Ewachniuk appealed a decision of a hearing panel of the Respondent Law Society of British Columbia that had found him guilty of professional misconduct in “attempting to intimidate” and in “actually intimidating” two witnesses from giving evidence at trial and in requesting Crown counsel lay charges against the same witnesses “for the purpose of preventing them from coming to Canada to give evidence in court”. The hearing panel further found that Ewachniuk must be disbarred as a result of misconduct and ordered him to pay the costs of the hearing. All grounds of appeal were dismissed.

22. July 2003 0

Administrative law – Judicial review – Administrative decisions – Standard of review – Unreasonableness – Delay – Barristers and solicitors – Disciplinary proceedings – Professional misconduct – Penalties – Disbarment – Costs

Ewachniuk v. Law Society of British Columbia, [2003] B.C.J. No. 823, British Columbia Court of Appeal, April 15, 2003, Newbury, Huddart and Saunders JJ.A.

A hearing panel appointed by the discipline committee of the Law Society of British Columbia found the Appellant Ewachniuk guilty of professional misconduct in two respects, namely, (i) “in attempting to intimidate and in actually intimidating” two witnesses from giving evidence at trial, and (ii) in requesting Crown counsel lay charges against the same witnesses “for the purpose of preventing them from coming to Canada to give evidence in court”. The panel further held that the Appellant must be disbarred as a result of his misconduct and ordered him to pay the Law Society its costs of the hearing, which were fixed at $110,602.41.

On appeal, the Court considered at length the facts of the underlying action (O.E.X. Electromagnetic Inc. v. Coopers v. Lybrand, [1991] B.C.J. No. 3465) involving the two witnesses and the Appellant who acted as counsel for the plaintiffs. In that action, one of the witnesses deposed that he had previously been willing to “come to testify to all matters related to the said lawsuit” but had been intimidated by two letters written by the Appellant. As a result, the defendants’ motion to have the two witnesses examined under oath in the United States was granted, and the trial judge ultimately travelled with counsel to St. Louis, Missouri, where the witnesses were examined for four days. The trial judge concluded that the Appellant’s conduct amounted to an interference with the administration of justice in that his intimidation [of the two witnesses] prevented them from coming to Vancouver to give evidence and resulted in costs being wasted by the unnecessary trip to St. Louis. As a result, costs were ordered against the Appellant personally, on Scale 5.

Following the trial judge’s ruling, the Law Society wrote to the Appellant in October 1991, but did not proceed as litigation was ongoing, having received an undertaking from the Appellant not to raise delay as a defence. The Law Society issued a citation against the Appellant in November 1995, following the Court of Appeal’s decision on costs in the O.E.X. action.

The progress towards the hearing of the citation was slow as the two witnesses once again were unwilling to travel to Vancouver to give evidence. Ultimately, the panel took the commission evidence of the two witnesses in June 1999 and the hearing concluded in December of that year.

At the hearing, the panel did not find it necessary to rely on the uncorroborated oral testimony of the two witnesses but was satisfied that the Appellant’s letters had reached them and that their refusal to attend the trial was a result of those letters and the warnings conveyed by a Arkansas paralegal who had been instructed by the Appellant to determine whether charges “should be laid” in the United States against the two witnesses.

On appeal, the standard of review to be exercised is as stated in Pierce v. Law Society of British Columbia, [2002] B.C.J. No. 840, 2002 B.C.C.A. 251 (leave to app. ref’d [2003] S.C.C.A. No. 311), where the Court of Appeal cited and adopted the passage from Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748:

I conclude that the third standard should be whether the decision of the Tribunal is unreasonable. This test is to be distinguished from the most deferential standard of review, which requires courts to consider whether a tribunal’s decision is patently unreasonable. An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence. An example of the latter kind of defect would be a contradiction in the premises or an invalid inference …

In the final result, the standard of reasonableness simply instructs reviewing courts to accord considerable weight to the views of tribunals about matters with respect to which they have significant expertise.

Having seen the witnesses and heard the testimony, the panel had an advantage over an appellate court in assessing their evidence, and the panel’s findings of credibility are not to be interfered with unless they are shown to be unreasonable “in the sense of not being supported by any reasons that can bear somewhat probing examination”. The Court concluded that the panel was alive to the difficult issues of credibility in the case and carried out its own detailed analysis of the evidence. It therefore could not be said that the panel’s findings were unreasonable, contrary to the overwhelming weight of the evidence, or based on an erroneous assumption or inference. It could not be said that the panel’s findings of professional misconduct were unreasonable within the meaning of Southam or that they do not withstand a “somewhat probing examination”.

On the question of delay, the panel acknowledged that unreasonable delay “can in extreme cases amount to an almost irrefutable presumption of prejudice and denial of fundamental justice”. However, the delay in this case of 49 months between the citation in November 1995 and the conclusion of the hearing in December 1999 had occasioned “little or no prejudice” to the Appellant and that neither his rights under the Charter nor his rights to procedural fairness or natural justice had been breached. In the administrative law context, there must be proof of “significant prejudice which results from unacceptable delay” [Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307]. Upon review of the transcript evidence, the Court of Appeal did not read the evidence of the witnesses as being significantly weakened by the passage of time, at least on material facts. Even if one assumed that the Appellant’s s.7 Charter rights were engaged by reason of the seriousness of these proceedings for his professional future, it could not be said that the delay in the case was “clearly unacceptable” or caused significant prejudice in any other respect as to amount to an abuse of process.

The Court held, on the issue of penalty, that questions of this kind engaged the particular expertise (and discretion) of the tribunal and must be accorded particular deference in much the same way as sentencing decisions of a trial judge in criminal cases. Given the Appellant’s previous history of misconduct, it could not be said that the panel acted unreasonably in concluding that disbarment was warranted.

Finally, the question with respect to costs was whether the panel was clearly wrong or proceeded on a wrong principle in ordering that the Appellant pay the Law Society its costs of the hearing which were fixed at $110,602.41. Once the panel’s finding on the question of intimidation was sustained on the applicable standard, it must also be accepted that the costs incurred in taking evidence in the United States were the result of Mr. Ewachniuk’s conduct.

It was not unreasonable for the panel to conclude that his conduct (i.e. his attempted and actual intimidation of the witnesses) was reprehensible. The fact that the trial judge in the O.E.X. action awarded costs only on Scale 5 cannot bind the panel, when more is known about the Appellant’s role and when the tribunal is essentially providing “peer review”. Thus, although the Court concluded that the amount of costs claimed by the Law Society seemed high, there was no principled basis for the Court to interfere with the costs ordered.

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