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Complaints to Law Societies in Canada

Complaints to Law Societies in Canada

Old May 8th 2018, 1:24 pm
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Default Complaints to Law Societies in Canada

Hey guys. I have a case about professional negligence of a lawyer that I would like to report to the Law Society. My question is, is it worth it to make complaints to provincial Law Societies and are these societies strong enough to take disciplinary action if you are able to prove the matter with evidence?
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Old May 8th 2018, 2:40 pm
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Default Re: Complaints to Law Societies in Canada

Originally Posted by Edo
Hey guys. I have a case about professional negligence of a lawyer that I would like to report to the Law Society. My question is, is it worth it to make complaints to provincial Law Societies and are these societies strong enough to take disciplinary action if you are able to prove the matter with evidence?
The Law Societies have lots of powers that range from a slap on the wrists to disbarment.

In Alberta, you submit your complaint to the Law Society of Alberta together with whatever documents you can in support of your allegations. They give a copy of this to the lawyer and the lawyer has, IIRC, 14 days to respond. The Law Society of Alberta then reviews both parties' positions and will then decide upon the next step.

However, if you believe that your lawyer was negligent, the appropriate thing to do is to sue him/her for negligence at Court. A complaint to the Law Society is primarily for disciplinary matters, not to determine negligence.
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Old May 8th 2018, 7:21 pm
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Default Re: Complaints to Law Societies in Canada

Originally Posted by Almost Canadian
The Law Societies have lots of powers that range from a slap on the wrists to disbarment.

In Alberta, you submit your complaint to the Law Society of Alberta together with whatever documents you can in support of your allegations. They give a copy of this to the lawyer and the lawyer has, IIRC, 14 days to respond. The Law Society of Alberta then reviews both parties' positions and will then decide upon the next step.

However, if you believe that your lawyer was negligent, the appropriate thing to do is to sue him/her for negligence at Court. A complaint to the Law Society is primarily for disciplinary matters, not to determine negligence.
Thanks AC. I am not sure if negligence serve as the correct word in this context but this lawyer has actually attempted to mislead the court in his initial response to our lawsuit. This is an aviation related case against a foreign airline and he stated to the court that he only represents his client in government related matters and not court cases (when under the law he is supposed to be doing both). So basically he said this to make a point that by serving him the court papers technically we didn't serve his client (absolute BS).

Not just that, he waited until the last day of defense filing deadline to communicate this to the court and us.

Then the next day he changed his mind and wrote to the court again stating that he will represent his client.
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Old May 8th 2018, 7:46 pm
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Default Re: Complaints to Law Societies in Canada

Originally Posted by Edo
Thanks AC. I am not sure if negligence serve as the correct word in this context but this lawyer has actually attempted to mislead the court in his initial response to our lawsuit. This is an aviation related case against a foreign airline and he stated to the court that he only represents his client in government related matters and not court cases (when under the law he is supposed to be doing both). So basically he said this to make a point that by serving him the court papers technically we didn't serve his client (absolute BS).

Not just that, he waited until the last day of defense filing deadline to communicate this to the court and us.

Then the next day he changed his mind and wrote to the court again stating that he will represent his client.
OK

That sounds like a disciplinary matter and a complaint would be justified. The relevant Law Society will likely have the complaint forms available on their website, together with details such as to whom they should be sent.
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Old May 8th 2018, 11:21 pm
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Default Re: Complaints to Law Societies in Canada

Originally Posted by Edo
Thanks AC. I am not sure if negligence serve as the correct word in this context but this lawyer has actually attempted to mislead the court in his initial response to our lawsuit. This is an aviation related case against a foreign airline and he stated to the court that he only represents his client in government related matters and not court cases (when under the law he is supposed to be doing both). So basically he said this to make a point that by serving him the court papers technically we didn't serve his client (absolute BS).

Not just that, he waited until the last day of defense filing deadline to communicate this to the court and us.

