Harnum v Ntinu et al, 2023 ABCJ 268

In the Alberta Court of Justice Citation: Harnum v Ntinu et al, 2023 ABCJ 268 Date: 20231208 Docket: P2102900557 Registry: Red Deer Between: Robin Harnum Plaintiff - and - Uche Chukwuka Ntinu and Uche Chukwuka Ntinu Carrying on Business As Top Edge Law Firm Defendant Reasons for Judgment of the Honourable Justice J.B. Champion Contents Introduction 1 Issues 3 Evidence 6 Agreed Statement of Facts 9 Robin Harnum 19 Rachel Lynn Fauser 85 Roy Welling Mitton 105 Candace Charmaine Homan 108 Thricia Nicolette Edwards 128 Jennifer Arlene Plamondon 135 Uche Chukwuka Ntinu 164

Investigation by the Law Society of Alberta 213 Nature of the relationship between the parties 219 Legal Principles 238

i) Standard and burden of proof 239 ii) Definition of sexual battery 246 iii) Applicable standards of care for barristers and solicitors 248 Credibility and reliability 251 Robin Harnum 252 Uche Chukwuka Ntinu 269 Did Mr. Ntinu commit a sexual battery on Ms. Harnum? 276 Was Mr. Ntinu negligent in his provision of legal services to Ms. Harnum? 277 Legal Fees 283 $500 costs award 297 Conclusions on liability 320 Provisional assessment of damages 326 Decision 337 Costs 338 Introduction [ 1 ] The Plaintiff, Robin Harnum (“Ms.

Harnum”), sought legal advice in relation to a variation of a prior consent parenting order that she had for her children. She contacted the Legal Aid Society of Alberta (“Legal Aid”), which in turn appointed Mr. Ntinu, Uche Chukwuka Ntinu (“Mr. Ntinu”), a barrister and solicitor who was authorized to carry on the practice of law in Alberta by the Law Society of Alberta through a corporate entity known as Top Edge Law Firm (“Top Edge”), also a Defendant in this action. [ 2 ] Ms. Harnum, at some point, became dissatisfied with the provision of legal services of Mr. Ntinu, and terminated the retainer.

She commenced the within action and seeks damages under a number of heads, including the alleged negligent provision of legal services as well as for the alleged tort of sexual battery by Mr. Ntinu. Issues [ 3 ] The issues herein are defined by Ms. Harnum and Mr. Ntinu, respectively as follows. [ 4 ] By Ms. Harnum: A. Was Mr. Ntinu negligent in representing Ms. Harnum’s legal interests? B. Are Uche Ntinu, and Uche Ntinu Operating as Top Edge Law liable for breach of contract? C. Are Uche Ntinu, and Uche Ntinu operating as Top Edge Law liable for breach of fiduciary duty? D. Has Ms.

Harnum established her claim for the tort of sexual battery? E. If the answer to (

D) is yes, what damages result from the sexual battery? F. If the answer to (

C) or (

F) is yes, is Top Edge Law vicariously liable for the torts? [1] [ 5 ] By Mr. Ntinu and Top Edge: (

i) Considering the totality of the evidence adduced by the plaintiff in support of [sic] claim for sexual assault (sexual battery) against Mr. Ntinu, does the plaintiff’s claim succeed on the applicable standard of proof for sexual battery? (ii) What standard of proof is applicable for sexual battery in a civil trial? Or how should the Court approach evidence in a civil sexual battery claim?

(iii) Having regard to the parties’ evidence and the surrounding circumstances of the plaintiff s claim, can the plaintiff succeed in [sic] claim for pleaded heads of damages: breach of contract, fiduciary duties, negligence, and other damages claimed by the plaintiff? [2] Evidence [ 6 ] A trial in this action took place before me over the course of three days in Red Deer, Alberta. The court heard the evidence from six witnesses in total - three for Ms. Harnum and three for Mr. Ntinu.

At the conclusion of the trial, I directed both sides to submit written briefs. [ 7 ] Having set out above the issues as described by each party, I will review the evidence of each witness, provide my findings in relation to their evidence, canvass the applicable jurisprudence, then make conclusions and explain my findings in this action. [ 8 ] By the consent of counsel, an Agreed Exhibit Book (“the Exhibit Book”) was entered as evidence. Agreed Statement of Facts [ 9 ] The parties entered into an Agreed Statement of Facts (“ASF”), which stipulated: 1.

