Court File and Parties
CITATION: Law Society of Upper Canada v. Kazman, 2011 ONSC 3008
DIVISIONAL COURT FILE NO.: 316/08
DATE: 20110513
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, FERRIER AND ASTON JJ.
BETWEEN:
THE LAW SOCIETY OF UPPER CANADA
Respondent
– and –
MARSHALL KAZMAN
Appellant
William Holder, for the Respondent
William Friedman, for the Appellant
HEARD at Toronto: May 13, 2011
Oral Reasons for Judgment
jennings j. (ORALLY)
[1] The appellant, Marshall Kazman, appeals from a decision of the Appeal Panel of the Law Society of Upper Canada dated May 9, 2008 which affirms a decision of the Law Society Hearing Panel dated September 13, 2006, that disbarred the appellant from practising law.
[2] The appellant had been found by the Hearing Panel to have engaged in professional misconduct with respect to five real estate transactions as he had been reckless or willfully blind to whether the transactions were fraudulent; he had failed to serve the purchasers and mortgagees who were his clients; he had commissioned false and misleading affidavits and declarations; and he had failed to properly maintain books and records as required.
[3] The Appeal Panel concluded that the Hearing Panel decision was reasonable, except with respect to the quantum of costs awarded against the appellant which the Appeal Panel lowered from $80,000 to $40,000.
[4] The key finding was that the solicitor knowingly participated in a dishonest scheme to obtain mortgage funds from his clients.
[5] The appellant made no submissions on the standard of review. We find the standard of review is reasonableness with deference due to the Appeal Panel on its findings of mixed fact and law, determination of penalty and its interpretation of its home statute. This Court should only interfere if the Panel’s decision is unreasonable. (See Igbinosun v. LSUC (2008) 2008 36158 (ON SCDC), 83 Admin. LR (4th) 106 (Ont. Div. Ct.)).
[6] The finding that the solicitor knowingly participated was founded upon the Panel’s conclusion that he was reckless and willfully blind in the circumstances. That finding was a question of mixed fact and law. It was clearly supported by the evidence before the Panel. The appellant has failed to demonstrate that the panel misapprehended or ignored that evidence.
[7] The appellant’s submission that an honestly held belief, whether reasonably held or not, negates recklessness and willful blindness was directly considered in paragraphs 82 to 86 of the Hearing Panel’s reasons. Its conclusions were reasonable and were upheld by the Appeal Panel. (See paras. 65 to 71 of that Panel’s decision).
[8] The appellant submitted in argument, although not in his Notice of Appeal, that the reasons of the Hearing Panel were deficient in explaining why it did not accept his evidence that he did not knowingly participate in a fraudulent scheme. We are unable to accept that submission. The reasons of both Panels are extremely thorough and comprehensive. They address every point raised in this appeal. See for example, the Hearing Panel’s conclusions on the appellant’s credibility at para. 81 of its reasons.
[9] Accordingly, we are not persuaded that the conclusion of the Hearing Panel with respect to professional misconduct, and the upholding of that conclusion by the Appeal Panel, were unreasonable.
[10] The imposition of penalty falls particularly within the mandate and expertise of the Hearing and Appeal Panels. There were mitigating factors in this case which were discussed and taken into account by the Hearing Panel. However, the Panel was conscious of its overarching obligation to protect the public and maintain the public’s confidence in the integrity of the profession.
[11] No decision has been shown to us where in cases of knowing participation in mortgage fraud, the penalty has been other than termination of the solicitor’s licence. That being so, it cannot be said that the penalty in this case was unjust or overly severe.
[12] The appeal is dismissed.
COSTS
[13] We are all of the view that the sum of $15,000 is a reasonable request. Costs to the Society fixed at $15,000 inclusive.
JENNINGS J.
FERRIER J.
ASTON J.
Date of Reasons for Judgment: May 13, 2011
Date of Release: May 20, 2011
CITATION: Law Society of Upper Canada v. Kazman, 2011 ONSC 3008
DIVISIONAL COURT FILE NO.: 316/08
DATE: 20110513
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, FERRIER AND ASTON JJ.
BETWEEN:
THE LAW SOCIETY OF UPPER CANADA
Respondent
– and –
MARSHALL KAZMAN
Appellant
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: May 13, 2011
Date of Release: May 20, 2011