Court File and Parties

COURT FILE NO.: CV-21-655517 DATE: 20230623 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

LAW SOCIETY OF ONTARIO Applicant – and – KIRUPA MR. SUTHARSAN, a.k.a. MR. SUTHARSAN KIRUPALINGAM a.k.a. MR. SUTHARSAN KIRUVPALINGAM Respondent

Counsel: Simon Bieber and Jordan Katz, for the Applicant/Moving Party Mitchell Worsoff, for the Respondent

HEARD: June 9, 2023

PAPAGEORGIOU J.

Endorsement

[1] These are the oral reasons I read out in Court on June 23, 2023.

[2] The Law Society of Ontario (the “LSO”) brought a motion for contempt against the respondent, Kirupa Sutharsan, also known as Sutharsan Kirupalingam or Sutharsan Kiruvpalingam (“Mr. Sutharsan”).

[3] The LSO asserted that Mr. Sutharsan, with full knowledge of an injunction against him made on March 16, 2021 (the “2021 Injunction”), engaged in the unauthorized provision of legal services or practice of law in Ontario, or from holding himself out as a person who may do so.

[4] Mr. Sutharsan consented to the contempt order and the matter proceeded to a hearing on penalty.

[5] These are the reasons in respect of the penalty.

Background

[6] In his biography submitted, as well as his testimony, Mr. Sutharsan described his background. He is 52 years old and a married father of three adult children who live with him and who are all attending university. His wife works two jobs.

[7] He immigrated from Sri Lanka when he was 13. The transition was difficult and he struggled with the language barrier. As the eldest of three children he paved the way for his family’s new life in Canada. When he returned to Sri Lanka in 1998 for a visit, he was kidnapped by rebels which lead to significant financial strain as he borrowed money to secure his release. Upon his return to Canada, he struggled to support his family and was robbed on one occasion when he worked at a gas station. He took on court appearances to help support his family.

[8] His background in the legal field included acquiring a paralegal diploma in or around 1992, and initially working as a court clerk in the Ontario Superior Court. He then joined a criminal practitioner as a full time clerk which then led to other positions. He says that in 1998, he transitioned to the paralegal role and it was clear from his testimony that he had a passion for representing his clients. He estimated that he has represented 10,000 clients over the past 25 years.

[9] When paralegals came under the regulation of the LSO in 2008, he tried to pass his licensing exams but was not able because of his numerous challenges and responsibilities.

[10] And so, he continued representing clients, but he says under the guidance of other paralegals which he thought was permissible, although he candidly admitted that he may have appeared in traffic court in person for clients.

The 2010 Undertaking

[11] On September 22, 2010, following an investigation by the LSO, Mr. Sutharsan entered into an Undertaking and Acknowledgment (the “Undertaking”) in which, among other things, he (i) admitted that he had been providing unauthorized legal services in respect of the Provincial Offences Act, R.S.O. 1990, c. P.33 (“POA”) in breach of s. 26.1 of the Law Society Act, R.S.O. 1990, c. L. 8; and (ii) undertook not to act, practise, or hold himself out or represent himself as a person licensed to practise law or provide legal services in Ontario.

The 2021 Injunction

[12] On April 22, 2020, the LSO received a complaint about Mr. Sutharsan from an individual named Shreen Namatalla. In her complaint, Ms. Namatalla indicated that she had initially retained Mr. Sutharsan in 2018 to represent her in a Highway Traffic Act matter in POA Court, on the understanding that he was a paralegal.

[13] Ms. Namatalla stated that Mr. Sutharsan failed to take certain steps to safeguard her rights in respect of that matter leading to a missed court date, and a suspension of her driver’s licence. Ms. Namatalla also stated that Mr. Sutharsan misled her with respect to the status and outcome of his efforts on her behalf in 2018 and 2019.

[14] Following that investigation, on January 25, 2021, the LSO commenced an Application to restrain Mr. Sutharsan from continuing to practise law or provide legal services without being licensed, or to hold himself out as being entitled to do so, contrary to section 26.1 of the Law Society Act.

[15] Mr. Sutharsan executed a consent to the LSO’s proposed injunction order on February 2, 2021. On March 16, 2021, and on the basis of that consent, Ferguson J. issued the 2021 Injunction, permanently restraining Mr. Sutharsan from practising law or providing legal services in Ontario, or holding himself out as a person entitled to do so, contrary to s. 26.1 of the Law Society Act.

Mr. Sutharsan’s conduct following the 2021 Injunction

[16] On August 19, 2021 the LSO received an email complaint from a POA prosecutor in Grey County alleging that Mr. Sutharsan was corresponding with his office for the purpose of representing a defendant charged with a Highway Traffic Act offence. He provided copies of emails from Mr. Sutharsan enclosing Notices of Intention to Appear on behalf of two individuals (Chanaka Gallege and Animesh Sharma).