The Plaintiff is an individual residing in Blackfalds, Alberta. She is the mother of three children ages 12, 10, and 7 (as of August 9, 2022). She has been employed as a Dental Assistant for over 20 years (with a leave period due to family matters around the time of requiring Legal Aid Services). 2. At all materials times she was operating a home-based business (promotional products distributor) and had joined a

chapter of the BNI Network (business Networking International) in Red Deer. Her role was to interview new recruits as well as recruit new business owners. Thre was no lawyer in the chapter. The goal was to have only one business person from various categories of occupations in order to help grow each other’s businesses. 3. The Plaintiff was a member of Home Church since 2017.

During the relevant period the Plaintiff was volunteering with the Home 101 team: if there were new members to the church then it was her role to invite them to the Home 101 class which discussed how members can serve and become involved with the church. 4. Mr. Ntinu Uche Chukwuka Ntinu (“Mr. Ntinu”) is an individual currently residing in Red Deer, Alberta. At all material times he was in the business of providing legal services operating as Top Edge Law Firm in Red Deer, Alberta including providing legal services through Legal Aid Alberta. 5.

At all material times, the Plaintiff was a client of Uche Chukwuka Ntinu and Top Edge Law Firm. The Agreement 6. On August 29, 2019, the Plaintiff retained Mr. Ntinu through Legal Aid Alberta to represent her in a family matter to vary child custody and support. 7. On October 23, 2019, The Plaintiff attended her first appointment with Mr. Ntinu at his office. The Plaintiff brought her mother Diana Hamer to this appointment. 9. In between October 25, 2019, and December 20, 2019, the Plaintiff and Defendant engaged in email conversations about church and business networking through BNI.

These emails also referenced the Plaintiff’s case (Exhibit Book, Tab 1, pgs 1-7). 10. On November 6, 2019, Mr. Ntinu briefly attended the same BNI business networking meeting at the ABC Country Restaurant in Red Deer at the invitation of the Plaintiff (Exhibit Book, Tab 1 pgs 2-4, Tab 14 pgs 34-35). 11. On November 19, 2019, the Plaintiff attended an appointment with Mr. Ntinu at his office and the office door was closed. The appointment lasted to past 5 p.m. after the office was closed (Exhibit Book, Tab 14, pgs 32-34). 12.

On November 21, 2019, in response to the Plaintiff’s email enquiry relating to her case and requesting his cell phone number, Mr. Ntinu emailed the Plaintiff his cell phone number (Exhibit Book, Tab 2, pgs 9-10). 13. In between November 22, 2019, and December 18, 2019, the Plaintiff and Defendant exchanged texts about church and business networking in addition to file related matters. On November 22, 2019, the Plaintiff requested Mr. Ntinu to act for her divorce matter in addition to her custody and support matter. Mr. Ntinu agreed (Exhibit Book, Tab 15 pgs 40-69; Tab 15 pgs 41-43). 14.

On November 24, 2019, the Plaintiff texted that she was not at service but was watching it from home. She stated it was a great message and told the Defendant to have a great Sunday and that she would see him tomorrow. Mr. Ntinu replied he could not make it to church either and was getting ready for the office. The Plaintiff responded she was home sick that day, and suggested Mr. Ntinu listen to the service on his phone or computer because it was a good message that day (Exhibit Book, Tab 15 pgs 45-47). 15. On November 25, 2019, the Plaintiff attended Mr. Ntinu’s office with her friend Candace Homan.

The Plaintiff swore her Statement – Vary Parenting for Court File Number 4810023011, which was filed November 28, 2019 (Exhibit Book, Tab 15 pg 47; Tab 18 pgs 74- 76). 16. A family application was filed in Court of Queen’s Bench of Alberta, Judicial Centre of Red Deer, Action No. 4810023011 on November 28, 2019, on behalf of the Plaintiff, by Mr. Ntinu’s firm scheduled for January 17, 2020, seeking an Order for a change of custody and variation of child support. There is no agreement as to whether the Plaintiff received notice. (Exhibit Book, Tab 17 pgs 71- 73).

17. On December 3. 2019, Mr. Ntinu indicated to the Plaintiff through text that work related correspondence should be done through his email, but she could send hi non-work related texts (Exhibit Book, Tab 15 pgs 51-52). 18. On December 6, 2019, the Plaintiff attended at Mr. Ntinu’s office and swore the Recipient’s Statement – Vary Child Support before Mr. Ntinu’s receptionist Jennifer Plamondon. This was filed December 10, 2019 (Exhibit Book, Tab 15 pgs 53-54; Tab 19 pgs 77-79). 19.

