The Law Society of Upper Canada v. Hatzitrifonos

CITATION: The Law Society of Upper Canada v. Hatzitrifonos, 2017 ONSC 6759

COURT FILE NO.: CV-15-532500

DATE: 20171128

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: The Law Society of Upper Canada

AND:

Aspasios Paul Hatzitrifonos a.k.a. Paul Hatz

BEFORE: P.J. Monahan, J.

COUNSEL: Julia Wilkes, for the Applicant

Aspasios Paul Hatzitrifonos, his own behalf

HEARD: October 6 and November 7, 2017

REASONS FOR JUDGMENT

[1] The Law Society of Upper Canada (the “Law Society”) brings this motion pursuant to Rule 60.11(1) of the Rules of Civil Procedure for a finding that the Respondent, Aspasios Paul Hatzitrifonos, is in contempt of court for breaching a court order. The order is question is a permanent injunction issued by Dunphy J. of this Court on November 27, 2015, enjoining Mr. Hatzitrifonos from engaging in the unauthorized provision of legal services or from holding himself out as a person entitled to practice law or provide legal services in Ontario (the “Order”). The Law Society alleges that, with full knowledge of the Order, Mr. Hatzitrifonos has chosen to ignore it, and has continued to operate his legal service business in essentially the same unlawful manner as gave rise to the original Order.

[2] This litigation implicates two sets of values that are of fundamental importance to the administration of justice and the rule of law. The first relates to the important role of the Law Society in protecting the Ontario public from the unauthorized provision of legal services by persons without proper legal training. The effective administration of justice depends upon the competence of those providing legal services to properly advance and defend the interests of persons involved in the justice system. It also requires a governing body – in Ontario, the Law Society – with effective oversight to ensure that the public interest in this regard is properly protected.

[3] The second set of values relates to that of judicial independence. It has long been observed that the judiciary controls no purse and commands no army; its power comes from words alone.[^1] It is precisely for this reason that it is critical that the decisions and orders of the courts be generally respected and observed. The deliberate flouting of court orders, if tolerated or permitted, will inevitably erode the public respect accorded to court decisions, thereby undermining an independent judiciary and the rule of law itself.

[4] In the present application, the Law Society has filed numerous affidavits and documentary evidence in support of its position that Mr. Hatzitrifonos has repeatedly and deliberated ignored the Order over the past two years. On October 6, 2017, Mr. Hatzitrifonos, who represented himself in this proceeding, provided vice voce evidence and was cross-examined by counsel for the Law Society; in turn, Mr. Hatzitrifonos was provided the opportunity to cross-examine five of the Law Society’s affiants. This was followed on November 7, 2017 with approximately four hours of argument on the legal issues raised. This has permitted me to review and carefully consider the factual and legal issues raised in this proceeding.

Background Facts

[5] In July 2014, the Law Society received a complaint from the City of Toronto Prosecutors’ Office that Mr. Hatzitrifonos had been representing clients before the Ontario Court of Justice despite the fact that he was not licensed to do so. The Law Society investigated the complaint and determined that Mr. Hatzitrifonos had represented at least 20 clients in 26 provincial offence matters over a number of years. On July 15, 2015, the Law Society commenced an application (the “Injunction Proceeding”) to restrain Mr. Hatzitrifonos from providing legal services or holding himself out as a person entitled to do so, contrary to s. 26.1 of the Law Society Act (the “LSA”).

[6] The Law Society filed 18 transcripts in the Injunction Proceeding evidencing matters in which Mr. Hatzitrifonos appeared on behalf of persons charged with traffic and parking offences. These transcripts indicate that Mr. Hatzitrifonos took the position that, although he himself was unlicensed, the persons charged were in reality clients of a lawyer, Altaf Khan (“Khan”), and he was appearing as Khan’s “agent”.