Then the next day he changed his mind and wrote to the court again stating that he will represent his client.
I can't (yet) comment on the precise rules of service applicable in this case, but generally in common law countries:

1. a lawyer must have general or specific instructions from their client to accept service in court cases (of course there can be specific laws which override the general rule - you mention that "under the law he is supposed to be doing both", so it sounds as though in your jurisdiction there is something specific that applies to service on foreign airlines); and

2. commencing a case generally requires service to be made on the defendant in accordance with the particular rules of court. For example, if the defendant is a natural person, personal service is usually required. For a company or other legal person, service is typically effected by delivering the originating process (writ/statement of claim/claim form/application - whatever it is called in the particular jurisdiction) to the registered office of the company. However, rules of court for service vary wildly in different jurisdictions.

It sounds to me as though the lawyer for the foreign airline may not have had specific instructions to accept service on behalf of his client in your case at the time you attempted service, but subsequently received those instructions. If that's the case, there won't be any issue of unsatisfactory professional conduct or misleading the Court. Are you representing yourself in the case? There are quite a few technical pitfalls that could await you in trying to maintain a case against a foreign entity. The lawyer representing the foreign airline might have accepted service purely so he can argue that his client, as a foreign entity, is not within the Court's jurisdiction. Has the defendant's lawyer formally entered an appearance or filed the defence yet? Was the appearance unconditional or conditional? If the latter, it is likely that the foreign airline will challenge the Court's jurisdiction over it.
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Old May 9th 2018, 4:27 pm
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Default Re: Complaints to Law Societies in Canada

Originally Posted by MelVan
I can't (yet) comment on the precise rules of service applicable in this case, but generally in common law countries:

1. a lawyer must have general or specific instructions from their client to accept service in court cases (of course there can be specific laws which override the general rule - you mention that "under the law he is supposed to be doing both", so it sounds as though in your jurisdiction there is something specific that applies to service on foreign airlines); and

2. commencing a case generally requires service to be made on the defendant in accordance with the particular rules of court. For example, if the defendant is a natural person, personal service is usually required. For a company or other legal person, service is typically effected by delivering the originating process (writ/statement of claim/claim form/application - whatever it is called in the particular jurisdiction) to the registered office of the company. However, rules of court for service vary wildly in different jurisdictions.

It sounds to me as though the lawyer for the foreign airline may not have had specific instructions to accept service on behalf of his client in your case at the time you attempted service, but subsequently received those instructions. If that's the case, there won't be any issue of unsatisfactory professional conduct or misleading the Court. Are you representing yourself in the case? There are quite a few technical pitfalls that could await you in trying to maintain a case against a foreign entity. The lawyer representing the foreign airline might have accepted service purely so he can argue that his client, as a foreign entity, is not within the Court's jurisdiction. Has the defendant's lawyer formally entered an appearance or filed the defence yet? Was the appearance unconditional or conditional? If the latter, it is likely that the foreign airline will challenge the Court's jurisdiction over it.
Thank you for the detailed and extremely helpful response.

Seeing that you are from Australia so let me clarify a couple of things about the Canadian aviation regulations and see if this will help with a more informed perspective:

i. Pursuant to s. 84 of the Canada Transportation Act, all foreign airlines are required to appoint an agent with place of business in Canada who shall act as their representative in legal matters.
ii. The subject lawyer did once correspond with us on behalf of his client when we first started this altercation. This came in the form of an email acknowledgement of our request which further on they never actually responded to. On another occasion they facilitated the release of personal information request between us and the government.
iii. Other follow up faxes and emails were completely ignored until he received our court claim. AFAIK ignoring official correspondence by a lawyer itself is something that you can report to the Law Society (please someone correct me if I am wrong).
iv. The lawyer has filed defense on behalf of his client (after initially stating he doesn't represent them in court). The case is now awaiting pre-trial/trail.
v. The lawyer has not mentioned in his defense whether the appearance would be conditional or unconditional however, they have certainly tried to get the court to toss the case based on the jurisdiction. Not because their client is a foreign entity but because the final destination (where the court is) was through a flight operated by a partner airline. They have requested that the case be heard in a jurisdiction where their client directly operates to in Canada. However, our argument for choice of jurisdiction is based on a particular clause in the Conditions of Carriage that a ticket is a single contract regardless of the itinerary and layovers involved.

