Complaints, Lawyer Discipline and Public Hearings

Summary of Decision on Facts and Determination


Donald Roy McLeod

Victoria, BC

Called to the bar: July 10, 1981

Discipline hearing: September 10, 11, 12 and December 3, 2019

Panel: Bruce LeRose, QC (chair), Thelma Siglos and Sarah Westwood

Decision issued: July 3, 2020 (2020 LSBC 33)

Counsel: Robin McFee, QC for the Law Society; Jeffrey Wittmann for Donald Roy McLeod

FACTS

Donald Roy McLeod represented a party in a family law matter relating to the client’s common-law relationship with her ex-spouse, who was unrepresented for that proceeding. One of the issues at trial was the division of the ex-spouse’s municipal pension plan benefits. McLeod’s final submissions were different from his position at the start of the summary trial. The court ordered the pension benefits for McLeod’s client be calculated based on the formula he proposed during his final submissions, and awarded his client a share of the entirety of the ex-spouse’s pension rather than a share of the pension accrued while they resided together.

Counsel later retained by the ex-spouse expressed concern that the court erred and suggested it might be necessary to clarify the issue before the summary trial judge. McLeod stood by the terms of the pension order. An appointment to settle took place and the terms of the pension order were confirmed as drafted.

Opposing counsel appeared before the summary trial judge and submitted that the parties were in agreement the benefits were to be divided by 50 per cent for the period of the relationship, but the actual order divided the pension for the entire time it accrued until the summary trial. The court invited McLeod and opposing counsel to give a one-page submission on the dates.

McLeod’s submission stated that the start and end dates should be the period of the relationship, with the total contribution period being the time from when the ex-spouse started work to the date the pension was frozen due to his ceasing work. Opposing counsel maintained the division of the pension should be the date of cohabitation until the date of separation.

McLeod received a letter from the pension plan asking for proof of age and identity from the ex-spouse before it could pay her benefits. He did not forward this to the ex-spouse’s lawyer.

The court issued a memorandum to counsel ordering the end date for the entitlement period be changed to the end of the relationship, stating the judge had erred when he set the dates at the summary trial. McLeod emailed the opposing counsel asking for a copy of the ex-spouse’s identification. Opposing counsel replied that, in light of the memorandum, the pension order would need to be revised and re-submitted to the pension plan before further steps were taken.

McLeod sent a revised draft of the pension order to Supreme Court scheduling to be provided to the judge for guidance on whether it needed to be endorsed by counsel or if it would simply be signed and entered. Supreme Court scheduling contacted opposing counsel, who said she would not object to the order being entered without counsel’s signature if they agreed on its terms. McLeod refused to revise it further, claiming that asking for further changes was vexatious and abusive. The judge issued a second memorandum to counsel stating that he had only been asked to consider the change in the entitlement date and any further issues should be addressed in writing.

McLeod made several attempts to have opposing counsel endorse and return the order. Opposing counsel said she felt his demands were an attempt to intimidate her. She sent a transcript of the court reappearance to McLeod to show he had agreed to a change in the start date. She said she would provide the identification of her client once the order was settled. McLeod responded that she misread the transcript and refusing to provide the identification was contempt of court. He demanded the order be endorsed without further revisions.

McLeod asked his client for instructions to proceed with contempt and recusal of counsel applications. He wrote to another lawyer at the opposing counsel’s firm who had represented his client on an unrelated matter 22 years prior and asked the firm to consider carefully whether they could continue to act for the ex-spouse in light of the conflict. The lawyer responded that, if McLeod and his client could not establish a conflict, the firm could not see how there would be a conflict. Opposing counsel said she did not know about the earlier retainer and had never accessed the previous file.

Opposing counsel submitted written arguments to court stating that McLeod had consented to a change in the start date at the previous appearance and the only date that remained in dispute was the end date. McLeod submitted that he had not agreed to the change and his statements only related to the end date.

McLeod filed the contempt and recusal applications and an application for special costs. He admitted that he filed the contempt application to “force the issue” so opposing counsel would give him the ex-spouse’s identification. He justified his contempt application as an attempt to get the spousal support and pension affairs in order; however, there was no spousal support issue at the time.

McLeod and opposing counsel appeared again before the court, which ordered that the dates for division of the pension reflect the dates the parties started cohabitating and the date of separation. The court awarded the ex-spouse fixed costs of $3,200.

Opposing counsel filed her response to the contempt and recusal applications, stating that McLeod demanded the identification when the dates were still in question, the opposing party had not received communication from the pension plan to confirm it required identification, and none of the lawyers at her firm had any recollection of McLeod’s client retainer with the firm and the files had been destroyed.

The court dismissed the contempt proceedings as unfounded, and ordered McLeod’s client to pay special costs on the basis that “advancing the contempt application is deserving of chastisement.” The court also dismissed the recusal application and ordered simple costs.

DETERMINATION

The hearing panel found that, over several days of testimony, McLeod urged a particular interpretation of the documents and, in defending that interpretation, frequently became defensive, argumentative and unresponsive. His evidence was sometimes evasive and, on one occasion, incoherent. He frequently failed to answer questions directly and defended behaviour, such as filing contempt applications, as an appropriate way to “force the issue.”

When weighing the evidence on material points, the panel preferred the testimony of opposing counsel, which was generally straightforward and simple. However, this is not largely a “he said, she said” matter, given the preponderance of court transcripts, emails and reasons for judgment that are in evidence. The panel found that McLeod misstated facts in court or failed to correct the record.

By bringing an action in civil contempt unsupported by the facts, and for an ulterior purpose, McLeod failed to discharge his obligations as an officer of the court. He abused the court’s process when he knew or ought to have known that his application was unfounded, premature or without merit.  

The panel determined that McLeod’s conduct with respect to those matters constituted professional misconduct.

However, the recusal application was not an abuse of the court process.  While the case was weak, it was appropriate for court adjudication. 

The hearing panel also dismissed allegations that McLeod drafted and relied on an affidavit that materially misrepresented the positions of the pension plan and opposing counsel and that he communicated with opposing counsel in a discourteous manner. 

2020 LSBC 33 Decision of the Hearing Panel on Facts and Determination