[7] In fact, the ‘agency’ arrangement between Khan and Mr. Hatzitrifonos had been judicially considered in two provincial offences cases that came before Libman J. of the Ontario Court of Justice on April 23, 2015.[^2] On that occasion, Libman J. ruled, in the presence of both Khan and Mr. Hatzitrifonos, that permitting a non-licensed agent such as Mr. Hatzitrifonos to conduct trials and appeals in the Provincial Offences Court, on behalf of counsel, is contrary to the proper administration of justice and should not be permitted.

[8] Justice Libman reasoned that, far from facilitating or promoting access to justice, the purported arrangement between Khan and Mr. Hatzitrifonos impedes access to justice. Mr. Hatzitrifonos has received no legal training, nor is he governed by the rules of the Law Society mandating, amongst other things, a duty of competency and fiduciary obligation to clients. Thus clients who avail themselves of Mr. Hatzitrifonos’ representation are not only much more likely to suffer a miscarriage of justice through the services of a non-trained representative, but will also have no recourse to a professional regulator for relief in the case of a claim of incompetency. Justice Libman accordingly ruled that Mr. Hatzitrifonos should not be permitted to argue provincial offence trials or appeals, notwithstanding the purported ‘agency’ relationship with Mr. Khan.

[9] I note, in passing, that the Law Society subsequently suspended Khan for one year, in part because he had encouraged, aided and abetted the unauthorized practice or unauthorized delivery of legal services by Mr. Hatzitrifonos. The Law Society Tribunal found that Khan exercised no supervision over Mr. Hatzitrifonos at all, and that his facilitating the unauthorized delivery of legal services by Mr. Hatzitrifonos was most serious misconduct that had put the public at serious risk.[^3]

[10] The Law Society’s Injunction Proceeding came before Dunphy J. of this Court on November 27, 2015. The evidence tendered at the hearing disclosed that Mr. Hatzitrifonos had appeared for at least 19 clients on provincial offence prosecutions between October 2012 and August 2015 in the Ontario Court of Justice. Moreover, this conduct had continued despite the clear ruling of Libman J. in April 2015 that Mr. Hatzitrifonos could not rely on the purported agency relationship with Khan as justification for his actions. The record before Dunphy J. further indicated that Mr. Hatzitrifonos had prepared and filed documents on behalf of clients, posted online advertisements for his services, and received payment for his services.

[11] Mr. Hatzitrifonos did not respond to the Injunction Proceeding or appear at the return of the application, arguing that he had a medical condition that preventing him from appearing on that particular day. After hearing and inquiring into the matter, on November 27, 2015 Dunphy J. issued the Order.

[12] Mr. Hatzitrifonos filed an appeal of the Order on December 22, 2015. However, in May of 2016, the Ontario Court of Appeal dismissed the appeal after Mr. Hatzitrifonos failed to perfect it.

Mr. Hatzitrifonos’ Response to the Order

[13] The evidence before me on this motion demonstrates conclusively that Mr. Hatzitrifonos has carried on with essentially the same activities which led the Law Society to initiate the Injunction Proceedings in 2015.

[14] For example, despite his apparent unavailability for the hearing before Dunphy J. on November 27, 2015, four days later Mr. Hatzitrifonos attempted to appear in an Ontario Court of Justice proceeding involving Tuan Huu Bui (“Bui”). The court-certified transcript of the proceeding on December 1, 2015 indicates that Mr. Hatzitrifonos informed the Court that Mr. Bui was “Mr. Khan’s client” and that he was appearing as “legal representative” of Khan. The prosecutor objected, indicating that the Superior Court had, just days before, issued an injunction prohibiting Mr. Hatzitrifonos from appearing or giving legal advice to clients. Mr. Hatzitrifonos responded by indicating that he was intending to appeal the Order. He also acknowledged that “I realize I’ve hit a major roadblock and that’s fine…” but that he was attempting to appear, despite the order, because “he didn’t want to the client to suffer”. Greene J. ruled that Mr. Hatzitrifonos could not appear on behalf of Bui.

