Court File and Parties

COURT FILE NO.: CV-21-00658234-00ES DATE: 2021-07-09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: The Law Society of Ontario, Applicant AND: Vivek David, Respondent

BEFORE: C. Gilmore, J.

COUNSEL: Joanne McMillan Counsel for the Applicant Mr. David appeared on his own behalf

HEARD: June 25, 2021

ENDORSEMENT on application

OVERVIEW

[1] This is Trusteeship Application by the Law Society of Ontario (“LSO”) over the property of the Respondent Mr. David (“the Lawyer”). The property includes the LSO taking possession of all of the Lawyer’s files, client data, trust funds, bank accounts and financial records (“the Property”). The LSO seeks to take possession of the property in order to wind up the Lawyer’s practice.

[2] The LSO states concerns that the Lawyer continues to practice law, advertise his practice and has failed to wind up his practice. The LSO seeks the Trusteeship to ensure the protection of the public.

[3] The Lawyer opposes the Application. He submits that he has complied with all of LSO’s requests and that a Trusteeship is overreaching and not required.

BACKGROUND FACTS

[4] The Lawyer became licensed to practice law on January 24, 2014. The Lawyer’s licence to practice law was suspended on November 3, 2020 for failing to cooperate with an LSO investigation. Prior to his suspension he was operating a law practice in Mississauga practising mostly criminal law.

[5] On June 17, 2020 the LSO filed an application alleging the Lawyer had failed to cooperate in an investigation into complaints against him by not responding promptly to LSO communications pursuant to s.49.44(2) of the Law Society Act, RSO 1990, c. L.8 (“the Act”) and Rule 7.101 of The Rules of Professional Conduct (“the Rules”).

[6] The relevant authorizing provisions of the Act and the Rules are set out below (my emphasis):

49.45 An order may be made under section 49.46 or 49.47 with respect to property that is or should be in the possession or control of a licensee only if,

(a) the licensee’s licence has been revoked;

(b) the licensee’s licence is under suspension or the manner in which the licensee may practise law or provide legal services has been restricted;

(c) the licensee has died or has disappeared;

(d) the licensee has neglected or abandoned his or her professional business without making adequate provision for the protection of clients’ interests;

(e) there are reasonable grounds for believing that the licensee has or may have dealt improperly with property that may be subject to an order under section 49.46 or 49.47 or with any other property; or

(f) there are reasonable grounds for believing that other circumstances exist in respect of the licensee or the licensee’s professional business that make an order under section 49.46 or 49.47 necessary for the protection of the public. 2006, c. 21, Sched. C, s. 64.

Trusteeship order

49.47 (1) On application of the Society, the Superior Court of Justice may order that all or part of the property that is or should be in the possession or control of a licensee be held in trust by the Society or another person appointed by the court. 1998, c. 21, s. 21; 2002, c. 18, Sched. A, s. 12 (2); 2006, c. 21, Sched. C, s. 66 (1).

Purpose of order

(2) An order may be made under subsection (1) only for one or more of the following purposes, as specified in the order:

1. Preserving the property.

2. Distributing the property.

3. Preserving or carrying on the licensee’s professional business.

4. Winding up the licensee’s professional business. 1998, c. 21, s. 21; 2006, c. 21, Sched. C, s. 66 (2).

Communications from the Law Society in which a response is requested.

7.1-1 A lawyer shall reply promptly and completely to any communication from the Law Society in which a response is requested.

[7] Counsel for the LSO, Mr. Mark Cornish, was assigned to investigate after a letter was received from the Assistant Deputy Attorney General, Criminal Law Division, on March 2, 2020 outlining several complaints about the Lawyer’s conduct. Mr. Cornish wrote to the Lawyer on March 24, 2020 providing him with a copy of the letter and requesting documentation related to the complaints as well as a list of current client files. The Lawyer was given until April 14, 2020 to respond.

[8] The Lawyer responded on April 14, 2020 advising that he considered the requests to be overly broad. He requested a hearing to deal with the matter. The Lawyer alleged in his response that the Assistant Deputy Attorney General had been tracking his files looking for errors and called the requests for information a reprisal that would have a chilling effect on the profession.

[9] Mr. Cornish wrote to the Lawyer again on April 15, 2020 requesting the same information. The Lawyer replied on April 29, 2020 with the same response. Mr. Cornish repeated his requests in a letter to the Lawyer dated April 29, 2020. The Lawyer reiterated his position that the investigation had been undertaken in bad faith and a hearing was required to test the legality of the requests for information.

