Summary of Decision on Facts and Determination
Called to the bar: November 30, 2005
Discipline hearing: August 4, 2016
Panel: Bruce LeRose, QC, chair, Thelma Siglos and Michelle Stanford
Decision issued: December 28, 2016 (2016 LSBC 47) [LINK TO COME]
Counsel: Carolyn Gulabsingh for the Law Society; Henry C. Wood, QC, for Lawyer 16
In March 2012, Lawyer 16 filed a Notice of Application on behalf of a client, seeking orders for a transfer of court files and for exclusive occupation of the client’ s family residence. The court action had started in 2010, when the client’ s previous lawyer had filed a Notice of Family Claim. The claim sought orders dividing the real property and other assets of the client and his former common-law partner.
Shortly thereafter, a lawyer who was helping the opposing party but was not on the record as her counsel, advised Lawyer 16 that the only part of the application that the opposing party consented to was the transfer of files.
On April 23, 2012, a master of the Supreme Court of BC ordered the file transfer, but restrained disposition of the family assets and adjourned application for exclusive occupation until June 4.
On June 4, the court ordered that Lawyer 16’ s client have exclusive occupation of the family residence.
The following day Lawyer 16 entered notes in his file, indicating that he had seen no response to the 2010 Notice of Family Claim seeking orders dividing the assets of the two parties. Lawyer 16 contacted his client’ s previous lawyer, who confirmed that she was not aware of any response. She advised Lawyer 16 to search the court registry and, if no response was on file, to proceed by default.
Lawyer 16 filed an application for a final desk order in October 2012, and on December 7, 2012, the court made a final order. The order reapportioned all of the equity in the family residence to Lawyer 16’ s client and allowed for a court-appointed nominee, rather than the opposing party, to sign the forms required to transfer the family residence into the client’ s sole name.
A hearing panel considered whether it was sharp practice to proceed to default judgment and whether Lawyer 16 was obligated to notify either the opposing party or the lawyer who had helped her previously before seeking default.
The panel found that the Supreme Court Family Rules clearly permit default proceedings when a response has not been filed. The panel also found that proceeding to default was not taking paltry advantage of a slip; the opposing party had had two years to file a response and had not.
No steps were taken to have the default judgment set aside before the real property was transferred into the name of Lawyer 16’ s client, even though there was a six-month period from the time of the default judgment to the transfer of title.
The hearing panel found that there was no prejudice to the common-law spouse as the default judgment essentially achieved what she originally sought.
The panel concluded that Lawyer 16 did not breach the specific provisions of the Professional Conduct Handbook as alleged in the citation when he proceeded to default proceedings pursuant to the Supreme Court Family Rules and that he was not under any obligation to notify the opposing party as a self-represented litigant, or otherwise, given her clear failure to file a response over a period of two years.
The panel dismissed the citation issued against Lawyer 16.