COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Christie v. The Law Society of British Columbia,

 

2010 BCCA 195

Date: 20100421

Docket: CA037168

Between:

Douglas Hewson Christie

Appellant

(Applicant)

And

The Law Society of British Columbia

Respondent

(Respondent)

Before:

The Honourable Chief Justice Finch

The Honourable Mr. Justice Mackenzie

The Honourable Madam Justice Saunders

On Appeal from: Law Society of British Columbia Discipline Panel, April 30, 2009
(Law Society of British Columbia v. Christie, 2009 LSBC 13)

Appellant Appearing In Person:

D. Christie

Counsel for the Respondent:

P. Foy, Q.C.
J. Rai

Place and Date of Hearing:

Vancouver, British Columbia

March 9, 2010

Place and Date of Judgment:

Vancouver, British Columbia

April 21, 2010

 

Written Reasons by:

The Honourable Mr. Justice Mackenzie

Concurred in by:

The Honourable Chief Justice Finch

The Honourable Madam Justice Saunders

 

Reasons for Judgment of the Honourable Mr. Justice Mackenzie:

[1]             Douglas Christie appeals the verdict of a discipline panel of Benchers of the Law Society of British Columbia (“the Panel”) that he committed professional misconduct and should pay a fine of $2,500 and costs of $20,000. The misconduct related to his involvement as litigation counsel in sending subpoenas that improperly sought to obtain pre-trial production of documents from non-parties to the litigation. Mr. Christie’s application for review of the Panel’s decision by the Benchers was dismissed; the verdict and penalty were confirmed.

[2]             Mr. Christie’s primary submission is that the Panel and the Benchers erred in finding that his conduct with respect to the impugned subpoenas was deliberate and not merely negligent or inadvertent. He submits that the Panel and the Benchers ignored evidence of stress in assessing his relevant state of mind. He also contends that he was prejudiced by inordinate delay by the Law Society in pursuing the citation, and that the award of costs was excessive.

Background

[3]             The citation arose out of Mr. Christie’s conduct as counsel for the plaintiffs in Ravnyshyn v. Drys, 2005 BCSC 561. In that action, the plaintiffs sought to set aside probate of a will on the ground of undue influence on the testator, George Demediuk, by the defendant beneficiaries and lack of testamentary capacity. The plaintiffs further alleged that the defendants had caused the testator’s death. (The action was eventually dismissed after trial.)

[4]             During the litigation the three subpoenas for documents in issue were sent to non-parties. The subpoenas did not conform to Form 21 of the Supreme Court Rules as required by R. 40(34). They were signed by Mr. Christie as counsel. They directed the recipients to supply documents to him as counsel for the plaintiffs (to be picked up by his agent Jim Krahn) rather than to attend the trial as a witness and bring relevant documents at that time. The first of the subpoenas, (“the California Subpoena”) dated 1 October 2003, was directed to Russell Young, a representative of the American Express Company in Los Angeles, California for copies of travellers cheques negotiated by the testator in 1999. The second subpoena (“the Bank Subpoena”) dated 16 December 2003, was sent to the BMO Bank of Montreal for copies of the testator’s bank statements. The third subpoena (“the Hospital Subpoena”) dated 18 December 2003 was sent to the Royal Jubilee Hospital for medical records of the testator. The three subpoenas vary in form. The California Subpoena states that the recipient is “requested” to supply the documents to Mr. Christie. The Bank Subpoena directs that the recipient is “required” to supply the documents and directs that it contact Mr. Jim Krahn for pick-up. The Hospital Subpoena states that it was required to supply copies of documents listed for pick-up by Mr. Krahn “pursuant to Rule 40(39) of the Rules of Court”.

[5]             In February 2004 the Law Society received a complaint from the Court Services Branch of the Ministry of the Attorney General that the California Subpoena was stamped with an oval imprint stating “In the Supreme Court of British Columbia” around the circumference and “Victoria” in the middle of the imprint. An investigation disclosed that the stamp had been made by a Victoria stamp company for Mr. Krahn and the false imprint on the California Subpoena was made by Mr. Krahn without Mr. Christie’s knowledge. As Mr. Krahn was the husband of one of the plaintiffs in Ravnyshyn, and assisting Mr. Christie, this was a matter of considerable embarrassment to him, particularly in the period before it was clear that he was not implicated in the forgery.

