Similar fact evidence, experts key in Law Society Tribunal appeal

By Tony Poland, Associate Editor

Toronto appellate counsel Brian Radnoff tells Law Times that a recent Law Society Tribunal decision illustrates the importance of expert witnesses and the problem of using similar fact evidence.

Radnoff, a partner with Dickinson Wright LLP, tells Law Times that the July 19 panel order in the appeal of an Ottawa-based real estate lawyer he represents focuses on a mortgage fraud-related dispute dating back between 2000 and 2003.

The publication reports that the Law Society of Ontario (LSO) argued that the lawyer was “running a mill” of fraudulent transactions, and tried to introduce evidence after the hearing started related to 41 additional transactions above the 12 matters already being examined, according to the lawyer’s notice of appeal.

The notice states that the LSO tried to use the transactions even though the hearing panel had already ruled that they couldn’t rely on similar fact evidence, Law Times reports.

The appeal notice also says the tribunal “ignored or misapprehended expert evidence” and “did not consider or refer to precedents,” according to Law Times.

Radnoff tells the publication that an expert had said the LSO did not warn lawyers about the type of mortgage fraud described in his client’s case until years later.

He says in his client’s case, the Law Society Tribunal Appeal division dismissed an argument about delay but allowed the appeal on the lawyer’s finding and penalty. He tells Law Times the parties will now make written submissions on whether the lawyer “engaged in professional misconduct by becoming a tool or dupe of his client.”

While Radnoff tells the publication he can only comment on limited aspects of the decision because the case is ongoing, he says the lack of a resolution in the dispute has been a “huge tragedy” and resulted in professional embarrassment for his client.

Law Times reports that the July 19 order was the second time a finding against the lawyer was overturned, noting the tribunal had revoked his licence over the 12 disputed transactions in 2014, a decision that was overturned in 2015 due to lack of disclosure.

“It’s a good demonstration of the difficulty of using that type of evidence,” Radnoff tells the publication, referring to similar fact evidence examined in the latest appeal. “[The decision] emphasizes that it’s important for the panels to consider expert evidence, particularly when you’re dealing with transactions that happened a long time ago.

“Knowledge of real estate fraud has gotten a lot more sophisticated. It wasn’t even mentioned in the Rules of Professional Conduct during the period that these transactions occurred, but now the rules are quite detailed about it. You can’t assess what a lawyer’s knowledge was in terms of participating in fraudulent transactions without some understanding of what the knowledge of the profession was at the relevant time.”

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