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Divisional Court strikes costs awarded to lawyer

|Written By Robert Todd

Toronto lawyer Sharon Shore says she will appeal a Divisional Court decision striking $91,500 in costs awarded to her following a good character hearing held when she was a Law Society of Upper Canada applicant.

Shore, an in-house counsel for Axa Insurance, says she will seek leave to appeal the decision at the Ontario Court of Appeal. In a notice of motion for leave, her lawyers argue the matter has “important access to justice ramifications.”

The notice states that “persons may be deterred from pursuing applications for membership in the law society if they can be put to the expense of a good character hearing and cannot recover from the law society the costs of a hearing in the type of circumstances that this case presents, or if the approach adopted by the appeal panel and Divisional Court is correct.”

Shore was brought before a law society hearing panel in August 2006 while an articling student at McCague Peacock Borlack McInnis & Lloyd LLP. The hearing was to determine whether her “good character” was sufficient to permit her entry to the profession, which was allegedly put into question by some of her actions after the October 1998 death of her daughter, Lisa.

The 10-year-old girl had died while being cared for at the Hospital for Sick Children. A coroner’s inquest ruled the child’s death a homicide caused by improper administration of morphine, and nurses who cared for her were reprimanded by College of Nurses of Ontario. Shore has written a book about Lisa’s death, titled No Moral Conscience.

Criminal charges against the nurses were dropped after it was revealed that Shore had destroyed and failed to disclose to police a neurologist’s report suggesting Lisa’s illness was due to “conversion symptoms,” meaning psychological in nature.

The nurses’ criminal defence lawyers subsequently filed a complaint with the law society, questioning whether Shore should be admitted to the law society as a member. Three of the four grounds for the complaint were dropped by the society during the hearing panel proceedings. Counsel for the LSUC took no position on the final complaint, involving destruction of the neurologist’s report.

The hearing panel accepted Shore’s evidence and concluded that her decision to destroy the report “was an aberration in what has been, and continues to be, an exemplary life.”

The hearing panel, led by chairwoman Joanne St. Lewis, stated, “Based on the evidence presented, we are satisfied that faced with the type of conflict of interest she faced in the past, Ms. Shore would today recognize the conflict for what it is and act according to the ethical requirements of her position as a lawyer and as an officer of the court.”

The panel later awarded Shore $91,500 in costs, finding that the law society went ahead with the hearing “notwithstanding overwhelming evidence answering the question of good character and admission of wrongdoing and remorse.”

The panel noted that two of the grounds of the complaint were dropped months before the hearing, with the third abandoned during closing arguments. It said Shore had adequately addressed the fourth complaint before the hearing.

The law society appealed the hearing panel’s decision on costs to a law society appeal panel, which quashed the award. The appeal panel, led by chairman Mark Sandler, said in its April 2008 decision that the costs award could deter the LSUC “from vigorously but fairly advancing the public interest, whether that means opposing an application or ultimately taking no position on it.”

The Divisional Court, in its decision issued last month, sided with the appeal panel. “Given the record, the appeal panel concluded that the hearing panel made unreasonable findings of fact in concluding that the admissions hearing was unwarranted in this case because her response had provided a full answer,” wrote Justice Katherine Swinton for the panel that also included Justice Janet Wilson and Justice Wailan Low.

“That decision of the appeal panel was a reasonable one, as was its conclusion that an admission hearing was warranted in light of serious misconduct going directly to the administration of justice, the questions about good character left by the applicant’s response, and the society’s responsibility to govern the legal profession in the public interest.”

Shore’s notice to the Court of Appeal points out that her case was the first time a law society appeal panel considered the issue of when an applicant can recover costs if called to an admission hearing to prove good character.

The notice alleges that the appeal panel “engaged in a radical reinterpretation of rule 14.03 [of the law society Rules of Practice and Procedure], removing some parts of it from its context, and misinterpreting its language and purpose.” It further suggests, “The Divisional Court’s approach was based on a flawed approach to the standard of review.”

Shore, 52, tells Law Times that she cannot offer further comment on the case because of the appeal proceedings.

LSUC communications manager Lisa Hall said the Divisional Court decision “speaks for itself.”
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