[15] Despite this ruling, 10 days later Mr. Hatzitrifonos tried again to appear on behalf of Bui, this this time before His Worship Justice of the Peace Dudani. When the prosecutor objected on the basis that Mr. Hatzitrifonos was barred from appearing in the Ontario Court of Justice, Mr. Hatzitrifonos indicated that “I realize there’s an order” but that he was intending to appeal it. He further stated that “technically he [Mr. Bui] is still Mr. Khan’s client”, that Mr. Hatzitrifonos was Mr. Khan’s legal representative, and “I don’t think this gentleman [Mr. Bui] should suffer.” The Court, again, refused to permit Mr. Hatzitrifonos to appear.

[16] The Law Society filed transcripts of similar exchanges involving Mr. Hatzitrifonos that took place in the Ontario Court of Justice on January 12, 2016 and January 25, 2016. On these occasions, Mr. Hatzitrifonos attempted to appear on behalf of a client. When confronted with the fact that he was the subject of the Order prohibiting him from appearing, he responded with various claims, including: the individual was Mr. Khan’s client and he was Mr. Khan’s legal representative; that the Order was under appeal; that it would be unfair to “allow the client to suffer”; or that the client retained him prior to November 27, 2015 and, therefore, the Order didn’t apply. On these occasions, the Court ruled that none of these arguments had any validity or merit, and refused him permission to appear.

[17] I regard Mr. Hatzitrifonos’ conduct in proceedings involving Ealan MacDonald (“MacDonald”), who was before the Ontario Court of Justice on January 12, 2016, as particularly significant. The transcript indicates that, after being advised of the Order, the Court ruled that Mr. Hatzitrifonos could not appear on MacDonald’s behalf. Mr. Hatzitrifonos argued that, if the matter were adjourned to another day, “I promise Ealan will show up”, and that Mr. Hatzitrifonos would provide Mr. MacDonald with the material so that “he [MacDonald] could deal with it how he wants to deal with it.” He further argued that “I don’t think it’s fair for him [MacDonald] to suffer, you know, especially when he’s picking up his dying mom from the hospital.”

[18] The Court agreed to put the matter over until July 19, 2016 in order to permit MacDonald to appear. However, when the matter came back before the Court on July 19, 2016, Mr. MacDonald was not present. Instead, despite his promise on January 12, 2016 that MacDonald would represent himself, Mr. Hatzitrifonos attempted once again to appear on MacDonald’s behalf. He explained that MacDonald is “stuck in traffic” and that he was acting as MacDonald’s representative. When questioned by the Court as to whether he was permitted to appear, Mr. Hatzitrifonos responded vaguely that “he [MacDonald] was our client. It’s a long complicated story”, but then immediately changed the subject by stating that “he [MacDonald] is running late, he did text me.” On this occasion, neither the prosecutor nor the Court was aware of the Order and thus no objection was taken to Mr. Hatzitrifonos’ acting on behalf of the client. The charge was subsequently withdrawn on the basis that the officer who laid the charge was not present. Mr. Hatzitrifonos indicated that “I wish Court was like this every day, your Honour…Every time I come to Court they throw me curveballs but today was much easier to deal with so…”

[19] During the course of the hearing before me, Mr. Hatzitrifonos attempted to justify his appearance on behalf of Mr. MacDonald on the basis that he obtained a favourable result, namely, the withdrawal of the charge. But the point of the Order is that Mr. Hatzitrifonos is barred from appearing at all on behalf of clients. It goes without saying that he cannot disregard or breach the Order and then attempt to justify his conduct ex post on the basis that the result obtained might happen, in a particular case, to be favourable to a client.

[20] I further find Mr. Hatzitrifonos’ comments at the July 19, 2016 hearing to be significant, particularly his comment that “I wish Court was like this everyday”. This suggests a desire on his part that no court officer will raise the existence of the Order, thereby permitting him to continue to represent persons in Provincial Offences Court. Moreover, his “curveball” comment indicates that Mr. Hatzitrifonos is fully aware of the fact that anyone with knowledge of the Order would object to his attempt to represent persons before the Court.