On December 14, 2019, the Plaintiff (and her mother and Candace Homan) and Defendant (and his friend Thricia Edwards) each independently attended the church’s Christmas Experience event. They met afterwards out front and later exchanged texts about church the next day (Exhibit Book, Tab 15 pgs 57-61). 20. On December 15, 2019, the Plaintiff and Defendant attended church but did not end up sitting together, rather Mr. Ntinu sat behind the Plaintiff (Exhibit Book, Tab 15 pgs 62-66). 21. On December 18, 2019, the Plaintiff texted Mr. Ntinu to attend the BNI meeting that day (Exhibit Book, Tab 15 pg 66). 22.

On December 20, 2019, at 10:19 a.m. Mr. Ntinu emailed the Plaintiff stating “Hello Robin. Please find attached the Response from Chris Tobler’s lawyer. Do you want to come into the office, or do you want to discuss this by email?” (Exhibit Book, Tab 4 pg 14). 23. On December 20, 2019, the Plaintiff and Defendant met at Mr. Ntinu’s office during business hours. The Plaintiff closed the door to the office at Mr. Ntinu’s request. Nobody else was present. 24. On December 20, 2019, Mr. Ntinu faxed opposing counsel Nadine Gerig at Blackfalds Law Office to arrange a 4-way meeting on the Plaintiff’s matter. Mr.

Ntinu suggested a meeting at his office for the week of the 20 th of January, 2020. (Exhibit Book, tab 22 pg 89). 25. On January 5, 2020, Mr. Ntinu emailed the Plaintiff: “Hello Robin. I have the Respondent’s fax to you through me. Please review and get back to me. Thanks.” (Exhibit Book, Tab 5 pg 16). 26. On January 6, 2020, the Plaintiff sent a complaint to the Law Society of Alberta. The Law Society has advised the parties that any materials from the Law Society’s investigation are private and confidential and cannot be produced in court unless a Court Order is obtained.

This includes and individual’s statement that is submitted to the Law Society as part of their investigation. 27. On or about January 9, 2020, Legal Aid Alberta emailed Mr. Ntinu that the Plaintiff was approved for a change of counsel by Legal Aid Alberta “and the certificate has been stopped. Please submit your final invoice at your earliest convenience.” (Exhibit Book, Tab 16 pg 70). 28. On January 13, 2020, Mr. Ntinu filed a Notice of Withdrawal of Lawyer of Record for Court file number 4810-023011 in red Deer, Alberta (Exhibit Book, Tab 6 pg 17). 29.

On January 17, 2020, the Plaintiff’s matter noted above was struck and a cost award was made against the Plaintiff. Mr. Ntinu attended this matter on this date. 9Exhibit Book, tab 23 pgs 90-91). 30. On January 20, 2020, Mr. Ntinu emailed the Plaintiff indicating her matter was called “last week” and her or her new lawyer were not in Court. The matter was struck, and a $500.00 cost award was made against the Plaintiff (Exhibit Book, Tab 7 pg 19). 31.

On February 6, 2020, the Plaintiff was appointed a new lawyer, Rachel Fauser, on her matter LSC-000030917.03.02 (Exhibit Book, Tab 8 pg 20). [ 10 ] There are discrepancies between the ASF, the evidence at trial, and the written submissions of the parties, particularly in relation to the dates of meetings. [ 11 ] The ASF outlines four separate meetings between the parties: • October 23, 2019, • November 19, 2019, • November 25, 2019, and • December 20, 2019 [ 12 ] The viva voce evidence of Ms. Harnum and Mr. Ntinu was, at times, at odds with the dates specified in the ASF. In Ms.

Harnum’s Written Submissions summarizing the dates of meetings, no mention is made at all of a November 25, 2019, meeting, even though it was agreed to in the ASF. [ 13 ] Ms. Harnum’s testimony was that she could not actually remember when the first meeting with Mr. Ntinu occurred. Further, Mr. Ntinu testified that he first met Ms. Harnum around October 10, 2019, but under cross-examination, he said that he first met the plaintiff on November 20, 2019. [ 14 ] As Ms. Harnum’s written submission states: 13. The parties disagree on when [sic] had their first meeting.

The first meeting was either on October 23, 2019, September 1 or September 2, 2019.

