Montreal lawyer behind racial profile class action struck off the roll for 45 days

A Montreal lawyer who is one of the driving forces behind a racial profiling class action seeking $171 million in damages has been struck off the roll for 45 days by the Quebec legal society disciplinary council for failing to take into account the best interests of his client in a medical malpractice suit.

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Administrative adjudicators can be removed from cases in deliberation, rules court

In an unusually public and legal tiff between two arbiters of Quebec’s disciplinary process, Quebec Superior Court ruled that the chair of Quebec’s disciplinary council of presidents has the power to remove cases, even in deliberation, from administrative adjudicators who take too long to render judgment.

The precedent-setting ruling, the first that examined the scope of powers in the hands of the chair, follows in the footsteps of a pan-Canadian trend by the courts to hold that the long-standing principle that adjudicators decide must give way to timely decision-making to ensure access to justice, respect for natural justice and the protection of the public, according to disciplinary law experts.

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Canadian Judicial Council should hold two separate inquiries into conduct of Quebec judge, say experts

An inquiry committee by the Canadian Judicial Council that will determine whether the alleged misconduct of a Quebec Superior judge warrants removal from office should conduct two independent inquiries to examine the two sets of allegations against him, according to judicial ethics experts.

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Quebec Court of Appeal sanctions judge

A Quebec judge who refused to hear a quarrel between neighbours and emphatically insisted that they negotiate a settlement before adjourning without cause a hearing over which he should have presided the same day has been sanctioned by the Quebec Court of Appeal.

The 66-page ruling in Bradley (Re), 2018 QCCA 1145 reveals the need for the Quebec government to increase options available to the appellate court and the Quebec Judicial Council to deal with judicial misconduct of a provincially appointed judge, and for the council itself to enact changes to enhance procedural fairness, according to judicial ethics experts.

“The first takeaway from the ruling is that the realm of judicial ethics is evolving, and in certain regards it is still seeking to find the boundaries of its application such as what are the criteria that justify removal as opposed to a reprimand,” noted Pierre Noreau, a law professor at the Université de Montréal and co-author of “Applied Judicial Ethics.”

Court of Quebec Judge Peter Bradley got himself into trouble after he refused to hear a dispute between two neighbours over $472.45 worth of damage to a fence on January 2015. Judge Bradley, presiding over municipal court, strongly beckoned the neighbours to settle the case, without hearing any evidence. But when the neighbours refused and insisted on having the hearing proceed, Judge Bradley dismissed a request for the filing of a document, adjourned the case and recused himself from the case.

The plaintiff then lodged a complaint before the judicial inquiry committee over the judge’s refusal to hear the matter, his insistence to negotiate a settlement, and his sharp and hostile tone during the proceedings. The majority of an inquiry committee of the Quebec Judicial Council recommended in 2017 Judge Bradley’s dismissal.

Judge Bradley sought a judicial review, defended his stance and essentially attacked the validity of the proceedings, arguing that because the decision to adjourn the hearing was a judicial act it was not subject to disciplinary review. He also contested the make-up of the inquiry committee for including non-judges and a member of the public, took issue with the fact that some of the inquiry’s committee members were not required to swear an oath guaranteeing their independence and impartiality, and argued that the inquiry committee’s decision was unreasonable. Moreover, Judge Bradley alleged a violation of procedural fairness. He maintained that the possibility that he could be dismissed from office was never debated before the inquiry committee. He also argued that under the new Code of Civil Procedure (Code), a judge has the power and duty by law to seek conciliation between the parties.

The majority of the five-judge panel of the Quebec Court of Appeal dismissed Judge Bradley’s application for judicial review and found that Judge Bradley unduly pressured the parties to settle their dispute, adjourned without cause a hearing, and breached his duty of courtesy due to the tone and nature of his remarks. His misconduct breached sections 1, 6 and 8 of the Judicial Code of Ethics.

But the appeal court also held that a recommendation for dismissal made by the majority of the inquiry committee was too harsh even though Judge Bradley was reprimanded by the judicial council for a similar transgression in 2014.

Heeding guidance from the Supreme Court of Canada in Therrien, (Re), 2001 SCC 35, Quebec Court of Appeal Chief Justice Nicole Duval Hesler wrote that “it must therefore be concluded that breaches of ethics subject to a reprimand can reach a certain level of seriousness without reaching a level which would prevent a judge from making amends and remaining in office. Such is this case.”