[21] In fact, prosecutors in Provincial Offences Court were aware of the Order and were extremely vigilant in their efforts to prevent Mr. Hatzitrifonos from representing clients. Over time, Mr. Hatzitrifonos altered his behaviour in an apparent attempt to avoid their attention. Instead of coming forward and identifying himself as an agent on the record, he attended with clients at their appearances and provided advice to them from the body of the Court. For example, on March 22, 2017, Hatzitrifonos attended court with a Mr. Hao Lin (“Hao”), who was attempting to appeal his summary conviction under the Highway Traffic Act. Hatzitrifonos was observed by the prosecutor sitting beside Hao and whispering in his ear. When the prosecutor so informed the Court, the presiding judge called upon Mr. Hatzitrifonos and asked him if he was assisting Hao. Hatzitrifonos responded that the courtroom is public and he was entitled to be present. However when the judge questioned Hao, the latter indicated that Mr. Hatzitrifonos was assisting him with his appeal. Mr. Hatzitrifonos was permitted to remain in the courtroom, although he was not permitted to communicate further with Hao, and Hao’s appeal was subsequently dismissed.

[22] The record before me indicates that Mr. Hatzitrifonos also continued to carry on other aspects of his legal services business. He continued to file legal documents on behalf of clients, including disclosure requests, motions and appeals. Court staff had been instructed to ignore requests from Mr. Hatzitrifonos on the basis of the Order, which made it difficult for him to obtain requested documents or proceed with other matters. Accordingly, he again modified his behavior, by filing the documents in the clients’ names in an apparent effort to induce court staff to deal to him. The documents were often recognized by court staff, as the text had the same bold, underlining, large font and phrasing used in Mr. Hatzitrifonos’ requests. In the hearing before me, Mr. Hatzitrifonos acknowledged that he had prepared and sent these documents to court staff, but objected that they were “private documents” that should not have been shared with the Law Society.

[23] Further, Mr. Hatzitrifonos admitted that he continued to regularly post advertisements for his legal services online on Yellow Pages, Canpages and Kijiji throughout 2016 and 2017. The advertisements indicated that they had been posted by “Paul, who worked with a licensed lawyer”, and that Paul had been “fighting parking/traffic tickets since 1990 with a 90% success rate!” The advertisements set out the fee structure for Paul’s services, and also claimed an impressive “winning streak”, including “58 victories for 2016”, and numerous others in 2017.

[24] When the Law Society commenced the present contempt application in March 2017, Mr. Hatzitrifonos modified the ads slightly, by adding a ‘disclaimer’ stating that “we are currently on sabbatical, & not accepting any new parking/traffic clients, but we can refer people to some wonderful Lawyers/Paralegals, thanks!!!” However the ads then continued with virtually the identical text that had been used previously, with Mr. Hatzitrifonos regularly updating the number of cases in his current “winning streak”. For example, an advertisement viewed on September 13, 2017, while it included the ‘sabbatical disclaimer’, noted that Paul’s ‘winning streak’ for 2017 had reached “34 victories” by the end of July 2017. I would further note that the reference to being on ‘sabbatical’ was ambiguous, suggesting that Mr. Hatzitrifonos intended to continue the business rather than close it down entirely. Mr. Hatzitrifonos acknowledged preparing and posting these ads.

[25] In addition, Mr. Hatzitrifonos acknowledged having been paid by clients for his services. However he claimed that all of the money received was passed on to Khan.

The Law of Civil Contempt

[26] It is well established that there is a three-part test for a finding of contempt of court, as set out by the Supreme Court of Canada in Carey v. Laiken:[^4]

(i) The order that was breached must clearly and unequivocally state what should or should not be done;

(ii) The party who disobeyed the order must have had actual knowledge of it; and

(iii) The party alleged in breach intentionally did the act the order prohibits or intentionally failed to do the act the order compels.