The Citation and Proceedings before the Panel and Benchers

[6]             In May 2005 the Law Society received a second complaint, this time from counsel for the defendants in Ravnyshyn that the three subpoenas did not conform to Form 21 and were used to obtain or attempt to obtain documents to which Mr. Christie was not entitled. A citation for professional misconduct followed, for “causing the preparation and delivery of [the three subpoenas] for purposes of improperly obtaining documents from a third party to the litigation.” After a four-day hearing, the Panel found that Mr. Christie had committed professional misconduct in the preparation and delivery of the subpoenas. It concluded:

[51]      The Panel concludes that the Respondent, perhaps wrapped up too much in the perceived justice of J.K.'s and the Plaintiffs' cause, directed the preparation of the three documents, signed them and gave them to J.K. for service, with a view to compelling document production in a manner which was impermissible under British Columbia law.

[52]      In this case, the conduct of the Respondent was dishonourable. He knowingly changed Form 21, a subpoena, into three documents, each entitled “ Subpoena for Documents” intending to compel the recipients to provide documents in a way in which he knew (because he had just a couple of months earlier, embarked on a Rule 26 application) was not provided for in the Supreme Court Rules or otherwise in the laws applicable in this jurisdiction. His zeal in pursuing the case on behalf of J.K. and the Plaintiffs caused him to overlook his professional responsibilities. When the recipient of the California “ Subpoena for Documents” was outside of the jurisdiction, the form of document prepared by the Respondent (no doubt assisted by the forged stamp applied by J.K. without the Respondent's knowledge) was successful in compelling production of documents to which the Respondent was not entitled. The Panel notes that, throughout his testimony, the Respondent took the position that he was entitled to these documents - he is wrong in that assertion in the sense that, while he might have been entitled to those documents had he gone through the normal Court process, there was no entitlement other than going through the normal Court processes.

[53]      The Panel recognizes that there may have been other factors at work, in particular the stresses placed on the Respondent by his own health issues and, most importantly, by the serious battle with cancer being waged by his spouse. While those are factors that may be considered in regard to penalty, they cannot be used to excuse his unprofessional conduct.

[54]      In the circumstances, the Panel finds the citation to be made out and concludes that the Respondent's conduct in causing the preparation and delivery of the Bank, Hospital and California documents each constitutes professional misconduct.

After hearing further submissions on penalty, the Panel ordered Mr. Christie to pay a fine of $2,500 and costs of $20,000.

[7]             Mr. Christie applied to the Benchers for a review on the record of the Panel’s decisions pursuant to s. 47 of the Legal Profession Act, S.B.C. 1998, c. 9. The Benchers rejected his contention that the Panel erred in concluding that his conduct was intentional and not merely mistaken or inadvertent. Their decision (“the Review Decision”) stated:

[28]      The nub of the Applicant's complaint, as we understand it, is that the Panel wrongly concluded from this evidence that, in his words, he had an “evil intent” and, in doing so, ignored other evidence before it that showed that he was merely mistaken in believing that the procedure that he employed was proper and appropriate.

[29]      In his evidence to the Panel, the Applicant said, on a number of occasions, that he simply could not recall what had been in his mind when he gave instructions concerning the subpoenas, or when he signed them. That being the case, the “other evidence” that he says the Panel ignored, and that he contends shows that he was at worst negligent, must surely be considered no more than speculation on his part. Moreover, that other evidence consists of a number of different theories or possible explanations of what happened – for example, that he had not been involved in the preparation of the documents and so did not know that they sought to do something that was not permissible; and that he understood what the documents purported to do but thought that the Rules of Court permitted it.

[30]      In these circumstances, we do not think it can reasonably be said that the other evidence that the Applicant relies on in this connection is sufficiently clear or consistent to outweigh the evidence that the Panel relied on in support of its conclusion that he had acted intentionally. The Panel was entitled to weigh the evidence in the manner that it did and, having had the opportunity not available to us to make a determination as to credibility, to reach the conclusion that it did.

[31]      The Applicant has failed to show that, in this respect, the Panel committed any palpable and overriding error. This ground of attack on the Verdict accordingly fails.