[ 15 ] So, the ASF says it happened on October 23, 2019, Mr. Ntinu said it was either October 10, 2019, or November 20, 2019, and Ms.

Harnum cannot remember at all. [ 16 ] The court is not at all sure as to why the parties would enter into an ASF about the date of the first meeting (October 23), then lead evidence that it was on one of five possible dates, or a date not remembered by the Plaintiff when she testified. [ 17 ] This confusion in the evidence of both parties is particularly unhelpful to the court and indeed causes great difficulty on the issues of credibility and reliability, as will be further addressed in these Reasons. [ 18 ] The evidence of each witness called at trial is summarized below. The Plaintiff, Robin Harnum [ 19 ] Ms.

Harnum currently resides at or near Red Deer. She testified that in 2019, she was a member of the Home Church in Red Deer, Alberta, which is where she practices her faith. The church was also a major part of her place of community. In 2019, she headed up a program known as Home 101 and her role as part of the team was to gather new people to come to the church. [ 20 ] In 2019, Ms. Harnum was also member of Business Networking International (“BNI), a community of business and entrepreneur people designed to facilitate interactions among the business community.

She used BNI to help network with other business to her own business which was called “Made to Inspire”. [ 21 ] Ms. Harnum had been through a previous divorce but wanted to get legal help to vary a consent parenting order with her first husband, and so she applied to Legal Aid for assistance. [ 22 ] Legal Aid assigned Mr. Ntinu to Ms. Harnum on August 29th, 2019. Ms. Harnum’s evidence was that she does not remember the date when legal aid appointed Mr. Ntinu as her lawyer. First Meeting – October 23, 2019 [3] [ 23 ] Ms. Harnum testified that she met with Mr. Ntinu for the first time on October 23, 2019.

She found legal matters very nerve- wracking so she brough her mother to the first meeting with Mr. Ntinu. Ms. Harnum confirmed that the first time interacting with Mr. Ntinu was in that first meeting. [ 24 ] When Mr. Ntinu was retained, he was supposed to deal with a consent parenting order. She wanted to vary the parenting order to get primary custody. Ms. Harnum also acknowledged that she discussed with Mr. Ntinu taking over the divorce matters as well. She discussed this with Mr. Ntinu by text in the month after meeting him. [ 25 ] In the first meeting, they discussed Mr.

Ntinu possibly expanding his services to help with Ms. Harnum’s business as well. Mr. Ntinu was also a member of Home Church which Ms. Harnum took it to believe that God had brough Mr. Ntinu into her life. Ms. Harnum invited Mr. Ntinu to attend Home 101 and the BNI meeting. Ms. Harnum also introduced Mr. Ntinu to Success Builders, which is a smaller version of BNI within the church to get business owners help each other. Ms. Harnum believed that anyone who attended her church was like family, including Mr. Ntinu. Ms. Harnum invited Mr.

Ntinu to many BNI meetings but he only came to one and he did not attend the full meeting, staying for only five minutes. [ 26 ] Ms. Harnum testified that she considered that to this point, the relationship with Mr. Ntinu friendly. Ms. Harnum invited Mr. Ntinu to BNI because they were supposed to go to BNI every week together. Every week she would ask him to go until he eventually agreed. Second Meeting – November 19, 2019 [ 27 ] On November 19th, Ms. Harnum had a scheduled appointment at Mr. Ntinu’s office.

Her evidence in chief was: A So November 19 th , that was the meeting that I came late in the evening, and so at that one, he had said that he was going to be a bit late. I showed up at the office. I waited. Out appointment was supposed to be – that one I did have an appointment for. I was supposed to be for 3 -- 3 or 3:30 in the afternoon. I sat there and I waited about an hour for him to arrive. Once he arrived, it was about 4 -- 4 PM.

Their office closed, I believe, at 4:30. [4] (emphasis added). [ 28 ] I note, parenthetically, that 4:00 p.m. is hardly “late in the evening.” Her evidence continued: So, we went into his office -- into his office, not the meeting room -- behind closed doors, and then the rest of the staff left shortly after, and we just discussed my matter during that meeting. It was professional. It was -- it was fine, and we went through that whole meeting.

