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Alleged Assaults Not Professional Misconduct

By Michael Frisch

The Ontario Law Society Hearing Division found that an attorney had engaged in misconduct by failing to return $2,000 in bond money after it was no longer needed.

The division rejected allegations that the attorney had engaged in misconduct in two alleged physical assaults.

As to one

The testimony of both KAZ and the Lawyer was generally consistent. We accept that the Lawyer touched KAZ during a physical interaction. We accept the evidence of the Lawyer that he was attempting to remove KAZ from his premises after KAZ arrived there, became angry, and swore. This is consistent with KAZ’s testimony that he showed up at the Lawyer’s office without an appointment, was angry, and may have sworn.

We find that the evidence of the witness CB was not credible as it was vastly different from the accounts of both KAZ and the Lawyer. In particular, CB’s testimony was different from KAZ’s own account of the physical interaction between him and the Lawyer.

We find on a balance of probabilities that there is evidence of physical interaction between the Lawyer and KAZ. We find that it was a minor incidental act stemming from a heated discussion and that the Lawyer was attempting to ensure that KAZ left his premises. We are of the view that the limited physical interaction with KAZ does not rise to the standard of professional misconduct.

CB was a legal assistant for another lawyer in the attorney’s building.

CB contended that she was assaulted

In addition to testifying about the incident with KAZ in July 2022, CB also testified regarding another incident between the Lawyer and herself that she said took place in November 2022.

CB testified that on November 1, 2022, she was told by the Lawyer that he was getting new potential cleaners in to see the building and get a quote. She testified that he asked her and another assistant to show them around. CB testified that she was asked to show the cleaners the second floor offices where she worked and then they would look at the third floor where his apartment was.
 
CB testified that she showed the cleaners the second floor and then took them up to the third floor. CB testified that the Lawyer wasn’t there so she left the cleaners up on the third floor and went down to the Lawyer ’s office, on the first floor, to let him know that the cleaners were waiting for him.
 
CB testified that when she told the Lawyer that the cleaners were waiting upstairs, he got upset and then aggressive. She testified that he said that he had told her to bring them back to the first floor. He then bumped his chest against her, pushed past her, grabbed her by the back of her hair and shoved her out of his office.
 
CB testified that she said nothing back. She testified that she felt vulnerable, scared, and confused because she did not understand what had happened, and concerned about whether the Lawyer was okay.
 
CB testified that shortly after the incident she checked back in on the Lawyer and asked him if he wanted a cinnamon roll. CB testified that he swore at her and that she was shocked and did not understand why she was being treated this way by the Lawyer.
 
CB testified that she told the Lawyer’s assistant what happened and then left. CB testified that as she was taking the stairs back to her office on the second floor, she ran into the Lawyer again. CB testified that he swore at her again, and then pushed past her on the stairs to get up to his apartment.
 
CB testified that she went back to her office in shock and spoke to some friends, who told her to call the police and to speak to her boss. She then went to see her own boss to tell him what happened. CB testified that she was crying and scared when speaking to him. She testified that her boss asked her to type up a statement, which she did, and then told her to go home for the rest of the day.

Same result as to second encounter

We found CB’s testimony about the assault of KAZ to be so contradictory and overstated that her overall credibility was impugned. CB’s description of that incident was completely inconsistent with the evidence of both the Lawyer and KAZ. As a result, we also prefer the evidence of the Lawyer as to the alleged assault on November 1, 2022.

We accept that CB entered the Lawyer’s office on November 1, 2022, not knowing about the crisis with his client, and not leaving when he requested her to.
 
We accept the testimony of the Lawyer that CB interrupted a stressful moment for him and did not leave despite forcefully being asked to.
 
We accept that the Lawyer then took physical action, by taking her arm and holding her head, to remove her from his office.

We find that on the balance of probabilities there was physical action taken against CB by the Lawyer. We find that the physical interaction from the Lawyer to remove CB took place after verbal attempts to get her to leave the office, and while the Lawyer might have taken other steps, the limited physical action that he did take does not rise to the level of professional misconduct.

A penalty hearing will be set on the return of bond finding. (Mike Frisch)

Posted in:
Bar Discipline & Process