[10] Mr. Cornish wrote again on May 21, 2020 and advised that if the requested information was not received by May 29, 2020, the LSO would commence disciplinary proceedings against the Lawyer. The Lawyer responded on May 29, 2020 taking the position that he had provided all of the information that he considered relevant. His view was that a list of current client files would not assist in a determination of the complaint and the LSO would only use those files to “go on a fishing expedition in the service of protecting someone.” He also wrote, “I know full well that if I do not provide all of the materials you request, you would not take action.”

[11] A hearing was held on September 22, 2020. The Tribunal heard evidence related to allegations of professional misconduct by the Lawyer. These included complaints outlined in a letter from Assistant Deputy Attorney General, Criminal Law Division concerning the Lawyer’s representation of certain criminal clients. The Assistant Deputy Attorney General was concerned that the Lawyer’s conduct “calls into question his competency, integrity and advocacy.” The letter outlined three separate incidents which ranged from the Lawyer allegedly engaging in threatening conduct to providing an affidavit to the Court replete with legal and typographical errors. The Tribunal also heard evidence from Mr. Cornish who had sworn an affidavit in support of the LSO’s Application.

[12] At the hearing, the Lawyer brought two pre-hearing motions arguing that the investigation was outside of the scope of authorization of the LSO and that the Assistant Deputy Attorney General used documents not available to the public which was unfair, illegal and an abuse of process.

[13] Those motions were dismissed. The LSO concluded that it had the authority to conduct an investigation pursuant to s.49.3(1) of the Act and that the Assistant Deputy Attorney General had a duty to report its concerns pursuant to Rule 7.1-3(d) (e) and (f) of the Rules of Professional Conduct. Further, the Tribunal found that the Lawyer was not designated with investigative authority, it is the LSO that has such authority. As such the Lawyer does not decide which information is relevant or necessary. The LSO found that the Lawyer’s determination that many of the files requested by the LSO were not relevant was not his decision to make nor was the Lawyer entitled to speculate about the motives of the investigator or the direction of the investigation.

[14] The decision of the Law Society Tribunal was released on September 22, 2020. The Tribunal determined that professional misconduct had been established. An Order was issued on November 3, 2020 with respect to the Tribunal decision. The Lawyer was required to comply with The Law Society’s Guidelines for Lawyers who are Suspended or Who Have Given an Undertaking Not to Practise While Suspended (“the Guidelines”). The Lawyer’s licence to practice was suspended until he complied with the Investigator’s requests for documents. He was also ordered to pay costs of $10,000 by November 3, 2021.

[15] The relevant provisions of the Guidelines are set out below:

Guidelines for Lawyers Who Are Suspended or Who Have Given an Undertaking Not to Practise

General

1.(1) In this guideline, “suspended lawyer” means a lawyer whose licence to practise law is suspended or who undertakes to the Law Society not to practise law.

(2) A suspended lawyer or a lawyer who has undertaken to the Law Society to restrict his or her practice must cease practice as a result of the suspension or in compliance with the terms of the undertaking. Suspended lawyers are also prohibited from providing legal services as defined by the Law Society Act, as only those persons licensed by the Law Society to provide legal services may do so. By-laws 7.1 (Part II) and 9 (Part II.1) impose on suspended lawyers certain notice requirements, obligations and restrictions on activities, including the handling of money and other property.

(3) In order to comply with these obligations and restrictions, suspended lawyers must comply with these Guidelines.

Mandatory Activities

3. (1) On or before the effective date of the suspension or undertaking not to practise, the suspended lawyer shall:

(a) Remove any sign from the suspended lawyer’s door, building, premises, window, building directory, property, vehicle or any other location designating it as a “law office” or designating the suspended lawyer as being able to practise law or to be a “barrister”, “solicitor”, “lawyer”, “Licensee of the Law Society of Ontario”, “Licensed by the Law Society of Ontario”, “notary public”, “commissioner for taking affidavits” or “commissioner of oaths” or similar words giving the impression, in English or any other language, that the suspended lawyer is able to practise law. The above words must also be removed or crossed out from all stationary, letterhead, business cards, forms, stamps, accounts, electronic mail forms, internet sites and any other advertisements or publications bearing the suspended lawyer’s name;

(b) Disconnect the suspended lawyer’s telephone and facsimile lines or arrange for a voice message to advise callers that his or her law practice is closed until further notice and provide callers with the name and telephone number of another lawyer to call for information regarding their files. Suspended lawyers under a definite suspension may leave a message advising when the office will reopen;

(c) Enable an “out of office” email notification advising that his or her law practice is closed until further notice and provide the name and telephone number of another lawyer to call for information regarding their files. Suspended lawyers under a definite suspension may leave a message advising when the office will reopen; and

(d) Notify the Law Society immediately after any change in contact information in compliance with By-law 8.

