Court File and Parties

COURT FILE NO.: CV-16-562282 DATE: 20170727 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Le Barreau du Haut-Canada, Applicant AND: Roderick John Byrnes, Respondent

BEFORE: Pollak J.

COUNSEL: Aaron Dantowitz and Stephen Aylward, for the Applicant Roderick John Byrnes, self-represented Respondent

HEARD: June 9, 2017

Endorsement

[1] This is an Application pursuant to s. 26.3(1) of the Law Society Act which provides that:

“Order prohibiting contravention, etc.

26.3 (1) On the application of the Society, the Superior Court of Justice may,

(a) make an order prohibiting a person from contravening section 26.1, if the court is satisfied that the person is contravening or has contravened section 26.1;

(b) make an order prohibiting a person from giving legal advice respecting the law of a jurisdiction outside Canada in contravention of the by-laws, if the court is satisfied that the person is giving or has given legal advice respecting the law of a jurisdiction outside Canada in contravention of the by-laws. 2006, c. 21, Sched. C, s. 22.”

[2] In s. 1(5), the Act defines the provision of legal services, in part, as:

“Provision of legal services

(5) For the purposes of this Act, a person provides legal services if the person engages in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person.”

[3] In the case of Le Barreau du Haut-Canada c. Augier, 2013 ONSC 451, at para. 9, Goldstein J. summarized the important role the Law Society has in protecting the public as follows:

“The Law Society has an important role in protecting the public from the activities of unlicensed and unregulated persons holding themselves out to be lawyers and paralegals. The Respondent, for example, is not required to carry professional liability insurance, keep books and records for inspection by the Law Society, or maintain a trust account for client funds that can be audited by the Law Society. Indeed, the Law Society would have no right or ability to carry out a spot audit or any other kind of check in relation to the activities of the Respondent, as it would for a licensed legal professional. That is why the Law Society has a duty to seek remedies against unauthorized persons practicing law or holding themselves out as legal professionals.”

[4] The Law Society referred the Court to the test to be applied by this Court on this Application, as summarized by Goldstein J., at para. 11:

“The test for issuing a statutory injunction is set out in: R. v. IPSCO Recycling Inc., 2003 FC 1518, [2003] F.C.J. No. 1950, [2004] 2 F.C.R. 530 (F.C.T.D.) at para. 51. I adopt the test set out by Dawson J. of the Federal Court in that case:

[51] On the basis of the authorities cited by the parties I am satisfied that where a statute provides a remedy by way of injunction, different considerations govern the exercise of the court’s discretion than apply when an attorney general sues at common law to enforce public rights. The following general principles apply when an injunction is authorized by statute:

(i) The court’s discretion is more fettered. The factors considered by a court when considering equitable relief will have a more limited application. See: Prince Edward Island (Minister of Community and Cultural Affairs) v. Island Farm and Fish Meal Ltd., (1989), 79 Nfld. & P.E.I.R. 228 (P.E.I. S.C. (A.D.)); Maple Ridge (District) v. Thornhill Aggregates Ltd., (1998), 162 D.L.R. (4th) 203 (B.C.C.A.).

(ii) Specifically, an applicant will not have to prove that damages are inadequate or that irreparable harm will result if the injunction is refused. See: Shaughnessy Heights Property Owners’ Association v. Northup (1958), 12 D.L.R. (2d) 760 (B.C.S.C.); Manitoba Dental Association v. Byman and Halstead (1962), 34 D.L.R. (2d) 602 (Man. C.A.); Canada (Canadian Transportation Accident Investigation and Safety Board) v. Canadian Press, [2000] N.S.J. No. 139 (S.C.) (QL).

(iii) There is no need for other enforcement remedies to have been pursued. See: Saskatchewan (Minister of the Environment) v. Redberry Development Corp., [1987] 4 W.W.R. 654 (Sask. Q.B.).

