
and articulate our positions on these matters to the Committee until the first
week of August.
Even if the Committee is then able to review such
submissions, and rule upon the proper order to proceed, with dispatch, in all
likelihood we will be left with only a few days notice as to what substantive matters are actually
going to be dealt with on August 14
and 15, 1997.
In
light of the history of this matter, and the amount of time which the Law
Society has had to prepare its case, it is unfair to force Mr. Baker to proceed
on short notice to argue any of the
many specific substantive disclosure issues, where the lack of notice is due to
the Society's failure to comply with the schedule and process it had earlier
agreed was appropriate.
However, we are anxious to see some progress be made
in this matter. We suggest that the fair and appropriate method of proceeding
would be to have the Committee hear argument from the parties with respect to some of the preliminary matters set
out in our letter of June 5, 1997. Specifically, we believe that the Committee must hear and determine our
motion to state a case regarding whether the Law Society has complied with the
Order of January 26, 1996, and that
this should take place on August 14 and 15,
1997.
As is also set out in our letter of June 5, 1997, in
our view it is incumbent on the Law
Society to establish through evidence that documents over which privilege is
asserted originated in a relationship in which the solicitor was retained by
the party claiming privilege qua solicitor and that the communications are of a character to which privilege can
apply. ... We would be willing to have this evidence led following resolution
of the stated case motion, as long as we have been given the requisite notice
of the witnesses you will call and their anticipated testimony. If there is a
disagreement about the necessity in principle to adduce such evidence, this too
is a matter which might be addressed before the Committee on August 14 - 15, 1997.
...
...
While we believe that the stated case motion and, possibly, the evidentiary
issue described above will occupy the August hearing dates, we would be happy
to discuss with you when the other listed matters should proceed and any other
suggestions you might have regarding
an appropriate method of proceeding. In any event, if we are unable to agree on
what should be happening on
August 14 - 15, 1997 as outlined above, we should
immediately advise the Panel of this and obtain their direction [See Note 146 below].
————————
Note 146:
Letter from Paliare to Kelly dated July 23, 1997,
Record, Vol. XI, Tab 49, p. 3971
————————
July 23, 1997
Letter from Tunley to Paliare [See Note 147
below]
————————
Note 147: Letter from Tunley to Paliare dated July
23, 1997, Record, Vol. XI, Tab 50, p. 3974
————————
July 28, 1997 Letter from
Paliare to Panel regarding LSUC's
failure to provide final lists [See Note 148
below]
————————
Note 148: Letter from Paliare to Panel dated July 28, 1997, Record, Vol. XI, Tab 51, p. 3976
————————
July 29, 1997 Letter from Kelly to Paliare enclosing
List: Revised Consolidated Index to Privileged Files [See Note 149 below]
————————
Note 149: Letter from Kelly to Paliare dated July 29, 1997, Record, Vol. XI, Tab 52-3, p. 3981
————————
July
30, 1997 Letter from Kelly to Paliare enclosing List: Revised Consolidated
Index to Privileged Files [See Note 150
below]
————————
Note 150: Letter from Kelly to Paliare dated July 30, 1997, Record, Vol. XI, Tab 54, p. 4002
————————
August 1, 1997 Letter from Kelly
to Paliare enclosing Revised
Consolidated Index to Privileged Files [See Note 151 below]
————————
Note 151: Letter from Kelly to Paliare dated August
1, 1997, Record, Vol. XI, Tab 56, p. 4005
————————
August 1,
1997 Letter from the Panel directing the order of proceedings for the hearing
scheduled for August 14 and 15, 1997:
...As we have now become totally bogged down in not
only the LSUC's efforts to organize its lists but also it appears dealings between counsel, my inclination
is simply to say that we will be dealing with the motion to state a case and
the parties should file their written material with us by August 11th. They
should file with us by August 11th everything they intend to rely on the motion.
...Given
that we will have received and reviewed written materials, I am proposing that
the oral argument on a request to state a case should take half a day in total
on August the 14th. The parties should agree on how that time will be divided
up in light of my determination that all oral argument will be finished half way through the day.
We will spend the rest of that period, namely the
afternoon of the 14th and the whole of the 15th dealing with the evidence
supporting the LSUC's privilege claims and it is my hope that we will be
finished that evidence by the end of the day on the 15th, cross-examination included. The panel is very anxious to
begin its review of the documents, which has been held up far too long. [See Note 152 below]
————————
Note 152: Letter dated August 1, 1997 from Panel
("Eberts' August 1, 1997
Letter"), Record, Vol. XIV, Tab 57, p. 4839
————————
August 5, 1997 Letter from Paliare to Kelly advising
that the revised lists are significantly incomplete [See Note 153 below]
————————
Note 153: Letter from Paliare to Kelly dated August
5, 1997, Record, Vol. XI, Tab 57, p. 4015
————————
August
7, 1997 Letter from Tunley to Paliare enclosing Final Lists of Privileged Documents:
Revised and improved Consolidated
Index to Privileged Files and reasons for non-disclosure [See Note 154 below]
(on the eve of the August 14 - 15, 1997 hearing)
————————
Note 154: Letter from Tunley to Paliare dated August
7, 1997, Record, Vol. XI, Tab 58, p. 4017
————————
August 8,
1997 Letter from Paliare to Tunley asking for identification of documents on
the consolidated index that pertain to the Campbell, Godfrey & Lewtas
investigation [See Note
155 below]
————————
Note 155: Letter from Paliare to Tunley dated August
8, 1997, Record, Vol. XI, Tab 60, p. 4086
————————
August 8, 1997 Letter
from Kelly to Paliare answering questions
regarding edited documents and why Greenspan documents had been added to the lists [See Note 156 below]
————————
Note 156: Letter from Kelly to Paliare dated August
8, 1997, Record, Vol. XI, Tab 61, p. 4088
————————
August
8, 1997 Letter from Paliare to Tunley requesting up to date list of irrelevant
documents that LSUC refuses to produce on
grounds other than privilege [See Note 157 below]
————————
Note 157: Letter from Paliare to Tunley dated August
8, 1997, Record, Vol. XI, Tab 62, p. 4090
————————
August 8, 1997 Letter from Tunley to Paliare
regarding documents from Campbell,
Godfrey & Lewtas investigation [See Note 158 below]
————————
Note 158: Letter from Tunley to Paliare dated August
8, 1997, Record, Vol. XI, Tab 63, p. 4096
————————
128.
The Panel had decided that until the lists were
provided in their final, final form,
the document by document disclosure review process could not begin. Thus,
despite having six years prior to the charge being laid during which to get
their case in order, and almost a
year before the January hearing dates, the prosecution took a further 18 months
to organize their files and prepare
the lists of documents which were not being
produced.
O.
Law Society's Continuing Failure to Provide
Timely Disclosure
129.
On
October 23, 1996 counsel for Baker asked counsel for the Law Society whether
Baker had yet received the full disclosure he
was entitled to receive under Stinchcombe. Counsel for the Law Society refused
to answer this question.
On
October 23, 1996 counsel for Baker asked counsel for the Law Society whether
Baker had yet received the full disclosure he
was entitled to receive under Stinchcombe. Counsel for the Law Society refused
to answer this question.
130.
At the November 27, 1996 hearing date, counsel
for the Law Society indicated that the prosecution was not yet in a position to tell Baker whether he had
received full disclosure [See Note
159 below].
————————
Note 159: Transcript of Proceedings dated November
27, 1996,
Record, Vol. 1, Tab 5, p. 25
————————
131.
On December 11, 1996, Baker's counsel once
again asked whether Baker had yet received all relevant non-privileged
documents, and disclosure of other relevant information in the possession of
the Law Society in an appropriate non-privileged forum, where the information
is in a document for which privilege
is claimed [See Note 160 below].
————————
Note 160: Linden
Affidavit, Vol. 3, Tab 123
————————
132.
Under cover of a letter dated January 22, 1997,
counsel for the Law Society
indicated:Counsel for the Law Society are reviewing the disclosure that has
been made, and will advise you of its
position shortly.
133.
The answer to Baker's questions came in the
form of substantial amounts of further disclosure. The activity associated with
the prosecutors' efforts to produce a list of documents over which it claimed
privilege seemed to lead to the prosecutors finding many undisclosed, relevant
documents in their files. As a
result, supplemental disclosure packages were received by Baker's counsel on
the following dates:
September 13, 1996 Eleventh supplemental disclosure
provided to the Solicitor February 25, 1997 Twelfth supplemental disclosure
provided to the Solicitor February 26, 1997 Thirteenth supplemental disclosure
provided to the Solicitor February 26, 1997 Fourteenth supplemental disclosure
provided to the Solicitor February
27, 1997 Fifteenth supplemental disclosure provided to the Solicitor February
28, 1997 Sixteenth supplemental disclosure
provided to the Solicitor March 3, 1997 Seventeenth supplemental disclosure
provided to the Solicitor March 13, 1997 Eighteenth supplemental disclosure
provided to the Solicitor March 16, 1997 Nineteenth supplemental disclosure
provided to the Solicitor
134.
In addition, Baker's counsel
received a document which the Law Society purported to be a summary of all of
the factual information contained in the privileged documents in this period. More than two years after the
complaint was sworn and more than two years after Baker was informed by formal
notice that the Law Society's counsel was prepared to make full disclosure,
Baker received disclosure of the documents that the prosecution admits he is
entitled to have.
In addition, Baker's counsel
received a document which the Law Society purported to be a summary of all of
the factual information contained in the privileged documents in this period. More than two years after the
complaint was sworn and more than two years after Baker was informed by formal
notice that the Law Society's counsel was prepared to make full disclosure,
Baker received disclosure of the documents that the prosecution admits he is
entitled to have.