In a sharp and biting dissenting opinion Appeal Court Justice Allan Hilton would have recommended to the Quebec Minister of Justice that Judge Bradley be removed from office. “The inevitable effect of the majority opinion will be properly perceived as giving more emphasis to the interests of the judge than to the restoration of public confidence in the administration of justice, which should be the Court’s overriding concern,” said Justice Hilton.

Emmanuelle Bernheim, a law professor at the Université du Québec à Montréal and co-author of “Applied Judicial Ethics,” said that Justice Hilton’s dissenting opinion and conclusions raise legitimate concerns. “What is at stake here is how the public will perceive this decision because Judge Bradley was already reprimanded before for the same kind of conduct, and so it puts into question how the current system is able to adapt to these situations,” said Bernheim.

In all fairness, point out both Bernheim and Noreau, the appeal court and the inquiry committee were hampered by Quebec legislation. With the exception of New Brunswick and Quebec, legislation in other provinces provide for greater options to deal with judicial misconduct of a provincially appointed judge. In Quebec, the Courts of Justice Act provides for only two sanctions – a reprimand or removal from the bench.

“There is certainly place for more options,” noted Noreau. “Increasing the options available such as intermediary sanctions between a reprimand and removal is an avenue that must absolutely be explored.”

So too should Quebec appeal court’s Justice Marie-France Bich’s suggestion to split the inquiry’s committee hearings in two so that the question of misconduct is dealt with separately from the sanction, added Bernheim.

“It is fundamentally unfair to ask someone who has not yet been declared of any offence whatsoever (criminal, penal, disciplinary or ethical) to make necessarily speculative submissions respecting a sanction that could be imposed in the event that person were found guilty,” wrote Justice Bich.

Bernheim believes that is a welcome suggestion that should be applied to cases where the inquiry committee recommends removal from office.

“The Judicial Council very rarely recommends removal so there is little case law,” said Bernheim. “Is this something the Council should consider? Absolutely. It would be very rewarding for the inquiry committee to hold debates on these matters.”

Quebec appeal court rebukes trial judge over stereotypical attitudes towards sexual assault

The Quebec Court of Appeal admonished a trial judge who acquitted a father accused of incest for holding biases and stereotypes over the way a sexual assault victim should behave.

The appellate court, in a brief but unusually blunt and forceful six-page ruling, ordered a new trial against a father who allegedly assaulted his daughter for a 16-year period, from the age of nine until 25. She came forward in 2010 when she was an adult and while living with her parents.

On February 10, 2017, Court of Quebec Judge Denis Mondor acquitted the father in an oral ruling so incoherent, so void of reasoning that “it is at best difficult to understand what the judge means,” said the three-judge Court of Appeal panel in J.F. c. R., 2018 QCCA 986. “It is not clear why a deliberation of more than eight months could lead to such confusion.”

The appeal court could only infer that Judge Mondor believed that the complainant did not explain why she waited to denounce her aggressor even though she testified that she wanted to spare her mother from the suffering she was going through.

The appeal court also inferred that Judge Mondor was surprised by the amount of time it took the alleged victim to file a complaint because of her “behaviour and personality.” They also deduced that Judge Mondor was yet again surprised that the complainant accompanied her father to concerts or vacations even though she alleged her father assaulted her. The appeal court noted that Judge Mondor acknowledged that some victims take time to denounce sexual assaults but point out that Judge Mondor found it difficult to reconcile the length of time she took to come forward with her personality.

“In all likelihood, this conclusion also stems from preconceived ideas that victims of sexual assault should have a different behaviour,” found the appeal court. “The conclusion that it is incoherent that the complainant continued to share such moments with her father rests on preconceived ideas.”

Judge Mondor also found it “contradictory and disturbing,” as the appellate court put it, that the complainant did not warn her younger sister about her father – a position the appeal court found to be anchored by yet another preconceived notion on how victims of incest ought to behave.

Judge Mondor, a former Montreal criminal defence lawyer who headed the Barreau du Québec in 2004-2005, also stated in his oral ruling that the “simple solution” for the alleged victim was to leave home because she was financially independent.

The appeal court, heeding guidance by the nation’s highest court in R. v. D.D., [2000] 2 SCR 275, underlined there is “no inviolable rule” on how people who are the victims of trauma like a sexual assault will behave. The appeal court concluded that the “expectations expressed by the (trial) judge are based on stereotypes or generalizations tainted by prejudices.”

Another Court of Quebec judge, Jean-Paul Braun, landed in hot water last year after suggesting in a sexual assault case that a 17-year-old girl who was kissed and groped by a taxi driver was probably “a bit flattered” by the gesture. Judge Braun, presiding over the trial of the 49-year old taxi driver on May 2017, also commented on the victim’s appearance, stating that she was a “little overweight but has a pretty face.” The Quebec judicial council, the Conseil de la magistrature, has launched proceedings to determine if Judge Braun breached the code of conduct.

