Law Society of Upper Canada v. Stoangi et al. [Indexed as: Law Society of Upper Canada v. Stoangi]
64 O.R. (3d) 122
[2003] O.J. No. 1110
Docket No. C38849
Court of Appeal for Ontario
Weiler, Charron and Feldman JJ.A.
April 2, 2003
Professions -- Barristers and solicitors -- Unauthorized practice -- Disbarred lawyer acting for landlord in renewal of commercial lease and for property owners in boundary line dispute -- Disbarred lawyer giving legal advice in both instances -- Disbarred lawyer practising law contrary to s. 50(1) of Law Society Act -- Law Society Act, R.S.O. 1990, c. L.8, s. 50(1).
The applicant Law Society sought an injunction against the respondent, a disbarred lawyer, alleging that he had acted as a lawyer on at least two occasions, when he acted for a landlord in the renewal of a commercial lease and when he acted for the owners of property in a boundary line dispute. The application judge agreed that the respondent had "acted as a barrister or solicitor" contrary to s. 50(1) of the Law Society Act and granted the injunction. The respondent appealed.
Held, the appeal should be dismissed.
With respect to the commercial lease, the respondent went beyond acting as a negotiator and was not acting as a mediator; rather, he advised one of the parties to the lease on questions of law. With respect to the boundary dispute, it was open to the application judge to conclude that the respondent had considered the legal issue of adverse possession and had advised the property owners that they had a right of action. "Practising law" includes giving advice on legal questions. An isolated act, falling within the definition of the "practice of law", is not a violation of the Law Society Act. The impugned conduct must be carried out frequently, customarily or habitually. The evidence in this case supported the inference that the respondent was providing ongoing legal advice to members of the public in two separate matters. It was open to the application judge to conclude that the conduct of the respondent amounted to practising law or acting as a lawyer, contrary to s. 50(1) of the Act.
APPEAL from an order granting an injunction.
Cases referred to R. v. Brunet, July 13, 1987, unreported (Prov. Ct.); R. v. Campbell and Upper-Canada Business Administrators Ltd. (1974), 1974 497 (ON SC), 3 O.R. (2d) 402, 45 D.L.R. (3d) 522, 17 C.C.C. (2d) 400 (Prov. Ct., Crim. Div.); R. v. Engel and Seaway Divorcing Service (1976), 1974 861 (ON SC), 11 O.R. (2d) 343, 29 C.C.C. (2d) 135 (Prov. Ct., Crim. Div.); R. v. Lawrie & Pointts Ltd. (1987), 1987 4173 (ON CA), 59 O.R. (2d) 161, 19 O.A.C. 81, 32 C.C.C. (3d) 549, 48 M.V.R. 189 (C.A.), affg (1986), 1986 2817 (ON SC), 58 O.R. (2d) 535, 29 C.C.C. (3d) 160 (Dist. Ct.); R. v. Ott, 1950 86 (ON CA), [1950] O.R. 493, [1950] 4 D.L.R. 426, 97 C.C.C. 302 (C.A.); R. v. Zaza, [1975] O.J. No. 1113 (Quicklaw) (Div. Ct.), affg May 1974, unreported (Co. Ct.); R. ex rel. Smith v. Mitchell, 1952 76 (ON CA), [1952] O.R. 896, 104 C.C.C. 247, [1953] 1 D.L.R. 700, affg (1952), 1952 245 (ON SC), [1953] 1 D.L.R. 143, [1952] O.W.N. 248, 102 C.C.C. 307 (Co. Ct.); R. v. Engel and Seaway Divorcing Service (1976), 11 O.R. (2d) 343, 29 C.C.C. (2d) 135 (Prov. Ct., Crim. Div.); The Apothecaries Company v. Jones (1892), [1893] 1 Q.B. 89
Statutes referred to Law Society Act, R.S.M. 1987, c. L100, s. 20(3)(d) Law Society Act, R.S.O. 1970, c. 238, s. 50 Law Society Act, R.S.O. 1980, c. 233, s. 50 [page123] Law Society Act, R.S.O. 1990, c. L.8, s. 50(1) Law Society Act, 1999, S.N. 1999, L-9.1, s. 2(2)(f) Legal Profession Act, S.B.C. 1998, c. 9, s. 1(e) Legal Profession Act, S.P.E.I. 1992, c. 39, s. 21(1)(f) Solicitors Act, R.S.O. 1950, c. 368, s. 6
Authorities referred to Cory, P., A Framework for Regulating Paralegal Practice in Ontario (Toronto: Queen's Printer for Ontario, 2000)
Martin J. Prost, for appellants. Kimberly L. Evans, for respondent.
Introduction
1BY THE COURT: -- The primary issue in this appeal is the definition of legal services under the Law Society Act, R.S.O. 1990, c. L.8.
2Mr. Stoangi was a former member of the Law Society of Upper Canada, called to the Bar in 1977. Based on various complaints, he was suspended in 1978 (initially disbarred), and as a result of an ongoing investigation, in 1984, he was permanently disbarred. It was alleged by the Law Society of Upper Canada ["LSUC"] that Mr. Stoangi acted as a lawyer on at least two occasions: (1) when he acted for a landlord in the renewal of a commercial lease in 1999; and (2) when he acted for the owners of a property in a boundary line dispute. Based on his reading of all the written material filed by the parties to the application, the application judge granted the injunction and ordered Stoangi to pay $750 costs to LSUC.
3We are conscious that the record in this case could certainly have been developed more fully. Nevertheless, we are of the opinion that it was open to the application judge to conclude that Mr. Stoangi was practising law.
