CITATION: Farkas v. The Law Society of Ontario, 2019 ONSC 2028
DIVISIONAL COURT FILE NO.: 091/18 DATE: 20190401
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Mullins, Myers, and Favreau JJ.
BETWEEN:
Joseph Stephen Farkas
Marie Henein and Kenneth Grad, for the appellant
Appellant
– and –
Law Society of Ontario
Sean Dewart and Ian McKellar, for the respondent
Respondent
HEARD at Toronto: February 28, 2019
MULLINS J.
Overview
[1] The appellant, Joseph Stephen Farkas, was the subject of disciplinary proceedings before the Law Society Tribunal’s Hearing Division regarding allegations of professional misconduct advanced by the respondent, the Law Society of Ontario.
[2] On September 8, 2016, the Hearing Division ruled that the appellant breached Rules 2.01(2) and 5.01(2) of the Rules of Professional Conduct, and By-Law 7.1 under ss. 62(0.1) and (1) of the Law Society Act, R.S.O. 1990, c. L.8: Law Society of Upper Canada v. Farkas, 2016 ONLSTH 149. The Hearing Panel imposed a six month licence suspension, practice restrictions, and ordered that costs of $200,000 be paid by the Appellant : Law Society of Upper Canada v. Farkas, 2017 ONLSTH 75.
[3] On January 17, 2018, the appellant appealed to the Law Society Tribunal’s Appeal Division. The Appeal Division upheld the decision of the Hearing Division: Law Society of Upper Canada v. Farkas, 2018 ONLSTA 2 (“2018 Appeal”).
[4] The appellant appeals to this Court from the Order of the Law Society Tribunal’s Appeal Division, dismissing his appeal from the Hearing Division’s findings of professional misconduct and the $200,000 costs award.
Factual Background
[5] The appellant received his licence to practice law in 1991. He is a sole practitioner who has primarily practiced refugee law since 2008. In 2011 and 2012, the appellant’s firm represented a number of Hungarian-speaking Roma refugee claimants from Hungary. The appellant does not speak Hungarian, but employed staff that provided interpretation services and administrative assistance. In particular, he relied upon Ms. Sztranyak, Mr. Buzai, and Ms. Olah to interpret and communicate with his Roma clients.
[6] During the relevant time period, persons claiming refugee protection in Canada were required to submit a Personal Information Form (“PIF”) setting out the basis for their refugee claim. The purpose of a PIF is to provide details of a refugee claimant’s social history and the grounds upon which they are claiming protection. A PIF was a key document that the former Refugee Protection Board (the “RPD”) of the Immigration and Refugee Board (the “IRB”) considered when adjudicating a refugee claim.
[7] The Law Society of Ontario received complaints from ten Hungarian-speaking Roma refugee claimants about the appellant’s assistance in the preparation of their PIFs. Following an investigation, the respondent alleged that the appellant breached the Rules of Professional Conduct by preparing inadequate PIFs that were below the standard of a competent lawyer, and failing to adequately supervise his staff in the preparation of these documents.
Jurisdiction of the Divisional Court
[8] An appeal to the Divisional Court is a statutory right pursuant to s. 49.38 of the Law Society Act. The appellant has the right to appeal on any question of fact or law: s. 49.39, Law Society Act.
Standard of Review
[9] The standard of review applicable to decisions of the Law Society Tribunal’s Appeal Panel was addressed by the Divisional Court in Igbinosun v. Law Society of Upper Canada, (2008), 2008 36158 (ON SCDC), 239 O.A.C. 178 (Div. Ct.), affirmed 2009 ONCA 484, 96 O.R. (3d) 138. In Igbinosun, at para. 9, the court held:
The Appeal Panel is entitled to deference on its findings of mixed fact and law, determination of penalty and its interpretation of the Act [Law Society Act] and this Court should only intervene if the Appeal Panel’s decision is unreasonable. However, on questions of law outside that area of expertise, the Appeal Panel is required to be correct.
[10] In this case, there are no questions of law outside of the Appeal Panel’s expertise, and the standard of review is reasonableness.
