Delay Does Not Justify Dismissal
The Law Society of British Columbia Hearing Panel rejected a claim of delay as a basis for dismissal
Mr. Zoraik was convicted in 2010 of public mischief and fabrication of evidence in relation to the fabrication and delivery to the Victoria courthouse of a letter that falsely alleged jury tampering in a matter where Mr. Zoraik was counsel for the plaintiff. Mr. Zoraik admits this allegation and admits that it constitutes professional misconduct. The sole remaining issue is the impact, if any, of the delay between the commencement of the Law Society investigation into this matter and the hearing of the citation. In particular, Mr. Zoraik alleges that he is entitled to a stay of the disciplinary proceedings due to unreasonable delay.
The crime
In April 2009 Mr. Zoraik acted for the plaintiff in a personal injury lawsuit. This was a jury trial where liability was contested. On April 28, 2009 the jury returned a verdict for the defence, after about 20 minutes of deliberation. That same day Mr. Zoraik, on behalf of the plaintiff, applied to set aside the verdict due to the brevity of the deliberations. That application was adjourned to May 13, 2009 and later to July 30, 2009.
On May 6, 2009 an envelope was placed on a counter in the Sheriff’s office at the Victoria courthouse. The envelope contained a letter purportedly written by the husband of a juror who claimed that his wife, the juror, had been offered money for her vote. The allegations in the letter were false. Mr. Zoraik was the author of the letter and placed the letter in the Sherriff’s office.
Mr. Zoraik was interviewed by Victoria police on June 18 with respect to the letter. He feigned any knowledge of the letter. He then sought to obtain the Victoria police file with respect to the matter, ostensibly for use in his application to set aside the jury finding. In the Agreed Statement of Facts filed in this matter, Mr. Zoraik agrees that he knew that the letter was likely to become evidence in the application to set aside the jury finding, and he agrees that he sought to have the court rely on the letter.
Why did it take so long?
The first step in this analysis is to determine whether there has been an excessive delay. Mr. Zoraik asks that we consider the time from the beginning of the Law Society investigation (July 2009) until the conclusion of this hearing in July, 2017. It is not, however, that simplistic an exercise. Without engaging in the sort of “complicated micro-counting” that the SCC in Jordan seeks to avoid, it is still necessary to highlight some of the important facts of this case, in order to deal with the question of delay in context…
With regard to the time this matter took from the conclusion of the BC Court of Appeal decision through to the hearing of the new citation, while we have avoided micro-counting and assigning blame, we have carefully looked at this time period to determine if it reaches the level of excessive in the circumstances. It is our view that the Law Society dealt with the matter appropriately from a time perspective. Periods of time lapsed while awaiting Mr. Zoraik’s counsel to respond to communications from the Law Society. The Law Society granted appropriate accommodations to both requests for time and delayed responses from a busy senior practitioner. Some time was spent sorting through procedural new territory. Mr. Zoraik is critical of this and critical of the fact that his counsel was asked to respond to proposals regarding the procedural issues, but we do not accept that any of the requests made of him or input sought from him inappropriately caused delay. Importantly, there were no periods where the matter simply lapsed, no extended periods with no activity or where nothing was happening to move the case along. To borrow from Jordan, a culture of delay was not at play.
There was no prejudice and thus
Having heard submissions from counsel for the Law Society on the two options for adverse determination proposed in the citation, namely professional misconduct or conduct unbecoming a lawyer, having been apprised of the agreement from counsel for Mr. Zoraik that, subject to his arguments on delay, the facts support a finding of professional misconduct, and having declined to dismiss the citation based on delay, we make an adverse determination of professional misconduct. Mr. Zoraik’s conduct was a marked departure from that the Law Society expects from lawyers (the test for professional misconduct oft cited from Law Society of BC v. Martin, 2005 LSBC 16 (CanLII)).
A disbarment for the misconduct was set aside in 2015.
Commentary on the decision from theCourt.ca. (Mike Frisch)