Court found regulator committed several errors in citing Ahmadian for misappropriation of funds
The British Columbia Court of Appeal set aside the Law Society of British Columbia’s decision against Bijan Ahmadian, who was alleged to have misappropriated trust account funds. In the BCCA ruling, the court found that the LSBC made several errors in prosecuting the case.
Ahmadian argued that the panel created an unfair process by not allowing him to answer the case against him. The court agreed, dismissing one allegation of professional misconduct and setting aside the panel’s decision, ordering the case to return to the LSBC discipline committee.
In the decision, Justice Willcock wrote, “the Panel did not appropriately weigh the gravity of the breaches and the appellant’s state of mind and, as a consequence, erred in assessing the resulting harm to the integrity of the legal profession and the administration of justice.”
Seven allegations of professional misconduct were set aside, and one allegation was dismissed. The LSBC declined to comment.
“During the discipline process, I admitted to certain failings,” says Bijan Ahmadian, an associate at Wiebe Wittman Robertson LLP. “I also believed that the law society treated me unfairly in ways that were precedent-setting. I felt it was important, for the good of our profession and the public, that the Court of Appeal looked at those errors. I think it was worth doing because the Court of Appeal made a decision that I believe will improve the administration of justice in the legal profession in the future. I'm grateful to my family, my friends, my lawyer and many others for supporting me.”
In 2019, the LSBC conducted a compliance audit for Bijan Law Corporation and identified “trust shortages, funds borrowed from clients, and noncompliance with trust accounting requirements.” In 2021, the LSBC issued a citation against Ahmadian, alleging he improperly withdrew funds from trust accounts, failed to report and eliminate trust shortages, failed to maintain proper accounting records, borrowed a total of $270,000 from two clients, breached an undertaking and issued trust cheques with insufficient funds.
In 2022, Ahmadian wanted to submit expert evidence from Kent Wiebe to testify about the standard of practice for a real estate lawyer in BC.
In the BCCA decision, Justice Willcock wrote that how the LSBC dealt with the evidence was “problematic.” Counsel for the LSBC argued that Wiebe’s experience was “completely irrelevant and usurps the panel’s role in this matter.” While Wiebe was allowed to testify, the panel ruled his testimony was inadmissible due to “insufficient notice and lack of information such as a curriculum vitae to establish his expertise.”
In the BCCA decision, Justice Willcock pointed out how the LSBC panel knew it was required to determine whether Ahmadian’s conduct constituted a marked departure from professional standards in practice but still did not accept expert evidence on what is acceptable practice. Justice Willcock wrote “in fact, it excluded such evidence when proffered by the appellant.”
The BCCA also found the LSBC’s treatment of Ahmadian’s medical evidence was problematic. Ahmadian was diagnosed with a depressive disorder and an anxiety disorder and wanted to submit testimony from his family physicians about how his illness was affecting his decision-making. Even though the LSBC panel concluded Ahmadian’s state of mind is relevant, it determined the medical evidence was irrelevant and said that Ahmadian’s family physicians are not mental health professionals.
In April 2023, the LSBC panel concluded that Ahmadian had committed professional misconduct in seven allegations and committed a rules breach in one allegation. Ahmadian appealed.
The BCCA found that the LSBC erred in excluding the medical and Wiebe’s evidence. In paragraph 72 of the decision, Justice Willcock wrote, “in my view, it cannot be said that Mr. Wiebe’s opinion evidence with respect to the mechanics and practice surrounding conveyance of real property would have been of no assistance to the Panel.”
Regarding the admissibility of the medical evidence, the court noted how cases where the law society had considered medical evidence involving mental health were submitted by Ahmadian. The LSBC panel chose to rely on different cases presented by law society counsel, such as the 2021 case Law Society of B.C. and Gregory. In this case, the respondent had chronic mental health issues but admitted that those issues did not affect his decisions.
The BCCA found relying on the Gregory case was inappropriate. "The decisions relied upon by the Law Society are not particularly helpful in identifying circumstances in which evidence of mental health issues is relevant to the misconduct inquiry.” The LSBC acknowledged that viewing the family physicians as not mental health professionals was a mistake.
“With respect to mental health issues, the court made two things quite clear,” says Ahmadian. “Firstly, evidence of mental health is relevant to assessing the conduct of lawyers, and secondly, evidence from a family physician should not be ignored simply because they are not a ‘mental health professional.’”
One of the issues Ahmadian fought was the characterization of his actions were misappropriation. In the citation, Ahmadian was alleged to have violated Rule 3-64(3), which states, “no payment from trust funds may be made unless there are sufficient funds held to the credit of the client.” The BCCA found that while funds were authorized to be withdrawn from the trust account with insufficient funds, there was no withdrawal of funds or misuse of funds. Justice Willcock also cited the definition of misappropriation used by the LSBC to include “takes funds for a purpose” and that Ahmadian had not done so, thereby striking down the allegations of using misappropriated funds.
For one of the allegations, the BCCA found the panel erred in equating that a potential breach was a minor breach, and it was dismissed. Justice Willcock wrote, “the fact the breach had not yet occurred did not reduce it to a “minor breach.”
Based on the 2019 compliance audit, the LSBC issued a second citation against Ahmadian in 2022, not before the BCCA. The allegations are professional misconduct around trust accounts and representing clients where there is a conflict of interest. Ahmadian had asked the LSBC to consolidate the citations but was unsuccessful. The facts and determination hearing for the second citation will be held in January.