Issues
[11] The appellant advances four grounds of appeal:
i. The Appeal Panel erred in its application of the standard of practice by making findings without the appropriate evidentiary basis for doing so with respect to the non-participating complainants.
ii. The Appeal Panel erred in concluding that the Hearing Panel properly assessed the credibility of Ms. Sztranyak.
iii. The Appeal Panel erred in concluding that the Hearing Panel did not misapprehend the evidence and make unreasonable findings of fact with respect to the participating complainants and three of the non-participating complainants.
iv. The Appeal Panel erred in concluding that the $200,000 costs award was reasonable.
Reasons of the Hearing Panel
[12] In order to find professional misconduct, the Hearing Panel correctly identified that it must be satisfied by clear, convincing, and cogent evidence that on a balance of probabilities, the appellant failed to meet the standards required of a competent lawyer and appropriately supervise his staff.
The Evidence
[13] Over the course of 18 days, the panel heard evidence from numerous witnesses, including experts. Two of the ten complainants provided viva voce evidence. A lawyer, who was retained by two of the complainants after they had discharged the appellant, also testified. The appellant himself testified. The panel relied on the principles set out in Faryna v. Chorny, 1951 252 (BC CA), [1951] B.C.J. No. 152 (B.C.C.A.), at paras. 356-357, to assess the credibility of the witnesses.
[14] The panel undertook an extensive review of documentary evidence and considered a paper authored by Professor Peter Showler of the University of Ottawa. The panel also considered the evidence of Mr. Poulton, who was qualified at the hearing to give expert opinion evidence on the practice of immigration and refugee law. These sources explained that the information in a PIF must be sufficient to establish the grounds for a finding by the IRB that a person has a well-founded fear of persecution, torture, or other cruel and unusual treatment or punishment. As it related specifically to Hungarian Roma refugees, Mr. Poulton explained that it was important that these claimants report what steps had been taken to get state protection in Hungary before bringing their claim in Canada.
[15] Mr. Poulton reviewed the PIF narratives of the ten complainants. He expressed the view, for reasons he enumerated, that the lack of detail and absence of explanation as to what steps had been taken by the claimant to seek protection would create serious difficulties, including potentially reflecting poorly on their credibility. In his opinion, eight of the ten narratives he reviewed fell below the standard of a reasonably competent lawyer.
[16] The appellant testified in defence of his approach to advancing the claims of refugees, and his opinion as to the essentials for a successful claim. He also testified how his method coincided with the approach advocated by Professor Showler and challenged the expertise and evidence of Mr. Poulton. He testified that he was directly involved with his clients and in the preparation of their PIFs. If he was not available, his employee, Mr. Buzai, would meet with the clients to provide them with information about the refugee determination process.
[17] Mr. Buzai testified that the appellant would meet with the clients to determine if he would represent them. The interpreter would meet with the clients and prepare the PIFs. The appellant was not involved in this process. Mr. Buzai and Ms. Olah testified that they never had clients sign blank PIFs and that the documents were always fully interpreted to the clients. Mr. Buzai testified that he consulted with the appellant during the creation of his PIFs.
[18] By contrast, Ms. Sztranyak testified that she did not see the appellant hold meetings with new clients. Her evidence was that she and Mr. Buzai were given blank PIFs that had already been signed by clients. The appellant had no involvement in the preparation of the PIFs that she completed. She prepared the PIF narratives and would sign the interpreter’s oath signifying that she had reviewed and interpreted the documents with the clients, notwithstanding the fact that she did not do this. Having clients sign blank or incomplete PIFs was a practice in the appellant’s office. The PIFs were not interpreted to the clients despite the signing of declarations attesting that they were.
[19] The two complainants who testified gave evidence that they did not meet with the appellant and were asked to sign and date incomplete PIFs. There was evidence from the complainants who testified that there was no interpretation of the contents of the PIFs to them.
The Hearing Panel’s Findings
[20] Given the conflicting and inconsistent evidence it had heard, the Hearing Panel reflected upon the principles by which credibility may be assessed, including: the interest of the witness and its consistency with the preponderance of the probabilities which a practical and informed person would recognize as reasonable. The panel considered the opinion of Mr. Poulton and the narratives in the PIFs. The panel found that on their face, the narratives were cursory, failed to provide persuasive detail about key events, and did not adequately address the key issue facing Roma refugees from Hungary, namely details of their efforts to seek state protection. Six of the narratives contained no reference to the claimants’ efforts to contact the police or other instruments of state protection.