[17] The LSO determined that Mr. Sutharsan did not appear on behalf of Mr. Gallege or Mr. Sharma at the trial dates set in their Highway Traffic Act matters, and both individuals were convicted of the alleged traffic offences in October 2021.

[18] On April 23, 2022, the LSO received a further complaint from another POA Court prosecutor in the Timiskaming District of Northeastern Ontario, alleging that Mr. Sutharsan had listed himself as agent for an individual (Sherpreet Dhillon) on a trial request form in respect of a Highway Traffic Act offence. In those emails, Mr. Sutharsan received disclosure on behalf of Mr. Dhillon, and agreed on his behalf to an early resolution proposal offered by the prosecution.

[19] The LSO investigation also revealed that Mr. Sutharsan had filed a series of documents with the POA Court with respect to a request for reopening relating to another individual (Parambil Thaikkandi) charged with a Highway Traffic Act offence. This matter included an Affidavit in Support of Reopening bearing a commissioner’s signature and stamp that referred to Mr. Sutharsan a “Certified Paralegal”.

[20] In response to the LSO investigation, Mr. Sutharsan addressed only one of the complaints, that related to his alleged representation of Mr. Dhillon. He indicated that Mr. Dhillon was a family friend who asked him to assist in negotiating a resolution and that his colleague, Francis Chung, who was registered with the LSO used his iPad to have conversations with the complainant. He said he had nothing to do with the matter. The LSO investigator subsequently determined that Mr. Chung’s license to provide legal services was revoked on September 1, 2021.

[21] I also note that the LSO attempted to find and contact the individuals who were identified as having been represented by Mr. Sutharsan. The investigator was either unable to find them, or they did not respond. In any event, there was never any complaint made by any individual who he was alleged to represent after the 2021 Injunction.

[22] On January 24, 2023, Mr. Sutharsan consented to a contempt order in respect of his breach of the 2021 Injunction (the “Contempt Order”).

Penalty Requested

[23] The LSO seeks a penalty of 30 days incarceration.

Sentencing Principles for Civil Contempt

[24] Pursuant to r. 60.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court has a “broad discretion to fashion an appropriate remedy for contempt” and make any order as is just, including ordering imprisonment and payment of a fine.

[25] As the Court of Appeal stated in Boily v. Carleton Condominium Corporation 145, 2014 ONCA 574, 121 O.R. (3d) 670, at para. 79, “[t]he purpose of a penalty for civil contempt is to enforce compliance with a court order and to ensure societal respect for courts. The remedy for civil contempt is designed not only to enforce the rights of a private party…but also to enforce the efficacy of the process of the court itself.”

[26] The most important objectives in determining the appropriate sentence for civil contempt are specific and general deterrence: Boily, at para 105; Business Development Bank of Canada v. Cavalon Inc., 2017 ONCA 663, 416 D.L.R. (4th) 269, at para. 91 (“BDC”).

[27] The secondary objective is punishment: BDC, at para. 81.

[28] The Court of Appeal has applied the following five-factor test for determining the appropriate sanction for civil contempt:

a) Presence of aggravating factors/mitigating factors; b) Proportionality of the sentence to the wrongdoing—the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender; c) Similarity of sentence in like circumstance; d) Reasonableness of a fine or incarceration; and e) Deterrence and denunciation—the sentence should denounce unlawful conduct, promote a sense of responsibility in the contemnor, and deter the contemnor and others from defying court orders. BDC, at para. 90

Aggravating Factors/Mitigating Factors

[29] The LSO admits that custodial sentences for civil contempt are rare, but argues that one is justified in this case for a number of aggravating factors.

[30] First, it argues that Mr. Sutharsan’s breach was “knowing and deliberate”, “repeated” and “willful” as opposed to “technical” and “one-off” and that his motivation was profit.

[31] Mr. Sutharsan explained that after the 2021 Injunction he did not in fact continue to seek out to represent individuals. Once in a while, people would contact him because they knew him. He advised these individuals who contacted him of the 2021 Injunction, but they were his past clients and they still wanted his help. He would advise these individuals that a paralegal would assist them in court. He would then refer these clients to other paralegals and receive a referral fee. Sometimes he would file the paperwork which was typically a notice of intention to appear in court as well as the documents referenced above in the LSO investigation. He also negotiated one settlement for one individual. This was not a constant thing. He never appeared in court.

[32] He says he did not read the 2021 Injunction, but he acknowledges that he realizes that the conduct fell within its bounds. I note as well that he waived independent legal advice.

[33] Mr. Sutharsan testified in a forthright and consistent manner. He admitted things readily and did not seek to minimize what he did. I found him credible and believable and I accept his evidence as to the scope of what he was doing.

