A retired lawyer is fighting to have the Law Society of New Brunswick reimburse more than $170,000 he spent in legal costs to clear his name.
After a years-long legal battle that forced him into early retirement, Shawn O’Toole was awarded just $2,500 in costs against the provincial regulator by a law society panel — an amount far shy of what he spent to prove his innocence.
The law society launched disciplinary proceedings against O’Toole in 2011, which concerned four charges of misconduct. A client had alleged they had no recollection of signing documents that O’Toole had witnessed. The documents executed the transfer of a marital home to a spouse, and the client claimed they had not attended his office to sign them.
Three of the charges were withdrawn and O’Toole was found not guilty of the final charge at a hearing years later.
“It’s been quite a battle,” says O’Toole.
The New Brunswick Court of Appeal recently allowed an appeal O’Toole brought challenging the costs award of $2,500. The court sent the matter back to a new panel of the law society’s discipline committee to be reassessed.
The Court of Appeal found that the law society’s conduct arguably rises to that level of being “reprehensible, scandalous or outrageous,” but that it will be up to a new panel to determine.
O’Toole believes he is the first person to have ever received costs from the New Brunswick law society, and the provincial regulator’s executive director, Marc Richard, confirmed that was the case. Richard says it was also the first time the law society was unsuccessful in a discipline matter and a whole case was dismissed.
The Court of Appeal dismissed O’Toole’s appeal concerning costs for the three charges that were dismissed citing jurisdictional issues, but the former lawyer does not think this will affect his ability to retrieve the entirety of the amount he says he is owed.
He says court rules in New Brunswick hold that “you are still entitled to costs even if your case was dismissed on a jurisdictional basis.”
Richard, however, says that his interpretation of the Court of Appeal’s decision is that O’Toole may not be entitled for the costs for the three charges that were dropped before his hearing.
“The Court of Appeal seems to indicate that the costs can only be assessed if a member has been found not guilty of a charge [and] there is one charge that the member has been found not guilty [as] the other ones did not proceed to a hearing,” he says.
No date has been set yet for a new hearing, but Richard says the new panel will be convened of entirely different members than were involved in the past decision.
The Court of Appeal provided some guidelines for the panel to follow, but Richard says it will be up to the discipline committee to follow them.