[21] The panel also accepted evidence regarding the importance of the PIFs in the IRB process, and that a PIF must set out enough information that, if accepted, would establish grounds sufficient for a finding that the claimant is a refugee in need of protection. The panel found that eight of the ten PIFs failed to adequately set out the grounds for a refugee claim, and as a result, their preparation fell below the standard of a reasonably competent lawyer.
[22] Ultimately, the panel accepted the account of Ms. Sztranyak. Her evidence was determined to be credible and supported by documentary evidence and the testimony of the two complainants that testified. The evidence of complainant ZR was preferred to that of Mr. Buzai. Mr. Buzai’s evidence was assessed as inconsistent with that of the appellant’s. Indeed, the appellant’s evidence was found to be inconsistent with that which he had given during the investigation.
[23] The panel also found that the appellant failed to supervise his employees, Mr. Buzai and Ms. Sztranyak. In light of the delegation of the task of preparing PIFs to his employees, the training that Mr. Buzai and Ms. Sztranyak received was found to be inadequate. In fact, the panel found that both employees had clients sign blank or incomplete PIFs and both had falsely signed interpreter’s declarations that they had interpreted the contents to clients. The lack of training contributed to the poor quality of the PIFs and was evidence of the appellant’s lack of engagement with and supervision of his staff found the panel.
Reasons of the Appeal Panel
[24] The appellant raised several grounds of appeal before the Appeal Panel. The appellant challenged the Hearing Panel’s findings of fact about the adequacy of the PIFs. In particular, the appellant took issue with the findings in relation to the non-testifying complainants, ostensibly without any evidence regarding what information those complainants had provided to the appellant’s staff. The appellant argued that the Hearing Panel misapprehended the expert evidence of Mr. Poulton with respect to some of the complainants. As to the appellant’s failure to supervise, the appellant argued that the Hearing Panel gave insufficient reasons for accepting the evidence of Ms. Sztranyak and heard no evidence that the interpreters had been inadequately trained. As to costs, it was urged that the award be found unreasonable having regard to prior jurisprudence and steps taken by the respondent that contributed to the length of the hearing.
[25] An intervention by the Appeal Division is only justified if the decision of the Hearing Panel is unreasonable or incorrect in law. The Appeal Panel undertook a review of the evidence before the Hearing Panel and analyzed the grounds of appeal. The Appeal Panel outlined its role on review. It is not to retry the dispute or re-weigh the evidence. The panel should conduct an examination of the reasons to determine whether those reasons were reasonable, transparent, intelligible, tenable, and defensible in relation to the law and the facts, and supportive of the decision as falling within a range of acceptable outcomes. In the end, the Appeal Panel found no error in the Hearing Panel’s decision and the appeal was dismissed.
[26] In addressing the grounds of appeal, the Appeal Panel examined the evidence of the expert, Mr. Poulton, in relation to the PIFs of the complainants who had not testified. The Appeal Panel noted that the Hearing Panel had not made its findings based exclusively on Mr. Poulton’s evidence. Rather, the panel conducted its own review of the PIFs and independently found the content to be cursory and woefully lacking in persuasive details about key events. All ten of the PIFs featured numerous spelling and grammatical errors. Six PIFs failed to adequately address whether the claimant had sought state protection, a key issue in Roma claims from Hungary. The other four were deficient in the necessary reference to state protection. In short, the PIFs were inadequate to support the refugee claims.
[27] To the Appeal Panel, it was evident that the Hearing Panel had not relied solely upon Mr. Poulton’s expert opinion regarding the complainants’ PIFs. The Appeal Panel concluded that the Hearing Panel weighed the evidence found in the PIF narratives themselves and was satisfied that at best, only a nominal review by the appellant before submission was conducted. The Appeal Panel concluded that there was sufficient evidence before the Hearing Panel, both direct and circumstantial, to find that the inadequacies in the PIFs were the result of a failure to serve on the part of the appellant. It is so that the deficiencies in the PIFs are evident from even a cursory review.
