A Marked Departure
The Law Society of British Columbia Hearing Panel found misconduct in a threatening communication in an adoption matter.
The conduct at issue in this case arose during the Respondent’s representation of the foster parents of a child of Métis heritage who retained him after the Director of Child, Family and Community Services (the “Director”) refused to consent to the foster parents’ adoption of SS. What followed was difficult and protracted litigation during which the Respondent wrote to counsel for the Director to make a proposal that, if accepted would secure a settlement of the dispute in favour of the foster parents. The Respondent’s decision to send the letter and whether it constituted an improper threat for an improper purpose is the focus of the citation that was authorized on April 5, 2018 and issued on April 17, 2018.
The communication
We note that the Letter sets out the following, in the order in which they occur in the Letter:
(a) “[Social worker 1] has lied in her Court of Appeal affidavit”;
(b) The Respondent has reviewed the Official Transcript and points to specific instances where [social worker 2] used the terms “mommy” and “daddy” in referring to the Ontario Adults. This is inconsistent with the sworn affidavit of [social worker 1] in which she says [social worker 2] did not use these terms;
(c) The Respondent, in referring to the Official Transcript, then refers to [social worker 1] using the terms “mommy” and “daddy” with regard to the Ontario Adults. This is inconsistent with [social worker 1’s] sworn affidavit.
(d) “[Social worker 3] also clearly misled the Court of Appeal in her August 8, 2016 affidavit”;
(e) “I also note that [social worker 2] also swore a false Affidavit on August 23, 2016 in the proceeding initiated by the Birth Parents”;
(f) “Given the foregoing evidence of perjury by 3 social workers …”;
(g) “Should the contested litigation continue, appropriate sanctions may be appropriate against the 3 social workers and the Director”;
(h) “I have instructions from my clients, counsel for the Birth Parents, and the President of the BC Métis Federation, that if the Director is prepared to consent to my clients adopting SS…”.
In our view, the plain reading of the letter is that social worker 1 “lied” in her affidavit filed in the Court of Appeal, social worker 3 “misled the Court of Appeal” in her affidavit, and social worker 2 swore a “false affidavit” in the Petition No. 3 proceeding. The Respondent had access to a transcript prepared by a Court Reporter. The reference to the Court Reporter, to the reasonable reader, necessarily implies that this is a transcript that is certified to be accurate by a Court Reporter. This gives the transcript an “official” status. The Official Transcript then forms “evidence of perjury”. The Letter is clear in stating the Respondent possesses evidence by way of the Official Transcript that the three social workers have lied, misled or sworn a false affidavit with regard to affidavits sworn and filed in court dealing with material facts. That this evidence is evidence of “perjury” and that “appropriate sanctions may be appropriate against the 3 social workers and the Director” unless the Director consents to the Foster Parents adoption of SS within one and a half days of the sending of the Letter.
NG had communicated with the Respondent that the earlier draft versions of the Letter might be considered blackmail. If blackmail is demanding something from another in exchange for not revealing information, concerns about blackmail can be considered prophetic. What the Respondent does say to the Director, through her counsel, is: regardless of your statutory duty to act in the best interests of SS you will consent to the Foster Parents adopting; otherwise I will use the Official Transcript to show your three social workers have perjured themselves.
While counsel for the Respondent spent some time in submissions addressing whether or not the offence of perjury could be proved against the three social workers, or if the offence would even be charged by Crown Counsel, the evil sought to be addressed by Chapter 3.2-5 is making the threat to commence a criminal or regulatory proceeding to gain a benefit. The reasonable reader would find that, on the balance of probabilities, the Letter was an attempt to induce the Director to consent to the adoption of SS by the Foster Parents or steps would be taken to have the social workers charged criminally.
Based upon the analysis in the Harding review, the Respondent’s use of the Letter was an escalation and a use of language to induce the Director to do something she could not: that is, consent to an adoption in circumstances where she was not satisfied that the adoption of SS by the Foster Parents was in the best interests of the child
His explanation
This was the background to my September 5 letter. I had by that time spent over 500 hours working on my clients’ case, many of those hours at a discounted hourly rate. I was emotionally involved in my clients’ cause and passionately believed it was in S.S.’s best interests to reside with my clients and that the Ministry and the bureaucracy were unfairly and mistakenly acting contrary to her best interests. In my letter, I wanted to disclose the fact of the recording while protecting my clients by not disclosing the actual transcript or recording.
At the time, I thought my letter was within the bounds of proper settlement negotiations. I was attempting to reach a fair settlement by using the fact that if the proceedings went to trial, the social workers’ misconduct would likely be exposed. I saw my efforts as being no different to using similar tactics to persuade any other party to litigation to settle to avoid public expose [sic] at trial of their misconduct or dishonesty.
(Mike Frisch)