And then as we left that meeting is when he had asked me to go out for a drink, a glass of wine, and I declined, and that is when he then gave me a hug and said that he liked me. I was just a little taken back and just a bit confused. I wasn't quite sure. I just thought maybe it was his culture, so I just kind of brushed it off and ran out the door. And then when I ran out the door is when I called Candace to just kind of discuss it 'cause I was very confused as about the fact that he said that he liked me and then kind of kissed me on the cheek, and I -- again, I wasn't sure.

So I was just kind of confirming with her. Like, what did she think of that? Like, what did --what did she -- Q Okay. And -- A -- think of that meeting? [5] [ 29 ] There was no mistake in her evidence that this incident occurred on November 19 th , as she prefaced her answer. This alleged kiss does not form the basis of the sexual battery that is claimed in this action.

[ 30 ] The meeting lasted about three hours or so and nothing happened in the time that they were discussing Ms. Harnum’s legal matters. The meeting proceeded and remained professional. [ 31 ] She testified that the kiss happened in the reception area, not his personal office, but still in his office building and that the kiss took place when they were leaving, in the foyer of his office by the reception area desk. Ms. Harnum does not remember who else was in the building after she left Mr. Ntinu’s personal office.

She was only focused on getting out of the office, so she was not paying attention to who was there. Her evidence was: [6] Q On November 19, 2019 – A Yes. Q -- you went to the defendant's office. A Yes. ... Q So at what point in your entering the office did he kiss you on the cheek? A At what point did he do that? Q M-hm. A When we were leaving. Q It was when you were leaving. A M-hm. Q Not when you were inside. A Not that time. Q Okay. A It was in the foyer of his office by his desk -- by the reception area desk. [ 32 ] The evidence of the receptionist, Ms. Plamondon, was that she would not leave if Mr.

Ntinu still had clients with him. This will be explored further in these Reasons. [ 33 ] Ms. Harnum testified that immediately after leaving the office, she called a friend named Candace Homan. Ms. Harnum was confused and discussed the incident with Ms. Homan. [ 34 ] Ms. Harnum testified that even after the incident on November 19, she still wanted Mr. Ntinu as her lawyer since he was fighting for her, and it would be easier to have one lawyer handle everything. [ 35 ] In cross-examination, Ms. Harnum was referred to a text she sent to Mr.

Ntinu dated November 22, 2019, about varying the corollary relief in her divorce from her first husband. She was asked whether this was subsequent to the time that she says Mr. Ntinu kissed her. Her vague answer was: Well, that was -- yeah. That first initial, I was confused, and I didn't know if that was just his culture. That was not the -- that was not the incident that brought me to this position that we're in right now.

So yes, after that first initial contact, I still wanted to use him because, one it's hard to get a Legal Aid lawyer, two I wanted to get divorced, and I just thought it would be easier just to keep it with the same person. At that point, I wasn't decide -- like, hadn't decided to have him not be my lawyer at that point because I was not sure -- like, I just thought was maybe his culture, that he just -- I didn't know what he meant by that. [7] Third Meeting – November 25, 2019 [ 36 ] At the next meeting with Mr. Ntinu on November 25, 2019, Ms.

Harnum brought Candace Homan with her to support her, given what she alleges happened at the previous meeting. [ 37 ] Ms. Harnum and Candace went to the lawyer's office. Inside, they saw papers with other clients' names on the lawyer's desk. The discussion focused on Ms. Harnum’s matter and stayed professional, although the lawyer seemed irritated that Ms. Harnum brought a companion, Candace. Mr. Ntinu’s frustration became apparent when he started hitting his keyboard and using profanity, which Ms. Harnum found unprofessional.

Despite this, they continued discussing their matter. [ 38 ] This discussion took place subsequent to the first allegation of inappropriate behaviour behind closed doors (the kiss on cheek without permission at the November 19 th meeting). Ms. Harnum stated that she was initially confused by Mr. Ntinu's expression of liking her, attributing it to potential cultural differences. However, this incident wasn't the main factor in her decision to continue using him as her lawyer.

She wanted a Legal Aid lawyer and to proceed with her divorce, so she chose to retain his services, considering it might have been a cultural misunderstanding. [ 39 ] Ms. Harnum never discussed cultural differences subsequently and she said that found Mr. Ntinu to be very intimidating and she did not want to discuss the matter with him. However, she said that she then asked him to take on the divorce proceedings as well.

