Misconduct

City of Toronto v. Hill

[2007] ONCJ 253

City of Toronto v. Hill

2007 ONCJ 253
Ontario Court of Justice (Toronto Region) — Libman J. | Released June 7, 2007

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Background

Murray Hill was originally charged with careless driving after a motor vehicle collision. At trial on May 17, 2004, his paralegal agent Michael Hurley appeared and entered a guilty plea to the reduced charge of following too closely, stating on the record that he had Hill's authorization to do so. The conviction was registered with a $90 fine instead of the original $265 careless driving penalty.

Nearly a year later, Hill appealed, claiming through a different paralegal that Hurley had "failed to follow instructions" and entered the guilty plea "without consent or authority." However, Hill's appeal agent provided no affidavit from Hurley, gave him no notice of these allegations, and didn't even show up for the final hearing date.

Issues

1. What procedural safeguards should apply when a paralegal agent on appeal alleges that the trial agent acted incompetently or contrary to instructions?
2. Should these appeals succeed based solely on the client's allegations without giving the trial agent an opportunity to respond?

The Procedural Protocol for Paralegal Incompetence Claims

Justice Libman was fed up with paralegals casually throwing their colleagues under the bus on appeal without any proof or fair process. He noted these types of allegations were "by no means isolated occurrences but rather all too common grounds of appeal" that strike at "the foundation of public confidence in the administration of justice."

Drawing from the Court of Appeal's criminal law protocol, Libman established a detailed procedural framework for provincial offences cases. Before making incompetence allegations, the appeal agent must: (1) conduct personal investigations to establish factual foundation beyond just the client's word; (2) give the trial agent informal notice and a reasonable opportunity to respond; (3) provide formal notice by serving copies of all court documents containing the allegations; (4) file supporting materials including affidavits from all relevant parties before the hearing.

The judge emphasized that with paralegals now regulated by the Law Society under the Access to Justice Act, 2006, and subject to new Paralegal Rules of Conduct requiring "competent paralegal" standards, defendants are entitled to effective paralegal assistance — but allegations of falling short of that standard require proper procedural protections.

Key Takeaway

You can't win an appeal by claiming your trial agent screwed up unless you follow strict procedural rules to give that agent a fair chance to respond.

Both appeals were dismissed because the appeal agents failed to investigate properly, provide notice to the trial agents, or file supporting affidavits. The court won't second-guess trial decisions based solely on after-the-fact client complaints without proper procedural safeguards.

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Toronto (City) v. Canadian Union of Public Employees, Local 79 (Stamicar Grievance)

[2018] O.L.A.A. No. 287

Toronto (City) v. Canadian Union of Public Employees, Local 79 (Stamicar Grievance)

[2018] O.L.A.A. No. 287
Ontario Labour Arbitration — Arbitrator Robert J. Herman | August 23, 2018

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Background

Iwona Stamicar was a City of Toronto prosecutor who worked out of Old City Hall, prosecuting municipal bylaws and provincial offences like Highway Traffic Act violations. In late spring 2012, she was approached by Brian Jones, a paralegal she knew professionally from his regular court appearances. Jones claimed they had made a plea deal months earlier — his client would plead to a lesser Highway Traffic Act charge (Section 170(12) interfering with traffic, carrying two demerit points) instead of the original Section 144(9) failing to obey a traffic sign (which carried three demerit points). Jones said his client had been convicted in absentia when he got tied up in another courtroom, and he wanted to reopen the matter to honour their alleged plea arrangement.

On August 17, 2012, Stamicar finished her court work at Old City Hall and walked with Jones to the Courts Administration Office at 137 Edward Street. What happened next was a masterclass in how not to handle a reopening application. Instead of following proper procedure, Stamicar used her prosecutor status to bypass the normal screening process, entered restricted areas using security codes, obtained original court documents directly from a Document Retrieval Clerk, and personally presented the case to a Justice of the Peace — all to expedite Jones's client's reopening application.

Issues

1. Did the grievor improperly leave her assigned workplace without authorization?
2. Did she abuse her prosecutorial status to circumvent required processes and provide preferential treatment?
3. Was discharge an appropriate penalty for her misconduct?

The Improper Assistance

The arbitrator found that while Stamicar's initial agreement to honour a plea deal wasn't inherently wrong, her execution was seriously flawed. She should have verified Jones's story by checking court records instead of blindly accepting his version of events. More importantly, she violated proper procedures in multiple ways: she used her security code to access restricted areas where she had no business being, directed a Document Retrieval Clerk to obtain original court documents for an improper purpose, and personally facilitated a reopening application outside normal channels.

The normal process required Jones to first see an Information Booth Clerk who would screen whether his client was entitled to reopen (applications are only available within 15 days of learning about a conviction, and only if fines remain unpaid). Jones's client didn't qualify — the fine had been paid over a year earlier. But Stamicar's intervention allowed Jones to skip this screening entirely and get his application directly before a Justice of the Peace.

The Arbitrator's Decision

While the arbitrator found serious misconduct, he rejected the City's discharge as excessive. Stamicar hadn't acted surreptitiously or for personal gain — she genuinely believed she was honouring a previous plea agreement. Her actions provided Jones with preferential treatment in terms of access, speed, and cost, but didn't involve deception or corruption of the judicial process itself. The Justice of the Peace still made an independent decision to grant the reopening and accept the plea.

The arbitrator noted this was an isolated incident by someone who immediately acknowledged her mistakes when confronted, apologized, and showed no likelihood of repeating such behavior. The City had also failed to have clear policies in place — they only changed security codes and issued new guidelines to staff after these events occurred.

Key Takeaway

Even well-intentioned attempts to expedite court processes can constitute serious professional misconduct when they provide unfair advantages.

For self-represented defendants, this case illustrates that reopening applications have strict eligibility requirements that exist for good reasons. If you've paid your fine and more than 15 days have passed since you learned of your conviction, your proper remedy is an appeal, not a reopening application — and no prosecutor should be helping you bypass those rules.

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