(iv) The court retains a discretion as to whether to grant injunctive relief. Hardship from the imposition and enforcement of an injunction will generally not outweigh the public interest in having the law obeyed. However, an injunction will not issue where it would be of questionable utility or inequitable. See: Saskatchewan (Minister of the Environment) v. Redberry Development Corp., supra; Maple Ridge (District) v. Thornhill Aggregates Ltd., supra; Capital Regional District v. Smith, (1998), 168 D.L.R. (4th) 52 (B.C.C.A.).

(v) It remains more difficult to obtain a mandatory injunction. See: Canada (Canadian Transportation Accident Investigation and Safety Board) v. Canadian Press, supra.”

See also: Ontario (Minister of Agriculture and Food) v. Georgian Bay Milk Co., [2008] O.J. No. 485 (Sup. Ct.).

[5] The Law Society submits that an injunction is not a significant remedy for the court to grant as it is requesting that Mr. Byrnes follow the provisions of the Law Society Act. I do not accept this submission because if the injunction is granted as requested, the practical consequence will be that the Respondent could be the subject of contempt proceedings if there is an allegation that he has violated the terms of the requested injunction.

[6] The Law Society relies on and emphasizes that this Application is a summary procedure. The result, however, has to be just and equitable in order to grant such a serious remedy.

[7] In Law Society of Upper Canada v. Chiarelli, 2014 ONCA 391, another case involving an injunction application, Justice Juriansz noted, at para. 49:

“Apart from this practical consideration, the manner in which the court exercises its injunctive powers is important in itself. It should be apparent to the public that the court exercises its extraordinary powers with great care. As well, persons whose actions are constrained by the power of the court are entitled to know precisely what the court is telling them they can and cannot do.”

Justice Juriansz also referred to the practical reality that injunctions are enforced by contempt proceedings as follows, at para. 47:

“The practical reason for this is that injunctions are enforced by contempt proceedings. Persons who bring contempt proceedings to enforce injunctions must show that the court order allegedly breached states “clearly and unequivocally what should and should not be done”, demonstrate the breach was willful and establish the contempt beyond a reasonable doubt: Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 82 O.R. (3d) 686 (C.A.), at para. 27. See also Bell ExpressVu Limited Partnership v. Corkery, 2009 ONCA 85, 94 O.R. (3d) 614, at para. 22. As Sharpe notes, at para. 6.160, when seeking to establish contempt, “[m]uch will depend upon the clarity and specificity of the original order.”

[8] The burden of proof is on the Law Society to prove, on a balance of probabilities, that the Respondent has violated the provisions of the Act I have referred to.

[9] The position of the Law Society is that Mr. Byrnes, who was disbarred in September 2013, has violated the provisions of the Act on at least two occasions.

[10] The Law Society relies on the affidavits of Mr. Li (a client of the law firm of Byrnes & Associates Société Professionnelle (“BASP”)) and Mr. Woloszczuk, an investigator employed by the Law Society.

[11] Mr. Li deposes that he has very limited knowledge of English and French. His affidavit was translated to him by a Mandarin interpreter. He deposes that on Sunday, November 9, 2014, he went into the offices of BASP, located at 222 Spadina Avenue, Suite 215, Toronto, Ontario. He spoke to a Mandarin speaking receptionist who brought him to meet a middle aged Caucasian man, but he was not told the man’s name. He states that his son-in-law took a photograph of the man at a subsequent meeting. He refers to a photo of the man he met which is attached to his affidavit. That photograph has two males in it, one being Mr. Byrnes and the other being Mr. Martin. Mr. Li swears he was later told by Mr. Woloszczuk, the investigator from the Law Society of Upper Canada, that one man in the photograph was Mr. Byrnes.

[12] Mr. Li also deposes that later in November 2014, he again attended at BASP and met with a different Mandarin speaking female receptionist. She acted as an interpreter at a meeting. Although he states that “Mr. Byrnes told me that he required a marriage certificate as proof that my spouse and I were married,” he does not testify who he met with at the meeting. There is affidavit evidence from Ann Mong, a part-time secretary of BASP, stating that she, not Mr. Byrnes, told Mr. Li that a marriage certificate was required.