P.
The August 14-15, 1997 Hearing Before the Panel
135.
As set out above, in the absence of the final
lists, on August 1, 1997, a letter from the Chair of the Panel to the Hearing
Coordinator was circulated to the parties. In this letter, the Chair indicated
that the August 14-15, 1997 dates would be used to hear arguments about the
requests contained in the Solicitor's March 21, 1997 letter, [See Note 161
below] and the procedural dispute about the obligation on the Law Society to call evidence to support its privilege claims.
————————
Note 161: Eberts' August 1, 1997 Letter, Vol. XIV,
Tab 57, p.
4839
————————
136.
The Solicitor's position was that the claims of
privilege required proof of certain facts, that the Law Society had the onus to
call viva voce evidence to establish those facts, and that Baker would be
entitled, if so advised, to cross-examine and
adduce evidence in response. The Law Society asserted that this method of
proceeding was not appropriate, that its claims of privilege could and should
be dealt with by simple review of the documents, and that the Panel should not
receive any viva voce evidence about these issues. [See Note 162 below]
————————
Note 162: Letter from
Paliare to Tunley dated July 23, 1997, Vol.
XIII, Tab 41(59), p. 4552; Letter from Paliare to the Panel dated July 28, 1997, Vol. XIII, Tab
41(61), p. 4556; Letter from Tunley
to Paliare dated August 7, 1997, Vol. XIII, Tab
41(66), p. 4568; Excerpt from Law
Society's written argument dated August 10, 1997, Vol. XIV, Tab 60, pp. 4865-4886
————————
137.
Counsel for Baker immediately wrote to counsel
for the Law Society and asked to be advised which witnesses the Law Society
intended to call and to be provided with an outline of their anticipated
evidence at least a week before the August 14, 1997 hearing date, so that
counsel could be properly prepared to cross
examine and consider what evidence should be called in rebuttal. [See Note 163 below]
————————
Note
163: Letter from Paliare to Tunley dated July 23, 1997, Vol. XIII, Tab 41(59), p. 4552; Letter from Paliare to Panel
dated July 28, 1997, Vol. XIII, Tab 41(61), p. 4556; Eberts' August 1,
1997 Letter,
Vol. XIV, Tab 57, p. 4839
————————
138.
By the time of the hearing on August 14-15,
1997, the Law Society's lists of allegedly privileged and or irrelevant
documents had proliferated to twelve separate categories of documents which
were described in 64 pages of lists. The "final"
versions of these materials were delivered to counsel for Baker on the eve of
the hearing. However, as of August 14 - 15, 1997, the Law Society had still not
delineated or otherwise identified
the factual components of most of these documents as required by the Disclosure Decision. In addition,
notwithstanding the correspondence referred to above, the Law Society continued
to take the position that it did not intend to call evidence to establish the
various claims of privilege it was asserting and that it was unnecessary and
inappropriate for the Panel to receive such evidence. [See Note 164 below]
————————
Note 164: Law Society's Descriptive Indexes to the
Privileged documents, Vol. XIII, Tab 42, p. 4579; Transcript of the Discipline
Hearing on August 14-15, 1997 (hereinafter "August 14-
15, 1997 Transcript"), Vol. III, Tab 13, pp.
909-914; Excerpt from Law Society
Factum, Vol. XIV, Tab 60, pp. 4878-4886
————————
139.
As a result, when the hearing convened on
August 14 - 15, 1997, two areas of
argument were addressed:
(1) the requests contained in the March 24, 1997
letter from Baker's counsel, and (2)
the procedural issues about the necessity and admissibility of evidence
regarding the Law Society's claims of privilege. [See Note 165 below]
————————
Note 165: August 14-15, 1997 Transcript, Vol. II, Tab
12, Vol.
III, Tab 13
————————
140.
The Panel reserved its decision on the issues
raised in the letter dated March 24,
1997 from Baker's counsel [See Note 166 below].
Note 166: August 14-15, 1997 Transcript, Vol. III,
Tab 13, pp.
908-909, 930-931
————————
141.
With respect to the issue
about the proof of the Law Society's claims of privilege, the Law Society
repeated its position that no evidence was necessary and further, that the
Panel should not allow such evidence. Several potential witnesses were identified, and it was recognized that different
factual considerations might apply to the Law Society's claim of public
interest privilege. However, there was no disclosure of what any particular
witness would actually say if called, because the Law Society's primary
position was that it did not intend to adduce evidence and the matter could and
should be dealt with through a review of the documents without more. [See Note
167 below]
With respect to the issue
about the proof of the Law Society's claims of privilege, the Law Society
repeated its position that no evidence was necessary and further, that the
Panel should not allow such evidence. Several potential witnesses were identified, and it was recognized that different
factual considerations might apply to the Law Society's claim of public
interest privilege. However, there was no disclosure of what any particular
witness would actually say if called, because the Law Society's primary
position was that it did not intend to adduce evidence and the matter could and
should be dealt with through a review of the documents without more. [See Note
167 below]
————————
Note 167: August 14-15, 1997 Transcript, Vol. III,
Tab 13, pp.
909-914
————————
142.
The Panel reserved its decision regarding the
need for viva voce evidence about
the Law Society's privilege claims and about
the process to be followed if evidence was to be permitted. [See Note 168 below]
————————
Note 168: August 14-15, 1997 Transcript, Vol. III,
Tab 13, pp.
908-909, 930-931
————————
143.
It was recognized by the parties and the Panel
that it would be necessary to have
the Panel's decision and its reasons about these issues for a reasonable period
in advance of the next scheduled hearing dates (October 2 - 3, 1997). At the
conclusion of the hearing on August 15, 1997, the Panel stated:
We are mindful of counsel's request that we let them
know sooner rather than later what
we will expect we will be doing the 2nd and 3rd (of October) when we convene,
and I can tell you that we don't
intend to reserve this matter for long. We'll certainly have something within
the next week or two. [See Note 169 below]
————————
Note 169: August 14-15, 1997 Transcript, Vol. III,
Tab 13, pp.
930-931
————————
As it turned out, the Panel took almost one year to
render its decision.
Q.
Cancellation of Hearing Dates Between August
1997 and July 1998
144.
Unfortunately, the Panel's
reasons for decision remained under reserve for 111/2 months. During this
period, Baker's counsel repeatedly advised the Panel and the prosecution that
Baker needed and required an opportunity to review and consider the Panel's
decision and reasons regarding all of the matters argued on August 14-15, 1997
for a reasonable period (a few days)
prior to the continuation of the hearing. The Panel appeared to recognize the
validity of this request, and when it became apparent that the Panel was unable
to release its decision and reasons as intended, at least 11 scheduled hearing
dates were either cancelled unilaterally by the Panel or adjourned at the
request of Baker's counsel. [See Note 170 below] The chronology was as follows:
Unfortunately, the Panel's
reasons for decision remained under reserve for 111/2 months. During this
period, Baker's counsel repeatedly advised the Panel and the prosecution that
Baker needed and required an opportunity to review and consider the Panel's
decision and reasons regarding all of the matters argued on August 14-15, 1997
for a reasonable period (a few days)
prior to the continuation of the hearing. The Panel appeared to recognize the
validity of this request, and when it became apparent that the Panel was unable
to release its decision and reasons as intended, at least 11 scheduled hearing
dates were either cancelled unilaterally by the Panel or adjourned at the
request of Baker's counsel. [See Note 170 below] The chronology was as follows:
————————
Note 170: Compendium of Documents filed by Baker's
counsel at the Discipline Hearing on
July 27, 1998, Vol. XIII, Tab 48, p. 4662
————————
(1)
The October 2 - 3, 1997 hearing was cancelled
unilaterally by the Panel because no
decision or reasons for decision were available. [See Note 171 below]
————————
Note 171: Transcript of
the Discipline Hearing on July 27, 1998
(hereinafter "July 27, 1998 Transcript"), Vol. III, Tab 15, pp. 957-958
————————
(2)
The parties attended before the Panel on March
4, 1998.
During the March 4, 1998 hearing the parties were
told, for the first time, that the Panel had decided not to state a case. The
Panel also told the parties that it had not prepared its reasons for decision
and that in the circumstances the date of its decision would be deemed to be
the date of the said reasons. [See
Note 172 below]
————————
Note 172: Transcript of the Discipline Hearing
Committee on March 4, 1998
("March 4, 1998 Transcript"), Vol. III, Tab 14, p. 933
During the
March 4, 1998 hearing, the Panel indicated that it did not intend to deal with the issues relating to the calling
of evidence in the manner which had been proposed by the Solicitor, but did not
elaborate. Counsel for the Solicitor reiterated that it was important that
reasons for decision be available for review for a short, but reasonable period
in advance of the next scheduled hearing date April 8, 1998. This was to enable
proper consideration of those reasons and preparation for the hearing. [See
Note 173 below]
————————
Note 173: March
4, 1998 Transcript, Vol. III, Tab 14, pp. 933-935
————————
The
Panel appeared to agree that this was appropriate and indicated that the
reasons for decision would be released by March 30, 1998. In this context the
Panel stated, without inviting or hearing any submissions, that even if a
Judicial Review application was instituted after the release of its reasons, it
would not adjourn the April 8 hearing. [See Note 174 below]
————————
Note 174: March
4, 1998 Transcript, Vol. III, Tab 14, pp. 937-941
————————
At the conclusion of the March 4 hearing, May 13, 14,
15, June 2,
3,
4, 5 and July 27, 28, 30 and 31 were also scheduled for further hearings. [See Note 175 below]
————————
Note 175: March
4, 1998 Transcript, Vol. III, Tab 14, pp. 937-441
————————
(3)
The March 5, 1998 hearing was cancelled by the
Panel [See Note 176 below].