[28] In the view of the Appeal Panel, the evidence before the Hearing Panel regarding the appellant’s general office practice was virtually overwhelming. Even the evidence of Mr. Buzai demonstrated that claimants were given little to no assistance in developing their narrative. The evidence demonstrated that both employees would have clients sign blank or incomplete forms, signed declarations they knew to be untrue, and failed to interpret the contents to the clients. The inference drawn by the Hearing Panel, that the inadequacies in the PIF narratives resulted from the failings of the general practices in the appellant’s office, was open to the Hearing Panel and could not be said to be unreasonable. Similarly, the inference that the content of the PIFs could reasonably be expected to offer details that could reasonably be expected to have been available from the clients, was reasonably drawn by the Hearing Panel.
[29] On the issue of Ms. Sztranyak’s evidence, the Appeal Panel noted its importance to the respondent’s case. The appellant argued before the Appeal Panel, as he does before this Court, that the Hearing Panel ignored Ms. Sztranyak’s admission that it was uncomfortable for her to sit there and accuse the appellant for something he had never done. Moreover, that the Hearing Panel failed to refer to the numerous inaccuracies and omissions in her affidavit that formed the basis for much of her evidence in-chief. The Appeal Panel reviewed the entirety of Ms. Sztranyak’s evidence and rejected this ground of appeal. The submission that the witness should be taken by her remark to have resiled from all of her evidence was made in submissions to the Hearing Panel. The Appeal Panel concluded that the remark was ambiguous and in the larger context it was open to the Hearing Panel to conclude this way. The Hearing Panel had the advantage of having observed this witness. The credibility finding was entitled to deference.
[30] On sufficiency of reasons, the Appeal Panel found the reasons to be sufficient to illustrate the basis for accepting the evidence. The Appeal Panel found that the reasons articulated a reliance on other evidence heard at the hearing that was “highly corroborative” of Ms. Sztranyak’s evidence. The ‘what’ and ‘why’ of the Hearing Panel’s decision regarding the evidence of Ms. Sztranyak was clear from the reasons given.
[31] With regards to costs, the Appeal Panel noted that the hearing took 18 days and that the bill of costs submitted by the Law Society exceeded $500,000. The Hearing Panel considered the manner in which the case had been advanced, the sparse information as to the appellant’s financial circumstances, and comparable jurisprudence. Allowing for the deference owed to the decision of a Hearing Panel as to costs, which is a matter of discretion, the Appeal Panel concluded that the Hearing Panel had neither exercised its discretion in an unreasonable manner, nor was the outcome outside of what was to be expected in a case of similar complexity and length.
Position of the Appellant
[32] In oral submissions, the appellant argued that there were four grounds of appeal warranting intervention by this Court.
[33] First, the appellant submitted that the Appeal Panel erred in concluding that the Hearing Panel’s decision regarding standard of practice was reasonable. Critically, the appellant submits, was the Hearing Panel’s reliance in making its determinations as to quality, sufficiency, and self-evidently lacking content of the narratives in eight of the PIFs in the absence of viva voce evidence from these complainants. Without the complainants’ testimony setting out the circumstances under which their PIFs were prepared, an ostensibly deficient PIF could not reasonably be attributed to an act or omission of the appellant. The expert admitted in cross-examination that he expected his evidence would be given no weight unless his underlying assumptions were proven.
[34] Second, the appellant argued that the Hearing Panel erred in their assessment of the credibility of Ms. Sztranyak’s testimony. It is argued that the panel provided insufficient reasons for why they found Ms. Sztranyak credible, considering the inconsistencies in her evidence. Her evidence and the credibility finding, the appellant argued, was given undue deference in light of the fact that the Hearing Panel neither explicitly referenced the inconsistency nor how it resolved it in its reasons.
[35] Third, that the Appeal Panel erred in failing to find that the Hearing Panel had misapprehended the expert evidence with respect to three of the non-testifying complainants: TG, SM, and RN. As a result, the findings regarding failure to serve these clients must be overturned. Even if the record can be said to support the ultimate finding, it is submitted that it is an established error of law regardless.
