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BEFORE THE COURT OF PUBLIC OPINION
The case
against
Elizabeth
Bowker
and
the law
firm of Stieber Berlach
Posted by
Colin Alexander
Introduction
It needs to be said at the outset that the
allegations set out here do not connote conviction. That said, the right of
free speech and criticism is still a foundational principle of a free and
democratic society.
The case against Elizabeth Bowker, and her law firm
Stieber Berlach, arises from her representation of arbitrator William L.
Neville to defend him in Small Claims Court against a civil action for
fraudulent misrepresentation. See the web page for the case against Keith A. MacLaren and Neville. This Information
states the case that Bowker’s submissions to the court, each filed with a sworn
affidavit, repeated Neville’s fraudulent representations, and that she
compounded them with new falsehoods of her own.
This Information states the case for the following
charges:
1.
Perjury under
Section 131(1) of the Criminal Code.
131(1) Subject to subsection (3), every one commits
perjury who, with intent to mislead, makes before a person who is authorized by
law to permit it to be made before him a false statement under oath or solemn
affirmation, by affidavit, solemn declaration or deposition or orally, knowing
that the statement is false.
2.
Accessory
after the fact under Section 23 of the Criminal Code.
23. (1) An accessory after the fact to an offence
is one who, knowing that a person has been a party to the offence, receives,
comforts or assists that person for the purpose of enabling that person to
escape.
3.
Obstruction of
justice under Section 139 of the Criminal Code.
(2) Every person who intentionally attempts in any
manner other than a manner described in subsection (1) to obstruct, pervert or
defeat the course of justice is guilty of
(a) an indictable offence and liable to
imprisonment for a term of not more than 10 years
Cutting through the obfuscation and the extraneous
documentation, there’s just one core issue. Did MacLaren and Neville tell the
truth when telling unrepresented homeowners that arbitration was obligatory?
They relied on an ostensible 1960 Agreement to Arbitrate signed only be the
previous property owners. The case against Bowker rests on her handling of
Neville’s defence in a civil action against him in Small Claims Court. She
carried forward before the court the representation that the ostensible
Agreement was in fact binding on the current homeowners. As set out below, that
assertion meets the criteria for fraudulent misrepresentation under Section 380
of the Criminal Code.
Background
Two unrepresented
Instead of filing his claim in Small Claims Court, with its filing fee
of just $75, Dagg hired Keith A. MacLaren, lawyer at Perley Robertson &
McDougall, to set arbitration in motion on the basis of the ostensible Agreement
to Arbitrate signed by the previous property owners
half a century earlier, in 1960. In order to secure his own evidently usurped
appointment, arbitrator Neville repeated this assertion contradicted by the
applicable textbooks and case law. By extension, therefore, this Information
states the case that it was criminally fraudulent to say that arbitration was
obligatory.
Having been induced to believe the falsehood that
we had no other option, we signed the contract for Neville’s services. He then
demanded advance payment of $5,000 for his own fees. He said he would charge
least ten grand to deliver a decision. In due course the make-work-and-gouging
operation led to total costs of one hundred thousand dollars in legal fees.
Readers may find it helpful to consider what
MacLaren and Neville did in the context of a civil case for fraud. In Small
Claims Court, Deputy Judge Ivan Whitehall found fraud by a car dealer.[1] (
Silence and
half-truths can amount to fraudulent misrepresentation. Mrs. Lefrançois was misled by the defendants’ failure to divulge
the previous accident. The duty may be breached not only by positive
misstatements but also by omissions, for they may be just as misleading.
What MacLaren and Neville wrote
MacLaren’s initiating letter to the unrepresented homeowners said this:
According to the terms of the Co-Tenancy Agreement
dated February 1st, 1960, which is registered on title and is
therefore binding on the neighbours … The Co-Tenancy Agreement requires you to
respond to this Notice Requiring Arbitration within ten (10) days. If you do
not respond, our arbitrator may hear the arbitration and make an award under S.
50 of the Arbitration Act, which can
be enforced as if it was a judgment of a court.
