Complaints, Lawyer Discipline and Public Hearings

Summary of Decision of the Benchers on Review

Gary Russell Vlug

Victoria, BC

Called to the Bar: August 28, 1992

Bencher review: April 10 and 11, 2018

Benchers: Sarah Westwood (chair); Jasmin Ahmad; Jeff Campbell, QC; Barbara Cromarty; Lisa Hamilton, QC; Steven McKoen; Mark Rushton

Decision issued: September 24, 2018 (2018 LSBC 26)

Counsel: Henry C. Wood, QC, for the Law Society; Gary Russell Vlug on his own behalf

BACKGROUND

In 2012 the Discipline Committee authorized a citation containing 11 allegations of professional misconduct arising from complaints made against Gary Russell Vlug in relation to three different family law matters. A hearing panel found that Vlug had committed professional misconduct, and ordered that he be suspended for six months and pay costs of $20,000. Vlug applied for a Bencher review of the hearing panel’ s findings.

A panel of Benchers upheld the hearing panel’ s findings of professional misconduct in relation to allegations 2 through 6 and allegations 10 and 11, but reversed the hearing panel’ s decision on allegations 7, 8 and 9. The review panel was split evenly on allegation 1 and, as a result, no review decision was reached on that allegation. The review panel reduced the suspension from six months to seven weeks and reduced the amount of costs.

Vlug filed a notice to appeal the review decision, and the Law Society cross-appealed to the BC Court of Appeal. The Court of Appeal allowed the appeal and remitted the matter to a review board for a fresh review with respect to allegations 2 through 11. Vlug also renewed an application to dismiss allegations 2 through 6 on the basis of delay.

DECISION OF THE BENCHERS ON REVIEW

Vlug’ s notice of review set out 10 grounds for review, resulting in five issues for the Benchers to consider.

Did the hearing panel err with respect to the onus and standard of proof?

The Benchers found that the hearing panel did not err in its application of onus or standard of proof.

Did the hearing panel err in its findings of fact?

The Benchers found no error on the part of the hearing panel in relation to the findings of fact supporting allegations 2 through 6.

The Benchers dismissed allegation 7, “ as there is no evidence to support a finding of either misconduct or incompetence.”

With respect to allegation 8, the Benchers agreed with the hearing panel that Vlug made a statement in pleadings filed in a Vancouver action that he knew or ought to have known was untrue.

In relation to allegation 9, the Benchers found that the hearing panel erred in finding that Vlug had committed misconduct and therefore dismissed allegation 9.

The Benchers found that, on the balance of probabilities, the hearing panel had not proven allegation 10, either on the basis of professional misconduct or incompetence, and therefore dismissed allegation 10

In relation to allegation 11, the Benchers found that, in preparing and commissioning an affidavit, Vlug ought to have known that it was false, and the hearing panel therefore made no error in its finding.

Did the hearing panel err in applying the test for professional misconduct to each of the remaining allegations (2-6, 8 and 11)?

The Benchers found no error with the hearing panel’ s finding of professional misconduct for each of allegations 2 through 6.

In relation to allegation 8, the hearing panel found that Vlug ought to have known that filings he made, and subsequent statements, were improper and misleading. The Benchers confirmed the hearing panel’ s finding of professional misconduct.

In relation to allegation 11, Vlug admitted to having prepared and commissioned an affidavit with a false assertion. The Benchers confirmed the hearing panel’ s finding of professional misconduct.

Did the hearing panel err in its analysis and conclusions with respect to Vlug’ s delay argument?

Vlug argued that the hearing panel erred by failing to find that delay in the case resulted in unfairness to him. The Benchers dismissed Vlug’ s application to set aside the decision of the hearing panel on the issue of delay.

Did the hearing panel impose an appropriate disciplinary action?

The Benchers found that, given that Vlug continued to maintain that he did not mislead anyone in relation to allegations 2-6, 8 and 11, they needed to provide Vlug with a strong message that his behaviour was inappropriate. The Benchers further found that they must communicate to the profession that deliberately misleading behaviour by a lawyer is unacceptable.

The Benchers ordered that Vlug be suspended for four months.

Costs are to be determined at a later date.

2018 LSBC 26 Decision of the Benchers on Review