————————
Note 176: Chandran Affidavit, para. 35, Vol. XXIII,
Tab 1, para. 35, p. 13
————————
(4)
When the Panel's reasons for decision were not
released by March 30, 1998, the Solicitor made a written request for an
adjournment of the April 8 hearing on grounds which included reference to the
Solicitor's expectation that there would be
an opportunity to receive and review the Panel's reasons for
approximately one week in advance of the resumption of the
hearing. [See Note 177 below] The Panel adjourned the hearing date scheduled for April 8, 1998
[See Note 178 below]
————————
Note 177:
Letter from Paliare to Anatol dated April 2, 1998, Vol. XIII, Tab 48(3), p. 4673
Note 178: Chandran Affidavit, para. 35, Vol. XXIII,
Tab 1, para. 35, p. 13
————————
(5)
The hearing dates scheduled for May 14 and 15,
1998 were cancelled by the Panel due to the Chair's need to attend an
"emergency facilitation meeting for her clients" [See Note 179 below]. The May 13th, 1998 date simply
disappeared from the schedule.
————————
Note 179: Chandran Affidavit, para. 35, Vol. XXIII,
Tab 1, para. 35, p. 13
————————
(6)
The June 2, 1998 date was cancelled by the
Panel due to a "bencher conflict" and the June 3 and 4, 1998 dates
were adjourned due to non-delivery of written reasons by the Panel for the August 1997 motion. The hearing
date scheduled for June 5, 1998 was cancelled by the Panel due to a
"bencher conflict" [See Note 180 below].
————————
Note 180: Chandran Affidavit, para. 35, Vol. XXIII,
Tab 1, para. 35, p. 13
————————
R.
The Panel Refused to Grant a One Week
Adjournment in July 1998
145.
By July 1998, the Panel had still not released
its decision and reasons. Four business days prior to the commencement of the
July hearing dates Baker's counsel requested an adjournment on the same basis
as before: because the Panel's written reasons
had not been released and because Baker's counsel required a brief
opportunity to review and consider the decision before the next hearing date.
This time, the Panel denied the adjournment. [See Note 181 below] On July 23,
1998, the Law Society prosecutors indicated that they did not take a position
with respect to the adjournment request, noting that previous adjournments had
been granted on the same grounds. [See Note 182 below] Baker's counsel requested the Panel to reconsider
its decision in light of this position. This request was denied. [See Note 183 below]
————————
Note 181: Letter from Paliare to Anatol dated July
21, 1998, Vol. XIII, Tab 48(16), p. 4695
Note 182:
Letter from Kelly to Anatol dated July 23, 1998, Vol. XIII, Tab 48(18), p. 4699
Note 183: Letter from Paliare to Anatol dated July
23, 1998, Vol. XIII, Tab 48(17), p.
4697; Letter from Paliare to Anatol dated July 24, 1998, Vol. XIII, Tab 48(19),
p. 4701
————————
146.
On Friday, July 24, 1998, the Law Society
advised the Applicant's counsel that:
(1)
the reasons for decision relating to the August
14 - 15, 1997 hearings had just been
completed by the Chair of the Panel;
(2)
the other two members of the Panel would not
have an opportunity to review the reasons for decision until the weekend;
(3)
the other two Panel members would not be in a
position to comment on the reasons for decision until lunch time on Monday, July 27, 1998;
(4)
that as a result the reasons for decision would
not be issued until lunch time on
Monday, July 27, 1998; and
(5)
the continuation of the hearing would
nevertheless continue at 10:30 a.m.
on Monday, July 27, 1998. [See Note 184 below]
————————
Note 184: Letter from Paliare to Anatol dated July
24, 1998, Vol. XIII, Tab 48(19), p.
4701; Letter from Paliare to Anatol dated July 23, 1998, Vol. XIII, Tab 48(17),
p. 4697
————————
147.
The hearing did not commence at 10:30 a.m.
Monday, July 27, 1998 because one of
the out of town Panel members had a problem getting a timely flight to the City
that morning. However, prior to the
commencement of the said proceedings, and before lunch on Monday, July 27, 1998 the Reserve Decision was provided to
the parties. It was signed by the Chair, but not by the other Panel members.
[See Note 185 below]
————————
Note 185: Reserve
Decision, Vol. XIV, Tab 58, p. 4841
————————
148.
Baker's counsel then asked the Panel to
reconsider its refusal of the adjournment. As the reasons for decision had now
been
released, Baker's counsel suggested that an adjournment of approximately one
week would be appropriate. Baker's counsel offered to sit on the following
Saturday, if the Panel was so inclined. The Panel then pressed the Applicant's
counsel as to whether or not he was prepared to return the following Tuesday,
August 4, 1998. In response, while a preference was expressed against that
date, counsel made it clear that if need be the Applicant's counsel would make
themselves available notwithstanding any other personal plans or preferences.
Later in the July 27, 1998 hearing,
Baker's counsel again made it clear that they would abide by whatever
scheduling the Panel deemed appropriate if it were inclined to accommodate the
short adjournment request which was being made. [See Note 186 below]
————————
Note 186: July 27, 1998 Transcript, Vol. III, Tab 15,
p. 944, pp.
954-7
————————
149.
Counsel for the Law Society took no position
about the adjournment request. However, the Law Society's counsel indicated his "sleeves were
rolled" and that as a result of the Law Society's review of the Reserve
Decision issued earlier that day (July 27, 1998), the Law Society had decided
to adduce evidence after all. The prosecution then indicated that they intended
to call the Secretary of the Law Society, Mr. Richard Tinsley, to give evidence
pertaining to the issues of solicitor client privilege and public interest
privilege [See Note 187 below]. This was a complete reversal of the Law
Society's position. The Solicitor had been requesting disclosure of who the Law
Society witnesses would be and the substance of their evidence for over a year. The Law Society refused to
provide such disclosure because of its position that no such evidence was
needed or appropriate. This had been the consistent position of the Law Society
for over a year, and was confirmed
in correspondence from the Law Society dated May 5, 1998. Relying on Law
Society's stated position in this regard, Baker's counsel prepared its factum
on the basis that the Law Society would not be calling any viva voce evidence
and that responding testimony therefore would not be necessary [See Note 188
below]. In the circumstances, Baker's counsel argued that the surprise decision
of the Law Society to call evidence about the privilege issues was a second
ground on which the adjournment should be granted. [See Note 189 below]
————————
Note 187: July
27, 1998 Transcript, Vol. III, Tab 15, p. 984
Note
188: July 27, 1998 Transcript, Vol. III, Tab 15, pp. 988- 994A; Letter from
Tunley to Paliare dated May 5, 1998, Vol. XIII,
Tab 48(5), p. 4676
Note 189: July 27, 1998 Transcript, Vol. III, Tab 15,
pp. 988- 994A
————————
150.
The Panel retired to consider
the submissions. It then ruled
against the Applicant's request and rejected all the arguments which had been
made on behalf of Baker [See Note 190 below].
The Panel retired to consider
the submissions. It then ruled
against the Applicant's request and rejected all the arguments which had been
made on behalf of Baker [See Note 190 below].
————————
Note 190: July 27, 1998 Transcript, Vol. III, Tab 15,
pp. 1000-
1013
————————
S.
Solicitor's Urgent Application for Judicial Review
151.
In light of the Panel's refusal to grant the
request for a brief adjournment, the hearing continued on July 28, 1998. The
Law Society proceeded to call direct evidence of Tinsley in support of its
privilege claims [See Note 191 below]. While
this hearing was taking place, one of Baker's co-counsel prepared an
urgent application for judicial review which was filed that day and made
returnable on July 29, 1998 [See Note 192 below].
————————
Note 191:
Chandran Affidavit, para. 34, Vol. XXIII, Tab
1
Note 192: Transcript dated July 28, 1998, Vol. III,
Tab 16, p.
1017-1026
————————
152.
In order to expedite the judicial review
process, the Solicitor applied under section 6(2) of the Judicial Review
Procedure Act for leave to have the application heard by a single judge on July 29, 1998, instead of
having to have the matter scheduled before a full panel of the Divisional
Court. The Solicitor requested an order prohibiting the Panel from taking any
proceedings in the Discipline Hearing on July 27, 28, 29 and 30, 1998 and directing
that the continuation of the hearing be
re-scheduled to a date on or after August 4, 1998, as
the Panel may direct. The affidavit of Linden is misleading in this regard, as it suggests Baker was seeking a
stay, without mentioning that it was for a period of less than one week. In
essence, the Solicitor was seeking an adjournment of less than one week [See
Note 193 below].
————————
Note 193: Notice of Application for Judicial Review
dated July 28, 1998, Vol. XX, Tab
95, p. 6066
————————
153.
In the event that the Court
denied the Solicitor's request to have this application heard by a single judge
on an urgent basis, the Solicitor requested an interim order staying the
Discipline Hearing pending a determination of the application for judicial review by a panel of the
Divisional Court [See Note 194 below]. The Law Society prosecution team took
the position that the Solicitor's application was not "urgent" and
should be scheduled for a hearing by a panel of the Divisional Court. In their
factum, the prosecutors noted that "a delay of several months" might
be incurred before a judicial review application can be heard before the
Divisional Court [See Note 195 below].
