Longtime LSO bencher who defamed ex-clients ordered to pay $60,000 damages
Recently-retired Heather Joy Ross’ letters to succeeding counsel and PGT motivated by malice, judge finds
An Ontario Superior Court judge has ordered a recently retired bencher of the Law Society of Ontario and her old law firm to pay just over $60,000 in damages to two former clients for defamatory letters written after they terminated her retainer.
Heather Joy Ross, a Goderich, Ont. lawyer who spent more than two decades as a bencher before her retirement in 2019, acted briefly for Nancy Kuehl and her husband Paul Schaefer in their capacity as trustees of the estate of Kuehl’s father Budd – a longstanding client of The Ross Firm, co-founded by Ross and her husband.
In his decision, Justice Russell Raikes found that Nancy Kuehl and Schaefer had established claims of defamation related to letters Ross wrote about them after they terminated her retainer just six weeks in.
The purpose of the letters – to the estate’s successor lawyer as well as to the Office of the Public Guardian and Trustee (PGT) – was to “complicate the administration of the Estate” and “hinder the plaintiffs in their roles as Executors and Trustees,” the judge found, concluding that Ross was motivated by malice.
“I did not come to that conclusion lightly. Ms. Ross deliberately impugned the plaintiffs’ reputations and did so more than once. Her correspondence with the PGT is especially troubling both for what she wrote and omitted, and because of the lack of transparency, i.e., her former clients and their new counsel were not copied,” he wrote.
However, there was some good news for Ross as the judge dismissed several other claims for negligence and breach of fiduciary duty brought by the estate trustees in relation to her work on Budd Kuehl’s will and a mortgage transaction involving his daughter’s home completed shortly before his death.
The judge also accepted that an earlier letter written by Ross to Nancy Kuehl’s lawyer on the mortgage deal was protected by qualified privilege.
According to the decision, Ross met Budd Kuehl and his wife Leah socially in the 1970s, long before she did any legal work for him – her husband was the primary lawyer on his files.
But in 2010, when her husband was winding down his practice, Ross helped Budd Kuehl draft a new will and acted for him on a mortgage financing transaction to fund renovations on Nancy Kuehl’s home.
The ruling says Budd Kuehl’s addition to title resulted in a large interest rate saving on the loan because of his long history with the credit union and Nancy Kuehl’s poor credit score. Out of the $60,000 mortgage, Budd Kuehl was to receive $40,000 towards debts owed to him by his daughter.
However, Nancy Kuehl was unhappy with the size of the interest her father would take in her home as a result of the deal – it split ownership between them 50-50 – and disputed how much she would owe her parents after the transaction went through.
According to the ruling, Nancy Kuehl did not believe she owed her father as much as $40,000, but expected that they would be “square” following the payment. Meanwhile, Ross wrote in a letter to Nancy Kuehl’s lawyer that the daughter would still owe at least $35,000 after the deal closed, based on Budd Kuehl’s uncorroborated description of the alleged debts.
Despite Nancy Kuehl’s misgivings, the deal closed in November 2010 after her lawyer wrote to Ross that they had “no evidence to either confirm or deny the indebtedness set out” in her letter.
Within weeks, Budd Kuehl died unexpectedly and his newly acquired interest in his daughter’s home passed with virtually all of his other assets to his wife Leah Kuehl – who was suffering from Alzheimer’s and living in a nursing home – in trust under the will.
Ross was retained by the estate trustees at the will reading, but Justice Raikes found that Nancy Kuehl disliked Ross and wanted to switch counsel. They then terminated retainer after just six weeks.
“Ms. Ross testified that she accepted their decision which they were entitled to make. I do not accept that she was indifferent; rather, I find that she decidedly displeased as reflected by her subsequent conduct,” the judge’s decision reads.
Within days of the termination, Ross wrote to the estate’s new representative to pass on the file and inform him that she would continue acting for Leah Kuehl - Nancy’s mother and Budd’s wife.