She thought it would be easier to deal with the same person. Ms. Harnum acknowledged that this was a sign of approval for how Mr. Ntinu was handling her other matter at the time. [ 40 ] The court heard evidence that in compliance with discussions between Mr. Ntinu and Ms. Harnum, a court application would be filed to be heard on January 17 th , 2020, although Ms. Harnum disputes that she was ever informed about the January 17 th date for the application. [ 41 ] An application seeking a variation of custody and child support was filed by Mr.

Ntinu with the Court of Queen’s Bench (as it then was) on November 28 th , 2019, and was returnable on January 17 th , 2020 in Red Deer. Fourth Meeting – December 20, 2019 [ 42 ] In December 2019, Ms. Harnum received a request from Mr. Ntinu asking that work-related communication should be channeled through his office email. In the Exhibit Book, there is an email at tab 4, page 17, from Mr. Ntinu inviting her to his office to discuss the response from the other party’s lawyer, but the choice was left to her to either consult with him via email or in person at his office. [ 43 ] Ms.

Harnum said that she chose to go to the office because email conversations were too long, and she wanted to discuss the matter right away since Christmas was coming up. This is borne out in the following excerpt from her testimony: [8] Q Okay. So, I'd now like to talk about December 20th, 2019. Can you turn to tab 4, page 17? At the bottom of this page, you're looking at an email from Mr. Ntinu 26 to you, correct? A Yes. Q Can you read the email? A (as read) Hello, Robin. Please find attached the response from Chris Tobler's lawyer. Do you want to come into the office, or do you want to discuss this by email?

Q And now, I understand on December 20th, you went to his office. Why did you choose to go to his office? A Just because I felt like email was just too much back and forth, and it was taking a long time, and I just wanted to deal with this matter to discuss it right away. I knew Christmas was coming up, so I just wanted to discuss the email that I -- we got from --the response from Chris's lawyer. Q Okay. A And I had time.

I was in town, so I just kind of figured, if you're available, I'll just run in, and we can quickly discuss it versus timely -- like back-and-forth emails. [ 44 ] This testimony establishes that it was Ms. Harnum’s decision to attend at Mr. Ntinu’s office that day rather than him asking her to come in. Accordingly, she attended Mr. Ntinu’s office on December 20 th , 2019, in the afternoon. [ 45 ] One of the purposes for the meeting was about setting up a four-way meeting between herself, Mr. Ntinu, her ex-husband and his counsel. She does not remember what date they were planning to set the meeting for.

The date chosen to her memory was February 6 th or February 7 th , 2020, as fallback dates if they did not come to an agreement at the four-way meeting. [ 46 ] Ms. Harnum disagreed that the December 20th meeting had been unnecessary for her to attend in person. She had denied that she had wanted the meeting to see Mr. Ntinu again. [ 47 ] She agreed that there was a discussion during the meeting that Mr. Ntinu would set up a four-way meeting in the new year between her, her ex-husband, and their respective legal counsel to seek mediation in their disputes. [ 48 ] Ms.

Harnum had assumed that the sole purpose she had in mind was to go to the mediation of her claim. Ms. Harnum said that she had no idea that the matter would escalate to court within the next couple of weeks. This evidence flies in the face of what she said about why she was meeting with Mr. Ntinu – it was precisely to prepare affidavit evidence to be used in a court application. [ 49 ] Upon her arrival, the receptionist had guided her to Mr. Ntinu's office. When she went into the office, Mr. Ntinu asked her to close the door, which she did. She said that he then came around the desk and talked quietly to Ms.

Harnum. [ 50 ] The meeting itself had only lasted for ten minutes. She testified: Q And then on December 20th, what – THE COURT: Sorry. I am assuming Chris Tobler is your ex-husband? A Yes, that's correct. THE COURT: All right. Thank you. Q MR. MORDEN: And what time did you go to the office?

A I can't remember. I just believe it was in the afternoon, but I honestly don't remember the exact time. Q Okay. And what happened when you got to his office? A Okay. So that was the one I was referring to earlier. So, I got to the office. It was -- came into the waiting room, and he was -- I could hear through the wall that he was -- seemed really angry on the phone, and he was yelling on the phone to whoever he was talking to, and then his receptionist said that he was ready to speak to me. So, she had me go into his office, and then I walked into his office, he asked me to close the door which I did.

Q Where was he? A Sitting behind his desk. Q Okay. And what happened after he asked you to close the door? A Then he came around his desk, and he quietly talked to me, and that was when he whispered, and he said, quit running away from me; you know that I like you, and nothing's going to happen at this time; just to keep it professional, and then he grabbed onto my jacket and kind of pushed me up against the wall, and then I felt like he must -- he was, like -- 'cause he was so close to me that he was going to kiss me, so I just turned my head, and then that's when he kissed me on the cheek. Q Okay.