Prohibited Activities

4. (1) Effective from the date of suspension or undertaking not to practise the suspended lawyer shall not:

(a) Create new lawyer-client relationships;

(b) Accept new legal work for existing clients;

(c) Notarize documents pursuant to the Notaries Act, R.S.O. 1990, c. N.6, or commission affidavits or statutory declarations pursuant to the Commissioners for taking Affidavits Act, R.S.O. 1990, c. C.17.

(d) Report to clients, other than to: i) inform them of the suspension or the undertaking not to practise; and ii) deliver an account for services rendered prior to the suspension or undertaking not to practise;

(e) Give to another lawyer or a paralegal or receive on behalf of a client, other individual, corporation or other entity, any undertaking with respect to any legal matter;

(f) Occupy or share office space with a lawyer or paralegal in contravention of Subrule 7.6-1.1 of the Rules of Professional Conduct;

(g) Provide services to a lawyer or paralegal in relation to that lawyer’s practice of law or paralegal’s provision of legal services in contravention of Subrule 7.6-1.1 of the Rules of Professional Conduct;

(h) Act as an articling principal to a student-at-law in the Licensing Process or act as the supervising lawyer to a student-at-law in the Licensing Process; and

(i) Accept any referrals from the Law Society Referral Service.

[16] After the Tribunal decision, the matter was referred to the Regulatory Compliance department of the LSO. The Lawyer was provided with a copy of the Guidelines and Part II of By-law 7.1, Part II.1 of By-law 9 and sub-rule 7.6-1.2 of the Rules of Professional Conduct. The Lawyer was advised that By-laws required that he submit a Compliance Report within 30 days, ensure all internet websites related to his law practice were removed and that his trust account was to be closed. The LSO followed up on December 3, 2020 as no Compliance Report had been received from the Lawyer.

[17] The LSO followed up again with the Lawyer on December 4, 2020 as his Compliance Report was overdue. The Lawyer was reminded of his obligations under the Guidelines including the requirement to remove all on-line websites referring to him as a person licensed to practice law in Ontario.

[18] On December 9, 2021 the LSO followed up again and confirmed that the Lawyer had committed to providing his Compliance Report by December 11, 2020. The Lawyer was specifically warned about removing all on-line advertising including his website, www.vivlaw.ca.

[19] On December 11, 2020 the LSO corresponded with the Lawyer to advise that the Compliance Report he had submitted was not acceptable. The Lawyer had not filled out the form required by the By-law and provided to him on multiple occasions by the LSO. Rather, he provided some practice information by email advising that he would not be providing any additional information other than what was in his email. The Lawyer was advised that his non-compliance would be referred to the LSO’s Trustee Services Department.

[20] On December 14, 2020 the LSO confirmed receiving the Lawyer’s emails but requested confirmation that he would be complying with the outstanding Order and the Guidelines and By-laws by providing the Compliance Report. The LSO sent a further email to the Lawyer on December 14, 2020 once again reminding the Lawyer of his obligations under the Guidelines and requesting he complete the Compliance Report. The LSO confirmed that the pre-formatted Compliance Report had been provided to the Lawyer on six previous occasions. The LSO again confirmed that the information previously provided by the Lawyer by email attachment did not comply with By-law 7 and did not fulfil the Lawyer’s obligation to complete the Compliance Report.

[21] Ms. Elizabeth McCabe filed a supplementary affidavit on June 9, 2021. She had received correspondence from a Toronto law firm, Anderson Wilson LLP advising that the Lawyer represented a Defendant, Mr. Mohamad Hanash, in a civil action. The firm had been attempting to schedule examinations for discovery since May 12, 2021 and the Lawyer had not responded to their emails. The law firm then learned from the LSO website that the Lawyer was suspended. The law firm enquired as to whether the Defendant had been informed that his lawyer was suspended. Ms. McCabe then took steps to advise Mr. Hanash that his lawyer had been suspended.

[22] On April 13, 2021 the Law Society Tribunal Appeal Division heard an appeal of the Lawyer’s matter and reserved its decision. The Lawyer’s request for a stay pending appeal was denied.

The Positions of the Parties

The LSO

[23] Ms. McMillan on behalf of the LSO submitted that the Lawyer remains suspended as a result of the disciplinary Order. He is also subject to an administrative suspension for failing to pay his annual LSO fees. He has also not paid the $10,000 costs Order resulting from the discipline hearing, however, those costs are not due until November 2021.

[24] The LSO relies on the provisions of section 49.45(b)(d) and (f) of the Act (as highlighted above). The LSO seeks a Trusteeship Order in order to wind up the Lawyer’s practice.

[25] The LSO points out that the Lawyer has provided no sworn evidence. It is therefore uncontroverted that he is suspended and the subject of ongoing investigations. The Supplementary Affidavit filed by the LSO is concerning in that clients are not being protected and given proper information.

