Special Costs Award Against Lawyer Revoked

GeorgiaLeeLang057The subject of “costs” in court cases is often an enigma to clients. What are costs? When will you have to pay the opposing party’s costs?, and other similar questions.

Costs are awarded to the substantially successful party in civil and family court cases. Judges have determined that substantial success amounts to success on 70% of the legal issues decided by the court. For example, if you go to court seeking child support, spousal support, occupation of the family home, and a restraining order and are successful on three out of the four issues, you will likely receive costs.

These costs are called “party-party” costs and are not equal to the legal fees you have expended, but rather are a contribution by the losing party to the winner, usually representing about 30% of actual fees.

Costs are also not required to be paid during the litigation process, but are calculated according to a schedule in the Rules of Court and payable at the conclusion of a lawsuit.

Where a litigant’s behaviour in the litigation is deserving of punishment or rebuke, the court can order the litigant to pay “special costs” to the opposing party. Special costs are usually about 90% of the successful party’s legal fees. The kind of behaviour that attracts special costs is conduct described as “outrageous, high-handed,and reprehensible”.

In a few rare cases judges have ordered a litigant’s lawyer to pay costs to the opposing party.

The recent case of Nuttal v. Krekovic 2018 BCCA 341 is an example of such a case. Mr. Krekovic was acting for a client who was injured in a hit and run motor vehicle accident outside a local pub. His client suffered significant injuries. Unfortunately, after an exhaustive RCMP investigation the driver of the vehicle, who fled the scene, could not be identified.

Mr. Krekovic hired several private investigators but nothing further turned up. After two years of inquiries, Mr. Krekovic received vital information from a lawyer who represented the bar where the accident took place. This lawyer provided Mr. Krekovic with the name and birthdate of the alleged driver. Mr. Krekovic recognized the name of the alleged driver as it had come up during earlier investigation. After further inquiries it became obvious that the alleged driver had a common surname in the East Indian community, Dhillon, and there was some concern to identify the correct man.

Once Mr. Krekovic was satisfied that he done all the due diligence he could, he applied to the court for an order to add Dhillon’s name as a respondent in the lawsuit. He served the alleged driver with the court order and also informed the RCMP so they could re-open their investigation. Shortly after serving Dhillon, his lawyer contacted Mr. Krekovic and advised he had the wrong man. This was followed by a phone call from counsel for the bar who said he had made a mistake. Mr. Krekovic immediately advised Dhillon’s lawyer that he would discontinue the action against his client.

Mr. Krekovic offered to have his client pay party-party costs to Mr. Dhillon, but Dhillon wanted more. He sued Mr. Krekovic for special costs and convinced a judge that his actions were “indefensible and an abuse of process meriting sanction in the form of an order of special costs payable by him personally”.

The judge found that had the judge who made the order adding Dhillon as a party to the lawsuit known there was a possibility of multiple persons with the same name and similar birthdates, she would not have made the order.

Mr. Krekovic appealed the special costs order to the Court of Appeal, who allowed his appeal and revoked the special costs order. The Appeal Court said:

“…an award of costs against a lawyer personally can be justified only on an exceptional basis where the lawyer’s acts have seriously undermined the authority of the courts or seriously interfered with the administration of justice. This high threshold is met where a court has before it an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on his or her part, that is deliberate…”

In my view, Mr. Krekovic did everything he could do to identify the correct driver, and when notified of the error, he immediately took steps to terminate the court action against him. His unintentional mistake should never have resulted in an order for costs. It has been said that to penalize lawyers for mistakes, errors, or even negligence by way of special costs would undoubtedly put a damper on lawyers zealously representing their clients.

Lawdiva aka Georgialee Lang

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Tardy Ontario Judge Cleared by Judicial Council

For Madam Justice Susanne Goodman 2017 was not a good year, for that was when Ontario’s Court of Appeal slammed her for neglecting to provide Reasons to the litigants in a criminal trial that she presided over two years earlier. The Appeal Court in R. v. Sliwka 2017 ONCA 426 said:

“The trial judge’s failure to give reasons, despite her repeated promises to do so, has frustrated the proper administration of justice. Nor is this the first time that this trial judge’s failure to provide reasons has required this court to order a new trial. It must be the last time.”

Judge Goodman presided over a 9-day trial where she acquitted Mr. Sliwka, who faced charges for “vicious”  sexual and domestic violence, but she failed to provide Reasons for her decision despite many promises to the Crown, who sought to appeal her order, but could not, absent written reasons. Sliwka was convicted of aggravated assault in his second trial, despite his lawyer’s argument that the delay in issuing Reasons rendered the proceedings unfair.