TLDR, our complaint to the Law Society would be based on two things: (a) misleading the court regarding s. 84 of the Canada Transportation Act regarding his duties to represent his client in court and; (b) lack of communication from the lawyer as the airline's agent especially, not responding to the court as well as us within the stipulated time frames.

And yes, for now we are representing ourselves with some great support from a source who deals with cases like this regularly albeit at a much higher level. If needs be then sure enough we will be looking at hiring a lawyer.
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Old May 9th 2018, 9:23 pm
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Default Re: Complaints to Law Societies in Canada

Originally Posted by Edo
Thank you for the detailed and extremely helpful response.

Seeing that you are from Australia so let me clarify a couple of things about the Canadian aviation regulations and see if this will help with a more informed perspective:

i. Pursuant to s. 84 of the Canada Transportation Act, all foreign airlines are required to appoint an agent with place of business in Canada who shall act as their representative in legal matters.
ii. The subject lawyer did once correspond with us on behalf of his client when we first started this altercation. This came in the form of an email acknowledgement of our request which further on they never actually responded to. On another occasion they facilitated the release of personal information request between us and the government.
iii. Other follow up faxes and emails were completely ignored until he received our court claim. AFAIK ignoring official correspondence by a lawyer itself is something that you can report to the Law Society (please someone correct me if I am wrong).
iv. The lawyer has filed defense on behalf of his client (after initially stating he doesn't represent them in court). The case is now awaiting pre-trial/trail.
v. The lawyer has not mentioned in his defense whether the appearance would be conditional or unconditional however, they have certainly tried to get the court to toss the case based on the jurisdiction. Not because their client is a foreign entity but because the final destination (where the court is) was through a flight operated by a partner airline. They have requested that the case be heard in a jurisdiction where their client directly operates to in Canada. However, our argument for choice of jurisdiction is based on a particular clause in the Conditions of Carriage that a ticket is a single contract regardless of the itinerary and layovers involved.

TLDR, our complaint to the Law Society would be based on two things: (a) misleading the court regarding s. 84 of the Canada Transportation Act regarding his duties to represent his client in court and; (b) lack of communication from the lawyer as the airline's agent especially, not responding to the court as well as us within the stipulated time frames.

And yes, for now we are representing ourselves with some great support from a source who deals with cases like this regularly albeit at a much higher level. If needs be then sure enough we will be looking at hiring a lawyer.
Don't confuse the Canadian Aviation Regulations (CARS) Canadian Aviation Regulations (SOR/96-433) - Transport Canada with the Transport Act Canada Transportation Act
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Old May 9th 2018, 9:30 pm
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Default Re: Complaints to Law Societies in Canada

Originally Posted by Aviator
Don't confuse the Canadian Aviation Regulations (CARS) Canadian Aviation Regulations (SOR/96-433) - Transport Canada with the Transport Act Canada Transportation Act
Great point Aviator. My apologies for the confusion as I meant to refer to the Canadian Transportation Act all along.
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Old May 11th 2018, 2:44 am
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Default Re: Complaints to Law Societies in Canada

Thanks for the clarification, Edo. I'm an English, and Australian, lawyer. I'm not convinced that a complaint to the relevant Law Society about the other side's lawyer will necessarily advance your interests in this matter. I'm not saying don't do it, but perhaps have a further think about what you're trying to achieve by making the complaint.

The complaint won't prevent the lawyer from continuing to represent his client, and even if it were upheld, the remedy (censure by the Law Society, a fine, a condition placed on the lawyer's practising certificate etc) won't make a difference to the outcome of your case against the airline. It could end up being a distraction to your effective advocacy on your own behalf in your case against the airline.