[36] Finally, the appellant argued that the Appeal Panel erred in concluding that the costs awarded by the Hearing Panel were reasonable.
[37] If accepted, it follows from these arguments that the Appeal Panel failed in its mandate by concluding that there was nothing unreasonable in the Hearing Panel’s decision. The appellant seeks to have these findings overturned, and the cost award against him reversed.
Ruling
[38] In our view, the Appeal Panel correctly defined its role. The appeal does not serve as an opportunity to retry the dispute or re-weigh evidence, but rather, to examine the reasons and determine whether they were reasonable, transparent, intelligible, tenable, and defensible on the facts and law. This Court must apply these same principles in reviewing the reasons and decision of the Appeal Panel, notwithstanding that this appeal bears the hallmarks of a re-argument of the same issues.
[39] The Hearing and Appeal Panels each considered the expert evidence of Mr. Poulton. The appellant is correct that the admissibility and assessment of an expert’s opinion must be grounded in evidence as to the facts upon which the opinions are premised. It was for the Appeal Panel to weigh his evidence in light of his underlying assumptions, which it did. It was the evidence of the expert that six of ten of the complainant’s PIFs prepared by the appellant’s office were deficient on their face; they failed to particularize the claimant’s efforts to engage assistance from state authorities in Hungary. There was also opinion evidence as to how the absence of detail and the crucial failure to describe a claimant’s efforts to engage the state would jeopardize their success at the IRB. The cursory nature of the information in the PIFs led to the inference that the absence of detail was due to failures in the appellant’s practice. This evidence was given in the wider context of evidence accepted by the Hearing Panel. Namely, that the appellant did not meet with his clients at the time or during the process of deriving the information necessary for application to the IRB, or in the preparation and interpretation of the PIF.
[40] The Hearing Panel directed itself as to the factors to be considered in assessing credibility when it weighed the evidence of Ms. Sztranyak. In this case, there was evidence from one of the complainants and another of the appellant’s employees, consistent with Ms. Sztranyak’s evidence. The appellant’s submission that Ms. Sztranyak resiled from her evidence was argued and considered at both of the previous proceedings. The Appeal Panel correctly identified that the Hearing Panel had the advantage of hearing and seeing the witness and was entitled to deference regarding conclusions on credibility. It was reasonably open to the Hearing Panel to have accepted the evidence they did for the reasons they expressed.
[41] Ultimately, the question is whether the conclusions of the Appeal Panel fall within the reasonable range of outcomes that were open to it. I find that they were. The reasons given by both of the panels are in accordance with their governing mandate. There was nothing unreasonable in the Hearing Panel’s review of the evidence and deference was owed to their findings of fact.
[42] Determining costs involve the exercise of discretion. Only an error in principle evident within the exercise of that discretion warrants intervention. The Appeal Panel gave due consideration to the award of costs that had been made by the Hearing Panel. Indeed, it noted that the Hearing Panel took into account the length of the hearing, the costs requested, the time necessary for preparation, the extensive cross-examination of the appellant, the lack of evidence of financial hardship, and comparable cases that had come before the Society. On review, and allowing for deference to be accorded, the Appeal Panel found the costs award to fall within the range of reasonable outcomes. Having done so, we consider the Appeal Panel’s decision not to intervene falls within the reasonable range of outcomes for an appeal.
[43] The appeal is dismissed with costs to the respondent in the agreed amount of $15,000.
___________________________ MULLINS J.
I agree.
F.L. MYERS J.
I agree.
FAVREAU J.
Date of Release: April 1, 2019
CITATION: Farkas v. The Law Society of Ontario, 2019 ONSC 2028
DIVISIONAL COURT FILE NO.: 091/18 DATE: 20190401
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Mullins, Myers, and Favreau JJ.
BETWEEN:
JOSEPH STEPHEN FARKAS
Appellant
– and –
LAW SOCIETY OF ONTARIO
Respondent
REASONS FOR JUDGMENT
MULLINS J.
Date of Release: April 1, 2019