Complaints, Lawyer Discipline and Public Hearings

Summary of Decision on Facts and Determination


Amarjit Singh Dhindsa

Abbotsford, BC

Called to the bar: June 8, 2001

Discipline hearing: September 13 and October 18, 2018

Panel: Martin Finch, QC (chair); Carol Gibson; Lindsay R. LeBlanc

Decision issued: February 13, 2019 (2019 LSBC 05)

Counsel: Alison Kirby for the Law Society; Gerald Cutler, QC, for Amarjit Singh Dhindsa

FACTS

Amarjit Singh Dhindsa was retained by a developer with respect to its purchase of a development property. Dhindsa also acted for subsequent end purchasers who bought 93 of the 103 lots from the developer.

With regard to the developer’s purchase of 10 of the lots from the property’s original owner, Dhindsa prepared and forwarded to the developer’s lawyer documents relating to the sale of the lots. The developer’s lawyer executed these documents and returned them to Dhindsa, with the undertaking that Dhindsa provide the developer’s lawyer with a copy of the signed compliance deposit agreement prior to registration of the documents. Although Dhindsa was in possession of the executed documents, his assistant failed to deliver them to the developer’s lawyer prior to their registration.

Dhindsa acted for the end purchasers on the sale of a batch of five lots. The developer’s lawyer sent Dhindsa executed documents regarding two of the lots on undertakings, including that Dhindsa was to provide the developer’s lawyer with a copy of signed compliance deposit agreements before authorizing the registration transfer forms, and  copies of the undertaking letters between Dhindsa and the transferee’s lawyer or notary three business days prior to the completion date. Dhindsa did not deliver the compliance deposit agreements for any of the lots until after the registration or his undertaking letters for three of the five lots.

With regard to the transfers of six of the lots from the original owner to the developer, Dhindsa forwarded the sellers’ documents to the developer for execution. The developer’s lawyer returned copies of the executed documents to Dhindsa on undertakings set out in six separate cover letters. Among those undertakings was the condition that Dhindsa not attempt to register the transfer until he held in his trust account sufficient funds that, when added to the proceeds of any new mortgage to be filed concurrently, would allow Dhindsa to complete this transaction according to the contract of purchase and sale.

DETERMINATION

The Code of Professional Conduct for British Columbia stipulates that a lawyer is not in a conflict of interest when representing both buyer and seller if the transaction is a “simple conveyance.” The Law Society submitted that the end purchase agreements regarding the 93 lots were not simple conveyances, but were part of a larger purchase and sale agreement between two developers. Dhindsa was in effect acting for both the seller and buyer in the pre-sale of units in a development property that was not yet completed. The developer’s ability to transfer title to end purchasers was dependent on the developer’s contractual relationship with the property’s original owner.

Dhindsa submitted that these were simple conveyances because the value of property was relatively modest, the transactions did not involve the sale of any new residential units and did not involve the drafting of a contract of purchase and sale and, except for four of the lots, completion would involve payment of cash for clear titles.

The panel rejected Dhindsa’s argument, finding that he was in a conflict of interest and that his actions constituted professional misconduct.

Dhindsa relied on his assistant to satisfy his undertaking, but the ultimate responsibility for ensuring all accepted undertakings are fulfilled rests with the lawyer. The panel found that Dhindsa’s failure to honour trust conditions constituted professional misconduct.

Dhindsa delivered the compliance deposit agreements for two of the lots after registration. He maintained that a condition requiring three days’ notice where the completion was to occur the next day was unreasonable and therefore was void. However, the panel noted that he did not seek to vary the term of the undertaking stipulating three business days.

Regarding the three remaining lots of the batch of five, the panel found that the facts are unclear as to whether Dhindsa delivered his undertaking letters to the developer’s lawyer. Dhindsa told the panel that he could not find confirmation of sending the undertaking letters, and the developer’s lawyer told the panel he could not find confirmation of receiving them.

The panel determined that Dhindsa’s breaches of undertaking regarding two of the lots constitute professional misconduct.

At the time of registering the transfers, Dhindsa did not concurrently register a mortgage with respect to four of the lots in which the proceeds, together with funds held in trust on behalf of the end purchasers, would allow Dhindsa to complete the purchase transactions in accordance with the contract of purchase and sale. The panel found that failure to honour a trust condition is contrary to the Code and constitutes professional misconduct.

2019 LSBC 05 Decision on Facts and Determination