Complaints, Lawyer Discipline and Public Hearings

Summary of Decision on Facts and Determination

MALCOLM HASSAN ZORAIK

Called to the bar: November 16, 2001

Voluntary withdrawal of membership: February 2, 2015

Discipline hearing: July 27 and 28, 2017

Panel: Sharon Matthews, QC, Chair, Satwinder Bains and Sandra Weafer

Decision issued: September 26, 2017 (2017 LSBC 34)

Counsel: Jaia Rai for the Law Society; Russell S. Tretiak, QC for Malcolm Hassan Zoraik

FACTS

The Law Society was informed on July 20, 2009, that Malcolm Hassan Zoraik had been indicted on criminal charges. Zoraik was convicted of public mischief, obstruction of justice and fabrication of evidence on June 14, 2010, and on November 2, 2010, he was sentenced to a conditional sentence order of 18 months. An appeal to the BC Court of Appeal was dismissed on June 26, 2012.

On October 18, 2012, the Discipline Committee referred the matter to the Benchers pursuant to Rule 4-40 (now Rule 4-52), a seldom-used provision that allows for a summary process for suspension or disbarment of a lawyer if the lawyer is convicted of an indictable offence.

An oral hearing was held before nine Benchers on January 25, 2013, and on May 30, 2013, the Benchers ordered that Zoraik be disbarred (2013 LSBC 13).

Zoraik sought a review of that decision by the BC Court of Appeal, which determined in February 2015 that the matter should be referred back to the Benchers for a hearing.

Over the next 14 to 16 months there was a series of communications between counsel for the Law Society and Zoraik where questions of the proper process were raised, and on June 24, 2016, the Benchers returned the matter to the Discipline Committee to consider action pursuant to Rule 4-4. On September 29, 2016, the Discipline Committee directed that a citation be issued against Zoraik.

STAY APPLICATION

At the hearing, counsel for Zoraik argued that the discipline proceedings should be stayed or, alternatively, that the disciplinary action should be reduced, as a result of excessive delay. As this was only the facts and determination stage of the proceedings, the hearing panel did not hear, and did not address, argument with respect to disciplinary action.

Zoraik maintained that, in assessing whether there has been inordinate delay, the panel should use the test set out in the recent Supreme Court of Canada decision of R. v. Jordan, 2016 SCC 27. Since that case was a criminal law case decided under section 11(b) of the Charter of Rights and not an administrative law case under section 7, the panel determined that the test in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 SCR 307, applied and Zoraik needed to establish significant prejudice in order to obtain a stay for excessive delay.

While the comments in Jordan on unnecessary delay and a “culture of complacency” were relevant, the panel applied the Blencoe test, first considering the issue of delay and finding that the Law Society dealt with the matter appropriately from a time perspective.

The panel also found that there was very little direct evidence of prejudice to Zoraik and that the prejudice alleged fell far short of the type or magnitude required to grant a stay of proceedings.  The application for a stay was dismissed.

DETERMINATION

The hearing panel determined that Zoraik’s conduct was a marked departure from that expected of a lawyer and constitutes professional misconduct.

2017 LSBC 34 Decision on Facts and Determination