Complaints, Lawyer Discipline and Public Hearings

Summary of Decision of the Hearing Panel on Facts and Determination


Nathan Sutha Ganapathi

Vancouver, BC

Called to the bar: May 20, 1975

Hearing dates: November 21 and 22, 2019

Panel: Michelle D. Stanford, QC (Chair), Donald Amos and John D. Waddell, QC

Decision issued: July 14, 2020 (2020 LSBC 36)

Counsel: Peter Senkpiel and Julia Lockhart for the Law Society; Henry Wood, QC for Nathan Sutha Ganapathi

FACTS

Nathan Sutha Ganapathi was retained by birth parents of a girl who was placed in the care of foster parents a few days after she was born. The foster parents wished to adopt her and the birth parents were in favour of the adoption. The Director of Child, Family and Community Services (the “Director”) would not consent to the adoption and took the position it was in the best interest of the child to be placed with adoptive parents in Ontario who had already adopted the child’s two older siblings. In an effort to secure the adoption of the child, the foster parents retained counsel who made a series of Supreme Court applications, which were dismissed or struck.

Ganapathi represented the birth parents and joined a team of people who opposed the Director’s position.  The team included Ganapathi, the foster parents, the foster parents’ counsel, the birth parents and the father of one of the foster parents. Ganapathi provided legal advice to the foster parents and the father of the foster parent, in addition to his own clients.

Ganapathi filed a petition on behalf of the birth parents against the Director, seeking to overturn all the steps taken to remove the child from the care of the birth parents. He also filed a petition jointly with the foster parents’ counsel against the Director, seeking a declaration that the child had already been adopted by the foster parents by way of a Métis custom adoption. The Director applied to strike out these petitions as abuses of process.

The Director arranged for the child to participate in a video conference with her sisters under the care of adoptive parents on Ontario. The child was accompanied by social workers. An audio recording was made of the video conference without the social workers’ knowledge. Ganapathi received this audio recording from the foster parents’ counsel. He believed the audio recording contradicted sworn evidence of the three social workers who had participated in the video conference.

The foster parents’ counsel sent an email to Ganapathi, attaching a draft letter for counsel for the Director. The letter alleged perjury by the social workers and that the Director was acting in bad faith and suggested that “appropriate sanctions” may result if contested litigation continued. The letter said the foster parents and the birth parents would discontinue legal proceedings if the Director consented to the foster parents adopting the child. Ganapathi reviewed the draft letter, expressed some concern about the threatening tone, but did not communicate to anyone he did not approve of the letter. The foster parents’ counsel sent the letter to the Director’s counsel.

The court struck Ganapathi and the foster parents’ petitions as abuses of process and they were ordered to pay special costs.

DETERMINATION

The hearing panel found that Ganapathi was acting as co-counsel for the birth parents, the foster parents and one of the foster parents’ father, he was a clear participant in the strategy of how to leverage the team’s position using the false affidavit of the social worker, and he made no decisive objection to sending of the letter after reviewing it and therefore, permitted it to be sent.

The panel determined Ganapathi attempted to resolve litigation in favour of his clients through improper means and that such conduct constituted professional misconduct.

2020 LSBC 36 Decision on Facts and Determination