[34] I add that the fact that this was not an ongoing business of his is supported by the LSO’s investigation. The LSO investigator attempted to find evidence that Mr. Sutharsan was operating a paralegal business by conducting an online search, searches in social media including Facebook, Twitter and Linkedin.com as well as federal and provincial corporate profiles. No results were found.

[35] As well, Mr. Sutharsan testified he was previously well known in the courts because of his past work as a paralegal. This is supported by the fact that when he communicated with the prosecutors in question, they clearly knew who he was and made their own complaints. Had he been operating an ongoing business, as opposed to the way he described it, I expect there would have been more complaints by prosecutors.

[36] With respect to the Dhillon matter, as per his previous communication to the LSO investigator Mr. Grant, he had intended that the matter would ultimately be handled by someone who he thought was a licensed paralegal, Mr. Chung. While the LSO argues that this demonstrates an attempt to deflect responsibility, there is no evidence from Mr. Chung or anyone else that what Mr. Sutharsan says was not true or that he knew that Mr. Chung’s licence had been revoked. I make the point that if Mr. Sutharsan was seeking to provide false evidence to exonerate himself and/or knew that Mr. Chung’s licence was revoked, he would likely have chosen someone whose licence was not revoked. As well, he did not seek to blame anyone for what he did and simply saying that he would refer matters to Mr. Chung does not deflect anything.

[37] With respect to profitability, all of these matters were Highway Traffic Act matters; while he admitted he did receive some remuneration and referral fees, in my view it could not have been that significant.

[38] In my view, this conduct, while clearly a breach, is not the kind of “knowing” and “flagrant” and “willful” behaviour described in cases where incarceration is awarded. In my view, his conduct was not motivated by being defiant, so much as trying to assist clients who reached out to him and still wanted his help.

[39] I also disagree that Mr. Sutharsan is insufficiently remorseful.

[40] He consented to the contempt order quickly and has taken responsibility.

[41] At the sentencing hearing, while he did not specifically offer an apology until I asked him if he was sorry, the way that he spoke about what he did demonstrated that he was quite ashamed and remorseful. He said:

• “I don’t blame anybody else other than myself.”
• “I take responsibility for it.”
• “I’m not blaming anybody else, as I said I take full responsibility…”

[42] And then, after I asked if he was sorry, he stated:

• “I’m truly sorry for what happened, and I take full responsibility and conduct for myself, for what happened. I’m not denying that I didn’t do it….and I—I’ll make sure that it doesn’t happen again, Your Honour. I’ll just put—put an end to this and continue to do what I’m doing now, which is landscaping.”

Proportionality to the offence

[43] Court orders are not suggestions, they are meant to be obeyed. As well, the LSO has a statutory responsibility to protect the public’s interest in relation to the practice of law and the protection of the public is at the root of this contempt. Clients who avail themselves of an unlicensed individual’s representation are not only much more likely to suffer a miscarriage of justice through services of an untrained representative, but will also have no recourse to a professional regulator for relief in the case of a claim for incompetency.

[44] Therefore, the offence is significant. While Mr. Sutharsan felt that he was helping people, and I believe he has a genuine commitment to justice, when people practice law without a licence, they impede access to justice rather than promote it.

[45] However, the breaches he committed are not of the same nature as had he been providing full representation, attending in court, and providing representation in more significant legal matters or if he had been engaging in an ongoing practice as opposed to mostly referring people who contacted him. As I said, his evidence, which I believe, was that he was contacted by clients “once in a while”, and mostly referred them to others.

[46] While the parties in two of the Highway Traffic Act matters missed their court dates and were convicted, and while the LSO assumes and argues this was Mr. Sutharsan’s fault, there is no evidence that their failure to attend was because of Mr. Sutharsan. None of these individuals made complaints to the LSO which is at least consistent with the conclusion that they were not dissatisfied with Mr. Sutharsan and/or that he was not the reason for their missed court dates.

[47] The only evidence that the LSO has as to actual harm sustained by an individual because of his representation is that of Ms. Namatalla, who he represented prior to the 2021 Injunction. Ms. Namatalla made a complaint and was the reason for the 2021 Injunction.

[48] In my view, while the breach was serious and engaged serious issues, incarceration is not proportional to the nature of the breach.

Similarity of Sentence in Like Circumstances

[49] The LSO only referenced a handful of cases in which unauthorized legal practitioners have been found in contempt of court in Ontario, and only one which resulted in a jail term.

[50] I have reviewed the cases cited, and in my view, the facts here are not as egregious as they were in any of those cases.

