Complaints, Lawyer Discipline and Public Hearings

Summary of Decision on Facts and Determination

Thomas Paul Harding

Surrey, BC

Called to the bar: August 31, 1990

Hearing dates: October 8 and 9, 2020

Hearing panel: Steven McKoen, QC, Chair, Lindsay R. LeBlanc and Brendan Matthews

Decision issued: March 5, 2021 (2021 LSBC 08)

Counsel: J. Kenneth McEwan, QC and Emily Kirkpatrick for the Law Society; Gerry Cuttler, QC and Oliver Pulleyblank for Thomas Paul Harding

FACTS

Thomas Paul Harding acted as counsel for a plaintiff in a jury trial for a personal injury claim against an unknown motorist and ICBC. The issue at trial was whether Harding’ s client was injured in the manner he asserted, the extent of his injuries, whether he made reasonable efforts to identify the unknown motorist and whether he made sincere efforts to find employment after his injury.

ICBC sought a medical expert to prepare two reports for trial and to give evidence at trial. The medical expert was cross-examined by Harding, during which he attempted to enact a Johnny Carson sketch known as “ Carnac the Magnificent,” which was successfully objected to. In his closing address, he claimed the defence’ s theory was that everything his client said was a lie, including to his mother, his doctors, to ICBC’ s adjusters, estimators, investigators, lawyers and others. Harding said ICBC was unable to provide a single person who saw his client doing something that showed he was a liar. He referenced that, although Johnny Carson was dead, “ the Amazing Karnack [sic] lives among us,” and that ICBC was deliberately manipulating a test and claiming to know things without data. Following his closing remarks, ICBC applied for a mistrial and the judge declared a mistrial. An appeal of the mistrial was commenced and subsequently discontinued.

In an interview to media after the trial, Harding ridiculed the medical expert’ s testimony and misrepresented the nature of his evidence. He further emailed media to claim that the judge assumed the jury was incapable of rendering a fair decision and that the judge presumed “ jurors are idiotic children.” He encouraged media to speak to jurors of trials where the judge ruled a mistrial.

The medical expert wrote to Harding and demanded an apology. Harding later delivered a signed apology to him, stating he withdrew his comments and apologized for his disparaging comments. The newspaper also published an apology to the medical expert.

DETERMINATION

The panel considered the judge’ s findings for the mistrial and found Harding’ s attacks on the medical expert to be egregious and that his skit was deliberate and intended to ridicule the witness. The panel also found his comments accusing opposing counsel of disingenuous conduct and his submissions that mischaracterized the opposing party’ s position to be unacceptable. The panel found his conduct undermined the legal trial process. On his statements to the media, the panel found Harding fell below the standard expected of lawyers with his demeaning, untrue and misleading comments directed at specific participants in the trial process.

The panel determined Harding’ s conduct constitutes professional misconduct.

2021 LSBC Decision on Facts and Determination