Canada Accepts Florida And Illinois Findings In Reciprocal Discipline Matter

A Law Society of Upper Canada Hearing Division Panel has held that an attorney cannot challenge orders imposing professional discipline in Florida and Illinois.

Jussi Kustaa Kivisto is licensed to practise law in Ontario.  He was licensed to practise law in Florida and Illinois until he was disbarred in Florida and reciprocally disbarred in Illinois. The Law Society of Upper Canada seeks to rely on findings made in those discipline proceedings as part of its application for a finding that Mr. Kivisto engaged in conduct unbecoming a barrister and solicitor. The Law Society seeks to rely on six U.S. judgments from both Florida and Illinois (“the Foreign Decisions”). Those judgments are as follows:

(a)            Report of the Referee of the Supreme Court of Florida dated December 17, 2008;

(b)            Order of the Supreme Court of Florida dated September 28, 2010, Case No. SC07-2281;

(c)            Report of the Referee in the Supreme Court of Florida dated September 3, 2013, Case No. SC12-770;

(d)            Amended Order of the Supreme Court of Florida dated January 28, 2014, Case No. SC12-770;

(e)            Order of the United States Court of Appeals for the Seventh Circuit, Chicago Illinois, dated August 14, 2012;

(f)            Order of the Supreme Court of Illinois, dated September 20, 2011 collectively the “disbarment orders.”

The tribunal

This is the first time a panel of the Law Society Tribunal has considered the recognition of foreign judgments in support or in defence of a conduct application.  Both the Law Society and Mr. Kivisto request that the judgments that they seek to rely on be given preclusive effect before us.  To be clear, neither is saying that the judgments are to be enforced in Ontario, rather each asks that the findings of fact contained in those judgments be held to be preclusive of further dispute before this panel, once the judgments are recognized. 

In opposing recognition of the discipline judgments, Mr. Kivisto raises the defences of fraud, public policy and lack of natural justice in respect of all the judgments relied upon by the Law Society.  These defences will be explored in further detail below.  In the case of the judgments regarding the estates, the Law Society takes the position that there has been no proof that they are final and thus they cannot be recognized.

The rejected defenses

The defence of public policy requires that the foreign law be contrary to Canada’s view of basic morality.  The defence of public policy involves condemning the foreign law over which the judgment is based.  It is a remedy that is not issued lightly.  The fact that the law of the foreign court gives rise to a different or more harsh result, does not meet the public policy test in considering whether to recognize a foreign judgment.  In this case, Mr. Kivisto takes issue with the manner in which the judgments of Judge Moe and Judge Usan were drafted.  In accordance with Florida procedural law, Bar counsel prepared the initial draft of the Default Order and Final Report of Judge Moe.  There was no evidence regarding Judge Usan’s drafting of his report but given the practice in Florida, it may have been drafted by Bar Counsel.  Because Judge Moe and Judge Usan followed Florida procedural law, Mr. Kivisto’s argument also addresses public policy concerns.  The issue is considered below.

The third defence to the recognition of a foreign judgment is that the conduct in the foreign proceeding, or an element of the foreign proceeding, is contrary to Canadian notions of natural justice. The intention is not to replicate Canadian or Ontario procedure.  The domestic court must be satisfied that minimal standards of fairness have been applied to the parties.  The burden is on the party challenging the foreign judgment’s recognition to prove the unfairness in the foreign legal system.

The attorney’s effort to use other court pleadings to attack the findings was rejected.

The Law Society motion for recognition and preclusion in respect of those orders and findings identified in Schedule “C” of its Factum (“the Foreign Decisions”) is allowed.  Mr. Kivisto is barred from relitigating those findings.  The motion of Mr. Kivisto for recognition and preclusion of the estate orders (“the Probate Court Orders”) is dismissed.

(Mike Frisch)