Although not relevant for the core issue, it’s simply not true to say
that registration on title, of itself, means anything at all. Supporting the assertion
that arbitration was obligatory, Neville wrote this:
Those who purchased the units of the Original Parties are assignees of
the Original Parties and “stand in the shoes” of the Original Parties: they are
bound, in other words, by the election [of the 1960 Agreement] that Clause 8
created
The
foundational assertion here is that these representations are false and that
they meet the criteria for prosecution under Section 380 of the Criminal Code:
(1) Every one who, by deceit, falsehood or other
fraudulent means, whether or not it is a false pretence within the meaning of
this Act, defrauds the public or any person … of any … money … is guilty of an
indictable offence …
Analysis of Bowker’s court filings
Here follow points from the
Statement of Defence that Bowker filed in court for Neville, under oath, with
corresponding analysis. Filing requires a sworn affidavit asserting the truth
of a document’s content so that filing falsehoods constitutes the indictable
offence of perjury.
At Point 5, the Defence said:
As Neville learned, the Putnam (sic, passim)
parties were successors at law to the original
parties who had entered into a co-tenancy agreement in 1960 (the Putnam Agreement) that provided for arbitration as the
dispute resolution forum. The original parties
had detailed a nomination process whereby a three person
arbitral tribunal would be constituted.
…
Analysis:
Discovered only after the proceedings ended, the textbook Arbitration Law of Canada, by J. Brian
Casey, states the following points:
1. The essence of arbitration is that it is
consensual.
2.
Ordinary
contract law applies to determine whether or not there is an arbitration
agreement. There must be an offer and an acceptance in circumstances in which
the parties are ad idem (all on the
same page).
3.
[T]he
arbitration agreement is a contract between the parties and is governed by the
ordinary principles of contract law.
4.
An arbitral
tribunal has no jurisdiction to do anything unless it is fully and properly
constituted.
Casey’s textbook contradicts what MacLaren and Neville wrote to the
unrepresented homeowners:
It must be remembered that the arbitral tribunal
takes its power solely from the agreement between the parties. If it is shown
that there is no agreement by reason [that] the agreement has ceased to exist,
then there is no consensual basis for the arbitration. … For consensus ad idem
the arbitration agreement must be signed by the present parties. … A tribunal
has no jurisdiction to do anything until it is duly and properly constituted.
According to the textbook references and case law
cited above, there was no agreement between the current owners to submit to
arbitration. The 1960 Agreement expired when the signatories sold their
respective properties.
Requirements for a valid contract
Proceeding from Casey’s Point 3, in the textbook
used by the Supreme Court of Canada, The
Law of Contract,[2] G.H. Treitel says
this about the requirements for a valid contract:
The doctrine of privity means that a contract, as a
general rule, cannot confer rights or impose obligations arising under it on
any person except the parties to it. The rule that no one except a party to a
contract can be made liable under it is generally regarded as just and
sensible.
Here’s an example of this point
in practice. Under contract law and the principle of privity of contract, your
neighbour can’t bind his son to paint your house without his son agreeing to do
the job on terms he personally agrees to. Casey says several times, with
variations in wording, that to be enforceable an arbitration agreement must be
signed by the present parties.
Covenants and easements law
Covenants (agreements)
registered on the land title come in two flavours—affirmative (positive) and
negative. A negative covenant could forbid blocking a view or disturbing a
power line, and it carries forward to the next owners. An affirmative covenant
binds only these who signed it. It can require, of those signatories only, some
kind of expenditure, like maintaining a fence or, as in this case, submitting
to arbitration. Every first-year law student learns about privity in Contract
Law 101. A recent case before
In Parkinson,[4]
Cartwright J [in the Supreme Court of Canada] quoted Gale on Easements, 12th ed. at p. 77:
The
[1848] rule in Tulk v. Moxhay
does not extend to affirmative covenants requiring the expenditure of money
or the doing of some act. Such covenants do not run with the land either at law
or in equity.
In Sport Maska,[5]
the Supreme Court’s
L’Heureux Dubé J had earlier confirmed the law stated by Casey
and Justice Charron:
Two stages are therefore required: first, the
parties promise to resort to arbitration if a dispute arises, and second, when
the dispute does arise, they conclude a submission in the proper form.
Justice L’Heureux Dubé explained that you can’t have a
valid second step without having the first one already in place.
As a final clincher on this point, the Arbitration Act of Ontario says
in its introduction: “This Act applies to an arbitration conducted under an
arbitration agreement.” It follows that nothing falls within the purview of the
Act without a prerequisite arbitration agreement in good standing.
In Nadon, the Supreme Court
confirmed the principle, so obvious it should not have to be said, that the
absence of prerequisite credentials negates from the outset, the appointment of
a judge, or anyone else come to that.[6]
Given the foregoing textbook references and case law, it follows that
MacLaren’s and Neville’s assertions, that arbitration was obligatory, meet the
criteria for fraudulent misrepresentation under criminal law.
