Complaints, Lawyer Discipline and Public Hearings

Summary of Decision on Facts and Determination


John (Jack) Joseph Jacob Hittrich

Surrey, BC

Called to the bar: August 1, 1986

Discipline hearing: December 16 and 17, 2019

Panel: Steven McKoen, QC (chair), Anita Dalakoti and Gavin Hume, QC

Decision issued: June 5, 2020 (2020 LSBC 26)

Counsel: Julia Lockhart for the Law Society; Peter Leask, QC, Russell Tretiak, QC and Mason Heller for John (Jack) Joseph Jacob Hittrich.

FACTS

John (Jack) Joseph Jacob Hittrich represented foster parents in matters related to their former foster daughter, who was under their care between July 2014 and December 2015.

A child protection trial was held to consider the care of the foster daughter. The foster parents were not parties to the trial but sought to become parties. Hittrich filed an application in Provincial Court for an order of guardianship of the foster daughter and joinder of that proceeding with the child protection trial. The judge declined the application and instead ordered that the child be returned to the care of her mother.

Hittrich made further applications related to this matter, including seeking access for the foster parents to the child. During the hearing, the Master asked the biological mother’s counsel why a transition plan for the daughter’s move was not ordered by the previous judge and stated that the transcript from the previous hearing should have been before her. She ordered the foster parents to have some access to the child.

The foster parents contacted Hittrich’s office to ask whether they could obtain transcripts of the previous child protection trial. After a follow-up email, Hittrich’s office confirmed that they had requested the transcripts.

Hittrich filed a notice of application on behalf of the parents requesting further access to their former foster daughter. A supporting affidavit included transcripts of the child protection trial. Each page of the transcripts had a notice stating “CFCSA – Restriction on Access” and on each cover page was a legend saying the same thing. The transcript contained frank testimony by the biological mother on certain issues in her life and the reasons behind her children having been taken into care.

The hearing for the application was held before the Master and the biological mother was not represented at the hearing. Hittrich referred to the content of the transcript. The biological mother objected to his use of the transcript and expressed concern that he even had access to it as she was under the impression that the transcripts were sealed. The Master ordered expanded access for the foster parents and ordered that the mother could not remove her daughter from the lower mainland.

The mother appealed the order. In a letter to Hittrich, her counsel expressed concerns respecting Hittrich’s use of the transcripts, including that, because Hittrich’s clients had been expressly denied joinder to the child protection proceeding, they should not have been permitted to access the transcripts. Hittrich gave various reasons to justify using the transcripts, including that the mother did not object to their use and that transcripts of an open court hearing are not covered by the confidentiality provisions of the CFCSA. Hittrich later admitted he was mistaken and agreed that the mother objected to the use of the transcripts. The mother’s counsel responded and raised a concern that Hittrich had told the Master he was permitted to use the transcripts because there was no court order preventing him from doing so, when there were applicable rules that prevented their use.

The appeal of the Master’s order was heard by a Justice, who set aside the Master’s order and did not order any contact between the foster parents and the former foster daughter. The Justice stated the transcript was used to cast the mother in a negative light and the foster parents should not have been able to obtain the transcript as a non-party to the proceedings.

The foster parents instructed Hittrich to appeal the Justice’s order. Hittrich filed appeal books containing the affidavit to which the transcripts were attached. A Justice ordered that a doctor be appointed as an expert to prepare a report under s. 211 of the Family Law Act. Hittrich said he directed the foster parents to deliver an extra appeal book they had containing the transcripts to the doctor.

The mother’s counsel emailed Hittrich and objected to the inclusion of the transcripts. Hittrich responded stating it was essential the doctor have all of the materials before the court, including the transcripts. The transcripts were delivered to the doctor. Hittrich wrote to the doctor and suggested that, until the appeal of the Justice’s order was resolved, she should not look at the transcripts.

DETERMINATION

The panel found that Hittrich’s actions in filing an affidavit appending transcripts that were clearly marked as being subject to restrictions without inquiring about such restrictions, and subsequently filing the transcripts with an affidavit that may have exposed the identity of a child in a CFCSA proceeding, failed to meet the standard the Law Society expects of lawyers.

According to provincial court rules, only a party, a party’s lawyer or a person authorized by a party, by a party’s lawyer or by a judge may access files. As the judge did not grant the foster parent’s application for joinder to the child protection trial, they were not parties in the trial and should not have been able to obtain the transcript.

The panel found that, by filing the appeal books with the transcripts in them after the Justice ruled that he and his clients should not have access to the transcripts at all, Hittrich deliberately failed to comply with the Justice’s decision.

The panel found that Hittrich did not deliberately mislead the court – rather, the representations he made were reflective of his failure to inform himself of the relevant rules.

The panel found that Hittrich committed professional misconduct.

2020 LSBC 26 Decision on Facts and Determination