[13] All of the correspondence Mr. Li has received from BASP was under the signature of Mr. Martin, including the firm’s account.

[14] Mr. Li deposes that in March 2015, he had to contact a new lawyer who helped him conduct an assessment of the account he received from the BASP.

[15] Mr. Byrnes denies that he has violated the Act and relies on the affidavit evidence of two employees of BASP. His primary defence is that, on this motion, the Law Society has not met its burden of proving that he has violated the Act. Alternatively, he submits that if the Court finds that there is a conflict in the evidence of the witnesses, it cannot be resolved by the Court without hearing viva voce evidence.

[16] The Law Society argues that there is no conflict in the evidence on any material facts and submits that the Court should be able to find that Mr. Byrnes has violated the Act on the basis of the affidavit evidence, without hearing viva voce evidence.

[17] The Law Society argues that Mr. Byrnes cannot attack the credibility of Mr. Li, because he did not cross-examine him. The Applicant also submits that Mr. Byrnes should have produced affidavit evidence of Mr. Martin, who is the lawyer that Mr. Byrnes’ witnesses testify provided legal services to Mr. Li. Additionally, the Law Society also emphasizes that there is no affidavit evidence from Mr. Byrnes denying that he has provided legal services to Mr. Li. As a result, the Law Society submits that the Court should draw an adverse inference against Mr. Byrnes. For the reasons that follow, this Court does not make such an inference.

[18] In response to this application for an injunction, Mr. Byrnes relies the affidavit of Ms. Siobhan Dawson, who swears that she has worked for BASP from 2006 to 2016. She states that on November 9, 2014, Mr. Li came to the offices of BASP and retained lawyer David Martin, employed by the firm, to act on the sale of his condominium. Mr. Martin’s assistant was Ms. Isabel Lou, a University of Toronto student who worked on weekends. Ms. Lou acted as an interpreter for Mr. Martin because he could not speak Mandarin to speak to Mr. Li.

[19] Ms. Dawson’s evidence is based on the affidavit sworn by Ms. Lou dated January 19, 2016, wherein Ms. Lou swears that Mr. Li met with Mr. Martin. Ms. Dawson also swears that on November 13, 2014, Ms. Mong, another secretary with BASP, opened a file for the sale of Mr. Li’s property. She attaches a copy of the file opening document. She also relies on the affidavit of Ms. Mong who also swears that she was the Mandarin receptionist Mr. Li met with the second time that he attended at BASP’s offices in November 2014.

[20] Ms. Dawson swears that the affidavits she relies on were never used at the assessment proceeding commenced by Mr. Li because the parties settled.

[21] Ms. Mong’s affidavit evidence is as follows:

