Retired NB lawyer’s bad-faith prosecution claim against law society survives summary judgment
No end in sight in Shawn O’Toole’s decade-long battle with the LSNB
A former Fredericton lawyer’s claim against the Law Society of New Brunswick will move to trial after a judge refused both parties’ motions for summary judgment.
Shawn O’Toole retired from the practice of law seven years ago in the midst of disciplinary proceedings. However, when he was cleared of all charges, O’Toole launched an action against the law society and two lawyers involved, blaming the end of his career on their faulty investigation and prosecution.
The defendants claimed they acted in good faith at all times, but Queen’s Bench Justice Thomas Christie declined to rule in either side’s favour based on the limited record before him.
“This case does, in my opinion, raise genuine issues requiring trial. I dismiss both Motions for summary judgement. The case must move to trial,” he wrote.
According to court rulings, the saga began more than a decade ago in January 2011, when a St. Stephen lawyer tipped off the law society about her client’s concerns regarding O’Toole’s previous representation of them.
The subsequent investigation resulted in four charges against O’Toole, including three that related to mortgage and transfer documents prepared on the former client’s behalf. He was also alleged to have invoiced $450 for a will that he never prepared.
Three of the charges were dismissed on a preliminary basis because they were filed before O’Toole had seen the complaints or been given an opportunity to respond.
That left a single charge based on the allegation that O’Toole had signed as a witness when he wasn’t actually present to see his client’s signature placed on a mortgage document.
Following a hearing, a disciplinary panel cleared O’Toole of that charge too:
“While his actions are suspicious and he brought the necessity of having to go through this difficult process upon himself, the Panel is not satisfied that there is ‘clear and convincing proof based on cogent evidence’ that he is guilty on the balance of probabilities,” the decision reads.
Another law society panel’s decision to award O’Toole just $2,500 in costs – he had claimed $175,000 from the law society – prompted further legal action.
In 2017, the province’s Appeal Court ordered a fresh hearing on the costs issue before a differently constituted panel before O’Toole launched his current civil case.
Although New Brunswick’s Law Society Act generally precludes any action against LSNB employees and agents acting in good faith, O’Toole alleged the defendants’ conduct in their pursuit of him was bad enough to vitiate that protection, Justice Christie’s ruling says.
According to the decision, the parties negotiated for years over the resolution of the disciplinary proceeding, but reached an impasse as a result of the law society’s insistence that O’Toole plead guilty to at least one of the charges against him.
At one stage, O’Toole offered to retire and undertake never to seek reinstatement, before actually retiring anyway in June 2014, steadfast in his refusal to plead guilty.
“Both parties take the position that there is no genuine issue for trial. I disagree.” Justice Christie concluded.
“I am not able to determine a proper outcome for the issues raised in the Motions (and pleadings) based on the evidence in the Record. The case weaves complex pleadings by all parties with a set of facts, some of which are legitimately disputed. Moreover, the nature of the claims and defences may require the trier to draw inferences necessary for determination of the matter,” he continued. “One should be cautious of making findings (one way or the other) related to good faith/bad faith conduct of anyone connected to the practice of, or administration of, the legal profession. This is particularly true on motions for summary judgement. That is of course, unless the outcome is beyond dispute which, in this case, it is not.”
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