Complaints, Lawyer Discipline and Public Hearings

Summary of Decision on Facts and Determination

PAMELA SUZANNE BOLES

Vancouver, BC

Called to the bar: November 17, 1989

Discipline hearing: April 11 and 12, 2012, June 22 to 24, August 31 and October 1, 2015

Panel: Bruce LeRose, QC, Chair, Ralston S. Alexander, QC and Clayton G. Shultz, FCA

Decisions issued: June 11, 2012 (2012 LSBC 21), October 16, 2014 (2014 LSBC 47), June 18, 2015 (2015 LSBC 27), January 14, 2016 (2016 LSBC 02)

Counsel: Thomas R. Manson, QC (2012 hearing), Mark D. Andrews, QC and Gavin Cameron (2014 and 2015 hearings) for the Law Society; Henry C. Wood, QC (2012 hearing), Richard C. Gibbs, QC (2014 and 2015 hearings) for Pamela Suzanne Boles

FACTS

Between 2004 and 2008, Pamela Suzanne Boles failed to report in writing four monetary judgments entered against her or her law corporation to the Law Society within seven days after the date of entry. The initial citation included allegations of nine incidences, five of which are no longer pursued by the Law Society.

Boles did not file income tax returns for the taxation years 2001, 2002 and 2003. Canada Revenue Agency issued an arbitrary assessment of income earned by Boles, and she failed to pay the amount owing. CRA issued a certificate for $157,019.45 on April 1, 2005 and registered it against title to land owned by Boles. She became aware of the certificate on approximately April 19, 2005 and paid it on April 28, 2005.

Boles’ law corporation failed to pay Goods and Services Tax owing on legal fees and disbursements charged to clients. CRA issued a certificate under the Excise Tax Act (Canada) for $48,005.06 on July 27, 2004. The hearing panel believed that Boles became aware of the certificate on April 19, 2005 and paid the debt four months later on August 15, 2005.

As a result of Boles’ non-payment of income taxes, CRA issued a certificate for $9,371.91 on February 6, 2004 and registered it on February 19, 2004 against title to land owned by Boles. Boles stated she did not become aware of the certificate until April 2005, but the panel’ s analysis indicated that she became aware of the certificate in March 2004. The debt was fully paid on April 28, 2005.

Boles’ law corporation did not pay Social Service Tax owing on legal fees and disbursements charged to clients, and the province of BC issued a certificate for $6,528.46 on September 2, 2005. The amount was fully paid on October 19, 2005.

Boles testified that she was not aware of the change to the Law Society Rules in December 2003 that stated lawyers must notify the Law Society of “ any certificate, final order, or any other requirement under a statute that requires payment of any money to any party.” She was not aware that the various certificates had to be satisfied or reported within seven days of filing until she received a letter from the Law Society on January 22, 2009.

The panel at the initial hearing in April 2012 determined Boles had committed professional misconduct (2012 LSBC 21).

APPLICATION FOR JUDICIAL REVIEW AND APPLICATION TO QUASH SUMMONSES

On October 18, 2012, Boles applied to the Supreme Court of BC for judicial review, seeking an order to quash the panel’ s decision as unfair, unreasonable and made contrary to the rules of natural justice. Madam Justice Adair dismissed the petition on January 9, 2013 (2013 BCSC 22).

On June 7, 2013, Boles applied to have the chair of the panel removed as he was no longer a sitting Bencher. This application was dismissed by the President’ s delegate in a memorandum dated August 24, 2013.

On April 10, 2014, Boles made application to the panel seeking an order that the Chair of the panel step aside due to the reasonable apprehension of bias arising from Boles acting against members of his family and his family’ s business in proceedings in the Supreme Court of British Columbia. The Chair concluded that Boles either failed to raise the allegation in a timely manner or, more likely than not based on the timing of the application, created the apprehension of bias through her own conduct. The application was dismissed with costs (2014 LSBC 47). Boles filed a notice of appeal to the BC Court of Appeal. The appeal has not proceeded.

PETITION TO REOPEN HEARING AND TO SUBMIT ADDITIONAL EVIDENCE

The panel was petitioned to reopen the hearing. Counsel for both parties at the time had agreed that Boles did not deliberately delay reporting the certificates and did not intend obstruction. The panel was not advised of this and found that Boles’ failure to report the certificates was motivated by secrecy or intention to mislead. The Law Society agreed to reopen the hearing to permit additional evidence to be presented.

On June 12, 2015, before commencement of the continued hearing, the Law Society applied to the panel to quash summonses issued by counsel for Boles as ill-conceived and inappropriate. The Society submitted that the summonses were not properly constituted, as they purport to require the target of the summonses to produce documents, when there is no authority in the rules for such a requirement. The panel found that the summonses were not properly constituted (2015 LSBC 27).

At the continued hearing, Boles admitted that she breached a rule but argued that she did not commit professional misconduct. She submitted evidence to show that her financial affairs were in disarray at the time the certificates were issued. The accountant Boles employed had become increasingly neglectful in record-keeping, and she eventually changed accountants. She had considerable difficulty recovering her records from her previous accountant and was only able to receive less than half of her financial records for 1998, 1999 and 2000 after threatening civil action. At that time, she was also involved in civil litigation involving her family. Boles described her state of mind during these times as “ frozen.”

Boles’ financial difficulties came to a crisis point in 2004. In the absence of income tax returns from Boles, CRA assessed tax based on “ arbitrary assessments” and imposed a 90-day deadline to file. The accountant filed a Notice of Objection, which is supposed to suspend all collection proceedings until resolved by a hearing officer. Nevertheless, a certificate was filed against Boles’ property just prior to the closing date of the sale of the property — the proceeds of which Boles had intended to use to pay her outstanding debts.

The panel heard evidence of 15 writs of execution that were served to Boles’ practice or law corporation from April 2004 to September 2005. The writs were paid upon presentation. The practice reports provided to the Law Society from 2005 to 2008 revealed that Boles had issued a total of 68 cheques that were dishonoured when presented for payment. For each year, the dishonoured cheques had all been replaced.

The purpose of this evidence was to negate any suggestion of secrecy surrounding the difficult financial circumstances facing her practice and to argue that the Law Society was aware of Boles’ precarious finances and was not deprived of the opportunity to launch an investigation.

DETERMINATION

When determining whether Boles’ actions constituted professional misconduct or the lesser issue of a breach of the rules, the panel took into account a number of factors, including the gravity, its duration, the number of breaches, and the presence of wilful blindness.

Boles’ chaotic financial circumstances clearly represents a marked departure from the standard the Law Society expects of lawyers; however, the state of her financial affairs is not the subject of the citation. The citation charges a failure to report four certificates.

The panel found that the further evidence showed Boles did not have any malevolent intentions with her non-reporting, there was no indication of bad faith, and no harm was caused to her clients. The panel reversed its earlier finding of professional misconduct and determined instead that Boles had committed a breaches of the rules.

2016 LSBC 02 Decision on Facts and Determination - Section 47 Review concluded