Tushar Pain

The Law Society Tribunal determined the penalty and costs for a lawyer found to have engaged in professional misconduct by knowingly facilitating a client's fraud, breaching trust account rules, and failing to serve a client.

The Tribunal revoked the lawyer's licence immediately, finding that revocation is the only appropriate penalty for knowing participation in fraud to maintain public confidence.

The Tribunal also ordered the lawyer to pay $30,000 in costs to the Law Society, taking into account his impecuniosity and a reduction for inordinate investigative delay.

The Law Society of Ontario brought a motion to admit the reasons and findings of fact from a Court of Appeal decision (R v Cowan) as proof of those facts in a conduct application against the respondent lawyer, and to preclude the lawyer from re-litigating those facts.

The Tribunal found that while the decision was admissible, its findings of fact should be accorded only limited weight because the lawyer was merely a witness in the prior proceeding, which focused on trial fairness rather than his professional conduct.

The Tribunal also held that the doctrine of abuse of process did not preclude the lawyer from leading evidence to contest the findings of fact.

The appellant appealed convictions for sexual interference arising from historical abuse allegations involving child complainants within a family setting.

The appeal alleged material misapprehension of evidence concerning opportunity, bedroom access, and the timing of a disclosure, as well as uneven scrutiny of defence evidence.

The court applied the governing appellate standard for misapprehension of evidence and held that the identified errors were not substantive and played no essential role in the verdict.

It further held that the trial judge was entitled to treat inconsistencies in the complainants’ evidence as peripheral while finding that the defence evidence on opportunity was contrived.

The appeal was dismissed.