Citation and Court Information

CITATION: Mazinani v. Law Society of Ontario, 2022 ONSC 6798

DIVISIONAL COURT FILE NO.: 229/22

DATE: 2022-12-14

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ELNAZ MAZINANI, Appellant

AND:

THE LAW SOCIETY OF ONTARIO, Respondent

BEFORE: McLean, Matheson and Ryan Bell J.

COUNSEL: Brian N. Radnoff and Andrae Shaw, for the Appellant

Daniel Iny and Geetha Philipupiilai, for the Respondent

HEARD at Toronto: December 1, 2022 (by videoconference)

Endorsement

[1] This is an appeal of a decision of the Law Society Tribunal Appeal Division dated March 15, 2022 (the “Decision”), arising from three decisions of the Law Society Hearing Panel. Findings of misconduct were made relating to five separate, unrelated client matters over a five-year period, along with related penalty and costs rulings. The Appeal Panel dismissed the appeals in large part, granting the appeal in one respect only. The penalty of a six-month suspension was upheld by the Appeal Panel and is not challenged on this appeal.

[2] The appellant challenges the Appeal Panel Decision on these issues:

(1) whether the Appeal Panel wrongly determined that the appellant committed misconduct by breaching a Small Claims Court order;

(2) whether the Appeal Panel erred in making determinations without expert evidence regarding the standard of practice;

(3) whether the Appeal Panel erred in finding a failure to serve client AZ;

(4) whether the Appeal Panel erred in finding that the appellant breached her client’s confidentiality by providing the client’s psychiatrist with a copy of her termination letter;

(5) whether the Appeal panel erred in finding misconduct with respect to the appellant’s delay of at most three weeks in depositing a cheque into her trust account;

(6) whether the Appeal Panel erred with respect to the appellant’s representations to the court an unpaid costs order;

(7) whether the Appeal Panel erred in deciding that an offer to settle made by the appellant was professional misconduct; and,

(8) whether the Appeal Panel erred with respect to the costs award made in the discipline proceedings.

[3] There is no issue about the standard of review on this statutory appeal, which is as set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On questions of law, the standard is correctness. On questions of fact, the standard is palpable and overriding error. For questions of mixed fact and law the standard is palpable and overriding error except that, where there is an extricable legal principle, the standard of review for the legal principle is correctness.

[4] The appellant submits that most of the above alleged errors were errors of legal principle and therefore the standard of review is correctness. Having considered this matter, we conclude that the appeal is focused on factual findings. Extensive submissions have been made that amount to attempts to re-argue the facts, to ask for different inferences to be drawn, to overlook credibility findings that were made against the appellant, and to re-weigh the evidence that resulted in the findings of fact that were made and related findings of professional misconduct. We are not persuaded that the Appeal Panel made any palpable and overriding errors or errors of law. We are not persuaded that the Appeal Panel erred in applying its standard of review and upholding the findings of misconduct now challenged. We deal with each of the issues below.

[5] The issue of breach of a court order arises in this way. The appellant sued a client for unpaid fees in the Small Claims Court. She was ordered to produce her file. Some documents were produced but not an application that she had submitted for her client. Her client then brought a motion to strike out her claim for failure to produce her entire file. Deputy Judge Shapiro made a further order that she produce her file, in response to which she sent the same documents. After a brief hearing, Deputy Judge Shapiro found that the appellant had not complied with his order. Because his endorsement said that the appellant had not produced all documentation that was or “ought to have been” in her file, the appellant submits that the production order was unclear. Further, she submits that because the Appeal Panel referred to the order including its requirement for chronological order, it determined that there was a different breach, which the evidence does not support.

[6] The appellant submits that the order was unclear and she ought to have had a chance to relitigate the breach because the original hearing was short. The appellant further submits that not every breach of an order is professional misconduct and the tactical nature of her client’s motion was ignored by the Hearing Panel. The appellant characterized her course of conduct, at worst, as an error in judgment.

[7] The appellant downplays the significance of the following step. She brought an application to this court for judicial review of the order of Deputy Judge Shapiro that she breached the production order. Her application for judicial review was unsuccessful.[^1] This Court found that the appellant had failed to comply with the production order. Leave to appeal to the Court of Appeal was sought and denied. As found by the Appeal Panel, the abuse of process doctrine prohibits re-litigation where the court has already ruled on the same issues. Further, the respondent notes that in the judicial review proceeding, the appellant did not raise the issues about the short hearing that she has since raised in these appeal proceedings even though she had the opportunity to do so.

[8] The opposing side in the Small Claims Court successfully moved to have the appellant’s claim struck out, following which the appellant moved to have the order set aside. Deputy Judge McNeely granted that motion. Among other reasons, the Deputy Judge noted that the appellant had not “willfully disregarded” a court order and had not been the subject of contempt of court proceedings, concluding that her claim should be heard. This finding was considered by the Hearing Panel and the Appeal Panel, which did not find that she was in contempt, nor did the Appeal Panel rely on a subjective intent to breach. The Appeal Panel considered the appellant’s grounds of appeal in their legal and factual context and made no error in upholding the Hearing Panel’s decision about the breach of the production order.