1. I am a secretary clerk who does work for the offices of Byrnes & Associates Societe Professionelle, (hereinafter “BASP”), and as such have knowledge of the matters herein deposed to.
2. As a secretary clerk doing work for BASP, I worked with John David Martin on the closing of the sale of Mr. Zhi Jian Li’s property at 1 Cole Street, Unit 704, which closed on November 28th, 2014. I only communicated with Zhi Jian Li from Monday to Friday during office hours, because I do not work on weekends. On weekends Mr. Zhi Jian Li had to deal with other part time weekend staff who speak Chinese, including Eva Cheung and Isabel Lou.
3. I dealt extensively with Zhi Jian Li (“Li”), because I speak his Chinese dialect, Mandarin, and so I dealt with him by phone, and in person on numerous occasions in preparing for the closing of this sale on November 28th, 2014.
4. I have done work for this law firm, and for its predecessor law firms, for some 28 years, and have considerable experience as a result.
5. I was the one who had Li, and Xiao Quin Xiong (“Xiong”), bring in various documents, including I.D. documents, and I was the one who communicated most of the time with both Li and Xiong, on numerous occasions, to confirm whenever we needed documentation or information. I also prepared the documentation we needed for the closing.
6. I also was the one who opened the file for Mr Li’s sale on about November 13th, 2014 after Mr. Martin and one of the weekend staff accepted the $350.00 cash retainer from Li.
7. I acted as an interpreter for Mr. John David Martin on weekdays, because Mr. Martin doesn’t speak Chinese, and whenever Li attended to speak to John David Martin, an interpreter was required.
8. When I arranged for Li to sign up on November 27th, 2014 for the closing, I asked Mr. Rod Byrnes to come in and sit with me in order to assist me with Li’s sign up, but Mr. Byrnes refused. Mr. Byrnes told me that Li was never his client, or his former client, when Mr. Byrnes had practiced law up until September 2013, and therefore Mr. Byrnes had nothing to do with the sale file pertaining to Li.
9. As a result, I signed up Li alone, because Mr. Martin was away from the office on that day, November 27th 2014. I have often signed up clients alone. I am a commissioner for taking oaths, and have been for many years. I had no problems signing Li up on November 27th 2014 for the closing.
10. Mr. Li’s file was a relatively uncomplicated sale right up until closing. It was only after closing that the file became complicated, when BASP found out that Xiong was not the spouse of Li and therefore BASP had unknowingly taken false affirmations under oath, and a false registration had been registered on title.
11. I make this affidavit in aid of the Court and for no improper motive.

[22] The Law Society complains that the affidavits of Ms. Lou and Ms. Mong are the same affidavits that would have been relied on by BASP in the assessment proceeding commenced by Mr. Li. That is not in the Court’s view, a valid reason to disregard such evidence.

[23] Both Ms. Lou and Ms. Mong were cross-examined on these affidavits by the Law Society. Their evidence, that it was not Mr. Byrnes who either met with Mr. Li or did any of the work on his file, was not altered in cross-examination.

[24] The argument of the Law Society is that in addition to the alleged meetings between Mr. Byrnes and Mr. Li, because Mr. Byrnes was often present at BASP, the Court must conclude that he was performing legal services.

[25] The Law Society also argues that because Ms. Lou admitted in her cross-examination that she speaks French but prefers to express herself in English, and that Mr. Martin does not speak French, that obviously Mr. Byrnes played a major role in preparing her affidavit, which is in French. Such, it is submitted, establishes that Mr. Byrnes violated the Act. I decline to infer from Mr. Byrnes’ presence in the office and the fact that Ms. Lou’s affidavit was prepared in French that he was practising law.

[26] As mentioned above, the burden of proof is on the Law Society. On the basis of the affidavit evidence before this Court, I cannot find that the Law Society has met its required burden of proof.

[27] It should also be noted that all of the correspondence from the firm in connection with the real estate transaction involving Mr. Li, including the account for legal services, was sent by Mr. Martin.

[28] I find that the jurisprudence relied on by the Law Society is not applicable. The facts before the Court in the cases cited were distinguishable from the facts of this Application. I do not find, on the basis of the evidence before this Court, that the Law Society has met its burden of proving that Mr. Byrnes has violated the provisions of the Act as alleged.

[29] For the above-noted reasons, this Application is dismissed.

Costs

[30] If the parties are unable to agree on costs, they may make brief written submissions to me no longer than three pages in length. The Defendants’ submissions are to be delivered by 12:00 p.m. on August 11, 2017, and the Plaintiff’s submissions are to be delivered by 12:00 p.m. on August 18, 2017. Any reply submissions are to be delivered by 12:00 p.m. on August 25, 2017.

[31] This was a bilingual hearing. The submissions were made in French but the jurisprudence and some of the evidence was in English. Either party requesting a translation of these reasons may do so in accordance with the provisions of the Courts of Justice Act, R.S.O. 1990, c. C.43.

Pollak J. Date: July 27, 2017