Anhang v. Law Society of Manitoba, (2014) 308 Man.R.(2d) 33 (QB)

• Judge: McCawley, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: June 30, 2014
• Jurisdiction: Manitoba
• Citations: (2014), 308 Man.R.(2d) 33 (QB);2014 MBQB 140

Anhang v. Man. Law Soc. (2014), 308 Man.R.(2d) 33 (QB)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. JL.036

Abraham Anhang (applicant) v. The Law Society of Manitoba (respondent)

(CI 13-01-84659; 2014 MBQB 140)

Indexed As: Anhang v. Law Society of Manitoba

Manitoba Court of Queen's Bench

Winnipeg Centre

McCawley, J.

June 30, 2014.

Summary:

Anhang, called to the Manitoba bar in 1964, was disbarred in 2002. The Discipline Committee had found that, for a period of over 18 months, Anhang had breached his duty to act with integrity, had misappropriated clients' trust funds and had charged and appropriated fees which were not fully disclosed. The Committee found there were no special or exceptional circumstances to explain Anhang's misconduct. Following his disbarment, Anhang made restitution and paid the costs awarded against him. In 2011, Anhang applied for readmission as a member of the Law Society, and undertook not to apply for a practising certificate. After a hearing, another Panel of the Discipline Committee declined to reinstate Anhang. The Panel determined that Anhang had not demonstrated genuine remorse, and that his reason for seeking reinstatement was to justify his misconduct. Anhang applied for judicial review.

The Manitoba Court of Queen's Bench dismissed the application. Anhang had failed to demonstrate that the decision of the Panel was unreasonable. Similarly, he had failed to show that the decision was procedurally unfair and therefore incorrect.

Barristers and Solicitors - Topic 5423

Discipline - Reinstatement - Considerations - The applicant was disbarred in 2002 - In 2011, he applied for readmission, and undertook not to apply for a practising certificate - The Discipline Committee (the Panel) of the Law Society of Manitoba decided not to reinstate the applicant - The Panel concluded that the applicant did not meet the requirements of the first element of the Watt test for reinstatement (the reasons for requesting reinstatement), because his reasoning was "purely self-interest" and "shallow" - The Panel found that the applicant wanted to be able to say he was a lawyer on the rolls of the Law Society and that he wanted his grandchildren to see that he was a lawyer on the rolls - The Panel also observed that this was not a case where the applicant had suffered a monetary hardship - The applicant sought judicial review - The Manitoba Court of Queen's Bench was satisfied that the first element of the test for reinstatement was reasonable and reasonably applied - The Court rejected the argument that the way in which the Panel applied the test meant that only people who had no personal interest in applying for reinstatement would qualify - Similarly, to make the observation that monetary hardship was not a factor in a given case did not imply that absence of monetary hardship or financial self-interest would disqualify an applicant or be a negative factor as was suggested - See paragraphs 32 to 44.

Barristers and Solicitors - Topic 5423

Discipline - Reinstatement - Considerations - Following a hearing in 2002, the applicant was disbarred as a barrister and solicitor - The Discipline Committee (the Panel) of the Law Society of Manitoba found that the applicant had breached his duty to act with integrity, had misappropriated clients' trust funds and had charged and appropriated fees which were not fully disclosed - In 2011, he applied for readmission, and undertook not to apply for a practising certificate - Another Panel was unanimous in its decision not to reinstate the applicant - On judicial review, the applicant argued that the Panel unreasonably omitted the supportive evidence of trustworthy persons - The Manitoba Court of Queen's Bench disagreed - What the applicant was really saying was that the Panel failed to give that evidence the weight he felt it deserved - In assessing the weight, it was quite proper for the Panel to take into account that some letters of support were written as if the applicant were going to resume practice, and that one letter of support, from a close personal friend, disclosed that he was unaware of the circumstances resulting in the disbarment - The weight to be given to the letters was well within the Panel's purview and should not be re-weighed - The Panel found that the applicant's own evidence and behaviour at the hearing fell short of the standard required for readmission to the profession - It was entitled to place considerable reliance on that finding - See paragraphs 45 to 50.

