Toronto (North York) Registry No. D47749/09
DATE: 2012·I·23
CITATION: Allen v. Harry, 2012 ONCJ 33
ONTARIO COURT OF JUSTICE
B E T W E E N:
ANDREW ALLEN,
Applicant
— and —
JOSETTE HARRY
Respondent
Counsel: Regina M.L. Senjule, for the applicant Josette Harry, Acting in person Colleen Charbonneau, agent for the assignee, the City of Toronto
HEARD: 23 January 2012
[1] JUSTICE S.B. SHERR (endorsement):— This trial about child support issues was scheduled to be heard by this court for two days, beginning on January 23, 2012.
[2] As a preliminary issue at trial, the applicant and the agent from the City of Toronto (the child support assignee) told the court that they were unsure about whether Stephen S. Small, who was purporting to appear as the respondent’s lawyer, was licensed to practise law in Ontario.
[3] Mr. Small explained to the court that he had once practised in Ontario, had given up that practice, subsequently practised as a lawyer in Alberta and that he was now in the process of becoming licensed to practise law again in Ontario. He said that his application was in process and that he was unsure of its status. He gave a similar explanation about having liability insurance.
[4] When I pressed him further, Mr. Small acknowledged that he was not licensed to practise law in Ontario and that he did not have liability insurance. He apologized. He said that he had hoped to be properly licensed and insured by the time that this trial started.
[5] The question was then raised about whether Mr. Small could be given permission to act as agent for the respondent. Clause 4(1)(c) of the Family Law Rules, O. Reg. 114/99, as amended, reads:
- Representation for a party.—(1) A party may,
(c)
be represented by a person who is not a lawyer, but only if the court gives permission in advance.
[6] This issue was a non-starter. The person making the request to act as an agent must come before the court with clean hands. The court must have confidence that this person will conduct himself or herself with “honesty, integrity and forthrightness”. See: Codina v. Law Society of Upper Canada, (1996), 93 O.A.C. 214, 39 C.R.R. (2d) 146, [1996] O.J. No. 3348, 1996 CarswellOnt 3515 (Ont. Div. Ct.).
[7] Mr. Small’s actions gave the court no confidence in his honesty, integrity or forthrightness. He attended on behalf of the respondent at the trial management conference on January 10, 2012 and advised the court that he was the respondent’s lawyer. He failed to advise the applicant, the City of Toronto or the court that he was not licensed to practise law in Ontario, or that he was even in the process of making such an application. He did not seek permission to act as an agent for the respondent.
[8] On January 19, 2012, Mr. Small filed an affidavit on behalf of the respondent. In the body of the document he represented that he was her lawyer. Inherent in that representation is that he is licensed to practise law in Ontario.
[9] At no time prior to the start of this trial did Mr. Small notify his client, counsel for the applicant, the City of Toronto or the court that he was uninsured and unlicensed to practise law in Ontario.
[10] Mr. Small did not even have the sufficient judgment to advise the court of this issue at the outset of the trial. His status had to be uncovered by the applicant’s lawyer and the agent for the City of Toronto and was raised by them at trial.
[11] Mr. Small initially waffled when asked about his insurance coverage and ability to practise law in Ontario. It was only when I asked him about what the Law Society of Ontario would tell us if we called it that Mr. Small acknowledged that he was not licensed to act as a lawyer in Ontario and that he was uninsured.
[12] At no time did Mr. Small advise his client that he was uninsured and not licensed to practise law in Ontario. She advised the court that she was shocked by this news. Mr. Small did not contest this. His actions constituted a serious breach of her trust. It appears that Mr. Small has acted in contravention of section 26.1 of the Law Society Act, R.S.O. 1990, c. L-8, as amended, which reads as follows:
Prohibitions
26.1 Non-licensee practising law or providing legal services.—(1) Subject to subsection (5), no person, other than a licensee whose licence is not suspended, shall practise law in Ontario or provide legal services in Ontario.
(2) Non-licensee holding out, etc.— Subject to subsections (6) and (7), no person, other than a licensee whose licence is not suspended, shall hold themself out as, or represent themself to be, a person who may practise law in Ontario or a person who may provide legal services in Ontario.
(3) Licensee practising law or providing legal services.— No licensee shall practise law in Ontario or provide legal services in Ontario except to the extent permitted by the licensee’s licence.
(4) Licensee holding out, etc.— No licensee shall hold themself out as, or represent themself to be, a person who may practise law in Ontario or a person who may provide legal services in Ontario, without specifying, in the course of the holding out or representation, the restrictions, if any,
(a)
on the areas of law that the licensee is authorized to practise or in which the licensee is authorized to provide legal services; and
(b)
on the legal services that the licensee is authorized to provide.
(5) Exception, non-licensee practising law or providing legal services.— A person who is not a licensee may practise law or provide legal services in Ontario if and to the extent permitted by the by-laws.
(6) Exception, non-licensee holding out, etc.— A person who is not a licensee may hold themself out as, or represent themself to be, a person who may practise law in Ontario, if,
(a)
the by-laws permit the person to practise law in Ontario; and
(b)
the person specifies, in the course of the holding out or representation, the restrictions, if any, on the areas of law that the person is authorized to practise.
(7) Same.— A person who is not a licensee may hold themself out as, or represent themself to be, a person who may provide legal services in Ontario, if,
(a)
the by-laws permit the person to provide legal services in Ontario; and
(b)
the person specifies, in the course of the holding out or representation, the restrictions, if any,
(i)
on the areas of law in which the person is authorized to provide legal services, and
(ii)
on the legal services that the person is authorized to provide.
(8) Agent.— This section applies to a person, even if the person is acting as agent under the authority of an Act of the Legislature or an Act of Parliament.
[13] Mr. Small demonstrated an alarming lack of judgment, integrity and competence by assuming that it was acceptable to represent to the court, the opposing party and his client that he was qualified to practise law in Ontario with the hope that his application would be approved by the Law Society of Upper Canada before the trial started.
[14] It is imperative that the court send a clear message that Mr. Small’s actions are entirely unacceptable. The legal system operates on the basis that the community can have confidence in the honesty, integrity and competence of the lawyers who represent them. The overwhelming majority of lawyers in this court act in such a manner every day. Mr. Small’s actions are a betrayal of the excellent work that these lawyers do and feed into the worst (and unfair) stereotypes of family law lawyers. This is the first time that I have ever encountered such a situation.
[15] Once the facts were established, Mr. Small apologized for his actions and admitted that he had been wrong to act in this fashion.
[16] Mr. Small was not permitted to act as the respondent’s agent.
[17] The respondent then advised the court that she wished to proceed with the trial without representation. After discussion, she agreed that her interests would be better served with an adjournment. The trial was adjourned to April 19, 2012.
[18] Both the applicant and the City of Toronto sought costs against Mr. Small. Mr. Small’s actions were unfair to everyone involved. The parties were prepared to have their case heard and determined. They must now go through the anxiety of further delay and uncertainty. Counsel for the applicant and the agent for the City of Toronto prepared for a two-day trial. Valuable court time was lost. To his credit, Mr. Small agreed to an order that he pay costs of $1,000 to the applicant and $200 to the City of Toronto. The costs are payable forthwith.
Justice Stanley B. Sherr
Released: 23 January 2012