In the event that the Court
denied the Solicitor's request to have this application heard by a single judge
on an urgent basis, the Solicitor requested an interim order staying the
Discipline Hearing pending a determination of the application for judicial review by a panel of the
Divisional Court [See Note 194 below]. The Law Society prosecution team took
the position that the Solicitor's application was not "urgent" and
should be scheduled for a hearing by a panel of the Divisional Court. In their
factum, the prosecutors noted that "a delay of several months" might
be incurred before a judicial review application can be heard before the
Divisional Court [See Note 195 below].
————————
Note 194: Notice of Application for Judicial Review
dated July 28, 1998, Vol. XX, Tab 95,
p. 6066
Note 195: Factum of the Law Society of Upper Canada (Prosecution) dated July 30, 1998, Vol.
XX, Tab 99, p. 6304
————————
154.
Justice Beaulieu accepted the Law Society's
position that the application should be scheduled for a hearing before the full Divisional Court, but he granted a
stay of the proceedings before the
Panel pending a determination of that application. The endorsement, which was
released in the early evening of July 29, 1998 provided, in part, as follows:
At the outset of the application hearing I invited
counsel for the Society to consider whether, given the history of this matter,
the particular aspect of the delay in the Panel's decision and renewed request
for a brief adjournment by the Applicant, there might be a possibility of resolving
the matter without a court hearing. This seemed particularly apt in my view
given that the Applicant did not receive the decisions and reasons until the
morning of the scheduled hearing and the fact that the Society had taken no
position on the previous requests for adjournments. The Applicant was, after
all, seeking an adjournment for a matter of days only. Counsel proceeded to
attempt to explain that while the parties were able to consider resumption in a
matter of days the difficulty lay in scheduling times for the Panel members!
... Applying the jurisprudence as I understand it to the facts of this
particular case, it is my view that
the most appropriate disposition of the matter is granting the relief sought in
paragraph 1(b) of the application. Pursuant to s.4 of the J.R.P.A. there will
be an order that the discipline
hearing of the L.S.U.C. involving the Applicant be stayed pending a determination of this judicial
review by a panel of the Divisional Court. I deem this appropriate since the
matter has already been before the Court [See Note 196 below]. [emphasis added]
————————
Note 196: Endorsement of Beaulieu J. dated July 29,
1998, Vol. XXI, Tab 100(2), p. 6322
————————
155.
Upon receiving the
endorsement, counsel for the Solicitor immediately telefaxed a letter to Ms.
Shaw, the Law Society's hearings co-ordinator. The letter enclosed a copy of
Justice Beaulieu's endorsement and indicated that in light of the Stay Order it
did not appear to be necessary or appropriate to reconvene the hearing the following
morning. The letter provided counsel's home and business telephone numbers,
stated that counsel was available the following morning, and requested that
counsel be contacted if there was any issue or difficulty with the suggestion
or position contained in the letter. [See Note
197 below]
Upon receiving the
endorsement, counsel for the Solicitor immediately telefaxed a letter to Ms.
Shaw, the Law Society's hearings co-ordinator. The letter enclosed a copy of
Justice Beaulieu's endorsement and indicated that in light of the Stay Order it
did not appear to be necessary or appropriate to reconvene the hearing the following
morning. The letter provided counsel's home and business telephone numbers,
stated that counsel was available the following morning, and requested that
counsel be contacted if there was any issue or difficulty with the suggestion
or position contained in the letter. [See Note
197 below]
————————
Note
197: Endorsement of the Honourable Mr. Justice Beaulieu released July 29, 1998,
Vol. XXI, Tab 100(2), p. 6322; Letter from Paliare to Shaw dated July 29, 1998,
Vol. XXI, Tab 23, p. 6551
————————
T.
The Panel Reconvened on July 30 and 31, and
August 19, 1998 in the Face of the Stay
156.
Instead of abiding by the Stay Order, or
calling the Solicitor's counsel as requested, the Panel continued its hearing on July 30, 1998 by soliciting and
agreeing, ex parte, with the views of the Law Society prosecutors as to the
effect of the Stay Order [See Note
198 below].
————————
Note 198: Transcript of
the Discipline Hearing on July 30, 1998
(hereinafter "July 30, 1998 Transcript"), Vol. III, Tab 17, pp. 1086-1091
————————
157.
The Panel then decided that it would convene
the following day as scheduled to fix dates for the continuation of the hearing and to obtain an explanation
about the portion of the endorsement
that referred to scheduling difficulties involving the Panel members [See Note
199 below]. It was next decided that counsel for the Solicitor should be
contacted so that he could be advised
of the requirement to attend before the Panel on the following day. This was
done and a recorded conversation ensued between the Chair and Baker's counsel in which Baker's counsel expressed
concern about the ex parte procedure that had been followed [See Note 200
below]. Solicitor's counsel was directed to attend the following day to set
dates for the continuation of the hearing.
————————
Note 199: July 30, 1998 Transcript, Vol. III, Tab 17,
pp. 1086-
1091
Note 200:
July 30, 1998 Transcript, Vol. III, Tab 17, pp. 1086-
1091
————————
158.
When the proceedings resumed on July 31, 1998,
the Panel first heard submissions from counsel about the endorsement of the Honourable Mr. Justice Beaulieu. [See
Note 201 below] After hearing lengthy submissions from both parties, and
receiving a detailed memorandum from Baker's counsel, the Panel concluded that
it could not account for the impugned portion of the Court's endorsement.
————————
Note 201: Transcript of
the Discipline Hearing on July 31, 1998
[hereinafter "July 31, 1998 Transcript"], Vol. III, Tab 18, pp. 1096-1187 @ 1098-1100, 1155-1160
————————
159.
Over the objection of the Solicitor's counsel,
the Panel proceeded to schedule further hearing dates as it had directed be done the day before. As a result, 63
dates were fixed by the Panel for the continuation of the hearing between
September 22, 1998 and April 30, 1999 to deal with the balance of the disclosure
motion. Counsel were advised that these dates should be reserved exclusively
for the hearing, and were directed to participate in a further hearing by way
of conference call on August 19, 1998. The Panel indicated that at that time it
intended to confirm the dates in light of the schedule of the judicial review
application which had been transferred to the full Divisional Court. [See Note
202 below] The prosecution team raised no objection to 63 dates being fixed to
deal with the outstanding disclosure motion on a document by document basis.
————————
Note 202: July 31, 1998 Transcript, Vol. III, Tab 18,
pp. 1160-
1187
————————
160.
The Panel scheduled a conference call to
proceed on August 19, 1998. On August 17, 1998, Applicant's counsel objected to the continuation of the hearing in the
light of the stay. [See Note
203 below] The Panel rejected counsel's objection and
reminded counsel that the Panel had directed that the conference call take place. [See Note 204 below] The next
day the conference call was held as directed and the Panel confirmed 43 dates
for the continuation of the hearing between February 1, 1999 and April
30, 1999, to deal with the disclosure motion on a
document by document basis. [See
Note 205 below]
————————
Note 203:
Letter from Paliare to Panel dated August 17,
1998, Vol. XXI, Tab 106(26), p. 6581
Note 204: Transcription of voicemail message from
Eberts to Paliare on August 18, 1998, Vol. XXI, Tab 106(27), p. 6582
Note 205: Transcript of the Discipline Hearing on
August 19, 1998, Vol. III, Tab 19,
pp. 1191-1197
————————
U.
Decision of the Divisional Court
161.
The hearing of the Solicitor's application for
judicial review by the Divisional Court occurred in January 1999. By that time, the Solicitor had expanded the
grounds for the application to
include allegations that the conduct of the Panel created a reasonable
apprehension of bias. Accordingly, the Solicitor requested the Court to, inter
alia, extend the stay of proceedings before the Panel without prejudice to the
ability of the Law Society
Discipline Committee to appoint a new panel to continue with this hearing, if
so advised. The Solicitor raised ten matters that led to a reasonable
apprehension of bias, summarized by the Divisional Court, as follows:
1.
The first is a failure to grant a very brief
adjournment where a decision was
released after 11 and one-half months and where a reasonable expectation of
such a right to adjournment had been created by a number of adjournments that
were given on the basis that the reasons had not yet been received.
2.
The failure to grant an adjournment when the
Law Society of Upper Canada changed its position and called a witness not only
with regard to the question of privilege but also with regard to the public interest privilege when no
willsay had been made available to the applicant's counsel nor had there been
any disclosure of what the evidence would be, and no advance advice that the
evidence would include the public interest privilege as well as solicitor/client privilege.
3.
A hearing in face of the stay order of Justice
Beaulieu in breach of the said stay order.
4.
Failure to give counsel for the solicitor
notice that a hearing was going to be conducted and advising the solicitor by
telephone at the number supplied by the solicitor asking that the solicitor attend.
5.
Seeking submissions and agreeing with those
submissions in the absence of the
other counsel with regard to the propriety of
proceeding with certain procedural matters such as
fixing the dates of future hearings.
6.
When
finally advising the applicant's counsel, Mr. Moore, that matters were proceeding not accurately reviewing what had
transpired up to that time.
When
finally advising the applicant's counsel, Mr. Moore, that matters were proceeding not accurately reviewing what had
transpired up to that time.
7.
An order in effect, although not necessarily
phrased as an order, to reattend in
fact of the stay for the purpose of explaining what was said to the Divisional Court.
8.
Requiring counsel to attend to schedule and
hold some 60 days available for
future hearings in spite of the stay.
9.
A further attendance by conference call
notwithstanding the objection.
10.
The actual decision which (1) was not delivered
for some 11 and one-half months after advising what the results would be and estimating that the reasons would be
forthcoming in a fairly short period.
162.
