A Mississauga, Ont., man is facing a libel suit by a Toronto lawyer claiming he defamed him in a complaint to the Law Society of Upper Canada about his conduct.
In a statement of claim filed last month, Yaroslav Mikitchook asks for $100,000 in damages against Darren John for “serious injury and damage to his character, reputation as a lawyer, and standing in the community.”
John, representing himself in two Small Claims Court actions in Brampton, Ont., faced Mikitchook as counsel for opposing parties in both cases and describes the libel action as “nonsense.”
In his statement of claim, Mikitchook says his intervention in the cases scuppered John’s hopes for speedy resolution to his actions, which the lawyer describes in his claim as “spurious.”
According to Mikitchook’s lawsuit, John’s subsequent complaint was a bid to create the impression with the law society that he had lied in court, was mentally challenged and unscrupulous, and had breached his obligations as an officer of the court.
In his statement of claim, Mikitchook also says John alleged the lawyer will stop at nothing to win and “uses his job title to manipulate the system.”
John’s complaint, he alleges, was “fabricated by him for the contemplated purpose of causing the plaintiff such embarrassment” that he would remove himself from the case, “thus making the defendant’s claim against the plaintiff’s clients easier to prosecute.” None of the allegations against either Mikitchook or John have been proven.
According to Toronto media lawyer Brian MacLeod Rogers, Mikitchook could struggle to win his case because the allegedly defamatory statements came about in a complaint letter to the LSUC.
“I’d be of the view that any complaint letter to a regulatory body such as the law society would be privileged,” he says.
However, MacLeod Rogers concedes that the courts have yet to settle the type of privilege afforded to complaint letters and says there could be an argument over whether the comments fall under absolute privilege - as do those made in Parliament or court - or qualified protection.
Privilege in the latter category is lost when the person made the statements maliciously. Mikitchook pointed to that notion when he said in his statement of claim that John’s complaint was “motivated by malice.”
Still, MacLeod Rogers says the case law in other common law jurisdictions has accepted the notion that complaints to a regulatory body fall under absolute privilege and believes he could make a “good argument for it” here in Canada.
“You want to encourage people to come forward with complaints without fearing that they will end up on the wrong end of litigation,” MacLeod Rogers says.
When lawyers or other professionals are facing a complaint they believe to be false, MacLeod Rogers says the courts aren’t the most appropriate forum to settle the dispute.
“I would suggest the way to deal with it is in the context of that professional body, in other words [by] convincing the law society that the complaint is ill-founded.”
Mikitchook declined to comment on the case when reached by Law Times.
“I really don’t want to discuss it as it’s before the courts,” he says. “It’s going to be adjudicated in due course, and the issues will come out.”
In a statement of defence filed last week, John refutes all of Mikitchook’s claims and alleges the lawyer launched the libel action because he was offended by the LSUC complaint.
“He felt trapped, and his only line of defence would be to try to intimidate Mr. John into a retraction,” the statement of defence claims. “Yaroslav believed John would be overwhelmed by the Superior Court process and it would be financially taxing on him.”
The libel case is the latest development in an increasingly bitter small claims case brought by John against the owners of a car dealership.
John, who owned an auto body shop in Mississauga, bought a car from the dealership and claimed the owners had misinformed him about the mileage and accident record of the vehicle.
John says that after the “bad blood” between the two parties escalated in the wake of disputes about the service of documents, he ended up suing two paralegals for allegedly damaging his property.
In February, Mikitchook took on the owners of the car dealership and one of the paralegals as his clients. Then in April, John made his complaint to the law society.
Mikitchook claims John made the complaint “as a tactical device” to gain leverage in his Small Claims Court cases and alleges he declined to back up his complaint with evidence when the law society contacted him.
“He repeatedly tried to put into evidence proof of his complaint about the plaintiff in order to gain whatever tactical or other advantage he could . . . knowing at all times the LSUC would not proceed without further substantiation,”
Mikitchook’s claim states.
But in an interview, John tells Law Times the complaint remains ongoing and says he has been in touch with the law society to provide more details. At the same time, he’s unrepentant about making Mikitchook’s conduct an issue in his court battles with the lawyer.
“He hates it when I bring up his complaint history in court,” John says.
Mikitchook’s complaint history includes findings of professional misconduct by the law society on seven occasions since the early 1990s, most recently in January 2009.
It has punished him for inadequate bookkeeping; failing to respond to clients; failing to pass on files to new lawyers in cases where his retainer was terminated; and failing to respond to the law society.
During a hearing in 2008, Mikitchook presented evidence from a psychiatrist indicating he suffered from two personal ity disorders that drove him to self-sabotaging behaviour.
Mikitchook regained his licence in January (see "'Self-defeating' lawyer can practise") after convincing a panel that the psychological conditions causing his errors were under control.
Currently, the law society has restricted his practice, according to a statement from LSUC spokeswoman Jane Withey.
“He is able to practise but only under the supervision of another lawyer licensed to practise law in Ontario who has been approved by the director of professional regulation,” she said.
In his statement of defence, John says he feared Mikitchook was “regressing” and wished only for the lawyer to “seek help.”
Then, “after a number of inaccurate statements and odd behaviour,” he went to the law society to complain, according to the defence.