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Divisional Court finds hearing panel was demeaning to lawyer

|Written By Neil Etienne

A lawyer says he feels vindicated after the Divisional Court found a Law Society of Upper Canada hearing panel made “demeaning” findings against him.

Despite the court’s findings in his favour, Roy D’Mello says he’s unhappy with how the law society handled a key piece of evidence in the investigation against him. “One thing that I felt was really terrible was for them to come out and say there’s no air of reality to you thinking the letter was backdated when the evidence proves exactly the opposite,” says D’Mello of his concern that someone had submitted backdated correspondence to further the case against him.

The comments follow the Divisional Court’s Oct. 16 ruling on D’Mello’s appeal in D’Mello v. The Law Society of Upper Canada. “In my opinion, these unfair findings tainted the reasonableness of the hearing panel’s decision about penalty,” wrote Justice Paul Perell in a decision that set aside two $10,000 cost decisions against the Oakville, Ont., lawyer and found the penalty of a one-month suspension was excessive and should have been a reprimand.

In 2012, the hearing panel disciplined D’Mello for failing to co-operate with an investigation when he failed to initially provide documentation on a mortgage transaction. D’Mello said he wished to co-operate but he wanted answers to his suspicions that someone had fraudulently backdated the letter to 2008 from 2011. He also wanted electronic versions to examine before providing his own documentation in his defence.

The source of his concern was a 2008 complaint to the law society by the Canadian Imperial Bank of Commerce about a $440,000 mortgage transaction. After sending the complaint on Dec. 5, 2008, Andrina McMillan, a risk manager at the bank, told a law society investigator to ignore the matter for the moment. After the call, the law society closed the file, but the bank says it sent a letter on Dec. 17, 2008, asking it to proceed with it. The law society, however, said it didn’t receive that letter. As a result, the file remained closed until 2011 when the CIBC’s Eric Smith started making inquiries. The law society then called D’Mello that year to tell him about the complaint that dated back to 2008.

Mr. D’Mello, who in 2008 knew nothing of these communications between the Law Society and the CIBC, believes that the December 17, 2008 letter was actually written in 2011 and backdated to appear to have been written in 2008,” wrote Perell in summarizing the issue.

The law society closed the CIBC's complaint against D'Mello after he eventually provided the information it was requesting, but by then, he was subject to the proceedings for failing to co-operate, Perell noted.

In its ruling, the hearing panel dismissed D’Mello’s defence and suggested it was consistent with an attempt to delay the proceedings. But while the Divisional Court found D’Mello had indeed failed to co-operate with the law society’s investigation, it suggested the hearing panel went too far in dismissing his defence and made “inconsistent, adverse, demeaning, and procedurally unfair findings of fact against” him.

I shall not fall prey to the error that the Hearing Panel made of commenting about whether Mr. D’Mello’s concerns on their merits wanted for an air of reality as a defence to an allegation of failure to co-operate, but in my view if the CIBC’s complaint had moved from an investigation to a discipline proceeding, then Mr. D’Mello’s eight reasons why he believed that the December 17, 2008 letter was concocted by the CIBC in January 2011 and backdated to 2008 would have been enough to require the Law Society to provide him with an electronic copy of the CIBC’s correspondence, and it would have justified summoning Ms. McMillan and Mr. Smith of the CIBC as witnesses to the CIBC’s complaint proceedings. I also comment that it would have been incumbent upon any Hearing Panel to permit Mr. D’Mello an opportunity to make his defence before ruling that it did or did not have any merit.”

William Trudell, chairman of the Canadian Council of Criminal Defence Lawyers, calls the case a “prime example of the law society not using its resources properly.”

“This case seems to me to be symptomatic of what has been a problem at the law society and that is a culture of almost ‘Don’t fight us,’” he says.

D’Mello says the ruling vindicated his argument but he feels he was subject to unfair treatment during the process.

“It made me look like I have delusional tendencies or I was trying to delay things. A lot of lawyers who go through this process do feel that the law society often acts in a very underhanded way in terms of the way they deal with you, very inconsistent.”

But Brian Radnoff of Lerners LLP says lawyers should still view the ruling as a warning to co-operate with investigations regardless of how meritless the person may believe the complaints are.

“Whether you think it’s an abuse, whether you think it’s improper, you must co-operate, end of story,” says Radnoff, adding the law society has a duty to investigate complaints for the sake of public confidence.

However, he notes lawyers are often unfairly subject to excessive penalties or costs. According to Radnoff, the fact that D’Mello may have erroneously but honestly thought he had a basis to find out what was going on with the investigation before providing his documentation is “not something that should result in a harsher penalty.”

“In their decisions about how to discipline lawyers, they take very hard lines on penalty,” says Radnoff. “The fact a lawyer honestly believes they have a defence, in good faith, in the face of serious charges that could result in serious discipline and ultimately they’re wrong, that should not be an aggravating factor when it comes to penalty and Justice Perell makes it clear it shouldn’t be.”

Trudell says the ruling should be a catalyst for doing things differently.

“It’s a really good opportunity to look at how we can do things better,” says Trudell. “There needs to be an off-ramp, there needs to be some diversion, some mediation.”

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