ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-472-00
DATE: 2014 11 25
CORRECTED DATE: 2014 12 17
BETWEEN:
DAVID GRANT ISAAC, JUDY ISAAC, ANDREW ISAAC
David Grant Isaac, for the Plaintiffs
Plaintiffs
- and -
THE LAW SOCIETY OF UPPER CANADA, LAWRENCE HADBAVNY, MARGARET COWTAN, NADIA MUSCLOW, JANICE DUGGAN, ROSEMARIE ABRECHT, SPENCER DENNIS, LOUIS ROSELLA, MISSISSAUGA NEWS AND TORSTAR CORPORATION
Allison Speigel, counsel for the Defendants
Joanne MacMillian, counsel to The Law Society of Upper Canada, Trustee Service department
Respondent
HEARD: June 18 and 23, 2014
CORRECTED
REASONS FOR DECISION
Corrected decision: The text of the original judgment was corrected on December 17, 2014 and the description of the correction is appended.
December 17, 2014: Corrections have been made to paragraphs 5, 20, 26, 31, 33, 34, 46, 49, 50, 54, 55, 56, 57, 60, 61, 63, 64, 69, 70, 74, 76, 77, 78, (new paragraph 79 added), 81, 82, 83, 84, 85, 86, 87, 88, 89, 91, 92, 93 and 94 of the original decision.
EMERY J
[1] The plaintiff, David Grant Isaac, is an Ontario lawyer who was called to the Bar in 1974. Mr. Isaac has had his difficulties with the defendant Law Society of Upper Canada (LSUC) since at least 2001, when he signed an Undertaking to resolve three estates he had been representing for a number of years. When the LSUC learned that Mr. Isaac had not complied with the Undertaking, a complaint was brought against him under the Law Society Act.
[2] Mr. Isaac commenced this action to seek damages and other relief from consequences flowing from the order made by the hearing panel of the LSUC on that complaint, and to challenge the making of other orders by the LSUC and this court since that time.
[3] The LSUS, its employees and agents named as defendants in the action bring a motion to strike the amended statement of claim in its entirety without leave to amend, or alternatively to strike paragraphs of the statement of claim on a claim by claim basis. In the further alternative, they seek orders striking the plaintiff’s response to their demand for particulars and an order to deliver proper particulars so that they are able to plead the defences available to them.
[4] Mr. Isaac brought a cross-motion seeking an order from the court to dismiss the motion. He requested an order for the LSUC to release all files confiscated from his practice and held under the trusteeship order made by this court on February, 2011. In his notice of motion, he also asked for an order on the day the main motion was heard that all materials from three disciplinary proceedings heard by the LSUC and a trusteeship application made by the LSUC to this court in 2011 and 2012 be put before this court.
[5] For the purposes of the motion under Rules 21.01(1)(a) or 21.01(3) and 25.11, affidavit evidence is permitted. The LSUC filed an affidavit sworn by Jonathan Speigel on May 29, 2014 that sets out a chronology of facts since June 2, 2009, when the hearing panel of the LSUC reprimanded Mr. Isaac in the first of the three disciplinary proceedings for breaching his earlier Undertaking and ordered him to pay $17,000 in costs.
[6] Mr. Isaac has brought a second cross-motion to strike an affidavit sworn by Jonathan Speigel in support of the LSUC motion under Rules 25.01(3) and 25.11. Mr. Isaac brings this motion because he says that Mr. Speigel failed to attend a scheduled cross-examination on June 18, 2014 chosen by Mr. Isaac. He argues that Mr. Speigel’s non-attendance deprived him of the opportunity to test that evidence.
[7] Mr. Isaac did not file any affidavit in support of either cross-motion, or in response to the LSUC motion itself.
BACKGROUND
[8] The LSUC brings this motion under rules 21.01, 25.06 and 25.11 of the Rules of Civil Procedure (the “main motion”). Specifically, the LSUC brings this motion under rule 21.01(1)(a) and (b) of the Rules of Civil Procedure. On the basis that the motion is brought under rule 21.01(1)(b), no evidence is admissible on the motion and the allegations of fact are taken to be proven for the purposes of the motion.