The Court concluded that:
The
accumulative effect of these ten complaints, all of which are consistent with the evidence, lead to
a reasonable apprehension of bias and, accordingly, the matter should not
proceed before the panel as presently constituted.
We make this decision in the terms of the order
sought in the factum, that is, without prejudice to the Law Society Discipline
Committee to appoint a new panel to continue with this hearing if so advised [See Note 206 below].
————————
Note 206: Baker v. Discipline Committee of the Law
Society of Upper Canada (1999), 42
O.R.(3), 413 at 416 (Div. Ct.)
————————
V.
January 1999 to September 1999: Silence from
the Law Society
163.
Baker's counsel heard nothing further in
respect of this proceeding for the following nine months. In late September,
1999, counsel received a letter from the Law Society indicating that a newly
constituted panel had been appointed. A scheduling hearing before the newly
constituted panel was scheduled and took
place on October 6, 1999 [See Note 207 below]. At the scheduling hearing on
October 6, 1999, Baker's counsel advised the newly constituted panel and the
prosecution team that the Solicitor intended to bring this motion to dismiss or
stay these proceedings on the ground of delay [See Note 208 below].
————————
Note 207:
Chandran Affidavit, para. 34, Vol. XXIII, Tab
1
Note 208: Transcript dated October 6, 1999, Vol. III,
Tab 20, pp.
1203-1206
————————
164.
Baker has received no explanation as to why the
Law Society saw fit to do nothing in
relation to this case for a further 10 months, despite the fact that a serious
violation of the principles of natural justice has already been found to have
occurred in this case, and almost five years have passed since the Complaint
was laid. This case was screaming for prompt attention. Yet again, the Law
Society ignored this case.
W.
Summary of Appearances Before the Discipline Committee: February 1995 - December 1999
165.
Since the parties first appeared before the
Discipline Committee Hearings Assignment Tribunal in March, 1995, almost
nothing has transpired in this case. It is now almost five years later and the Solicitor's
preliminary disclosure motion remains outstanding. A summary of the appearances
before the Discipline Committee in this case
follows:
1995: 6 brief
scheduling appearances
13 March 1995, 3 April 1995, 18 April 1995, 12 June
1995, 10
October 1995, October 1995 [See Note 209 below].
————————
Note 209: Record,
Vol. XXIV
————————
1996: 4
"appearances": 3 1/2 days
January 24-16,
1996: spent arguing the initial disclosure motion.
November
26, 1996, from 9:40 to 12:45. This 1/2 day was
spent, primarily, canvassing what the Law Society had done to comply
with the Disclosure Decision of January 1996, with respect to lists.
1997: 8
"appearances": approximately 3 1/2
days
February 18, 1997: 2:20 to 3:40 pm. This hour and
twenty minutes was spent, again, updating
the panel on the Society's progress with its lists and productions.
April
1, 1997: 9:40 to 12:45. This 1/2 day was spent
discussing the Law Society's compliance with the Disclosure Decision of
January 1996, and the format of certain disclosure (Law Society sought reconsideration of the January "paste and
cut" order).
April 2, 1997: full day spent arguing the Law
Society's motion to reconsider a
portion of the Disclosure Decision of January 1996 regarding the format of disclosure.
April 21,
1997: 10 minute telephone conference call to
discuss scheduling of appearances of counsel for Mele and Forder.
May 16, 1997: 15 minute appearance at which the
complaints of Mele and Forder are dismissed after the Law Society chose to call no evidence in relation to these matters.
June 12, 1997: Very brief meeting (less than on hour)
at which Kelly says: "everyone
has been inundated with a significant number of lists...and what I had proposed
to counsel for Mr.
Baker is, yes, another list, but a consolidated list..." Schedule set for exchange of information
prior to August hearing dates.
August
14, 1997: 1/2 day spent on motion to state a case to the Divisional Court
because of the Law Society's failure to comply with the Panel's Disclosure
Decision of January 26, 1996 [Argued
because Law Society failed to abide by schedule established on June 2, 1997].
August 15, 1997: full day spent arguing motion to
state case, and whether Law Society
required to call evidence to establish its privilege case.
1998: 6 "appearances": 3 in violation of
stay order: less than 2 days of time
March
4, 1998: less than 1 hour: Panel indicated that it would not be stating a case,
and would provide written reasons by the
end of March.
July 27, 1998: 1/2 day attendance during which
counsel for Baker asked for a brief
adjournment (less than 1 week) to consider reasons that were released that day;
[Reasonableness of request upheld by Divisional Court].
July 28, 1998: 1/2 day during which Law Society
called evidence with respect to
privilege issues
July 30, 1998: 25 minute ex-parte proceeding,
convened in face of stay
July 31, 1998: 3/4 of day, convened in face of stay
over objections of Baker's counsel at which counsel was asked by the Panel to explain what was said to the
Divisional Court. 63 further dates fixed by
Panel
August 19, 1998: 10 minute conference call, convened
in face of stay over objections of Baker's counsel 43 dates fixed in period after January 1999 date with
Divisional Court.
1999: 1
appearance: less than 2 hours
October 6, 1999: new panel: scheduling hearing. [See
Note 210 below]
————————
Note 210:
Transcripts, Vol. I-III
————————
166.
There were only 18 "appearances"
before the Eberts panel, including the 3 in the face of the stay. In total,
about 13 days of hearing time has
been spent at appearances on this matter in the last 4 years.
167.
At least 13 days of scheduled hearings were
adjourned or cancelled by the Law Society, without any input from Baker's
counsel (not including Oct. 2-3 and 5-6, 1995 or any of the days that were adjourned because of
non-delivery of the stated case decision). [See Note 211 below]
————————
Note 211:
Chandran Affidavit, Vol. XXIII, para. 35
————————
X.
Some Effects of the Delay in this Case:
168.
Over the last five years the Law Society has
presented a "moving target" on a number of important issues in this
case. The prosecution and/or the
Panel has amended, recast or changed its position on the following issues in
the course of this proceeding to date:
(a) the content and effect of the Disclosure
Decision; (b) prosecution's disclosure obligations with respect to the Mele and Forder complaints; (c) prosecution's
disclosure obligations with respect to police contacts; (d) whether the Law
Society had fulfilled its disclosure obligations; (e) grounds of privilege
claimed by the prosecutors; (f) requirement and intention of the prosecutors to
call evidence to support claims of privilege; (g) content and form of lists of
documents that the prosecution team objects to producing; (h) scope of
disclosure Baker ought to receive.
169.
Baker has been prejudiced in his defence of
this matter, both in terms of cost and in terms of knowing the case he must
meet, by the Law Society's every changing positions. But for the ridiculously protracted nature of the
prosecution of this complaint, the Law Society would not have had an
opportunity to change its positions as often.
170.
As early as 1994, Baker's counsel alerted the
Law Society of the negative effect
that the media attention associated with the investigation of the spurious
Mele/Forde complaints was having upon Baker. As a result of these protracted discipline
proceedings, the Solicitor has been exposed to
extensive critical media coverage on
an ongoing basis. These proceedings have been commented on in at least 31
newspaper articles published in The Toronto Star, The Globe & Mail, the
National Post, the Toronto Sun, the Law Times and the Financial Post [See Note
212 below].
Indeed, even
appearances before the Assignment Tribunal to schedule dates in this matter
received coverage in the media [See
Note 213 below].
————————
Note 212: Chandran Affidavit, paras. 2-32 and
attached Exhibits, Vol. XXIII, Tab 1(A)-1(EE)
Note 213: Newspaper Article entitled "Lawyer's
hearing set for Fall" published
in The Toronto Star on April 22, 1995, Vol.
XXIII, Tab 1-L
————————
171.
The mere passage of time inevitably affects the
quality of evidence that witnesses can provide. In relation to the Jackson
matter, the Law Society's dilatory approach to notifying Baker that he was
being investigated led to the ultimate prejudice: the most critical witness died before Baker could ask him about
the allegations.
.
. . . . . OVERVIEW
We have
come to the conclusion that the combination of
pre-charge delay and post-charge delay in the investigation and
prosecution of the solicitor results in an indefensible position for the Law
Society. An overall delay in excess of ten years in the circumstances in which
we do not find evidence that the solicitor
or his counsel contributed to the delay in any significant way, is simply
unacceptable. We believe that the Law Society carries a very substantial onus to deal with its members in a fair and
expeditious manner. Its own rules provide timelines which indicate overwhelming
support for this principle. We do not believe that it has met that onus in this case.
To review every piece of correspondence, every
decision, every document and every transcript in the material before us would
be counterproductive of a readable and meaningful decision. However, we do propose to deal with a
number of highly significant factors
in the morass of communications, meetings and proceedings which have taken
place, in order to demonstrate the rationale for our decision.
We have found that the
extraordinary delays which occurred in the
management of this case were due to a number of factors, including systemic
failures, errors in judgment and a failure on the part of the Society to follow
its own rules.
We also
find on the facts of this case that the delays which have occurred result in an unacceptable risk that the
solicitor's ability to make full answer and defence to the complaints against him has been seriously jeopardized
and that, accordingly, the process should be terminated in the best interests
of justice.
Mr. Greenspan, on behalf of the Society, suggested
that, in the absence of any direct evidence from the solicitor or from other
sources, that he has been significantly prejudiced in his ability to defend himself, this Committee
should not make such a finding. We
reject that argument for reasons which will be set out further on in this Decision.
PRE-CHARGE DELAY
Paragraphs 34 to 71 in the solicitor's factum clearly
set out the facts leading to the
Complaint sworn on February 20, 1995. Table 2: (Schedule "D") is a
graphic aid to the understanding of this five and a half year period of time.