By extension it was criminal on numerous
counts for Bowker to carry forward the falsehood that “the parties were
successors at law to the original parties who had entered into a co-tenancy
agreement in 1960 …”
At Point 7 the Defence states:
Neville corresponded with the Parties and their
counsel regarding the terms of the appointment of the Tribunal.
Analysis
This statement is false. The parties were not
represented by counsel at any time during the precontractual exchanges.
Bowker’s filing this falsehood, of itself,
warrants the charges set out above.
At Point 8, the Defence states:
All of the Parties, including the Plaintiff,
elected to proceed with Neville as a single arbitrator.
Analysis
Fraud, by definition, requires consummation of the
transaction induced by deceit. Consent for a legal and enforceable contract
requires both willingness and possession of complete and accurate information.
MacLaren and Neville supplied outright false information with respect to the
validity of the ostensible 1960 agreement. In the context of the foregoing
textbook quotations and case law citations, it may be said they both lied through
their teeth.
By extension, it follows as solid case law in every
textbook on contract law, such as Treitel’s The Law of Contract, that the right of recourse starts upon discovery
of the fraud. It would be ridiculous to expect the unsuspecting buyer of a ring
ostensibly made of gold to act before finding out that it was actually
look-alike pinchbeck. Electing to take it
away does nothing to negate the fraud or the right of action for recourse.
In any case, having been induced to believe
that arbitration was obligatory by someone, but not necessarily Neville,
Alexander objected vehemently to his appointment for the job, with the
following text being one of the numerous ones:
I am writing to
inform you that I have notified Mr. MacLaren that I want to consider other
names for our mutually agreed single arbitrator than your single one that he
has recommended.
Please, therefore, confirm to me that you are standing down for now from
your involvement in this dispute.
Neville refused to accede to this polite
request. Bowker’s filing this falsehood, of itself, warrants the charges set
out above.
At Point 22, the Defence states:
Neville denies that he misrepresented or otherwise
misled into believing that the arbitration with him was obligatory. The
plaintiff voluntarily accepted Neville’s appointment as arbitrator.
Analysis
Per
the analysis of Bowker’s Points 4 and 8, MacLaren and Neville delivered
falsehoods instead of providing complete and accurate information about the
standing of the ostensible 1960 Agreement to Arbitrate.
The benchmark case requiring the delivery of complete and accurate
information is the English case Hedley
Byrne,[7]
adopted by the Supreme Court of Canada as its own. This is the key passage,
from the speech by Lord Morris:
My Lords, I consider that it follows and that it should now be regarded
as settled that if someone possessed
of a special skill undertakes, quite irrespective of contract, to apply that skill for the
assistance of another person who relies upon such skill, a duty of care will
arise. The fact that the service is to be given by means of or by the
instrumentality of words can make no
difference. Furthermore, if in a sphere in which a person is so placed that others could reasonably rely upon his judgment or his
skill or upon his ability to make careful inquiry,
a person takes it upon himself to give information or advice to, or allows his
information or advice to be passed on to, another person who, as he knows or
should know, will place reliance upon it, then a duty of care will arise.
Bowker’s
filing this falsehood warrants prosecution on the charges set out above.
At Point 23, the Defence says:
Neville
denies that he was under any obligation to provide legal advice or any other
kind of advice or information to the Plaintiff, including regarding privity of
contract or covenants running with the land.
Analysis
In addition to the duty of honesty for salesmen set out in Ontario’s Consumer Protection Act, with its
provisions for criminal prosecution of fraud, a Canadian template is Fletcher v. Manitoba Public Insurance Co.[8] That case was about the company failing
to provide information necessary for the customer to make an informed decision
as to what level of insurance to buy. The court ruled that reasonable reliance on information provided by someone
selling goods or services can ground a duty of care in tort that binds the
provider of the information. The Court said:
In many cases where a misrepresentation has been
made to another person, particularly by a professional man acting in the course
of his profession, the assumption of responsibility may be readily inferred.
The case against Neville (and MacLaren)
resembles a criminal case in the Supreme Court of Canada, R. v. Théroux.[9]
The company entered into agreements with a number
of individuals for the purchase of residences. The contracts were made
and the deposits taken on the basis of a false representation by the company
that the deposits were insured. The deposits were not insured, as agreed
in the contracts, and the company went bankrupt so that the depositors lost
their money.