[26] The LSO also submits that the Lawyer continues to advertise on websites and that his continued online presence while suspended is a risk to the public. The materials provided by the LSO demonstrate that the Lawyer has not been compliant, has not followed the Guidelines and failed to comply with the relevant By-law.

The Lawyer

[27] With respect to the Supplementary Affidavit of Ms. McMillan, the Lawyer submitted that Mr. Hanash is now represented by new counsel. The delay related solely to trying to find a Punjabi speaking counsel for him.

[28] He has complied with all LSO requirements including giving his active files to other counsel. He is concerned that the LSO is contacting his former clients and giving them incorrect information.

[29] The Lawyer denied that he was continuing to advertise or practice law. He did put up a website related to certain allegations against Magistrate Worku. However, this relates to signing a petition for the Attorney General’s office regarding Magistrate Worku’s history. The Lawyer’s name is not mentioned on the website.

[30] The Lawyer’s Twitter and Facebook account contains a pin indicating that his office is closed.

[31] The Lawyer’s position is that any Order related to a trusteeship is overreaching and premature given his outstanding appeal.

ANALYSIS AND RULING

[32] The LSO seeks a Trusteeship Order over the Lawyer’s practice pursuant to s.49.47 of the Act. Specifically, they seek an Order under s.49.47(2)4 which permits the winding up of the Lawyer’s practice.

[33] The grounds for such an Order are found in s. 49.45 of the Act which stipulates that a Trusteeship Order may be made only if the Lawyer’s licence has been suspended or revoked. In this case the LSO also seeks the Trusteeship Order on the grounds that the Lawyer has neglected his practice without making provision for the protection of clients’ interest (49.45(d)) and that the Order is necessary for the protection of the public (49.45(f)).

[34] The Lawyer remains under suspension. He has failed to provide any sworn evidence in response to the LSO’s Application. It is clear from a review of the email exchanges between the LSO and the Lawyer that he has not complied with the Guidelines in that he has continued to advertise his practice and has not provided a properly completed Compliance Report.

[35] The Lawyer has provided copies of his Facebook and Twitter pages which indicate that his office is closed. They do not reference that they are closed because the Lawyer is suspended. The reference to the closure relates to a different matter making it seem as if the Assistant Deputy Attorney General had something to do with the closure. The Lawyer further submitted that he does not know how to “take down” Twitter and Facebook. Counsel for the LSO submitted that the LSO is familiar with how to take such steps where a trusteeship is granted to them.

[36] The Supplementary Affidavit of Ms. MacMillan is also concerning in that clients are clearly not being properly informed of the Lawyer’s suspension as required by the Guidelines. While that particular client appears to have been referred to new counsel, it is disconcerting that this would happen in June 2021 when the Lawyer has been suspended for nine months. The LSO is rightfully concerned about the need to protect the public in this regard.

[37] The Court is also concerned about the reasons for the Lawyer’s continued non-compliance. The Lawyer remains steadfast in his refusal to provide the LSO with a complete list of active clients. This forms part of the grounds for his appeal. He submitted that he is concerned that the LSO is contacting his clients and acting in a threatening manner towards them. There was no evidence during the hearing of such behaviour on the part of the LSO. Indeed, the LSO’s submission, which I accept, was that they needed to contact all of the Lawyer’s clients to ensure they were aware of the suspension and that their files had been satisfactorily transferred to new counsel.

[38] I do, however, understand the Lawyer’s concern in the event a Trusteeship Order is made, his practice is wound up, and he is then successful on appeal. That would be both time consuming, expensive and unfair to the Lawyer. While the protection of the public is important, that must be balanced with the principles of fairness and the possibility that the Lawyer may have his licence re-instated by the Appeal Division.

ORDERS

[39] Given all of the above, I make the following Orders:

a. The Trusteeship Order requested is granted but the operation of the Order is suspended pending the outcome of the Lawyer’s appeal.

b. In the event the Lawyer is not successful on appeal the Trusteeship Order shall come into effect immediately.

c. In the event the Lawyer is successful on appeal, the LSO may return the Application before me, on notice, with respect to any ongoing compliance terms if so advised.

d. The Lawyer remains suspended until the LSO orders otherwise or the Appeal is allowed.

e. The Lawyer must comply with the Guidelines so long as he remains suspended. This includes a requirement that the Lawyer forthwith provide to the LSO all his current client files and completion of the Compliance Report in accordance with the requirements of the LSO.

f. The Lawyer must immediately take down his Twitter and Facebook sites.

g. The issue of costs may be brought forward by either party at the appropriate time.

C. Gilmore, J.

Date: July 9, 2021