Although there were some disagreements between Mr. Greenspan for the Society,
and Mr.
Paliare for the solicitor insofar as the facts
pertaining to this time period are
concerned, we find that they are of little or no significance. Accordingly, we
are left with the following significant facts:
1.
Insofar as the Rosbrook Estate complaints are
concerned, the Society was first notified of the matter on October 16, 1989, but no complaints were sworn until
February 20, 1995;
2.
The Rosbrook investigation appears to have been
handled internally by the Law Society until Mr. Lockwood was retained on September 17, 1990;
3.
No notice was given by Mr. Lockwood to Mr.
Baker that he (Mr. Lockwood) was now
conducting the investigation on behalf of the Law Society until September 1, 1992;
4.
It appears that virtually nothing was done in
regard to the Rosbrook investigation from September 17, 1990 until January 16, 1992 when Mr. Lockwood revisited an
issue that the Law Society had determined years previously namely, that the
complaint would not be held in
abeyance pending civil litigation because of a paramount public interest (see
paragraph 43 of the solicitor's factum);
5.
From November 1992 until approximately April
1994, when Mr. Lockwood's Report was delivered to the Law Society, Mr. Lockwood and Mr. Fournie seemed to have
been the repository of all complaints in regard to Mr. Baker including those
made in relation to Inspector Jackson, and those made in regard Dr. Forder, and
Dr. Mele;
6.
By November 19, 1992, the Law Society had all
the information it needed with
respect to the allegations that now form the complaint in relation to Inspector
Jackson but no attempt was made to obtain Mr. Baker's response to the Jackson allegations
until December 1994 or January 1995, almost two years after Inspector Jackson had died;
7.
Although
Mr. Lockwood finally reports to the Law Society with respect to all three sets of complaints (Rosbrook Estate,
Jackson, and Forder/Mele) in April of 1994, his report is virtually ignored and
Mr. Greenspan is hired to conduct a new investigation said to be totally
independent of the Lockwood investigation;
Although
Mr. Lockwood finally reports to the Law Society with respect to all three sets of complaints (Rosbrook Estate,
Jackson, and Forder/Mele) in April of 1994, his report is virtually ignored and
Mr. Greenspan is hired to conduct a new investigation said to be totally
independent of the Lockwood investigation;
8.
Even after Mr. Greenspan is retained in May
1994, active investigation does not resume again until August 1994 with the complaint being sworn on February 20, 1995.
We find that the delays in this investigatory stage
of the case involving the solicitor
are largely unexplained and entirely unacceptable.
The
sixteen month delay from September 17, 1990 until January 16, 1992 set out in item 4 above, is not
adequately explained by a report that does nothing more than confirm what had
already been decided, namely, the complaint would not be held in abeyance
pending civil litigation. The commencement of a new investigation in April 1994 is unexplained but, obviously, the
cause of further delay.
Accordingly,
it is not unfair to characterize the combination of the Law Society internal investigation and the Lockwood
investigation from on or about October 16, 1989 to on or about April 19, 1994
as "wasted time" (see Table 2 -
Schedule "D").
During the period from November of 1992 until
approximately April of 1994, Mr.
Lockwood's firm appears to have taken on the role of a special prosecutor in regard to Mr. Baker. We ask why the
complaints relating to Inspector Jackson and to Doctors Forder, and Mele were
not channeled appropriately pursuant to Section 9.1 of the regulation which applied at that time? Section 9.1
of regulation 708 read as follows:
"Where
information comes to the notice of the Society that indicates that a member may
have been guilty of professional misconduct or of conduct unbecoming a
barrister and solicitor, the Secretary shall make such preliminary
investigation of the matter as he or she considers proper, and where in his or
her opinion there are reasonable grounds for so doing, shall refer the matter
promptly to the Committee or the chair or vice-chair
for further directions."
This circumvention of the Regulation although,
perhaps intended to streamline the process, may actually have resulted in further delay.
It may also have resulted in the Law Society taking
no action following its receipt of
the Lockwood Report other than to appoint Mr. Greenspan to conduct a new
investigation, totally
independent of the Lockwood Investigation. The result
is a waste of some three and a half
years of time - three and a half years of uncertainty insofar as Mr. Baker was concerned.
It is
interesting to note than in the procedure followed today pursuant to By-law 21
which came into force on January 28, 1999 there is a significant change.
Section 8(1) of that By-law reads as follows:
"Subject to subsection (2) during or after an
audit, investigation or review, the secretary, an outside investigator or an
outside reviewer, as the case may be, may refer to the Committee a matter
respecting the conduct of a member, a group
of members or student member..."
We are satisfied that the Law Society had all the
information it required with respect to the allegations involving Inspector
Jackson by November 19, 1992, and yet Mr. Baker's response to the Jackson allegations was not sought
until some two years after Inspector Jackson's death on March 16, 1993. Mr.
Greenspan would have us ignore this obvious prejudice to the solicitor on the
basis that the allegations in regard to Inspector Jackson make it abundantly clear that his absence would
be more of an assist to the solicitor, as opposed to a hindrance. We do not
accept that proposition and choose not to speculate on the possible utility to
the defence of Jackson's participation.
POST-CHARGE DELAY
The history of this matter following the complaint of
February 20, 1995 is of even more concern to this Committee than the events
which preceded that date. Paragraphs 72 - 167 of the solicitor's factum as well
as the applicable documents and transcripts provide a long and tedious history
of delay, most of which your
Committee concludes was due to the Law Society's reluctance or inability to
provide appropriate disclosure.
The facts of this period speak for themselves but
this Committee wishes to emphasize in
the following numbered paragraphs, the events which it considers to be most
significant in reaching its decision.
1.
Although both the notice served with the
Complaint, as well as the secretary's
covering letter suggest that disclosure of the Law Society's case was a top
priority, it appears to your Committee that the Society's reluctance in this
regard is palpable;
2.
At the outset, the Society relegated Mr.
Baker's case to the "standard track" for hearings under what was then
paragraph 13 of the Law Society's
Rules of Procedure, which provided that in such
a case the solicitor's hearing was to take place within four months of service
of the Complaint. Needless to say, some five years later no hearing has been
commenced, and given the forecast of
forty to sixty days of hearing to determine disclosure issues
alone, no
hearing could possibly take place within the foreseeable future. It is somewhat
ironic that the solicitor's request to have the case moved to what was then known
as the "complex track" on or about April 3, 1995 was denied. On that
date, counsel for the solicitor was apparently provided with what he was told was final disclosure of
the Law Society's case.
3.
There were an astonishing number of
postponements and adjournments, some arbitrarily imposed and others, as we see
it, made necessary by the Society's refusal, reluctance or inability to provide
full disclosure and also by the Society's irregular delivery of some nineteen
bundles of disclosure material after April 3, 1995, when the solicitor's
counsel had been told that he now
had final disclosure;
4. The Law Society's unprecedented decision to
seek Judicial Review of the Discipline Panel's Decision of January 26, 1996, a Decision apparently made without the
approval of Convocation;
5.
The reluctance, indeed, the
unwillingness of the Law Society to
comply with either the decision of the Panel of January 26, 1996 or the Order
of Mr. Justice Saunders released on September
10, 1996;
6.
The continuing reluctance or unwillingness of
the Law Society to comply with
disclosure requirements, including the requirements imposed upon it by the
Panel on November 27, 1996 (see paragraphs 126 and 127 of the solicitor's factum);
7.
The Law Society's claim of a
"public interest privilege" over the Greenspan and Lockwood Reports
for the first time on March 24, 1997, some two years after the disclosure
debate first began;
8.
The failure of the Law
Society to call any evidence in regard
to the Forder and Mele complaints on May 16, 1997 when called upon to do so;
9.
The
failure of the Law Society to honour its undertaking given before the Panel on June 12, 1997 to provide a final,
consolidated list of disputed documents;
10.
The failure of the Panel to deliver its
decision in regard to the need for
viva voce evidence about the Law Society's privilege
claims and about the process to be followed if evidence was to be permitted, for some eleven months
following the hearing of August 14,
and August 15, 1997;
11.
The arbitrary cancellation of hearing dates
between August 1997 and July 1998 due to the failure of the Panel to render its
decision following the hearing of August 14, and August 15, 1997, and for other reasons related to
Bencher conflicts;
12.
The failure of the Panel to state the case for
contempt by the Law Society when, it
appears to your Committee, such a decision might well have speeded up the process;
13.
The refusal of the Panel to grant a one week
adjournment in July 1998 leading to
the solicitor's urgent application for Judicial Review and further delay;
14.
The
refusal of the Panel to abide by the Order of Mr. Justice Beaulieu made on July 29, 1998 staying the Discipline
Hearing pending a determination of the Judicial Review Application by the Divisional Court;
The
refusal of the Panel to abide by the Order of Mr. Justice Beaulieu made on July 29, 1998 staying the Discipline
Hearing pending a determination of the Judicial Review Application by the Divisional Court;
15.
The scheduling by the Panel
of sixty three dates for the continuation of the hearing between September 22,
1998 and April 30, 1999 to deal with the balance of the disclosure issues in the face of Justice Beaulieu's stay order;
16.
The conduct of the Discipline Panel and the
findings of the Divisional Court in
that regard resulting in a finding of a reasonable apprehension of bias as set
out in paragraph 161 of the solicitor's factum;
Although
the points made in paragraphs 14 and 15 above may suggest an attempt by the Law
Society to avoid further delay, these actions actually contributed to further
delay when the Divisional Court disqualified the Panel on these grounds as well as others in January of 1999.