It remains to be seen if Judge Mondor will be the subject of an inquiry by the Quebec judicial council.


Here are  passages from Judge Mondor’s oral ruling on the case:

“Le Tribunal s’interroge également sur comment tout à coup à vingt-trois (23), vingt-quatre (24) ans, vingt-quatre (24) ans, vingt-cinq (25) ans, adulte, diplômée, indépendante d’une certaine façon, frais assumés en grande partie par la famille, dispute sur un remboursement de prêt et bourse qui aurait fait en sorte de la cloîtrer, de faire en sorte qu’elle se serait retrouvée prisonnière encore du père qui, lui, continue ou aurait continué ou venait d’arrêter quand, tout à coup, solution simple qui aurait pu se présenter, autonomie, je quitte cet endroit, je n’accepte plus que les choses se passent, mais plus loin encore, plus loin encore.

“Comment expliquer et comment voir qu’ayant été, elle, agressée de façon continue pendant ces années, comment ne pas, à un moment ou à un autre, avoir été inquiétée ou s’avoir inquiétée, n’avoir pas perçu qu’il se pouvait, parce que, dit-elle, lorsqu’ils étaient en vacances, elle privilégiait de coucher avec son père dans la chambre commune qu’ils partageaient, pour éviter qu’il arrive quoi que ce soit à sa jeune soeur ou même à son jeune frère, comment le Tribunal ne peut, ne voit ou ne peut suivre ou ne peut arriver à trouver de cohérence dans la situation, de ne pas avoir été inquiétée, de ne plus subir ou ne plus avoir, elle, à vivre cette situation-là quand elle a une jeune soeur de huit (8) ans, neuf (9) ans son aînée. C’est pour le Tribunal une situation très inquiétante qui amène et qui entache ou qui vient entacher une fiabilité du témoignage que le Tribunal n’arrive pas à situer ou à supporter dans le récit que X fait de ces événements-là.

[…]

“X dira et maintiendra dans son témoignage qu’elle a toujours voulu épargner à sa mère cette difficile réalité qu’elle vivait. Elle n’explique pas comment tout à coup, à vingt-quatre (24) ou vingt-cinq (25) ans, il n’y en a plus, il n’existe plus. Il n’y a pas de situations aussi graves et importantes qui se continuent avec elle, c’est-à-dire d’avoir des relations sexuelles avec son père, d’avoir une vie commune avec son père, ce qu’elle dit c’est que ça s’est ainsi terminé au moment où elle a eu cet âge-là et n’a pas quitté la maison avant et après les événements de janvier où elle a dénoncé, où elle a choisi de dénoncer ce qu’elle avait vécu pendant ces quinze (15) années.

[…]

“L’expérience du Tribunal est à l’effet que des drames aussi lourds avec une vie aussi, pour utiliser, enfermée, en silence, le Tribunal s’explique mal, après avoir vu la victime témoigner devant lui, comment, dans peu de moments de son témoignage, elle a été ou elle a pu être fragilisée par cette situation de vie au quotidien. On ne perçoit, et j’ai perçu, et je n’ai jamais perçu de sa personnalité, de sa façon d’être devant le Tribunal, une autre façon que de s’affirmer, d’être affirmative sur ce qu’elle est, d’avoir une assurance qui, dit-elle aujourd’hui, avoir parce qu’elle a continué dans son cheminement, dans sa vie, dans ses études, mais n’avoir jamais, à quelques occasions, plus jeune, tenté ou faire en sorte de se libérer de cette vie de tortionnaire qu’elle vivait, que son père lui imposait.

Montreal lawyer disbarred for 10 years for misappropriation

A month after an Ottawa lawyer with serious memory problems was disbarred after failing to help the Law Society of Ontario investigate complaints made by a raft of clients who are collectively owed more than $2.5 million, a Montreal lawyer who misappropriated approximately $130,000 suffered nearly the same fate.

Antonella Petrolito, a member of the Barreau du Quebec since 1989 but no longer practicing since she went bankrupt in 2016, has been disbarred by the Quebec Bar’s disciplinary committee for 10 years and ordered to pay the victims a total of $137,900, the amounts she pilfered, after she pled guilty to the charges.

Petrolito, now working as a legal assistant for a lawyer, has a history of misappropriating funds. In 1999, the disciplinary committee sanctioned her for misappropriated on three occasions amounts totaling $3,350.

