Glenn Stuart

A disciplinary appeal concerning allegations of professional misconduct and participation in mortgage fraud by a real estate lawyer.

The Law Society alleged that the lawyer failed to disclose credits to lenders in eight real estate transactions, thereby assisting in mortgage fraud.

The Hearing Panel found no fraud but found the lawyer fell below the standard of competent practice in seven transactions, imposing a two-month suspension.

The Appeal Panel reversed, finding the Hearing Panel applied an incorrect legal test for mortgage fraud and ordered a new hearing.

The Divisional Court upheld this decision by majority.

The Court of Appeal allowed the appeal, finding that while the Appeal Panel's articulation of the legal test was reasonable, ordering a new hearing was unreasonable given the Hearing Panel's clear factual findings that the lawyer lacked the requisite mental element for fraud.

Lawyers under investigation by their professional regulator sought constitutional declarations and procedural protections concerning potential disclosure of client confidential information during disciplinary proceedings.

They argued provisions of the governing statute violated ss. 7 and 8 of the Charter by failing to adequately protect solicitor‑client privilege and requested public interest standing to advance broader constitutional relief.

The court held the application was premature because the administrative process before the regulator’s tribunal had not yet been completed.

The tribunal had jurisdiction to consider the constitutional arguments and grant most requested remedies, with courts reviewing the matter only after the administrative process concluded.

The application was dismissed and public interest standing refused.

The defendants brought a motion seeking to remove opposing counsel on the basis of an alleged conflict of interest arising from prior interactions with one of the defendants during the lawyer’s previous employment at another firm.

The defendants alleged that confidential information was disclosed during a business lunch and argued that the lawyer should therefore be disqualified.

Applying the test from MacDonald Estate v. Martin, the court held that the defendants failed to establish that material confidential information relevant to the action had been imparted.

The court further found that any information discussed was either not confidential, not shown to be relevant, or had already been disclosed in the litigation record.

The motion to remove counsel was dismissed and costs were awarded against the moving parties.