The “I Did Not Receive the Email” Defence Fails

In The Law Society of Manitoba v Alghoul, 2018 MBCA 23, http://canlii.ca/t/hqx9n, a lawyer was sent numerous emails from an adjudicator which he did not answer. Ultimately the adjudicator had to contact the lawyer’s firm to obtain the information. The proceedings were compromised because of the delay. The adjudicator made a complaint to the regulator. In response to the complaint the practitioner acknowledged receiving the emails and explained that his failure to respond was due to travel and personal issues. Just prior to the discipline hearing the practitioner asserted that the emails went into a junk file folder of an inactive email address and he therefore had not received the emails. The discipline tribunal rejected these explanations and concluded that his earlier admissions were more accurate. It held a hearing and found that the conduct involved a continuing failure to display “candour, courtesy and respect” and was unprofessional. It imposed a reprimand and awarded $28,000 of costs against him in part because of the manner in which he conducted his defence. The Court upheld the finding and order as reasonable.

While the facts of this case are somewhat unusual, the outcome indicates that regulatory bodies can infer that emails were received, particularly where there is a delay in the assertion that they were not received. The case also indicates that significant cost implications can be imposed where a practitioner departs from their initial response to the complaint at a subsequent discipline hearing.

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