Editorial: The Torys fiasco: who was double-checking?

It’s the tale of endless boxes. First, it was Conrad Black, who inflamed his own legal troubles when he removed a dozen boxes from his Hollinger empire’s downtown Toronto offices despite a court order telling him not to.

Now, Torys LLP has added to its legal headaches by inadvertently forgetting to turn over 168 boxes of materials related to the Hollinger saga now at the centre of a Law Society of Upper Canada disciplinary hearing against two of its lawyers.

By now, most people will have heard about the “fiasco” last Monday that led to an adjournment of conflict of interest proceedings stemming from the sale of Hollinger assets against the two Torys lawyers, Darren Sukonick and Beth DeMerchant.

Ron Foerster, the Borden Ladner Gervais LLP partner representing Torys, took the blame for not passing on the materials to the law society in advance of the hearing.

In the week between the April 19 notice of the problem and the April 26 start date for the hearings, the law society was able to get through just 10 of the boxes, LSUC counsel Paul Stern said.

But a meeting on Thursday revealed that progress in reviewing 149 of them by last week would hopefully allow for a resumption of the proceedings tomorrow.

It’s hard to believe a prestigious Bay Street law firm could mess things up so badly, especially when its own affairs are at stake rather than those of its clients. Foerster explained the mix-up by noting it dated back to 2007, when Torys had been sending materials to an outside company for scanning onto CDs.

In instructing a clerk who was sending the materials off, Foerster mistakenly included the 168 boxes on a list of matters he believed the law society had already received. It was Philip Campbell, DeMerchant’s lawyer, who thought to double-check that the LSUC did in fact have them, a move that sparked last week’s adjournment.

The incident raises many questions. Key among them is whether the law society needs to have better processes in place to ensure it receives proper document production. From last week’s events, it appears it was relying on Torys to provide it.

That makes sense, especially given that it doesn’t have the investigative capacity that police have, but it seems logical to have more checks and balances to ensure it gets the information it needs without proceedings degenerating into the embarrassing and costly episode we saw last week.

Torys, too, has questions to answer given the public interest in timely and efficient regulation by the LSUC. Why, after years of dealing with the issue, was there apparently no one doing a proper check on what it had and hadn’t produced? We’ll be looking for more on this as the matter progresses.
- Glenn Kauth

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