The actus reus of fraud [the fact of there having been
deception] is established by proof of a prohibited act, be it an act of deceit,
falsehood or other fraudulent means, and by proof of deprivation caused by the
prohibited act (which may consist in actual loss or the placing of the victim's
pecuniary interests at risk). Just as what constitutes a falsehood or a
deceitful act for the purpose of the actus
Given that Neville stood to make money by inducing a contract for his
own services, here’s this point, from the Privy Council in Mutual Life and
Citizens' Assurance Co Ltd. v. Evatt:[10]
A financial interest imposes, ipso facto, a duty of care. Parties negotiating a contract of sale
or other commercial agreements, whether they be private parties or vendor and
customer, by definition have a financial interest in the outcome of the
transaction. The pre-contractual nexus between representor and representee
would be sufficient in such cases to impose a duty of care.
Bowker’s filing here essentially duplicates the falsehood in Point 22,
with the same rebuttal applicable.
At Point 24 the Defence says:
As an arbitrator,
Neville is immune from any acts or omissions carried out in the course of his
duties as an arbitrator.
Analysis
The classic reasonable outsider will read this assertion as Bowker’s
full-fledged admission of Neville’s deceit. It’s common sense that she would
not even try to invoke this specious and extraneous claim unless she knew full
well that Neville had perpetrated a real fraud. Beyond that, any suggestion
that sales is a judicial function, as opposed to an
administrative function, falls somewhere between absurd and ludicrous.
For the reasons set out above, Neville never was an arbitrator, appointed by due and valid process.
In Sirros,[11] Lord Denning expounded at some length on this
subject. Here’s his final sentence in a relevant paragraph:
Nothing will
make him liable except it be shown that he was not acting judicially, knowing
that he had no jurisdiction to do it.
It would be absurd to
suggest that Neville was so ignorant of his trade that he didn’t know the
prerequisites for a valid arbitration. Would a chef be ignorant of the
prerequisites for boiling an egg?
In Sirros, Lord Denning
distinguished between administrative function and judicial function:
What is the test upon which the judges of the
superior courts are thus immune from liability for damages even though they are
acting without jurisdiction? Several expressions are to be found. A judge of a
superior court is not liable for anything done by him while he is "acting
as a judge," or "doing a judicial act" or "acting
judicially" or "in the execution of his office"....
What do all these mean? They are much wider than the
expression when he is acting within his jurisdiction. I think each of
the expressions means that a judge of a superior court is protected when he is
acting in the bona fide exercise of his office and under the belief that he has
jurisdiction, though he may be mistaken in that belief and may not in truth
have any jurisdiction. No matter that his mistake is not one of fact but of
law, nevertheless he is protected if he in good faith believes that he has
jurisdiction to do what he does.
Here now is the ruling in, Sport
Maska, by the Supreme Court’s L’Heureux Dubé J:
If respondents were not acting as arbitrators, they
cannot enjoy any immunity and a decision as to the nature of the action brought
by appellant would at this stage become moot.
Bowker’s filing this falsehood warrants
prosecution on the charges set out above.
At Point 25 the Defence says:
At all
times, Neville conducted himself in accordance with the standard of care of an
arbitrator acting in the
Analysis
Many customers of the justice
system may readily agree that MacLaren’s and Neville’s conduct represents the
standard of care, and the standard for professional and ethical obligations
obtaining in
By extension, a reasonable and informed outsider may also find that
Bowker and her firm represent the debauched standard of ethics and professional
conduct and, arguably, of criminality too often obtaining in the misnamed
justice system.
The verdict:
Guilty or not guilty as charged?
Reduced to basics, and given that the propositions set out in this Information,
there are these questions:
1.
Do you find, or not, that MacLaren’s and
Neville’s representations, that arbitration was obligatory, meet the criteria
for prosecution under Section 380 of the Criminal Code?
- If so, do you find Bowker guilty or not guilty of perjury, accessory after the fact and obstruction of justice?
Appendix
The duty of honesty
Commercial parties reasonably expect a basic level
of honesty and good faith in contractual dealings. While they remain at arm’s
length and are not subject to the duties of a fiduciary, a basic level of
honest conduct is necessary to the proper functioning of commerce. The growth
of longer term, relational contracts that depend on an element of trust and
cooperation clearly call for a basic element of honesty in performance, but,
even in transactional exchanges, misleading or deceitful conduct will fly in
the face of the expectations of the parties: see Swan and Adamski, at §1.24.