“The letter goes well-beyond that, however,” Justice Raikes wrote, describing the correspondence as “extraordinary both for the information provided and omitted.”
Among other things, Ross’ letter alleged that Nancy Kuehl and Schaefer still owed at least $35,000 to the estate without mentioning that there was no documentary evidence of the debts or Nancy Kuehl’s view that she was “square” with her father after the $40,000 payment. The letter also suggested that Nancy Kuehl had tried to improperly influence her father in the making of his will, Justice Raikes’ decision says.
While parts of the letter to the trustees’ new lawyer were covered by the defence of qualified privilege, the judge found that it was unavailable to Ross because her statements were motivated by malice.
“I find that the overarching purpose of Ms. Ross’ letter to [the estate’s new lawyer] was to paint Nancy and Paul in a bad light with their new counsel, to complicate the administration of the Estate for the Estate Trustees, and to make matters difficult for Nancy and Paul of whom she had a very negative opinion. She wanted to create the appearance of a conflict of interest by Nancy and Paul. The letter was written for spite, not for the assistance of new counsel nor for Leah’s benefit,” Justice Raikes concluded.
A couple of weeks later, Ross sent another letter to the PGT, which eventually took over as Leah Kuehl’s statutory guardian of property at Ross’ instigation.
The letter again alleged debts owed by Nancy Kuehl and her husband to the estate, and repeated concerns about alleged improper influence during the will-making process.
“The statements made by Ms. Ross in her letters to the PGT are substantially false or misleading by what she wrote and what she omitted,” Justice Raikes wrote, dismissing Ross’ justification defence.
The lawyer also claimed her actions were covered by qualified privilege, as a result of her professional obligations as Leah Kuehl’s counsel or her moral obligation to her as a vulnerable person. However, the judge found that no retainer existed between Leah Keuhl and The Ross firm.
“I agree that ordinarily, where it appears that someone is taking advantage of an incapable person, there is a social or moral duty to report that fact to public authorities including the PGT. It is undisputed that the PGT had a duty to receive the information provided by Ms. Ross,” Justice Raikes wrote. “I am, however, troubled by the previous lawyer-client relationship between the defendants and Estate. Ms. Ross made no mention that she had been retained to act for the Estate and that retainer was recently terminated. She made no mention that before she was terminated, she had discussed with the plaintiffs and was prepared to assist the plaintiffs to apply for guardianship of Leah’s property.”
“Ms. Ross was writing to the PGT to disclose information about former clients, much of which was gleaned from her past representation of Budd. She did not have consent from the Estate Trustees to do so. It does not appear from the evidence of Ms. Ross that lack of consent or the prospect of a duty of confidentiality were considered before she wrote to the PGT,” he added.
In any case, the defence was unavailable because Ross had acted with malice, the judge concluded.
“I find that Ms. Ross was angered by the termination of her retainer. She had a low opinion of Nancy and Paul,” the decision reads. “Once her retainer was unexpectedly terminated, she turned to the PGT to hinder the plaintiffs in their roles as Executors and Trustees and impede them from becoming Leah’s guardian. I find that Ms. Ross wrote the [PGT] letters out of vindictiveness, not concern for Leah’s situation.”
Justice Raikes ultimately ordered Ross and The Ross Firm to pay Nancy Kuehl and Schaefer $35,000 in general damages, plus a further $26,000 in special damages for expenses charged by the PGT, whose view of the estate trustees the judge found was “poisoned” by Ross’ letters.
In a statement issued through their lawyer Phil Cornish, the estate trustees tell Court Report Canada they are “gratified” by the ruling, which they say brought them a “significant measure of vindication.”
“This protracted civil action has represented a period of considerable emotional turmoil for the Plaintiffs in an engagement that can appropriately characterized as a David versus Goliath contest,” the statement reads.
Ross’ counsel did not respond to a request for comment.
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