But this was not the first time that Justice Goodman, a former family law lawyer, had been neglectful of her duty to provide reasons for her decisions. She had been reprimanded by the Court of Appeal in 2011 for a similar fault.

The Judicial Council’s report identified a medical reason for Judge Goodman’s behaviour and her remorse, saying:

“Key to the decision to close the matter was the fact that Justice Goodman experienced a medical condition, now resolved, which was at the root of her difficulties. Justice Goodman and her Chief Justice have set out a number of specific and comprehensive measures to ensure that she discharges all aspects of her judicial responsibilities in a timely manner.

Justice Goodman expressed deep regret about the impact of her actions on litigants who appeared before her and to public confidence generally. She has undertaken to ensure that the situation never repeats itself.”

If the judge was incapable of performing her duties because of medical issues, the closure of this case is the proper outcome. Time will tell if Justice Goodman is up to the demands of her job.

Lawdiva aka Georgialee Lang

 

 

 

Lawyer Not Responsible for Costs Where Expert Deceived the Court

GAL & PAL #2jpgThe saga of B.C.’s fraudulent child custody expert is approaching the end of its life cycle with the British Columbia Court of Appeal’s ruling that the lawyer who proffered the tainted expert, cannot be held liable for costs, special or otherwise.

“Expert” Claire Reeves was retained by a mother who alleged that the father of her four children had sexually abused them. She found Ms. Reeves on the internet and was undoubtedly impressed with her resume. Ms. Reeves said she had testified as an expert in 52 cases in the United States alone, and claimed to be a licensed psychologist with a Doctorate in clinical counselling.

After a lengthy trial and the trial judge’s acceptance of Ms. Reeves’ testimony, the children’s unrepresented father was barred from seeing his children. It was only after the father retained counsel that it came to light that Ms. Reeves was not listed in any expert witness database, even in searches as far back as 1980, and only three reported cases could be found that she participated in. In one of those cases, her evidence was described as “unbelievable and not credible”.

It was further established that her post-secondary degrees were from unaccredited “diploma mills” that provide credentials for a fee with no requirement for exams or study. Her doctorate degree came from Ashwood University, it cost $349.00 and advertises as follows:

“This program offers you an opportunity to earn a doctorate’s degree based on your work or life experience, without requiring you to take admission exams, attend classes, or study course books.”

While the court declined to find mother’s lawyer’s conduct in presenting a fraudulent witness to be “reprehensible”, the standard for an order for special costs to paid by the lawyer, the court suggested that a fuller enquiry ought to have been made:

“Nothing in these reasons, however, should be taken as endorsing the conduct of counsel in this case. In our view, common sense dictates that when counsel is presented with an expert report commissioned by a self-represented litigant, and authored by an unknown person located by the self-represented litigant on the Internet, basic inquiries should be made as to the proposed witness’s background and qualifications before they are called to give evidence. It is regrettable that these minimal steps were not taken in this case.”

Lawdiva aka Georgialee Lang

Why Clients Who Settle Their Divorce Cases May Suffer “Settler’s Remorse”

GEO CASUALEveryone agrees that a courthouse is the worst place to resolve a family law issue and now, lawyers are mandated by law to exert every effort to assist clients to settle their disputes outside of the formal justice system. The menu of options includes collaborative law, mediation, settlement conferences, med/arb, and arbitration.

Section 8(2) of the Family Law Act provides:

“…a family dispute resolution professional consulted by a party to a family law dispute must
(a) discuss with the party the advisability of using various types of family dispute resolution to resolve the matter, and
(b) inform the party of the facilities and other resources, known to the family dispute resolution professional, that may be available to assist in resolving the dispute.”

Most lawyers take this obligation seriously and work hard to keep their clients out of court. However, sometimes a lawyer’s efforts to manoeuvre a client into an out-of-court settlement, where tens of thousands of dollars can be saved, and immense emotional stress avoided, backfires on the lawyer.

The recent case of Vicencia v. Gradley 2018 BCSC 1338 illustrates such a situation. Ms. Vicencia, age 74, retained senior counsel to assist her to resolve the issues arising from the breakdown of her 36-year marriage. She had allegedly put up with her husband’s bad behaviour for years, conduct which included his inability to contribute financially to their relationship, sexual abuse, adultery, theft, and drunkenness.

Of course, her experienced counsel knew that these allegations and complaints had no bearing on the legal issues, the primary one being the division of Ms. Vicencia’s pension.

The Court described the legal services provided by counsel, all undertaken with the goal of resolving the outstanding issues, including two chambers appearances for document production and a divorce order, the continuation of a discovery, and an 11-hour mediation, together with the consultations, preparation, meetings and correspondence related to the services. At the conclusion of the mediation, Ms. Vicencia’s case was settled with the family property, including the pension, divided equally between her and her husband.