[27] The elements of the contempt must be proven on the basis of the criminal law standard, namely, proof beyond a reasonable doubt. Moreover, the contempt power is discretionary and should be utilized as an enforcement power of last rather than first resort. At the same time, the party subject to the court order must comply with both “the letter and the spirit of the order”; a party cannot hide behind a restrictive or literal interpretation of an order in order to circumvent it, as this would make a mockery of the order and the administration of justice.[^5] Moreover, it is not necessary to prove that a person deliberately intended to breach a court order. It is sufficient if the person in question intentionally performed the act which is in fact prohibited by the order.[^6]

Analysis

[28] The first element of the test requires a finding that the Order was “clear and unequivocal”. The Order permanently enjoins Mr. Hatzitrifonos from “engaging in the practice of law or the provision of legal services in Ontario in contravention of s.26.1 of the Law Society Act”, as well as “advertising or holding himself out” as a person who may practice law or provide legal services.

[29] While the Order does not detail specific acts or activities that are prohibited, the purpose and effect of the Order was and is quite clear. Essentially, Mr. Hatzitrifonos was ordered to cease the unauthorized delivery of legal services in which he had been engaged for some years. This included representing clients before the Ontario Court of Justice as well as otherwise providing them with legal services or advice, and advertising such services. I note that other courts have found similarly worded orders to have met the required “clear and unequivocal” standard for purposes of civil contempt.[^7]

[30] I am mindful of the Court of Appeal’s comments in The Law Society of Upper Canada v. Chiarelli,[^8] to the effect that it is preferable that a statutory injunction not simply repeat the language of the statute relied upon. The Court of Appeal also noted that an injunction may be difficult to enforce by way of a contempt proceeding if the terms of the order are not sufficiently specific and clear.

[31] In my view, however, the broad prohibitory wording of the Order was both appropriate and necessary in this case. If the Order had attempted to specifically set out the activities that were prohibited, this would have given rise to at least two difficulties. First, Mr. Hatzitrifonos might well have attempted to argue that any acts not specifically prohibited were permitted, even if they might otherwise fall with the ambit of the provision of legal services. Second, Mr. Hatzitrifonos might well have altered his behavior in some minor manner in an attempt to argue that he was in compliance with the Order, while continuing, in substance, to provide legal services.

[32] Of course, in these circumstances the Law Society could have relied on the accepted principle that a party subject to a court order must honour both the “letter and the spirit of the order”. Nevertheless the attempt to specifically detail prohibited acts or activities would, in my respectful view, have significantly complicated any contempt proceedings against Mr. Hatzitrifonos.

[33] I therefore find that the language of the Order enjoining Mr. Hatzitrifonos from engaging in the unauthorized provision of legal services, or holding himself out as a person entitled to practice law or to provide legal services, satisfies the “clear and unequivocal standard” for purposes of civil contempt.

[34] With respect to the second element of the test, whether Mr. Hatzitrifonos was aware of the Order, he acknowledged that he was aware of the Order by no later than December 22, 2015, the date he filed his appeal of the Order. In fact, the transcripts of the Ontario Court of Justice proceedings on December 1 and 11, 2015, indicate that Mr. Hatzitrifonos was aware as of those dates of the Order. Mr. Hatzitrifonos claimed that the transcripts of the proceedings were erroneous and that he was not aware of the Order until December 22, 2015, and on that very day drafted and filed his appeal. However the Law Society affiants confirmed that the December 1 and 11, 2015 transcripts are accurate, and I prefer their evidence to his on the issue. I therefore find that Mr. Hatzitrifonos was aware of the Order by no later than December 1, 2015, when the Order was handed to him in court.

