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Monday, August 11, 2014

LAWYER REPRIMANDED FOR POSTING DISCLOSURE ONLINE

The Law Society Tribunal’s hearing division has reprimanded an Ottawa lawyer who posted Crown disclosure online.

In a penalty decision on July 30, a hearing panel reprimanded David Ian Anber and ordered him to pay $7,205 in costs.

Anber, a 33-year-old lawyer who focuses on vehicular offences, had earlier admitted to committing professional misconduct. The disciplinary panel, chaired by Lyle Kanee, found Anber had breached his client’s confidentiality and his undertaking to the Crown to keep the disclosure “strictly confidential” and had failed to maintain the integrity of the profession.

Anber admitted that on Nov. 25, 2012, he “mistakenly and foolishly” posted Crown disclosure in PDF format for his client’s fraud case on freelancer.com, an Internet site where people can bid on jobs offered by individuals.

According to an agreed statement of facts, Anber asked on his posting if anyone could provide a program to remove “black boxes redactions” from documents. He posted disclosure in his client Kimberley Billings’ fraud case as a sample of the kind of material he wanted unredacted.

Law society prosecutor Suzanne Jarvie asked the panel to penalize Anber with full costs of $7,205 and a “short but sharp” two-month licence suspension. Anber’s lawyer, Michael Johnston, asked for a reprimand but no suspension.

CIGI PROGRAM ADVISORY COMMITTEE MEMBERS NAMED

Five experts have joined the Centre for International Governance Innovation’s international law research program’s advisory committee.

The five new members include Lawrence Herman of Herman & Associates; Valerie Hughes, director of legal affairs at the World Trade Organization; Meg Kinnear, secretary general of the International Centre for Settlement of Investment Disputes; Barry Sookman, a partner at McCarthy Tétrault LLP; and Stephen Toope, incoming director of the Munk School of Global Affairs.

The law program is a $60-million, 10-year effort launched in 2013 aimed at developing the knowledge economy. It includes 19 research fellows and 20 scholarships. The advisory committee assists with developing a strategic plan, reviewing program activities, and suggesting ways to enhance it.

LAWYER’S APPEAL DISMISSED IN MORTGAGE CASE

The Divisional Court has upheld a Law Society of Upper Canada appeal finding that considered how the regulator must prove fraud.

On July 30, the court rejected lawyer Rosario Talarico’s appeal of the appeal panel’s ruling ordering a new hearing in his case. While a hearing panel had rejected an allegation he participated or knowingly assisted in fraudulent or dishonest conduct by not being honest and candid when advising his clients, the appeal panel found errors in that decision earlier this year.

According to the court, Talarico acted for the ultimate purchaser and institutional lender on 13 flip transactions involving a property sold at an inflated price. In 2013, the hearing panel rejected the allegations on the basis that it was impossible to draw inferences of fraud without evidence from those involved in the transactions. According to the hearing panel, the law society called no witness to testify Talarico had misled them or they had suffered an economic loss due to his conduct.

In its decision, the appeal panel found two errors on how the law society must prove fraud. First, it erroneously believed it needed evidence from the participants in the transactions or the institutional lenders. Second, it suggested it couldn’t infer the elements of fraud from circumstantial evidence. In his appeal, Talarico argued, among other things, that the appeal panel failed to accord the requisite deference to the hearing panel’s findings of fact and assignment of weight.

In the Divisional Court ruling, however, Justice Michael Dambrot found the appeal panel’s decision was reasonable. “If the hearing panel had properly understood the elements of fraud, and the role of circumstantial evidence in proving it, the panel could, and no doubt would have found that there was a fraud in this case,” he wrote in Law Society of Upper Canada v. Talarico.

“Once satisfied that there was a fraud, it could have appropriately determined whether or not the appellant participated in it. But having misunderstood the nature of fraud, the panel’s conclusion that it is ‘impossible to draw inferences of fraud or dishonest conduct or intent’ on the part of the appellant is fatally flawed.”

POLL RESULTS

The results of the latest Law Times online poll are in.

According to the poll, almost 63 per cent of respondents believe Ontario should follow Alberta in raising the small-claims limit to $50,000. On Aug. 1, the Provincial Court of Alberta’s civil claims limit increased to $50,000 from $25,000. By increasing the limit to $50,000 for small claims, individuals can go into small claims court, have access to a judge, and get a dispute resolved faster. Besides the change, Alberta is looking to divert landlord-and-tenant cases from the court system and further speed up the justice system by allowing for 30-minute summary trials.

For more, see "Lawyer who posted Crown disclosure online admits 'terrible mistake.'"

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