Ms. Vicencia expressed relief at the resolution and hugged her counsel at the conclusion of the marathon mediation session, but that only lasted 11 days when she began complaining that she signed the settlement agreement without reading or understanding it.

Her next gambit was to challenge her lawyer’s bill for legal services in the amount of $17,430.00, charged at a rate of $350 an hour and completed between May 9, 2017 and July 11, 2017.

Her counsel advised the court that her client was fully informed, understood and read the agreement and was fully aware and agreeable to the terms of the mediated settlement. The lawyer subpoenaed the mediator whose evidence confirmed that of her counsel.

The court remarked that while the Agreement to Mediate stipulated that the mediator would not be called for any court proceeding, the law permitted the mediator to testify if the interpretation of the settlement agreement was put in issue. Ms. Vicencia had done that.

Interestingly, the settlement agreement permitted either party to withdraw from the deal up to 4 days after the mediation session, but neither party did.

Author/Lawyer Steve Mehta says this about settler’s remorse:

“First, why does it occur? According to research, people are poor at predicting the true state of their emotions. Second, buyers’ remorse attaches to people’s self confidence about the decision. Often times, mediation and litigation is a foreign environment and the clients fear that they may have made the wrong decision because of lack of knowledge.”

Finally, a settlement of the financial issues in a divorce case never comes close to mitigating the emotional issues described by Ms. Vincencia. Not surprisingly, the court refused to reduce her lawyer’s bill, calling it eminently reasonable. Ms. Vicencia’s settlement negated the need for a 10-day trial, but left her with an additional costs award of $3,000 for her failed attempt to reduce her lawyer’s bill.

Lawdiva aka Georgialee Lang

False Advertising a No-No for Lawyer

What’s wrong with a lawyer advertising offices in two cities; multiple lawyers practicing at the firm; with combined legal experience of 100 years, representing thousands of people? Plenty…if the lawyer has only four years of experience, works as a sole practitioner, and has made the rest of it up.

GeorgiaLeeLang009Ontario lawyer John D’Alimonte found himself before the Law Society of Ontario accused of false advertising, which included his website with photos of five lawyers who were actually actors. An earlier version of the website contained photos of several Florida lawyers who Mr. D’Alimonte received referrals from after partnering with the head of the Florida firm, Howard Merricks, and connecting with an American lawyer referral service called AskGary, a company run by a non-lawyer.

But that wasn’t all….The Law Society disapproved of posted testimonials that lauded Mr. Merrick’s skill and successes although he did not work at the Ontario firm. The website also claimed that the firm’s lawyers specialized in representing injured people, although no specialization certificate had been granted to Mr. D’Alimonte.

The Law Society found that the lawyer’s behaviour constituted professional misconduct, noting that people looking for legal services need legal representation to manoeuvre through a complicated justice system and are even more vulnerable when they have suffered personal injury.

The legal tribunal also said:

“Because quality is difficult for clients to assess, it is particularly important that advertising is not misleading, confusing or deceptive…not all lawyers are the same. Clients are entitled to make choices based on expertise, experience and even price.”

It obviously benefited Mr. D’Alimonte’s legal practice to hold himself out to be more than he was, to the potential detriment of clients who were misled and deceived, the crux of his chastised misconduct.

Lawdiva aka Georgialee Lang

BC Wife Beater Declared a Dangerous Offender

_DSC4179 - Version 2Canada’s dangerous offender law is reserved for Canada’s most violent criminals and sexual predators. It has its roots in the 1947 Habitual Offender Act which dealt solely with offenders with lengthy criminal records, and the 1948 Criminal Sexual Psychopath law.

In what may be a first, a perpetrator of domestic abuse has been declared a dangerous offender, permitting the court to sentence him to an indeterminate sentence. In R. v. Malakpour 2018 BCCA 254, after convictions for criminal harassment, assault with a weapon, assault causing bodily harm and kidnapping, all directed at his wife, Mr. Malakpour’s designation was upheld by the British Columbia Court of Appeal.

This decision is unusual for the nature of the offences and for the fact that Mr. Malakpour, unlike most offenders castigated as a “dangerous offender”, did not lead a criminal lifestyle or have a lengthy criminal record.

However, after their marriage in Iran and immigration to Canada, Mr. Malakpour’s wife became “westernized”, particularly compared to her husband who was a strict follower of Islam and Sharia law, and they ultimately divorced.

He took the view that he was still married to his wife under Sharia law despite their Canadian divorce in 2006.