The obligations of defending counsel
The case against Bowker also deserves evaluation in the context of the
Law Society of Upper Canada’s Rules of
Professional Conduct:
2.1 Commentary: Integrity is the fundamental quality of any
person who seeks to practise as a member of the legal profession. …
Public confidence in the administration of justice
and in the legal profession may be eroded by a lawyer's irresponsible conduct.
Accordingly, a lawyer's conduct should reflect favourably on the legal
profession, inspire the confidence, respect and trust of clients and of the
community, and avoid even the appearance of impropriety. …
5.1 [6] When opposing interests are not represented, ,,, the lawyer must take particular care to be accurate,
candid and comprehensive in presenting the client's case so as to ensure that
the tribunal is not misled. …
5.1-2 When acting as an advocate, a lawyer shall not
(e) knowingly attempt to deceive a tribunal or influence the course of
justice by offering false evidence, misstating facts or law, presenting or
relying upon a false or deceptive affidavit, suppressing what ought to be
disclosed, or otherwise assisting in any fraud, crime, or illegal conduct,
(f) knowingly misstate the contents of a document, the testimony of a
witness, the substance of an argument, or the provisions of a statute or like
authority,
(g) knowingly assert as true a fact when its truth cannot reasonably be
supported by the evidence or as a matter, of which notice may be taken by the
tribunal,
(i) deliberately refrain
from informing the tribunal of any binding authority that the lawyer considers
to be directly on point and that has not been mentioned by an opponent,
5.1-4.
Commentary If the client desires
that a course be taken that would involve a breach of the rules in Section 5.1;
the lawyer must refuse and do everything reasonably possible to prevent it. If
that cannot be done the lawyer should, subject to the rules in Section 3.7
(Withdrawal from Representation), withdraw or seek leave to do so.
Lest there be any doubt about Bowker’s obligations to the court that she
wilfully overrode, a paper by Robert Bell and Caroline Abela published on the
[Canadian] Advocates’ Society website goes to some length in defining the his fraud:
Misleading the Court on Legal Issues.
Corresponding to our duty not to knowingly mislead the court on evidentiary
issues, a lawyer cannot misstate the law. Lawyers
are under a positive duty to make full disclosure of all the binding
authorities relevant to a case. (Emphasis
added here) This means that all such authorities on point must be brought
before the court, whether they support or undermine the position being argued
by that party, even if opposing counsel has not cited such authority.
Here, in the Court of Appeal, is Lord Denning in a case replete with
discussion of a lawyer’s duty, in Rondel
v. Worsley:[13]
[The advocate] has a duty to the court which is paramount. It is a
mistake to suppose that he is the mouthpiece of his client to say what he
wants: or his tool to do what he directs. He is none of these things. He owes
allegiance to a higher cause. It is the cause of truth and justice. He must not
consciously misstate the facts. He must not knowingly conceal the truth. He
must not unjustly make a charge of fraud, that is, without evidence to support
it. He must produce all the relevant authorities, even those that are against
him.
In the House of Lords in the same case of Rondel v. Worsley Lord Reid said this:[14]
Every
counsel has a duty to his client fearlessly to raise every issue, advance every
argument, and ask every question, however distasteful, which he thinks will
help his client's case. But, as an officer of the Court concerned in the
administration of justice, he has an overriding duty to the Court, to the
standards of his profession, and to the public, which may and often does lead
to a conflict with his client's wishes or with what the client thinks are his
personal interests. Counsel must not mislead the Court. … He must not withhold
authorities or documents which may tell against his clients but which the law
or the standards of his profession require him to produce.
In the same case, Lord Morris of Borth-y-Gest added this:
In the first place, it will be helpful
to examine the nature of the duty which is owed by an advocate. I think that it
must be true to say, as was said in Swinfen
v. Lord Chelmsford, that the duty undertaken by an advocate is one
in which the client, the Court and the public have an interest because the due
and proper and orderly administration of justice is a matter of vital public
concern. The advocate has a duty to assist in ensuring that the administration
of justice is not distorted or thwarted by dishonest or disreputable practices.
Postscript
Given what Bowker did in the case at hand, the reasonable and informed
outsider could readily conclude that she should be fined heavily and disbarred.
Such is the untrustworthiness of self-regulation by law societies, and also by
judges beholden to vested interests, that they have turned blind eyes to
criminal fraud. Lord Acton’s axiom obtains that all power corrupts and absolute
power corrupts absolutely. This case demonstrates, therefore, the pressing need
for credible independent oversight.