“In spite of three decisions rendered against her in 1999, one in which she was struck from the roll for two years, she did not change her conduct and blatantly disregarded her ethical obligations,” said the disciplinary committee.

Court of Quebec judge absolved by inquiry committee

A Court of Quebec judge under fire for allegedly lending more than $9 million in loans over the past few years has been absolved of any ethical breaches by a five-member panel of the Committee of Inquiry of the Conseil de la magistrature du Québec.

The inquiry committee concluded that Judge Manlio Del Negro, nominated as a Court of Quebec judge on March 2017, did not infringe article 129 of the Quebec Courts of Justice Act nor did he breach the Quebec Judicial Code of Ethics. Under article 129 of the Act, the office of judge is exclusive. In other words, a lawyer appointed judge is legally required to refrain from any activity which is not compatible with his functions, including carrying out – even indirectly — commercial activities.

The inquiry committee recommended that the judicial council reject the complaint lodged by the Quebec Minister of Justice Stephanie Vallée.

“The Committee concludes that a judge must be given a reasonable amount of time to put his affairs in order to meet the obligations of his new posting, and that Judge Del Negro demonstrated the necessary will and energy to so within an acceptable timeframe under the circumstances,” held the inquiry committee in a decision issued on May 1st.

Evidence at the hearing revealed that a week after being nominated Judge Del Negro resigned as trustee from the trust named Fiducie Famille Del Negro. He also “revealed his situation” at the first meeting he held with Chief Justice Lucie Rondeau and confirmed his commitment to “quickly take steps” to withdraw from his commercial activities and comply with the requirements of a judge.

Several months later the French-language television network TVA and the French-language tabloid Journal de Montréal disclosed that as of as of June 5, 2017, Judge Del Negro was still a creditor in four dossiers, where the mortgage guarantees allegedly amounted to $800,000, with interest rates ranging from six to 12 per cent.

The inquiry committee found that at the time that the news report was published, there were monies owed on three loans issued by the Del Negro trust. But Judge Del Negro, points out the inquiry committee, released and wrote-off the mortgage debts, and in fiscal 2016 declared a capital loss of more than $83,000, excluding interest.

The inquiry committee underscored that article 129 of the Act prohibits the “conduct” of commercial activities, and not passive investments.

Regulator sanctions five financial advisors

The disciplinary committee of the Chambre de la sécurité financière has had a busy month, sanctioning at least four members in the past month.

The CSF is a unique body in Canada. It maintains and oversees the discipline, training, and ethics of 32,000 professionals practicing in group savings plan brokerage, financial planning, insurance of persons, group insurance of persons, and scholarship plan brokerage. In all Canadian provinces except Quebec, mutual fund dealers and representatives are subject solely to securities regulatory organizations like the Mutual Fund Dealers Association of Canada.

Sylvain Letang, a financial security advisor from the Gatineau region, was immediately but provisionally stricken off the roll after he allegedly placed himself in a conflict of interest by borrowing $92,3000 from clients. It is alleged that he also misappropriated $5,000 from a client.

Mutual fund representative Marie-Michelle Fortier was permanently stricken off the roll after she plead guilty to cheque kiting, a fraudulent scheme in which cheques are issued against funds that a financial institution has credited into an account for deposited but uncleared cheques. The ruse was discovered by her former employer Mouvement Desjardins where she worked from 1987 until her dismissal in 2015. She bilked nearly $46,000. “The fact that she used the monies to spoil her children does not lessen the severity of the misconduct,” said dryly the disciplinary committee.

Another mutual fund representative sanctioned by the CSF’s disciplinary committee was more fortunate. Ghislain Durand was struck off the roll for five years after he plead guilty to writing overdraft cheques for more than $3,500. Durand, a longstanding employee of the National Bank where he was a director and branch manager, was in financial straits and used the monies to pay for bills. He reimbursed nearly half the amount.

Financial security advisor and mutual fund representative Kouacou Marc Ettie too was stricken off for five years. He plead guilty to two counts of misconduct: he borrowed a thousand dollars from a client who lent him her credit card, and he misappropriated $3,000 using the credit card a client entrusted to him.

Daniel Charlebois, a financial advisor working in Saint-Jean-sur-le-Richelieu, got into trouble after he plead guilty to three counts of misconduct. He failed to inform a client in a “comprehensive, accurate and objective” way the nature and pros and cons of a universal life insurance policy he recommended. He took out a $3 million life insurance policy for a client, something that did not meet his client’s needs, personal and financial situation or investment goals. Charlebois also plead guilty for making false or misleading misrepresentations. He was stricken off the roll for three months.