His first offences occurred after his wife left the family home when he made thousands of abusive phone calls to his wife’s home and workplace, harassment that caused his wife’s employer to put in a second phone line to conduct business. The calls included death threats. He was sentenced to 30 months incarceration for conduct described as ““unremitting, exceptionally intrusive, and frightening” and not deterred by police intervention or court order.” R. v. Malakpour 2008 BCCA 326.

While on parole in 2009 further offences occurred, including his unlawful departure from BC to Montreal from which he made phone calls threatening his wife, her employer, and the judge who presided over this first case. After a psychiatric evaluation he was diagnosed with a personality disorder with narcissistic and anti-social traits, coupled with cultural factors, and sentenced to two years less a day and 3 years probation.

However, his dangerous offender classification resulted from criminal conduct in 2012 when he located his wife in her underground parking lot and demanded to know why she had left him and had another man in her life. He told her that everybody was laughing at him, and calling him a “pimp” in Farsi.

He held a pair of wire cutters to her throat, and told her, “don’t scream or I will cut your throat”. He punched her about 10 times, mostly in her face, using his fists and the wire cutters, causing significant bruising.

On September 11, 2012, Mr. Malakpour was found guilty of assault with a weapon, assault causing bodily harm, criminal harassment and kidnapping of his former wife,  as well as uttering threats to her, to her male friend, and to the previous judge, and assaulting a police officer.

 In order to designate Mr. Malakpour a dangerous offender, the sentencing judge had to find:

(1)  the predicate offences were serious personal injury offences;

(2)  Mr. Malakpour constituted a threat to the life, safety or physical or mental well-being of other persons;

(3) there was a pattern of repetitive behaviour, of which the predicate offences formed a part, showing a failure to restrain his behaviour;

(4) a likelihood of causing death, injury or severe psychological damage to other persons through failure in the future to restrain his behaviour.

The Court of Appeal upheld the designation, but granted the appeal with respect to his sentence, holding that the trial judge erred in ordering an indeterminate sentence. They found that the goal of public protection could be achieved by a sentence of 10.5 years less credit for time served, followed by a 10-year supervision order, with strict terms.

The trial judge captured the essence of Mr. Malakpour when he said:

“He denies the legitimacy of any Canadian court to control him and in particular to interfere with his control over his wife, whom he declares must obey him. He continuously expresses that his relationship is a private matter with his wife. It is not the business of the court, the Crown or the police. He will not obey court orders that purport to limit his contact with his ex-wife: instead he says it is his right to contact his “wife”. He denies that any of the previous convictions are legitimate and continues to dispute that he has committed any offences…”

Lawdiva aka Georgialee Lang
 

 

 

Disbarred Lawyer Sentenced to 7 Years by Ontario Court

DSC00507 (2)If you were a lawyer practicing in the 1980’s you may remember the escapades of Ontario lawyers Harry Kopyto and his colleague, Angelina Codina. Harry was a rabble rouser with socialist leanings, a defender of the poor and disadvantaged, who was found in contempt of court for saying publicly that the courts and the RCMP are “stuck together like crazy glue”. Happily for Harry the Ontario Court of Appeal rejected the finding that his statement “scandalized the court”and allowed his appeal.

But Harry’s problems did not end there. In 1989 he was disbarred for fraudulently billing Ontario Legal Aid for $150,000 and he resigned himself to working as a paralegal, a profession that at the time was not regulated.

Kopyto’s bruised reputation was further damaged when his former girlfriend, high-profile immigration lawyer Angie Codina, ran into her own trouble with the law society in 1989. She was convicted of fraud in 2002, related to overbilling Legal Aid and was also disbarred. Ms. Codina continues to raise the ire of the courts in Ontario and New York State.

In a decision handed down this week, R. v. Codina #8, 2018 ONSC 2180 (CanLII), Angelina Codina was sentenced to 7 years in prison for defrauding vulnerable individuals seeking to immigrate to Canada. In once case she counselled her client to lie to immigration officials. Her crimes were committed for financial gain.

While her sentence appears stiff, the court referenced her convictions for similar offences in the State of New York. In 1996 she was charged with 28 counts, including grand larceny, scheming to defraud, and the unlicensed practice of law. She was convicted on 27 counts and sentenced to 9 to 28 years. The convictions were later set aside and after a new trial, she was sentenced to 5 to 15 years. She served 5 years and was deported back to Canada where she carried on her devious work.

The court showed no sympathy to Ms. Codina remarking that “she is a person who preys on vulnerable people”…is “a forceful personality….rarely admits her own mistakes…is fundamentally dishonest… and a revisionist historian.”

She intends to appeal, of course. As for Harry Kopyto, when Ontario passed legislation regulating paralegals he battled vigorously but was found “unfit” to remain in the profession.

Lawdiva aka Georgialee Lang