Issues

[8]             On this appeal, Mr. Christie advances essentially the same submissions made to the Benchers. He contends:

1.       the Panel and the Benchers erred in concluding that non-party documents could only be compelled in one way under the Supreme Court Rules;

2.       they ignored the evidence of stress in concluding that the subpoena errors were deliberate and not merely negligent;

3.       they erred in inferring deliberate error from prior knowledge resulting from subpoenas in proper Form 21 prepared and delivered by Mr. Christie earlier in the Ravynshyn litigation;

4.       the proceedings were subject to inordinate delay which prejudiced accurate recollection; and

5.       the costs order of $20,000 imposed by the Panel was excessive.

The Standard of Review

[9]             The standard of review generally applicable to discipline decisions of the Law Society is reasonableness: Goldberg v. Law Society of British Columbia, 2009 BCCA 147, 92 B.C.L.R.(4th) 18, at para 36, quoting Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 59. The facts found by the Panel are entitled to deference unless they are based on a material misapprehension of the evidence or are otherwise clearly wrong.

Correct Use of a Subpoena to Compel Non-Party Documents under the Rules

[10]         The Panel concluded that there was no provision in the Supreme Court Rules or elsewhere in the law of British Columbia that allowed a subpoena to be used to compel production of documents from a non-party before trial without a court order. That statement of the law was supported by an expert opinion from James P. Taylor, Q.C. The relevant subrule, R. 40(39), is confined to subpoenas for documents from non-parties at trial. Form 21, which is prescribed as the mandatory form by R. 40(34), directs a witness to attend court and to bring with them any related documents on attendance.

[11]         Mr. Christie contends that the requirements of the Rules are not entirely clear. He relies on observations of Mr. Justice Bouck in Reischer v. Love, 2005 BCSC 580, 68 B.C.L.R. (4th) 175, for the proposition that there is some flexibility in the process for compelling production of documents by subpoena and that it was arguable that R. 40(39) permitted a party to obtain documents and examine them during the trial, or potentially at any time before placing them before the court. In Reischer, Bouck J. discussed the process under R. 40(39) and observed (at para. 37) that arguably a defendant was allowed to subpoena a witness in order examine documents in the possession of the witness before the plaintiff begins to present evidence at trial. The Panel addressed that submission and was satisfied that Bouck J.’s comment was made in the context of a subpoena requiring a witness to attend with documents at trial and not in any pre-trial process.

[12]         The Law Society accepts that the interpretation of R. 40(39) is a question of law on which the Panel and the Benchers had to be correct. In my view, the Panel was correct in concluding that Reischer does not assist Mr. Christie and correct in concluding that there is no support in R. 40(39) or otherwise in B.C. law for compelling pre-trial production of documents by subpoena from non-parties; and thus that the Benchers were correct in upholding that conclusion.

The Finding of Deliberate Misconduct

[13]         The Panel concluded, in para. 52 of its reasons quoted above, that Mr. Christie changed the form of the three subpoenas, from Form 21, with intent to compel provision of documents in a way that he knew was not provided for in the Supreme Court Rules or otherwise under B.C. law. This conclusion hinged on the finding that Mr. Christie’s conduct was deliberate and not simply negligent.

[14]         Mr. Christie argued that his conduct was inadvertent, and arose largely as a result of severe personal stress he was under at the time. Mr. Christie’s evidence and the evidence of his wife, which the Panel accepted, was that he was having a very difficult time as a result of stresses in his practice, persistent whooping cough, and his wife’s grave illness with cancer. Mr. Christie’s wife had been working as his secretary and her illness left him without secretarial assistance.

[15]         Mr. Christie submits that the Panel ignored the evidence of stress and consequently erred in law. This submission rests on his interpretation of the Panel’s statement, in para. 53 of its reasons quoted above, that stress could not excuse his conduct but could only be considered in regard to penalty.

[16]         I am not persuaded that the impugned passage supports Mr. Christie’s submission that the Panel ignored that stress in weighing his material state of mind. In my view, Mr. Christie reads too much into the Panel’s comment. Earlier in its reasons, at paras. 20 and 21, the Panel summarized and accepted the evidence of stress from Mr. Christie’s wife and concluded “it was a very difficult time” for Mr. Christie. The reasons of the Panel demonstrate that it accepted Mr. Christie was under substantial stress. However, it did not accept that this stress prevented him from preparing and delivering proper subpoenas, or that it led to subpoenas being prepared and delivered, without his knowledge, which improperly sought to compel pre-trial production of documents not permitted under the Rules without a court order. I take the reference to penalty as merely alerting Mr. Christie that the Panel was prepared to consider the stress he was under as a factor in mitigation of penalty.

