LSUC delays in Igbinosun case an ‘abuse of process’

A Law Society of Upper Canada panel has stayed a decade-old proceeding against a Toronto lawyer accused of misconduct after concluding that delays in the case amounted to an abuse of process, but the regulator has until the end of this week to appeal.

Matthew Joseal Igbinosun was due to get a new hearing on allegations of misconduct related to complaints of sexual assault after his initial disbarment in 2006 went all the way to the Ontario Court of Appeal.

But a new hearing, “nine to 11 years after the complaints were first made, is clearly unacceptable and offends the community’s sense of fairness to the point that it is contrary to the interests of justice for the hearing to be held,” wrote panel chairman Thomas Heintzman in a decision that blamed the law society for much of the delay.

The LSUC opened a file on Igbinosun in 1999 after he was charged with one count of sexual assault. In 2001, two further charges followed, and all three accusers also complained to the law society.

The criminal charges were all stayed in 2003 on the grounds of unreasonable delay, but the complainants pursued proceedings at the law society.

Heintzman noted LSUC officials were concerned as early as February 2004 about the delay in the case but failed to expedite the matter.

“We can come to no other conclusion than that the delay is unacceptable and amounts to an abuse of process,” Heintzman wrote.

Igbinosun has continued to practise after obtaining stays of the decisions against him pending appeals. “I’m still proud to be a member of the law society and I have confidence in the system,” he tells Law Times.

Francesca Yaskiel, who represented Igbinosun with co-counsel Nadia Liva at the hearing on the motion to stay the proceedings, says she’s happy with the result.

“These proceedings have affected his business, the money he was making, his relationships with his family,” she says. “The impact has been huge. This is a man who was heavily involved in his community, and it changed his entire life.”

But Igbinosun must wait a little longer to find out if his battle with the regulator, which he told the panel has cost him almost $500,000 to date, is finally at an end.

In an e-mailed statement, law society spokeswoman Susan Tonkin noted the regulator isn’t ruling out an appeal. It has until March 25 to make a decision.

In 2009, the appeal court upheld a 2008 Divisional Court decision that overturned the disbarment and ordered a new hearing because of flaws in the original proceedings that ended with the revocation of Igbinosun’s licence in 2006.

The original panel proceeded without Igbinosun after he was denied an adjournment to find new counsel and went straight to the penalty phase without giving him adequate notice.

That constituted a “clear breach of natural justice,” wrote Justice Anne Molloy in the Divisional Court decision. She also branded a law society appeal panel decision upholding that ruling “inexplicable.”

In an affidavit filed with the most recent hearing, Igbinosun said he thought about the law society proceedings every day and that he felt his life was at a “standstill.” His wife filed evidence noting that he was withdrawn, less communicative, and had lower self-esteem.

Igbinosun’s psychiatrist Dr. Julian Gojer also gave evidence to the law society panel about the toll the proceedings had taken on him. In a report filed with the hearing, he said Igbinosun presented features of chronic stress, including anxiety, depression, and sleep impairment.

“The chronic stress of dealing with the law society has generated clinical features akin to a post-traumatic stress disorder along with vegetative signs and symptoms associated with a major depression,” reads Gojer’s report.

“His reaction to the law society pursuing disciplinary proceedings against him for the second time appear to be the cause of this psychological distress.”

Igbinosun also said the proceedings had damaged his financial well-being. The 2006 disbarment came with an $82,000 costs award against him, although this was reduced on appeal.

The Court of Appeal eventually ordered the law society to pay Igbinosun $61,000 for the protracted appeal process, but the lawyer claimed it had cost him $400,000 plus more than $50,000 at the initial hearing.

“Costs of that amount are a devastating burden to a single practitioner such as the lawyer,” wrote Heintzman.

Even though he continued to practise, Igbinosun said his reputation had suffered as a result of the stigma of disbarment. It wasn’t until November 2010 that the law society stopped listing the proceedings against Igbinosun as a “discipline history” on its web site.

According to Igbinosun, he regularly loses clients unsure about his ability to practise. They include mortgage lenders unwilling to send him real estate files.

“The law society says that these consequences for the lawyer are an expected result of a contentious conduct application involving the possibility of disbarment, namely the costs of appeals, the impact on the lawyer’s reputation of the finding of disbarment being placed on the law society web site, and anxiety arising from the conduct proceeding,” Heintzman wrote. “The law society says that the lawyer should just ‘suck it up.’”

But the panel couldn’t agree with that position. It noted that all of the prejudices to Igbinosun “were caused or substantially contributed to by the denial of natural justice” at his original hearing.

In addition, the law society had missed numerous opportunities to speed up the process, Heintzman said.

The LSUC could have pursued its case alongside the criminal matter or at least have contacted the complainants “in order to be ready to proceed immediately if the criminal charges were dismissed.”

Instead, investigators closed the monitoring file in February 2004, three months after the stay of criminal charges, and noted that any new proceeding risked dismissal for delay.

It was reopened a month later when the complainants said they were ready to go ahead.
“One would have thought that every effort to expedite the matter would have been undertaken,” Heintzman wrote.

“Instead, it took almost a year for the matter to reach the proceedings authorization committee in February 2005.”

According to Heintzman, the law society must also take responsibility for the three-year delay between the initial disbarment and the Court of Appeal’s ruling to uphold the Divisional Court decision that overturned it.

“[The law society] opposed each and every effort by the lawyer to overturn the decisions of the hearing panel made on those days.

If the law society had conceded that an administrative wrong had occurred, the re-hearing might well have been held much earlier,” Heintzman wrote.

The decision notes Igbinosun’s conduct wasn’t exemplary. “On many occasions, the lawyer sought to delay the proceedings,” Heintzman wrote.

“His relationships, or lack thereof, with his counsel, also led him to seek deferrals. In virtually every case, however, his delay efforts were not successful and did not result in any substantial actual delay.”

In the end, Heintzman called the case an exceptional one in that the prejudice to the lawyer if the proceedings continued outweighed the effects on society at large in the event of a stay.

For more on this story, see "Divisional Court slams LSUC discipline decision."

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