[9] With respect to the findings of failure to serve AZ, the appellant submits that the Hearing Panel did not have and needed expert evidence on the standard of practice in appeals. The appellant accepts that expert evidence is not required in every case but submits that because she had some communications with her client there ought to have been expert evidence in her case.

[10] The Appeal Panel found that the appellant’s breaches were of “a very basic nature” – a conclusion that was well supported by the extensive factual findings of the Hearing Panel about what the appellant did and did not do for her client. The Appeal Panel had ample basis for its conclusion that the appellant did not appear to know the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, respecting appeals or the consequences of failing to follow them. There was no error of law in making these findings without expert evidence.

[11] The appellant also invites this court to re-weigh the evidence about what the appellant did and did not do for AZ and conclude that there was no failure to serve. Again, there was an ample record to support this conclusion and no reviewable error.

[12] The appellant sent a termination letter to her client AZ. She also sent a copy of her letter to AZ’s psychiatrist. The Appeal Panel agreed that because of the physician’s role in the appeal, there was no breach of confidentiality by the appellant notifying the physician that the retainer was terminated. However, the letter went on to give some (somewhat routine) legal advice that it was not necessary to share with the physician. The Appeal Panel agreed with the Hearing Panel that to that extent, the appellant breached her duty of confidentiality to her client. She had not been authorized by her client to divulge that additional information.

[13] In this court, the appellant submits that the information in the letter was innocuous, was public knowledge and known to the psychiatrist (without evidence in support), and was therefore not confidential. We accept the submission of the Law Society that it is not for a lawyer to assess the information in this way and disclose privileged communications because the lawyer thought the communication innocuous. The communication was protected by solicitor-client privilege. The Appeal Panel did not err.

[14] With respect to the deposit of trust funds, the appellant has admitted that she did not deposit the cheque right away. She deposited it into her general account after rendering an account to her client. The appellant submits that the Appeal Panel decision cannot stand because there was no finding of fact about when, in the three-week period, she received the cheque from her client. The appellant submits that a short delay is not professional misconduct.

[15] The Appeal Panel upheld the Hearing Panel’s finding that the appellant breached By-Law 9 by failing to deposit the trust cheque upon receipt. She admitted that she did not deposit it upon receipt. Her explanation for failing to do so was rejected by the Hearing Panel. The Appeal Panel considered whether a short delay amounted to misconduct, noting that the Hearing Panel had considered the context, the absence of written instructions, the By-Law, the length of the delay, the jurisprudence and the appellant’s lack of a credible explanation or excuse. The Appeal Panel made no error in upholding the Hearing Panel having regard for a delay of “up to” three weeks.

[16] Moving to the unpaid costs order, the appellant represented her brother in a Small Claims Court action. Her brother was ordered to pay $350 in costs of an unsuccessful motion. Her brother commenced an action in the Superior Court with the same parties. Again, the appellant was representing her brother. The issue of the payment of the costs order arose in that action. There was then a series of events, during which the appellant advised the Court multiple times that the costs order had been paid. The Hearing Panel rejected the appellant’s evidence about the submissions she made to the Court. The Hearing Panel found that the appellant willfully or recklessly misled the court as to the payment of the costs order. We agree with the Appeal Panel’s finding that the Hearing Panel had ample evidence upon which to reach this conclusion.

[17] Another appeal ground arises from the litigation in which the appellant was representing her brother. In the course of that litigation, her brother made a complaint to the Law Society about the defendant’s lawyer and the defendant’s lawyer made a complaint to the Law Society about the appellant. The parties settled the litigation. The appellant called opposing counsel and proposed a mutual withdrawal of the complaints to the Law Society. The Hearing Panel, in finding misconduct, relied on the evidence and on relevant caselaw, concluding that the proposed withdrawal of complaints was improper. The appellant submitted to the Appeal Panel that such proposals should be encouraged. The Appeal Panel disagreed, finding, in keeping with the case law, that “private deals designed to avoid Law Society scrutiny are improper. … Once a complaint has been made, it is the role of the Law Society to determine if it has merit. [The appellant’s] attempt to circumvent that role disrespects the administration of justice and brings discredit to the profession.” The Appeal Panel made no error in upholding this finding of professional misconduct.

[18] Lastly, the appellant appeals the costs order against her on the basis that it is unreasonable and punitive. The Hearing Panel had awarded $120,000. There is no question that is a significant amount, even though the Law Society reduced its bill of costs from about $160,000. The Hearing Panel that awarded those costs considered the length and complexity of the hearing, steps taken that unnecessarily lengthened the hearing, the voluminous record, other costs awards, and the outcome. The Appeal Panel reduced the costs award by $5,000 to address a finding that was overturned and otherwise upheld the costs decision. We are not persuaded that the Appeal Panel erred in its review of the costs decision.

[19] The appeal is therefore dismissed, with costs to the Law Society in the agreed upon amount of $10,000, all inclusive. The suspension ordered by the Law Society shall take effect 30 days from today.

McLean J.

Matheson J.

Ryan Bell J.

Date: December 14, 2022

[^1]: Mazinani v. Clark, 2014 ONSC 7100 (Div. Ct.)