Oct 15, 2020

Proving Inadequate Supervision of Unregistered Persons

Farkas v. The Law Society of Ontario, 2019 ONSC 2028 (CanLII)

Most professions have standards of practice (written or unwritten) about what tasks a practitioner can and cannot delegate to an unregistered assistant. However, it is always difficult to prove whether there was a pattern of inadequate supervision since the amount of supervision not provided is difficult to articulate. In Farkas v The Law Society of Ontario, 2019 ONSC 2028 (CanLII), <http://canlii.ca/t/hzgk2> the issue was whether the lawyer provided sufficient supervision to his unregistered staff in the filling out of refugee claim forms. The practitioner and some of the staff who worked for him testified as to his training of the staff, his personal involvement in meeting with the clients and his reviewing of the forms. However, the forms themselves were generally inadequate according to expert testimony inferring that there must have been minimal practitioner involvement. A former staff person and two clients testified as to almost complete lack of involvement of the practitioner in their cases and that the forms were signed while blank (or almost blank) and were filled in by staff who made up the contents. The Court upheld the credibility findings of the tribunal based on this combination of lay and expert opinion evidence, and because the tribunal provided good reasons for its decision.

On the issue of costs, the Court upheld a large award ($200,000) because the tribunal’s reasons took into account the following factors: “the length of the hearing, the costs requested, the time necessary for preparation, the extensive cross-examination of the appellant, the lack of evidence of financial hardship, and comparable cases that had come before the [regulator].”