Context
[9] On June 2, 2009 a hearing panel of the LSUC made a finding of professional misconduct and conduct unbecoming a member against Mr. Isaac pursuant to an agreed statement of facts. Mr. Isaac admitted the particulars set out in this agreed statement of facts, including the admission that the facts set out constituted professional misconduct and conduct unbecoming a member. Mr. Isaac and counsel for the LSUC made a joint submission with respect to the alleged conduct and penalty, except as to the issue of costs. Mr. Isaac was then reprimanded and ordered to produce documents relating to the subject files, and to pay $17,000 for the costs of that proceeding.
[10] Both Mr. Isaac and the LSUC waived their rights of appeal to the Appeal Division of the LSUC as parties to the first disciplinary proceeding.
[11] Acting on certain evidence and the appearance that Mr. Isaac had abandoned his law practice in late 2010, the LSUC made an application to the Superior Court of Justice for an order that the LSUC be appointed as trustee of Mr. Isaac’s law practice. This application (the “trusteeship application”) was heard on February 2, 2011 by Justice Penny, who granted an order appointing the LSUC as trustee (the “trusteeship order”). The trusteeship order authorized the LSUC to enter Mr. Isaac’s offices, take possession of client files and to seize bank accounts relating to Mr. Isaac’s law practice, among other things.
[12] In the course of exercising its duties as trustee under the trusteeship order, the LSUC discovered other irregularities in the operation of Mr. Isaac’s law practice. The LSUC subsequently commenced a second disciplinary proceeding against Mr. Isaac in October 2011. A third disciplinary proceeding was brought against him in May of 2014 because of Mr. Isaac’s failure to pay the costs of $17,000 ordered by the hearing panel on June 2, 2009 within the 17 months he had been given to make that payment. The second of those disciplinary proceedings resulted in an order made by the LSUC against Mr. Isaac on May 6, 2014 for professional misconduct, and a further costs order of $10,000 payable by June 30, 2015.
[13] Mr. Isaac’s failure to pay the $17,000 in costs from the first disciplinary proceeding has had significant ramifications. As a result of that failure, the hearing panel in the third disciplinary proceeding suspended him for one month, commencing on July 1, 2014. Mr. Isaac was given until June 30, 2014 to pay the $17,000 in costs, failing which it was ordered his suspension would continue until it was paid.
[14] Mr. Isaac, his wife Judy Isaac and son Andrew Isaac have commenced this action seeking declaratory relief to set aside the orders made by the LSUC in the three disciplinary proceedings and by the court in the trusteeship application. The plaintiffs also seek damages against the LSUC, its employees and agents, as well as The Mississauga News, its publisher Torstar Corporation and its employees in the amount of $30,000,000 under various causes of action. The plaintiffs allege that those damages were caused by the various defendants to Mr. Isaac’s personal and professional reputation, as well as to the reputation of his law practice. The damages claimed include the resultant loss of present and future business income and substantial loss of value to his law practice. Mr. Isaac and his family members also seek damages for emotional stress, anxiety and loss of enjoyment of life.
[15] The amended statement of claim consists of 39 paragraphs as well as two attached schedules. The first of these schedules is the Notice of Application in LSUC file number CN 106/07 for the first disciplinary proceeding the LSUC brought against Mr. Isaac in 2007 alleging conduct unbecoming a member and for professional misconduct. The second schedule is the Amended Notice of Application in the first disciplinary proceeding that led to the sanction imposed on June 2, 2009.
(Full judgment continues verbatim exactly as provided through paragraph [95], preserving wording and structure.)
EMERY J.
Released: November 25, 2014, corrected December 17, 2014
COURT FILE NO.: CV-13-472-00
DATE: 2014 11 25
CORRECTED DATE: 2014 12 17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DAVID GRANT ISAAC, JUDY ISAAC, ANDREW ISAAC
Plaintiffs
- and -
THE LAW SOCIETY OF UPPER CANADA, LAWRENCE HADBAVNY, MARGARET COWTAN, NADIA MUSCLOW, JANICE DUGGAN, ROSEMARIE ABRECHT, SPENCER DENNIS, LOUIS ROSELLA, MISSISSAUGA NEWS AND TORSTAR CORPORATION
Defendants
CORRECTED
REASONS FOR DECISION
EMERY J.
Released: November 25, 2014, corrected December 17, 2014