We have concluded that the events following the
swearing of the formal complaint on February 20, 1995 constitute a litany of
inexcusable delays for which the solicitor cannot be held responsible. It
appears to us that the conduct of solicitor's counsel in pursuing full
disclosure and in pursuing fair and proper treatment by the Society and by the
Discipline Panel was entirely appropriate and ought not to be charged to the solicitor as causes of delay.
THE LAW
Preliminary Observations
Section 23(1) of the Statutory Powers Procedures Act
R.S.O. 1990, Chap. S. 22 reads as follows:
"23.(1) A
tribunal may make such orders or give such directions in proceedings before it
as it considers proper to prevent abuse
of its processes."
Clearly,
this Committee is a tribunal within the meaning of the Act and Section 23 provides us with the authority to issue
the stay order herein.
There is a wealth of judicial authority on the issue
of delay and its effect on various
proceedings - criminal, civil, judicial, quasi-judicial and administrative. Of
course, there is also the overriding principle of Section 11(b) of the Charter
of Human Rights and Freedoms which resulted in the very significant
decision of the Supreme Court of Canada in the Askov
case, that of course dealt with criminal charges under the Criminal Code.
Mr. Paliare for the solicitor made it clear at the
outset of his submissions that his application was not founded upon Section 7
or Section 11(b) of the Charter but rather upon the common law principles of
natural justice, procedural fairness, and the inherent right of a judicial or
quasi-judicial body to prevent abuse of process. Undoubtedly, counsel for the
solicitor was concerned about the applicability of the Charter to Law Society
proceedings in general and the applicability of Sections 7 and 11(b) of the
Charter to pre-charge delay, in particular.
However, we would have been prepared to adopt the reasoning of Chief
Justice Hickman in the Newfoundland Supreme Court in the case of Harvey v. Law
Society (Newfoundland) (1992) Admin. L.R. (2d) 306 (Nfld. T.D.) in which the
Chief Justice found that Section 7 of the Charter does apply to a Law Society
in the exercise of its disciplinary powers by virtue of authority delegated to
it by a Provincial Legislature (see pages 307, and 308). Although this
Committee bases its decision upon the principles of common law we are bolstered by the spirit of the Charter.
Clearly, the role of a Discipline Panel constituted
under the Law Society Act is that of
an Administrative Tribunal exercising judicial or quasi-judicial authority in
rendering a statutory power of decision. We intend to adhere as faithfully as
possible to the law applicable to such tribunals.
The very highest standard of justice must apply to
disciplinary proceedings of the kind now in progress in regard to Mr. Baker.
The punishments to which a member of the Law Society of Upper Canada can be
subjected in such proceedings make it absolutely essential that the proceedings
be conducted in conformity with the principles of natural justice. This point
has been made clear in numerous
reported decisions - one in particular being, the decision of the British
Columbia Court of Appeal in Cameronand the Law Society British Columbia (1991),
81 D.L.R. (4th) 484 (B.C.C.A.).
In
fact, such was the underlying principle in the decision of the Divisional Court when it disqualified
the Panel convened to hear this case against Mr. Baker. See: Baker v.
Discipline Committee of the Law Society of Upper Canada (1999), 42 O.R. (3) 413
(Div. Ct.)
Another decision of great assistance to this
Committee is that of the Supreme
Court of Canada in Ringrose v. College of Physicians and Surgeons (Alta.),
[1976] 4 W.W.R. 712 (S.C.C.). The central issue in that case was whether on its
facts there was a reasonable apprehension of bias in the process followed by
the medical governing body of Alberta at the time. The Supreme Court of Canada
dismissed the appeal before it and, in so doing, found that there was no
reasonable apprehension of bias on the facts
of
that case. Dickson J. (as he then was) wrote the
following for himself and three
other members of the court:
"I
think that, to avoid criticism, reliance should be placed upon such an overlapping provision as
infrequently as the practicalities of the situation permit, since there rests
upon the governing bodies of the professions in the exercise of their statutory
disciplinary powers the duty to be scrupulously fair to those of their members whose conduct is under investigation
and whose reputations and livelihood may be at stake. That is not to say that a
profession should be slow to discipline. On the contrary, the public interest
and the integrity of the profession
may require immediate and stern action against a transgressor.
But
the investigation of the alleged breach, and the steps taken to determine
culpability, must be such that justice is manifestly
seen to be done, impartially and, indeed, quasi-judicially."
We propose
to deal with each of the four positions taken by Mr. Greenspan on behalf of the
Society in opposing the motion brought
on behalf of the solicitor in light of these
principles.
PRE-CHARGE DELAY
Mr.
Greenspan's position is that pre-charge delay should not be included in a
determination of the issue of delay. However, he did acknowledge that
pre-charge delay could be considered if, in
combination with post-charge delay, it affected the solicitor's ability to make
full answer and defence.
In this regard, we adopt the reasoning of the
Divisional Court in the case of
Ramsay v. Toronto (City) Commissioners of Police (1992), 60 O.A.C. 129, supp.
reasons 96 DLR (4th) 606 (Div. Ct.) as well as that of Mr. Justice Hickman in
the Harvey case cited above.
In the Ramsay
case the Divisional Court was dealing with complaints of unnecessary violence
against three police officers in
1984. There was a five and a half year delay between the date of the public complaint and the start of the Board
Hearing. At page 605 of the judgment there is the following passage:
"In the
circumstances of this case, in our view, the
inexcusable, inordinant delay, none of which was attributable to the
appellant, but which delay deleteriously affected the memory of one and all,
impinged upon P.C. Lang's right to make full answer and caused him to be
deprived of fundamental justice. In coming to this conclusion, we are alive to
the fact that there is a public interest involved. We are fully aware of that
side of the coin. However, on the other side of the coin, the statute was set up to process police disciplinary
hearings before a public board; this
case concerns an allegation of "misconduct", but when the wording is
stripped down, it is an allegation of assault. In view of all of the circumstances surrounding the delay
resulting in a denial of natural justice, we would quash the finding of
misconduct."
Unlike Mr.
Baker's case, we are not given the breakdown of the five and a half year period
in terms of the portion spent for investigation as opposed to the portion spent
following the formulation of a "statement of alleged misconduct".
However, it is made clear in this judgment that the five and a half year period
from the receipt of the public complaint to the commencement of the board
hearing was excessive. In the case
before us we have just passed the ten year mark from the date of first complaint and a hearing has yet
to commence.
In the Harvey case, the
complaint against Harvey was received in 1984 and an investigation was
initiated by the Law Society in 1985. That investigation took more than two
years following which the Society
retained counsel and a hearing was commenced in 1990 with a finding of guilt
following in January of 1991. Chief Justice Hickman found that the delay of
more than six years was unacceptable and, in particular, he found that there
was no reasonable explanation for the investigative period of more than two
years. The Chief Justice had this to say at page 320 of his decision:
"It is
a fundamental principle of natural justice that whenever a complaint of impropriety is made against a person, that such
investigation be carried out promptly and in confidence so that, should the
investigation result, as in this case, in a complaint or charge being pursued,
then the respondent is in a position to have available the testimony of all
witnesses while the facts are still
relatively fresh in their minds. None of this occurred in this case."
Further, in this case, we find that the reasons given
for the pre-charge delay do not assist the Law Society in resisting this motion.
In
Misra v. Council College of Physicians and Surgeons of Saskatchewan (1988), 52
D.L.R. (4th) 477 (Sask. C.A.) the Saskatchewan Court of Appeal allowed the
appeal of a doctor who in the opinion
of that Court had been treated unfairly in the discipline proceedings against
him. The allegations of unfairness were founded in allegations of undue delay
and reasonable apprehension of bias.
Doctor Misra was charged with criminal offences in
February of 1982 and in April 1982 he was suspended from practice by the
College of Physicians and Surgeons of Saskatchewan. He was convicted in
November of 1984 and in February of 1985 his
license to practice medicine was revoked. In November of 1986 the
Saskatchewan Court of Appeal allowed his appeal and entered a stay of
proceedings on the ground that he had not been tried within a reasonable time.
Immediately thereafter his license to practice was re-instated but he was charged
by his College with unprofessional conduct based upon the same facts as were
alleged in the criminal proceedings.
After considering other authorities and other factors
the court concludes as follows (page 496):
"These things taken together, the delay in
laying the present charges and all of the consequences of that delay, the
previous suspension from practice for five years, and the reasonable
apprehension of bias, lead to the conclusion that there has been a denial of natural justice so as to
entitle the appellant to certiorari to quash the temporary suspension made on
December 9, 1986, and to prohibition
to prohibit the respondent from proceeding with the charges under s. 46(o) of
the Medical Profession Act, 1981. Cumulatively, the result is oppressive to the
appellant, and violates the fundamental rule of procedural fairness and is thus
a denial of natural justice."
In the case of MacPhee and Barristers' Society of New
Brunswick (1983), 1 D.L.R. (4th) 156 (N.B.Q.B.) Chief Justice Richard of the
New Brunswick Court of Queens Bench allowed an application for prohibition in
the case of a solicitor who had been acquitted
of fraud following a lengthy trial in June of 1979. The Society appointed a
committee to investigate in April of 1979 but
nothing was done until February of 1981 when the solicitor was asked to
consent to an agreed statement of facts. The solicitor did not respond and the
Society waited for two years before serving a formal notice in February of
1983. At page 5 of the decision Chief Justice Richard states the following:
"Counsel for the Society admits that the delay
"is a hiatus of three years and seven months"; that is from June 5,
1979, the date that the criminal case ended, to January, 1983. Although this is
technically accurate in the sense that the Society had the authority to delay
the beginning of its inquiry until the court had reached its verdict (s-s.