Barristers and Solicitors - Topic 5423

Discipline - Reinstatement - Considerations - The applicant sought judicial review of a decision of the Discipline Committee (the Panel) of the Law Society of Manitoba denying his application for reinstatement as a member - He had been disbarred in 2002 - He had breached his duty to act with integrity, misappropriated clients' trust funds, and had charged and appropriated fees which were not fully disclosed - The applicant referred to his misconduct as being attributable to external influences, sloppiness and a mistake - The Panel found that the applicant was attempting to have his name reinstated as a means to justify his past actions - On judicial review, the applicant argued that the fact that he never resiled from his admission of guilt should have been viewed as a mitigating factor - The Manitoba Court of Queen's Bench agreed with the Panel's assessment that the applicant "fell far short" of the requirement most critical to his application - "It would be wrong to conflate an admission of guilt and contrition" - The applicant's willingness to admit his guilt at the reinstatement hearing was "seriously deficient" - As well, his ability to demonstrate sincere remorse and show contrition was "sadly lacking" - None of the applicant's testimony or conduct before the Panel reflected the kind of acknowledgement for past wrong doings and sincere remorse which one reasonably would expect - See paragraphs 51 to 54.

Barristers and Solicitors - Topic 5423

Discipline - Reinstatement - Considerations - The applicant was disbarred - Some 10 years later, his application for reinstatement was denied by the Discipline Committee (the Panel) of the Law Society of Manitoba - The Panel expressed concern that the lawyer who had chaired the Panel that disbarred the applicant had written a letter in support of his reinstatement (tendered in evidence by the applicant and admitted by consent) - The Panel stated that this made assessing the weight to be given to the letter "problematic" and found that "to some degree [it] compromised the process" - On judicial review, the applicant argued that the Panel's failure to advise him about those concerns resulted in a procedural unfairness - The Manitoba Court of Queen's Bench held that the Panel dealt with the letter appropriately and reasonably, and there was no resulting procedural or other unfairness - To suggest that the Panel was obligated to raise a concern about any piece of evidence that might be "problematic" and therefore provide the applicant with an opportunity to make submissions, would be impractical and contrary to well established procedure - The letter was considered and accorded the weight the Panel felt it deserved, which was well within the Panel's purview to do - See paragraphs 55 to 59.

Barristers and Solicitors - Topic 5423

Discipline - Reinstatement - Considerations - The Discipline Committee (the Panel) of the Law Society of Manitoba was unanimous in its decision not to reinstate the applicant as a member of the Law Society - On judicial review, the applicant argued that, with respect to the public's view, since all of the letters before the Panel were in support of his reinstatement, and the Law Society maintained a neutral position, it was unreasonable for the Panel to find that the public would not condone reinstatement - The Manitoba Court of Queen's Bench stated that the argument "erroneously implies that the letters of support alone were sufficient to justify reinstatement in the absence of formal objection. Clearly that is not the case, and all of the evidence must be considered as a whole, which the Panel did." - Among other things, the Panel found that: (1) the applicant's reasons for requesting reinstatement were not convincing; (2) it was not satisfied that the applicant had purged his guilt or demonstrated remorse; (3) the Panel was not satisfied that the applicant had accepted responsibility for what he had done; and (4) it was necessary to deny reinstatement in order to maintain the reputation of and sustain public confidence in the integrity of the legal profession - See paragraphs 63 and 64.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 25].

Prairie Coach Charter Services Ltd. v. Motor Transport Board (Man.) (2012), 284 Man.R.(2d) 28; 555 W.A.C. 28; 2012 MBCA 95, refd to. [para. 26].

Guttman v. Law Society of Manitoba (2010), 255 Man.R.(2d) 151; 486 W.A.C. 151; 2010 MBCA 66, refd to. [para. 27].

Halifax (Regional Municipality) v. Canada (Minister of Public Works and Government Services), [2012] 2 S.C.R. 108; 431 N.R. 10; 2012 SCC 29, refd to. [para. 28].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 29].

Clifford v. Ontario (Attorney General) et al. (2009), 256 O.A.C. 354; 2009 ONCA 670, refd to. [para. 30].

Watt v. Law Society of Upper Canada, 2004 ONLSHP 3, refd to. [para. 32].

Bolton v. Law Society, [1994] 2 All E.R. 486; [1994] 1 W.L.R. 512 (C.A.), refd to. [para. 35].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 49].

Statutes Noticed:

Law Society of Manitoba Rules - see Rules of the Law Society of Manitoba.

Rules of the Law Society of Manitoba, rule 5-102 [para. 24].

Counsel:

Jonathan B. Kroft and Andrew Boumford, for the applicant;

Leah C. Kosokowsky, for the respondent.

This application was heard before McCawley, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment, dated June 30, 2014.