[35] I also find that Mr. Hatzitrifonos understood what the Order prohibited him from doing. He had been informed by Libman J. in April 2015 that his purported agency relationship with Khan did not allow him to represent clients before the Ontario Court of Justice. He was advised on repeated occasions throughout 2016 and 2017 that his continued representation of clients in the Ontario Court of Justice was in breach of the Order. The fact that he modified his behavior by, for example, attempting to advise clients from the body of the courtroom, sending document requests in the client’s name rather than his own, or adding the ‘sabbatical’ disclaimer to his ads, confirms that he was fully aware of the Order and was attempting to appear to be in compliance while carrying on with his legal services business. Accordingly, I have no doubt in finding that Mr. Hatzitrifonos was fully aware of the Order and what it required him to do.

[36] With respect to the third element of the test, whether he intentionally did the acts prohibited by the Order, Mr. Hatzitrifonos has admitted this to be the case. He has acknowledged that, following the issuance of Order, he continued to provide legal services to clients in the Ontario Court of Justice, including appearing on their behalf in court, providing them with legal advice, and requesting documents on their behalf. He argues that he was entitled to do these things, either because the individuals were Khan’s clients and he was merely acting as Khan’s agent, or else because the clients had retained him prior to the date of the Order. Of course, Mr. Hatzitrifonos had been told repeatedly that these purported justifications did not justify his conduct, which he simply ignored.

[37] Mr. Hatzitrifonos also admitted receiving payments from clients for his services, but claimed that he had remitted all of these payments to Khan. However he tended no evidence in support of this claim and, in any event, it is entirely lacking in plausibility. Since it was Mr. Hatzitrifonos who was providing the services, it stands to reason that Mr. Hatzitrifonos would be the person entitled to compensation. The retainer letters which stated that the clients were retaining Khan rather than Mr. Hatzitrifonos were mere devices intended to evade compliance with the LSA. I find that the clients retained Mr. Hatzitrifonos, not Khan, and paid Hatzitrifonos for his services.

Conclusion

[38] Mr. Hatzitrifonos’ strategy following the issuance of the Order was to ignore it and continue with his legal services business, in hopes that his activities could not come to the attention of the courts and other justice officials. When this did not work, he modified his behavior in ways that he hoped would allow him to continue to operate undetected. There is no doubt that Mr. Hatzitrifonos intentionally breached a clear and unequivocal Order of which he was aware, by continuing to provide legal services and by holding himself out as being entitled to do so.

[39] I therefore find Mr. Hatzitrifonos to be in contempt of court. In accordance with the Court of Appeal’s decision in Boily v. Carleton Condominium Corporation 145,[^9] I will schedule a separate hearing to address the penalty issue. The Law Society should file written submissions considering a range of penalty options at least 14 days before the scheduled hearing date, and Mr. Hatzitrifonos should file any reply submissions at least 7 days before the hearing date.

P.J. Monahan, J.

Date: November 28, 2017

[^1]: See, for example, Alexander Hamilton, “The Federalist, No. 78”, in Alexander Hamilton, James Madison and John Jay, The Federalist Or, The New Constitution. (London: Dent, 1992) 397. [^2]: R. v. Khan, 2015 ONCJ 221. [^3]: See The Law Society of Upper Canada v. Altaf Mohammed Khan, 2017 ONLSTH 83 (April 19, 2017). [^4]: 2015 SCC 17, 2015 S.C.C. 17 (“Carey v. Laiken”) at paras. 33-35. [^5]: For a helpful summary and analysis of the law of civil contempt in a context similar to the present proceeding, see the reasons of Charney J. in The Law Society of Upper Canada v. Fingold, 2016 ONSC 5684 (“Fingold 2016”). [^6]: Carey v. Laiken at paras. 26-27. [^7]: See Fingold 2016, at para. 47. See also The Law Society of Upper Canada v. Fingold, 2012 ONSC 2850 at para. 33. [^8]: 2014 ONCA 391 at paras. 33-34. [^9]: 2014 ONCA 574.