Allegations of conflict of interest against three judges dismissed

The Canadian Judicial Council has dismissed allegations of conflicts by three judges who attended privately sponsored receptions or conferences.

The three judges, all of whom hear tax cases, landed in hot water after the CBC and Radio-Canada reported that they had attended social events at an International Fiscal Association Conference in Madrid in September 2016. The conference was approved by the CJC as a continuing education opportunity for judges involved in tax law matters.

Federal Court of Appeal Justice Denis Pelletier was under scrutiny for attending two evening social events organized by the conference, which was in part sponsored by accounting giant KPMG. But since KPMG is not a party to disputes before the Tax Court of Canada and no dispute involving KPMG is or was pending before the Federal Court of Appeal in the days or months preceding the conference, “any suggestion of conflict of interest that would approach misconduct must be dismissed,” said a CJC letter to an unidentified complainant.

Tax Court of Canada Justice Randall Bocock was investigated for having attended a cocktail organized by the law firm Dentons LLP while he was the case manager of an appeal before the Tax Court of Canada involving KPMG and the Victoria-based Cooper family. Justice Bocock said he was unaware of Dentons’ involvement in the Cooper matter. But when he did find out, he recused himself.

“The potential for a conflict of interest in this matter seems remote,” said Justice Bocock in a letter to the complainant. “ “However, through inadvertence, the portrayal of a potential conflict, where all the facts are at first unknown, is possible.”

He added that “prudence and best practice would suggest that, in future, refraining from attending such off site sponsored conference receptions is a better and wiser choice. I certainly intend to follow this prudent conduct in the future.”

Tax Court of Canada Chief Justice Eugene Rossiter was the subject of a complaint because he had briefly attended a reception at the conference, and because he defended the practice at a Canadian Tax Foundation conference held in November 2016. He said he would continue to attend receptions, adding that “we will have pizza and we will have wine, and lots of it.”

The Chairperson of the Judicial Conduct Committee of Council, Michael MacDonald, mildly rebuked Rossiter for making such remarks in jest, calling them regrettable. “His controversial remarks were meant as a joke as part of his address on accessibility and involvement of judges in public events,” said the letter to the complainant.

Court of Quebec Judge acted as a private lender before being appointed

A recently appointed Court of Quebec judge has lent more than $9 million in loans over the past few years, according to an investigation by a French-language newspaper.

Judge Manlio Del Negro, who was formally inducted as a Court of Quebec judge yesterday during a ceremony held at the Montreal courthouse, allegedly provided more than 45 loans from 2006 to 2017 before being appointed as a judge this spring, according to the Journal de Montréal.

The revelations raise ethical questions, according to Véronique Hivon, a Parti Québécois member and a former Minister responsible for the Die in Dignity commission, a commission about the right for a terminally-ill patient to end their own life. The Conseil de la magistrature du Québec, a provincial body that supervises the conduct of judges, should investigate the matter to determine whether a lawyer who was a private lender is compatible with the role of a judge, added Hivon.

But Judge Del Negro’s “commercial activities” while he was a lawyer did not render him ineligible to be a judge, asserts the Court of Quebec in a press release. A lawyer appointed judge is legally required to refrain from any activity which is not compatible with his functions, added the Court of Quebec.

According to the Court of Quebec communiqué, Judge Del Negro “revealed his situation” at the first meeting he held with Chief Justice Lucie Rondeau and confirmed his commitment to “quickly take steps” to withdraw from his commercial activities and comply with the requirements of a judge.

“Aware that time must be granted to each new judge to take the necessary steps from the transition from his previous situation to his new functions, the Court is satisfied by those taken by Judge Del Negro,” said the press release.

But the Journal de Montréal reports that as of June 5, 2017, he was still a creditor in four dossiers, where allegedly the mortgage guarantees amounted to $800,000, with interest rates ranging from six to 12 per cent.

Judge Del Negro, who graduated from the Université de Sherbrooke, was admitted to the Quebec Bar in 1984. He was a Montreal criminal lawyer who founded in 1989 the law firm Del Negro Polnicky Perron, which later became Del Negro et Associés. He was appointed a Court of Quebec judge on March 27, 2017.

In 2013 Judge Del Negro donated $50,000 to his alma mater, half of which was given towards modernizing the law library, the other half to create a scholarship fund bearing his name to help grad students studying criminal and penal law.

Judge Del Negro is overseeing a case in which former Montreal Canadien winger Zack Kassian is expected to testify in the case involving 22-year old Alison de Courcy-Ireland who is charged with impaired driving causing bodily harm.