17(3) of the Act), which it did, nevertheless the total length of time that
elapsed from the time that the Society became aware of a reason to inquire, is
a factor which should have apprised the Society of the necessity of proceeding expeditiously thereafter.
The Society submits that the time
required to prepare for the inquiry was substantial. It submits that some 6,000
pages of transcript of the preliminary hearing had to be "reviewed"
along with 1,500 exhibits and that the nature of the entire matter was complex.
While I accept this submission, I must nevertheless take into account that the
preliminary hearing ended on August 25, 1977, and that this constituted an
additional 22 months to, as alleged, "prepare for the inquiry". There
is no explanation before me as to why nothing
was done in terms of preparation during this latter period, as there is a total
lack of specific evidence on what might be considered a reasonable length of
time to prepare and conduct the
inquiry itself. I have carefully perused all the affidavits filed on behalf of the Society in search
of evidence that might constitute a reasonable explanation for the delay and
have not found any."
On the facts of that case, Justice Richard concluded
as follows (page 7): "Taking
into consideration all the facts of this matter
and without limiting the generality of them; (1) the young age of the applicant when his alleged misconduct
or conduct unbecoming a solicitor
occurred; (2) his inexperience at the bar at the time;
(3) the fact that he was practising alone; (4) the
adverse publicity received during the preliminary hearing and during the trial
which was held over a span of two years; (5) the time lost and expense incurred
since; (6) the fact that all inquiries against the ten other members of the
Society were concluded within one year, although they bore much on the same
facts; (7) the fact that according to counsel acting for the Society, he was ready "to prove... the facts...
either by oral or documentary evidence" on February 18, 1981; (8) the time
lapse of almost ten years since the first alleged misconduct occurred; (9) the
respondent's lack of explanation for its delay, and (10) the erasure of
evidence given at trial, I find that to allow the inquiry to resume at this
late point in time would be an abuse of
process which is likely to result in a denial of justice. The applicant has
already been heavily penalized in relation to this whole matter and I find that
further proceedings at this late date would be tantamount to persecution".
There
are numerous other cited cases which support our conclusion in this case that pre-charge delay must be
considered in the overall assessment of delay in the context of the rules of
natural justice and the principle of fairness. We also refer to the following
cases in which the delay was found to be unacceptable:
Brown v. Association of Engineers and Geoscientists
of British Columbia, [1994] BCJ No. 2037 Vancouver No. A933892, (B.C.S.C.) - delay of 4.5 years.
Thomson v. College of Physicians and Surgeons of
British Columbia, [1998] BCJ No. 1750, (22 July 1998) Vancouver A980128 (B.C.S.C.) - delay of 6 years.
Blencoe v. Human Rights Commission (1989), 160 D.L.R.
94th) 303 (B.C.C.A.) - delay of 33 months.
Stefani v. College of Dental Surgeons of British
Columbia, [1996] BCJ No. 1818
Vancouver No. A950239 (1996 44 Admin. L.R. (2d) 122)
- delay of 3 years.
NLK Consultants Inc. v. British
Columbia (Human Rights Commission) -
delay of 5 years.
A significant factor in
our determination that pre-charge delay must be factored into the overall
assessment of delay is the fact that
the Law Society controls both aspects of discipline proceedings - investigative
and prosecutorial. In criminal cases,
generally speaking, the prosecuting authority does not control the
investigative process
PREJUDICE
It is argued
by the Society that, in the absence of evidence from Mr. Baker of actual prejudice to Mr. Baker resulting from
the delay in his proceedings, this Committee ought not to find prejudice. In our view, on the facts of this case,
we infer prejudice to the solicitor as a result of the lengthy delay of
approximately ten years.
In criminal cases in which Section 11(b) of the
Charter is invoked it is well established that, where there has been excessive
delay, prejudice to the accused will be inferred.
The preponderance of
authority in the administrative law context
and, more particularly, the context of disciplinary proceedings, is to the same
effect.
In the MacPhee case
cited earlier in this decision, although there was affidavit evidence before
the court, Justice Richard indicated
that the length of delay in that case (approximately
four years) was per se sufficient to draw an inference of prejudice.
Similarly,
in the Ramsay case cited earlier in this decision the length of delay
(approximately five and one half years) alone
was found to have been sufficient for the Divisional Court to draw an inference of prejudice.
The case of NLK Consultants Inc. v. British Columbia
(Human Rights Commission) is a further compelling decision in which the very
length of the delay in a Human Rights case was sufficient to raise an inference of prejudice. In
that case, the court was dealing with the complaint of an employee of
discrimination by the accused corporation. The overall delay in question was a
period of approximately five years. Mr. Justice Edwards of the British Columbia
Supreme Court faced the following at page 7 of the judgment:
"In
the case at bar the actions of the petitioner have not significantly
contributed to the delay. The petitioner's response
to inquiries has been prompt. It appears that the major cause of delay between
1994 and 1996 was when the respondents simply did not proceed with
investigations. One might speculate that on the basis of the information
contained in the annual reports of the Commission, inadequate resources
available for investigation may well have been the cause of the unreasonable delay.
Certainly the settlement discussions
that went on during this period would not of themselves exclude unreasonable
delay. In the case at bar, prejudice may be evidenced by unreasonable delay.
Unreasonable delay per se will establish prejudice."
Admittedly, the objective of Human Rights proceedings
is largely conciliatory and not in
the same vein as disciplinary proceedings, but the principle of fairness
applies with equal force to both types of proceedings.
It was also urged upon us by Mr. Greenspan that we
should give considerable weight to
the fact that the solicitor has not practised law for many years and does not
now practise law.
Accordingly,
neither his ability to practise law free of the taint of discipline proceedings
nor his ability to earn a living are live factors in the consideration of the
issue of prejudice. Although these
arguments are forceful, they cannot displace the presumption of prejudice from
undue delay insofar as the punitive
nature of the proceedings themselves are concerned. The prejudice which we infer is that which affects the ability of
the solicitor to make full answer
and defence to charges which impugn his standing as a member of the bar.
Accordingly, we find
that, on the facts of this case, that the length of delay of itself creates an
inference of prejudice to the solicitor. In the opinion of this Committee, the
sword of Damocles has been hanging over Mr.
Baker's head for far too long.
Post-charge delay alone in this case is excessive to
the point of creating a presumption
of prejudice. In addition, the cumulative effect of both pre-charge and
post-charge delay renders that presumption irrefutable.
RESPONSIBILITY
FOR THE DELAY
We
find as a fact that even after taking into account the normal delays which are an inevitable part of any hearing
process and a delay of approximately
one month resulting from a request for adjournment by the solicitor's counsel
in order to permit himto honour a speaking engagement, we find that it was the Law Society's conduct of this case which resulted
in excessive and unacceptable delay.
In the
pre-charge period of some five years there can be little doubt that the Law
Society's investigation took far too long and
for no apparent, good reason.
In the
post-charge period it was largely the Law Society's resistance to the
solicitor's legitimate pursuit of full disclosure which caused the delay. One
need only look to the Panel's decision in January of 1996 and the decision of
Mr. Justice Saunders in September of 1996 and the Law Society's actions which
followed in order to reach this conclusion.
What was referred to by both counsel as "the saga of the
lists" continued right up to the commencement of this motion.
WAS THE DELAY
REASONABLE IN ALL OF THE CIRCUMSTANCES?
Mr.
Greenspan on behalf of the Society submitted that, in all the circumstances of this case, a ten
year delay was not an undue delay. He cited in
particular the complexity of the matter, the seriousness of the complaints and
the societal interest in seeing them
resolved after a full hearing on the merits. With respect, we cannot accept that argument in the circumstances of
this case. Undoubtedly, those
factors are all worthy of consideration. In particular, the issue of societal interest is a very
important one. However, our system of
jurisprudence at every level does not
condone the sacrifice of individual rights at the altar of societal interest.
In a clear example of that approach the Supreme Court of Canada in the case of
R. v. Collins; R. v. Pelfrey [1995] 2 S.C.R. p. 1104 allowed the appeal
of two individuals accused of second degree murder and in so doing restored the
decision of a trial Judge who had stayed the charge against the accused on the
basis of a violation of the accused's rights under section 11(b) of the
Charter. One of the factors cited by the Supreme Court to be balanced with
other facts was that of the seriousness of the charge and, accordingly, the
societal interest in bringing the accused to trial. The majority of the court
gave paramount significance to the rights of
accused persons to be tried without undue delay.
Clearly,
the Supreme Court of Canada was dealing with the criminal law and, more
particularly Section 11(b) of the Charter
and, to that extent, the decision is not directly applicable to this case.
However, this decision of the highest court is instructive to this Committee in
dealing with the reconciliation of
legitimate individual rights and societal interests.
CONCLUSION
Accordingly, it is the conclusion of this Committee
that the remaining counts in the complaint against Thomas Bruce Baker should be
and are hereby stayed. We come to
this conclusion somewhat reluctantly because of the Law Society's long history of fairness in the treatment of its
members in the public interest. However, we have no doubt that in this case the
high standards of the Law Society
were not met.
Counsel
for the solicitor indicated to this Committee that in the event of his success on the motion he wished the Committee
to consider the issue of costs. If it remains counsel's wish to make submissions in regard to costs, he
should notify the hearing co- ordinator so that a date for submissions can be
arranged with the Committee and with
counsel for the Law Society.
ALL OF WHICH
IS RESPECTFULLY SUBMITTED BY
Roger Yachetti
Chair Dated this 30th day of
March, 2000.
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