Court File and Parties

Citation: Kivisto v. Law Society of Ontario, 2020 ONSC 5790 Court File Nos.: 265/19 Date: 2020-09-24 Superior Court of Justice – Ontario – Divisional Court

Re: Kivisto v. Law Society of Ontario

Counsel: Mr Kivisto, self-represented Appellant Amanda Worley, for the respondent Law Society of Ontario

Before: D.L. Corbett J., Fitzpatrick and Favreau JJ.

Date: September 24, 2020

Endorsement

D.L. Corbett J. (orally):

[1] Mr Kivisto was licensed to practice law in Ontario and in the States of Florida and Illinois. He was disbarred by the Supreme Court of Florida in 2010. He was reciprocally disbarred by the Illinois Supreme Court in 2011.

[2] In Florida, a disbarred lawyer may apply to be readmitted to the bar after five years. However, Mr Kivisto was further disciplined by the Supreme Court of Florida for continuing to hold himself out as a lawyer and for misconduct while doing so. In the result he was permanently disbarred in Florida in 2014.

[3] The misconduct that was the subject-matter of Mr Kivisto’s disciplinary proceedings involved exploitation of the elderly in connection with estates in which they had an interest. At least two persons harmed by Mr Kivisito’s conduct died before justice ran its course and so could not be compensated for what was done to them.

[4] The Law Society of Ontario brought proceedings based on the prior American proceedings. The Hearing Panel of the Law Society found that the discipline decisions from Florida ought to be recognized in Ontario and ought to have “preclusive effect” in the Ontario discipline proceedings. The Hearing Panel found that the conduct that gave rise to the Florida decisions was conduct unbecoming for an Ontario licensee of the Law Society. The Hearing Panel found that disbarment was the appropriate sanction for Mr Kivisto’s pattern of discreditable conduct against vulnerable elderly people. The Law Society Appeal Panel upheld both the liability and penalty decisions of the Hearing Panel essentially for the Hearing Panel’s reasons.

[5] We are in substantial agreement with the reasons and decision of the Appeal Panel.

[6] Mr Kivisto was resident in Florida and practicing law in Florida at the time of the events that gave rise to his disbarment proceedings. Florida was the most appropriate jurisdiction for his professional discipline proceedings.

[7] We agree with the Appeal Panel that there is a two-step analysis to be undertaken in deciding whether to find that disciplinary proceedings from another jurisdiction, in this case Florida, should preclude re-litigation of disciplinary issues in Ontario. First, there is the question of whether the foreign decision ought to be recognized in Ontario. We agree that the test for recognition is as set out in the Supreme Court of Canada decision in Beals v. Saldhana, 2003 SCC 72, [2003] 3 SCR 416. If the decision is recognized, the next step is to decide whether the foreign decision should be given “preclusive effect”, or, put another way, whether it gives rise to issue estoppel in respect to issues in the Ontario proceedings. We agree that the test followed by the Appeal Panel is an appropriate test to decide this issue.

[8] The Appeal Panel correctly stated and applied the law on these issues. It found the factual findings of the Hearing Panel to be reasonable and applied the law to those facts. This was the correct approach, and the Appeal Panel’s factual findings were themselves reasonable.

[9] In his written and oral argument, Mr Kivisto raised numerous issues about the proceedings below, some of which were not addressed by the Appeal Panel. In our view the issues raised that were not addressed by the Appeal Panel were not material. Issues about discretionary rulings about admissibility of expert evidence, adjournment requests, and other procedural rulings are not, at this point, material to the result, and it was not necessary for the Appeal Panel to give reasons on these aspects of the appeal: the issues on which the appeal turned were addressed thoroughly by the Appeal Panel.

[10] Mr Kivisto placed emphasis in his oral submissions on the “preclusive effect” of the in rem probate decisions in Florida. As stated by the Appeal Panel, this was an issue to be raised with and decided by the courts in Florida. It is not an issue to be litigated in Ontario as it is a collateral attack on the Florida proceedings. Further, the underlying thrust of the argument is that, if Mr Kivisto misconducted himself in the administration of an estate, got away with it, and obtained a probate order effecting his misconduct, his professional regulator could not discipline him for this misconduct. On its face this argument is less than compelling.

[11] Mr Kivisto argued that the “probable cause affidavit” respecting Mr Kivisto’s plea arrangement in Florida was inadmissible as hearsay and inadmissible expert evidence. The plea arrangement contains an admission of fact on its face. Expert evidence respecting its effect in an enforcement proceeding in Florida was not necessary and is not a basis for an appeal in this court.

[12] A great deal of Mr Kivisto’s oral argument focused on the merits (or, in his view, lack of merits) of the Florida disciplinary proceedings. These submissions are beside the point: the merits of the Florida proceedings were determined by the courts of Florida. The issue before us is not a reconsideration of the merits of the Florida decisions, but rather the Appeal Panel’s decision upholding the Hearing Panel’s decision to recognize and give preclusive effect to the Florida decisions.

[13] For these reasons the appeal is dismissed with costs in the agreed amount of $10,000.

D.L. Corbett J.

Fitzpatrick J.

Favreau J.

Date: September 24, 2020