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| John Hill |
In this hypothetical situation, damage was done because an authority trusted to perform a duty shirked a responsibility owed to the homeowner. It is like a situation in which the Correctional Service of Canada was successfully sued in Federal Court for failing to provide an inmate with proper fitting shoes, and the inmate injured himself because of the worn-out footwear (McMaster v. Canada, 2008 FC 1158). The civil suit was founded on a seldom-used tort called misfeasance in public office.
Now, consider a situation where the Law Society of Ontario (LSO), a pillar of our legal system, is potentially liable for misfeasance. This could occur when a complaint of possible criminal conduct is lodged against a licensee, and the LSO, for reasons unknown, delays the investigation. The potential legal consequences of such actions are not just significant, they are potentially devastating and should not be taken lightly.
The situation arises because of a complaint lodged against the firm of Nicholas Cartel. Cartel is married to Singa Bui, who is also a lawyer. They practised as partners in Cartel & Bui LLP. Since March 2023, it is undisputed that there were serious issues with monies held in Cartel & Bui’s trust account.
Cartel’s evidence is that he only learned of these issues in December 2023 and that his wife was responsible for the firm’s trust accounts. Cartel maintained that Bui practised separately under Cartel & Bui. Cartel had a class action practice, and Bui had a real estate practice. Bui was the firm’s managing partner. Cartel was a non-equity partner who assisted as asked but otherwise pursued his class action work, which had nothing to do with firm books, records and trust accounts.
On Nov. 22, 2023, a law society investigator demanded that Cartel co-operate with an investigation looking into allegations that he:
- mishandled trust monies;
- misled and failed to provide legal services to his client in accordance with the standards of competence and quality; and
- failed to respond to communications from another licensee substantively.
Ultimately, the Law Society Tribunal Hearing Division held Cartel responsible for mishandling about $2 million (Law Society of Ontario v. Nicholas Cartel, 2024 ONLSTH 40). It allowed a Mareva injunction to seize Cartel’s assets and issued an interlocutory suspension of his licence to practise. Cartel has filed an appeal.
By the time of the tribunal decision, it had been reported that there were eight more complainants.
CBC News reported on June 20, 2024, that had the law society acted immediately upon the initial complaint, the additional complainants could have avoided financial loss.
The public will likely respond by condemning all lawyers as crooks. Whether Cartel and Bui disrespected their position as lawyers will ultimately be decided by the administrative processes of the law society of Ontario.
However, there is a more significant issue at stake. The law society imposes onerous rules and regulations on its licensees. These are intended to protect the public and ensure the trust bestowed upon members of the bar is warranted.
Suppose the CBC is correct, and it took seven months for the investigative processes to operate, and additional clients were harmed because of that delay. Is this not eerily similar to the misfeasance of the Correctional Service of Canada in its delay in providing proper-fitting shoes to an inmate?
Perhaps this allegation of investigative delay should be investigated, and a retired judge should be commissioned to determine what action the Law Society of Ontario should take in the future to avoid such a scandal that is harmful to every member of the bar.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.
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