Complaints, Lawyer Discipline and Public Hearings

Summary of the Decision of the Review Board - Court of Appeal pending

THOMAS PAUL HARDING

Surrey, BC

Called to the bar: August 31, 1990

Review date: May 14, 2015

Review board: David Mossop, QC, Chair, Don Amos, Lynal Doerksen, Richard Lindsay, QC, Lois Serwa, Tony Wilson and Donald Silversides, QC

Decision issued: October 20, 2015 (2015 LSBC 45)

Counsel: Robin McFee, QC for the Law Society; Gerald Cuttler for Thomas Paul Harding

BACKGROUND

In June 2012, Thomas Paul Harding agreed to assist his mother-in-law with a possible claim arising from a motor vehicle accident. Her vehicle had been towed to a towing facility where, the day after the accident, Harding arrived intending to take photos of the damage to the vehicle. Harding got into a dispute with an employee over his right to photograph the vehicle. He moved his car to block access to the storage area, called the police and said he needed “ someone there to talk to these idiots because otherwise you’ ll have to send a police officer probably to arrest me because I’ m going to go get a crowbar and smash up the place.”

A discipline hearing was held to determine whether Harding violated the prohibition against dishonourable or questionable conduct that reflects badly on the integrity either of the lawyer or of the profession and, if so, whether the conduct was a marked departure from acceptable standards. The hearing panel determined that Harding’ s actions – in making the crowbar comment, taking photographs and blocking the entrance to the storage area – were not a marked departure from the conduct expected of Law Society members and dismissed the citation (2014 LSBC 29; Fall 2014 Discipline digest).

DECISION ON REVIEW

The Discipline Committee sought a review of the hearing panel decision as the “ marked departure” test has been reframed in light of the 2012 case of Doré v. Barreau du Quebec in which the Supreme Court of Canada held that a lawyer is required to behave with “ transcendent civility” (at para. 68).

The review board found that the hearing panel erred by reasoning that, since the “ crowbar” comment was not a threat, it was therefore not professional misconduct. Harding had stepped outside of his professional obligations and escalated the situation by raising the possibility of violence, with the intent of causing the police to attend. The review board majority determined that Harding committed professional misconduct and reversed the finding of the hearing panel.

One member of the review board (Silversides) disagreed with the majority. Silversides gave deference to the hearing panel’ s finding that Harding did not intend to lead the RCMP dispatcher to believe he would become violent.

Harding has appealed the decision of the review board to the Court of Appeal.

2015 LSBC 45 Decision of the Review Board