The Allegations
4With respect to the first allegation involving a commercial lease, Mr. Stoangi, on behalf of the lessor, wrote to the lawyer for 1190355 Ontario Inc., taking the position that the company had failed to exercise its option to renew the lease and that he would be acting for the lessor with respect to the negotiation of a new lease. Whether or not the lease had been properly renewed was the issue between the parties and involved a question of law. Mr. Stoangi was representing one of the parties to the lease and would, of necessity, have been advising him. He was acting as more than a negotiator and was not acting as a mediator.
5Similarly, with respect to the boundary dispute, Mr. Stoangi indicated in his letter, dated August 30, 1999, that"It is apparent from the searches and further investigation that the [page124] Barberas and their predecessor in title have had the uninterrupted use of the disputed northerly boundary of your property since 1964." He concluded"If you are not prepared to enter into this agreement and move the fence, the Barberas will have no other recourse but to commence an action based on a prescriptive right of ownership achieved over a period of uninterrupted use since 1964." Based on this letter, it was open to the trial judge to infer that Mr. Stoangi had advised the Barberas that they had acquired title by adverse possession, that they had what amounted to uninterrupted use of the property and that he had given the Barberas an assessment of their claim, namely, that they had a right of action.
Analysis
6Section 50(1) of the Act provides that "except where otherwise provided by law" no person other than a member of the law society shall act or practise as a barrister or solicitor. The section reads:
50(1) Except where otherwise provided by law,
(a) no person, other than a member whose rights and privileges are not suspended, shall act as a barrister or solicitor or hold themself out as or represent themself to be a barrister or solicitor or practise as a barrister or solicitor; . . .
7The exception -- "where otherwise provided by law" -- refers to statutes that specifically provide that agents who are not barristers or solicitors may appear and represent another person before designated adjudicative bodies and tribunals: see R. v. Lawrie and Pointts Ltd. (1987), 1987 4173 (ON CA), 59 O.R. (2d) 161, 32 C.C.C. (3d) 549 (C.A.). The appellant was not acting under any such legislative authority so as to be excepted from s. 50(1) of the Act.
8Although the appellant does not come within the exception for agents, the issue before the court is whether what the appellant did constituted acting as a barrister or solicitor or practising as a barrister and solicitor. The Ontario legislature has not defined these terms in any statute regulating the legal profession nor has the Law Society of Upper Canada defined "practice of law" or "acting as a lawyer" either in the Rules of Professional Conduct or in its by-laws. However, a statutory definition of the "practice of law" is found in the regulatory statutes of British Columbia, Manitoba, Newfoundland and Prince Edward Island. These statutes provide that "giving legal advice" for a fee or expectation of a fee constitutes the "practice of law". [See Note 1 at end of document] [page125]
9In Ontario, there is long-standing case law which has interpreted "practising as a solicitor" [See Note 2 at end of document] to include advising another on legal questions: R. ex rel. Smith v. Mitchell (1952), 1952 245 (ON SC), 102 C.C.C. 307, [1953] 1 D.L.R. 143 (Co. Ct.), affd 1952 76 (ON CA), [1952] O.R. 896, 104 C.C.C. 247 (C.A.); R. v. Zaza (May 1974, Co. Ct., unreported), affd [1975] O.J. No. 1113 (Quicklaw) (Div. Ct.); R. v. Engel and Seaway Divorcing Service (1976), 1974 861 (ON SC), 11 O.R. (2d) 343, 29 C.C.C. (2d) 135 (Prov. Ct., Crim. Div.); R. v. Brunet (July 13, 1987, Prov. Ct., unreported).
10In his report on paralegals: A Framework for Regulating Paralegal Practice in Ontario (Toronto: Queen's Printer, 2000), the Honourable Peter Cory examined which legal services paralegals should be allowed to perform in the interests of members of the public who require such services. His recommendations did not include providing legal advice as a service that paralegals should be allowed to offer or perform.
11The jurisprudence also indicates that an isolated act, falling within the definition of the "practice of law", is not a violation of the Act. The impugned conduct must be carried out "frequently, customarily, or habitually": R. v. Ott, 1950 86 (ON CA), [1950] O.R. 493, [1950] 4 D.L.R. 426 (C.A.); The Apothecaries Company v. Jones (1892), [1893] 1 Q.B. 89; R. v. Campbell and Upper- Canada Business Administrators Ltd. (1974), 1974 497 (ON SC), 3 O.R. (2d) 402, 45 D.L.R. (3d) 522 (Prov. Ct., Crim. Div.).
12The evidence in this case supported the inference that the appellant was providing ongoing legal advice to members of the public in two separate matters. In our view, it was open to the application judge to conclude that the conduct of the appellant amounted to practising law or acting as a lawyer, contrary to s. 50(1) of the Act.
13The appellant concedes that a viva voce hearing is not required before an injunction may issue.
Disposition
14Accordingly, we would dismiss the appeal with costs fixed in the amount of $3,000.
Appeal dismissed.
[page126]
Notes
Note 1: Legal Profession Act, S.B.C. 1998, c. 9, s. 1(e); Law Society Act, R.S.M. 1987, c. L100, s. 20(3)(d); Law Society Act, 1999, S.N. 1999, L-9.1, s. 2(2)(f); and, Legal Profession Act, S.P.E.I. 1992, c. 39, c. 21(1)(f).
Note 2: As interpreted under the former prosecution provision, s. 50, Law Society Act, R.S.O. 1970, c. 238 and s. 50, R.S.O. 1980, c. 233, as well as its precursor, s. 6, of the Solicitors Act, R.S.O. 1950, c. 368.