[17]         Mr. Christie also contends that the Panel erred by inferring from his application two months earlier for an order for production under R. 26(11) that Mr. Christie knew he needed a court order for pre-trial production of documents. In my view, there is no reviewable error in that inference. Knowledge of the correct procedure was relevant to the issue of deliberate intent to pursue a course of action that did not comply with that procedure.

[18]         Mr. Christie gave inconsistent explanations for his conduct with respect to the subpoenas. First, he responded by letter to the Law Society’s initial inquiry, stating that he had prepared the subpoenas and he had accepted Mr. Krahn’s offer only to arrange for delivery. He acknowledged that he modified Form 21 to require the recipient to produce documents without requiring attendance of a witness. He said that he endeavoured to comply with R. 40(39) and he was unaware that production of documents could only be required through a witness. However, at no point in this letter did he refer to his personal circumstances in explanation or mitigation.

[19]         In his testimony before the Panel he resiled from this position. Instead, he took the position that the explanation provided in the letter was mistaken and that he did not prepare the subpoenas or instruct their preparation. He claimed that he could not remember how the subpoenas came to him, but that it may have been at Mr. Krahn’s suggestion. He said his letter had been focussed primarily on explaining that he had no involvement in the forged stamp on the California Subpoena, which was the matter of greatest concern to him at the time. He claims he did not think carefully about the other aspects of the subpoenas when drafting the letter, and that his initial recollection that he had prepared the subpoenas was mistaken. Nonetheless, the subpoenas were signed by Mr. Christie and he agreed that he directed Mr. Krahn to change the wording of the California subpoena from “required” to “requested” because production of documents could not be compelled by subpoena from outside the country.

[20]         On this evidence it was open to the Panel to find as a fact that Mr. Christie’s conduct was deliberate and not inadvertent. There was no misapprehension of material evidence or other ground for concluding that the Panel’s finding of fact was clearly wrong. Accordingly, I am satisfied there are no grounds on which this Court could disturb the finding of misconduct by the Panel and the confirmation of that finding by the Benchers.

Delay

[21]         Before the hearing on the substantive issues, Mr. Christie applied to the Panel for a stay of proceedings on the ground of prejudicial delay. The Panel dismissed the application and its decision was affirmed by the Benchers on review. The Panel concluded the delay was not inordinate and Mr. Christie’s ability to respond to the citation was not prejudiced.

[22]         The subpoenas were prepared and sent between October and December 2003. The Law Society received the initial complaint from the Attorney General with respect to the fabricated stamp on the California Subpoena in February 2004. The complaint was forwarded to Mr. Christie in May 2004 and his letter in response was dated 14 May 2004. The Law Society conducted a further investigation and concluded that there was no evidence Mr. Christie had any involvement with the fabricated imprint on the California subpoena. Mr. Christie was advised that the file was closed in July 2004. Ravnyshyn went to trial and the action was dismissed on 14 April 2005. The Law Society received the second complaint, which led to Mr. Christie’s citation, from the solicitor for the defendants on 30 May 2005. The Law Society opened a file and investigated the matter. The matter was referred to outside counsel for an opinion in early January 2006. Counsel reported to the Discipline Committee in May 2006 and the citation was issued on 19 June 2006. The hearing commenced 5 December 2006.

[23]         A stay of proceedings on the ground of delay requires proof of significant prejudice which results from an unacceptable delay: Blencoe v. B.C. Human Rights Commission, 2000 SCC 44; [2000] 2 S.C.R. 307 at para 101. The Panel outlined the two circumstances that may warrant a stay of proceedings, as follows:

[5]        ...

(a)        where a delay impairs a member’s ability to make full answer and defence, thereby prejudicing the fairness of the hearing; and

(b)        where the Respondent member has suffered prejudice in the form of significant duress and stigma from an unacceptable delay such that it amounts to an abuse of process, even when the fairness of the hearing has not been compromised.

In both circumstances, the delay must be inordinate or unacceptable.