A couple of things to think about making the complaint, from a strategic/tactical perspective:

1. Has the other side's lawyer's conduct meant you've not been able to proceed with your case? The answer to this question appears to be "no".

2. Will the complaint change the outcome of your case? I think the answer to this is "no".

3. Will the complaint distract you from your substantive case? I think the answer to this is "potentially".

4. Will making the complaint provide a tactical advantage to you? I think the answer to this is most likely "no". Merely making the complaint won't change the outcome of your case against the airline.

Section 84 of the Canadian Transportation Act is as follows:
Notification of agent required84 (1) A licensee who has an agent in Canada shall, in writing, provide the Agency with the agent’s name and address.Appointment and notice of agent(2) A licensee who does not have a place of business or an agent in Canada shall appoint an agent who has a place of business in Canada and, in writing, provide the Agency with the agent’s name and address.
"Agent" isn't defined in either the Canadian Transportation Act or the Interpretation Act 1985 (CA). So the ordinary English meaning of that will apply, unless the context clearly indicates otherwise. An "agent" just means a person engaged to act on behalf of another. But not all agencies are unlimited, and just because a lawyer is appointed as an agent it doesn't follow that their agency automatically extends to acting as a legal representative. And equally, it is clear from section 84 that an agent need not be a lawyer. All it looks like to me (particularly from section 84(2)) is that the agent is a postbox and the relationship of the agent with the principal will be governed by the terms of agency agreement.

On the plain words of the statute alone, I'm not convinced that "who shall act as their representative in legal matters" is correct. That's reading in words to the statute that aren't there. Has there been a case which has held that section 84 means that the agent must act as the foreign airline's representative in legal matters? To make good the basis for a disciplinary complaint to the relevant law society, I think you'd have to show that section 84 has been interpreted to impose a positive duty on a lawyer who is a foreign airline's agent to "act as their representative in legal matters", that overrides the need for the lawyer's client to provide general or specific instructions to the lawyer to act in that capacity, either generally or in a particular case.

Some other comments:

ii. The subject lawyer did once correspond with us on behalf of his client when we first started this altercation. This came in the form of an email acknowledgement of our request which further on they never actually responded to. On another occasion they facilitated the release of personal information request between us and the government.
You may be on stronger ground for a disciplinary complaint if the release of personal information by the lawyer breached a specific privacy law or a general obligation of confidence (if indeed one exists in the circumstances). But again, even if that complaint were upheld, it is most unlikely to have any bearing on the outcome of your case against the airline.
iii. Other follow up faxes and emails were completely ignored until he received our court claim. AFAIK ignoring official correspondence by a lawyer itself is something that you can report to the Law Society (please someone correct me if I am wrong).
If a lawyer is instructed by a client not to respond to correspondence, the lawyer is obliged to follow the client's instructions, unless that would cause the lawyer to break the law (and then the proper approach is for the lawyer to cease acting for the client). If the foreign airline in this case instructed the lawyer not to respond to your correspondence, the lawyer hasn't necessarily done anything wrong. There's nothing in section 84 that requires an agent to respond to any correspondence addressed to the agent's principal.
iv. The lawyer has filed defense on behalf of his client (after initially stating he doesn't represent them in court). The case is now awaiting pre-trial/trail.

v. The lawyer has not mentioned in his defense whether the appearance would be conditional or unconditional however, they have certainly tried to get the court to toss the case based on the jurisdiction. Not because their client is a foreign entity but because the final destination (where the court is) was through a flight operated by a partner airline. They have requested that the case be heard in a jurisdiction where their client directly operates to in Canada. However, our argument for choice of jurisdiction is based on a particular clause in the Conditions of Carriage that a ticket is a single contract regardless of the itinerary and layovers involved.
That sounds pretty complicated. Good luck with your case!
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Old May 11th 2018, 7:29 am
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Default Re: Complaints to Law Societies in Canada

My apologies for the formatting in the post above. I thought I'd formatted it so it was much better laid out, but that formatting hasn't worked. My apologies.
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