[51] In Law Society of Upper Canada v. Boldt, there was clear evidence that the practitioner’s unauthorized practice had serious and prejudicial consequences for some of her clients. She had misled her clients as to the nature of the work she did and dishonestly said that lawyers had provided independent legal advice. These are not the proven facts here. In that case, the practitioner was sentenced to four months house arrest and stringent publication requirements.

[52] In the Law Society of Upper Canada v. Hatzitrifonos, 2018 ONSC 3719, the practitioner had appeared in the Ontario Court of Justice in criminal matters with full knowledge of the order prohibiting him from doing so. He ignored repeated directions by Judges of the Ontario Court of Justice that he was not entitled to appear in court. The practitioner was sentenced to 40 hours of community service, and $30 per month payable for 12 months as partial payment towards outstanding court orders.

[53] The Law Society of Upper Canada v. Fingold, 2012 ONSC 2850, is the only case referenced by the LSO where a practitioner has been incarcerated in Ontario. In that case, the practitioner in question was a disbarred lawyer who then proceeded to continue to provide legal services holding himself out as a paralegal. He did not consent to the contempt order and argued that he did not breach the Order at all. He was also unrepentant and unapologetic. He wrote to the LSO as follows: “You’re being given charge over paralegals is bogus legislation, and I will not be governed by your society.”: at para 48. There was also evidence that Mr. Fingold did not pay court fines as ordered by the Court. Again, these are not the facts here. Mr. Fingold was sentenced to 14 days incarceration.

[54] In my view, the imposition of incarceration on the facts before me would represent a significant departure from the principle of like sentence for like conduct.

Reasonableness of a fine, house arrest, community service or incarceration

[55] The LSO concedes that the court must consider a non-custodial sentence and must assess the reasonableness of a range of sanctions. In Hatzitrifonos, Monahan J., as he was then, observed at para 8:

Because the primary purpose of imposing a penalty for civil contempt is to secure compliance with the relevant order, incarceration is rare in civil cases. Ordinarily, a finding of contempt, together with a fine or some other appropriate order is sufficient to gain compliance and restore the authority of the court. Incarceration is a sanction of last resort.

[56] In my view, incarceration would be disproportionate and unreasonable, especially with regard to the type of breach and the circumstances of Mr. Sutharsan.

[57] Mr. Sutharsan has said he will not do this again, and I believe him. He has begun a landscaping business.

[58] A fine, community service or house arrest are more reasonable remedies.

Deterrence and Denunciation

[59] With respect to general and specific deterrence, in my view, a fine or community service would accomplish the public interest goals in this case.

[60] With respect to specific deterrence, while he is very saddened by the inability to pursue his legal career, and would like to do so if the LSO would ever permit it, he has moved on and has started a landscaping business. I am not concerned that he will reoffend unless he is incarcerated.

[61] However, Mr. Sutharsan should be aware that if this happens again, the next sentence will likely be much more severe.

Conclusion

[62] Taking all factors into account, I am satisfied that Mr. Sutharsan is remorseful, that his conduct will not be repeated and that this is not an appropriate case for incarceration. Although unauthorized practice of law cannot be tolerated, (nor can breaches of court orders), his conduct at this stage does not warrant incarceration, which is a remedy of last resort.

[63] Even though he did not provide any specific evidence as to his income, I also accept his evidence that he has a modest income and there is no point in making an award of a significant fine which he cannot comply with.

[64] In all the circumstances, an order that he provide 100 hours of community service performed over the next six months is appropriate. This is similar and even more severe than the order made by Monaghan J. (as he then was) in Hatzitrifonos. Mr. Sutharsan shall propose an organization at which he wishes to perform such community service to the LSO for approval within two weeks. If the parties cannot agree they may make further submissions to me on the appropriate organization. Mr. Sutharsan shall submit evidence of such community service to this Court by no later than January 31, 2024.

[65] In my view, this penalty is proportionate, adequate to ensure compliance, adequate to vindicate the due administration of justice, and serves the objective of being a penalty.

[66] I am also awarding the LSO costs in the amount of $6,000, inclusive of disbursements and HST which is essentially its full partial indemnity costs claimed and which I find fair and reasonable.

[67] While Mr. Sutharsan did not provide specific evidence of his income, he testified, and as I said I accept that he is a man of modest means. His wife works two jobs and he is currently supporting three children attending university.

[68] The imposition of these costs will have a significant and further deterrence effect.

[69] I order that this costs award shall be paid by way of $300 per month until it is fully paid.

Papageorgiou J. Released: June 23, 2023

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

LAW SOCIETY OF ONTARIO Applicant – and – KIRUPA MR. SUTHARSAN, a.k.a. MR. SUTHARSAN KIRUPALINGAM a.k.a. MR. SUTHARSAN KIRUVPALINGAM Respondent

REASONS FOR JUDGMENT Papageorgiou J. Released: June 23, 2023