Mr. Christie does not take issue with this formulation of the test but he contends that the Panel erred in its application. He argues that the delay, which he submits is the period of 34 months from the date of the first complaint in February 2004 to the date of hearing in December 2006, was inordinate. He asserted that the length of the delay prejudiced his accurate recollection of the circumstances of the preparation and delivery of the subpoenas and his state of mind at the time.

[24]         The Panel noted that two of the three subpoenas in issue did not come to the attention of the Law Society until the solicitor’s complaint was made in May 2005. They accepted the delay in making the complaint until after judgment in Ravnyshyn as reasonable, because an earlier complaint could have been viewed as an inappropriate tactic in the litigation. The Panel considered that the period of the investigation from the complaint in May 2005 to the Discipline Committee review and citation in June 2006 was “somewhat longer than a desirable goal” but not unduly long.

[25]         Mr. Christie relies on Wachtler v. College of Physicians and Surgeons of Alberta, 2009 ABCA 130, [2009] 8 W.W.R. 657, where a delay of 34 months attributable to the College was held to be insufficient to support a stay of proceedings for an abuse of process but was taken into account in mitigating the penalty imposed by the College. An investigative delay of 21 months within the 34-month period that was unexplained by the College was described as intolerable, in circumstances where the issues involved standard of care in the physician’s medical practice and the public was potentially at risk. The Court reduced the period of suspension and set aside a costs sanction as unreasonable.

[26]         In my view, Wachtler does not assist Mr. Christie on the issue of a stay of proceedings. Its relevance to penalty is considered below. I am satisfied that the circumstances support the conclusion of the Panel that the delay was not inordinate and that Mr. Christie had not suffered prejudice in his ability to respond to the citation or significant duress or stigma from unacceptable delay. Consequently, I would not give effect to this ground of appeal.

Penalty

[27]         In this case Mr. Christie challenges only the costs penalty imposed of $20,000. He does not take issue with the fine in the amount of $2,500, which he has paid.

[28]         The Law Society presented a draft bill of costs of approximately $50,000 and asked for costs on a full indemnity basis. The Panel noted that Mr. Christie had a professional conduct record of more than 30 unblemished years of service. It accepted that the misconduct arose out of stress and excessive zeal to help his client rather than a desire for personal gain. His average pre-tax income over the preceding five-year period was slightly over $50,000.

[29]         The Panel, in its separate reasons on Penalty, concluded:

[16]      ... With regard to the matter of costs, the Panel is satisfied that the time, costs and expenses presented by counsel for the Law Society are reasonable and justified. Generally speaking, full indemnity for those costs should be granted. However, the Panel has considered the financial circumstances of the Respondent. The Panel would not want to create a situation whereby inability to pay costs might create a “de facto disbarment”. The Panel recognizes the Respondent’s valuable contribution to our free society and wants to enable him to continue with his work, which he has often done pro bono or for greatly reduced fees. In all of the circumstance, the Panel concludes that costs in the amount of $20,000 should be paid by the Respondent, to be paid by January 15, 2010.

The January 15, 2010 due date effectively gave him two years to pay.

[30]         The Panel considered Mr. Christie’s circumstances including his record, which had remained unblemished for over 30 years, and his valuable contribution of legal services, much of it pro bono. The Panel expressed its desire to avoid a costs award that might prevent him from continuing in practice. The reduction in the assessment to less than half the amount of the full costs indemnity asked for by the Law Society obviously reflected those considerations. The Benchers engaged in a detailed review of all the factors and upheld the Panel’s assessment, extending the time to pay to 11 December, 2010, two years from the date of the review decision.

[31]         Wachtler supports the proposition that unreasonable delay may be considered in mitigation of penalty but I am not persuaded that any delay in this case was unreasonable to an extent that would permit this Court to disturb the assessment of costs. The sum of $20,000 is less than half of full costs indemnity and Mr. Christie has been given extensive time to pay. In my view, there are no grounds on which this Court could conclude that the amount is unreasonable.

Conclusion

[32]         In the result, I would dismiss the appeal against the verdict of professional misconduct and the costs penalty.

“The Honourable Mr. Justice Mackenzie”

I AGREE:

“The Honourable Chief Justice Finch”

I AGREE:

“The Honourable Madam Justice Saunders”