And you said he was talking to you in a whisper. A M-hm. Q How loud of a whisper? A Just a whisper that I could hear. Those -- those walls are really thin, so nobody would be able to hear out in the waiting room. Q Okay. And you said he put his hands on you. Now, how did he put his hands on you? A Just, like, grabbed onto me, like, right here by my waist and grabbed onto my jacket. THE COURT: All right. So, the witness is showing about hip level grabbing your jacket? A Yeah. My hip. THE COURT: Both hands? A Yes, that's correct. Q MR.

MORDEN: And how would you describe the force or pressure that was used with the hand placement? A Just gentle. Q Okay. And then you mentioned a push. Now, how would you describe that? A Well, just -- that he leaned me up against the wall 'cause I was standing right against the door. So, then he just sort of pushed -- pushed me up against the wall. Q Okay. A Not, like, forcefully or not mean or anything like that. Just gently pushed me up against the wall. [9] [ 51 ] Ms. Harnum swore that this type of interaction between her and Mr.

Ntinu happened on each of the two dates she identified – November 19 th and December 20 th . Those are her words and that is her sworn evidence, yet both incidents are eerily similar, even identical. She said that she told Ms. Homan about the November 19 th interaction, but I find that she did not tell Ms. Homan about a kiss. Ms. Homan testified that Ms. Harnum had only felt “confused” and “uncomfortable” about the November 19 th incident. Neither Ms. Harnum nor Ms. Homan testified that following the November 19 th meeting, did Ms. Harnum say that Mr. Ntinu had kissed her. [ 52 ] Ms.

Homan said that it was only when Ms. Harnum told her about the December 20 th interaction and kiss, that Ms. Homan told her to “press charges”. [ 53 ] Concerning why she was at the November 19 th meeting, Ms. Homan testified: Q Why did you attend this meeting with her? A The reason I attended this meeting was because there was a meeting that Robin had had prior to that date, a meeting she had on November 19th where she called me after and felt very confused -- oh, sorry. ... And I just wanted to say the reason I was there was because she was uncomfortable, so she wanted me to come with her. [10] [ 54 ] Ms.

Homan’s evidence was that in that telephone call, Ms. Harnum said nothing about a ‘kiss’.

[ 55 ] The inconsistencies in Ms. Harnum’s evidence on these points are as follows: • The Plaintiff did not plead the November incident in her Claim; • When she called Ms. Homan after the November 19 th meeting, she did not tell Ms. Homan that Mr.

Ntinu kissed her during that meeting; • Her initial testimony about the November allegations were initially silent about a ‘kiss’; and • Only later in her evidence at trial did she testify that he “kind of kissed me”. [ 56 ] I cannot overlook these contradictions, omissions, variations, and embellishments in her story. [ 57 ] She testified that she discussed the December incident involving Mr. Ntinu with her friend Ms. Homan right after leaving the office and that she also discussed the incident with a friend named Tamara. She cannot remember the time and date she talked to Tamara. [ 58 ] Ms.

Harnum said that as a result of Mr. Ntinu’s treatment of her, she had severe Post Traumatic Stress Disorder (“PTSD”) in regard to males and to lawyers. In respect to the PTSD, Ms. Harnum met with a Dr. Fordyce shortly after the incident. However, there was nothing in the records from Dr. Fordyce dealing with PTSD. Ms. Harnum said that she did not get any referrals from Dr. Fordyce because she was already going to see Roy Mitton and that he did not suggest further medical consultation with anybody. [ 59 ] Ms. Harnum did not use any prescriptions to deal with the PTSD. [ 60 ] Dr.

Fordyce was not called to provide expert testimony at trial although it might have been expected that Ms. Harnum would want to tender that evidence to support her claims. The following occurred during the trial: Q Okay. Thank you. With respect to your PTSD, did you visit any doctor, a counselor? A Yes. Q So -- and who are they? A I saw my doctor, Dr. Fordyce. ... THE COURT: So, you are saying that medical records don't deal with PTSD. MR. MORDEN: Correct. MS. PURCELL: No. And we're not producing it. We don't have a witness in that regard. [11] [ 61 ] Ms.

Harnum said that in addition to Roy Mitton who was a missionary/counselor at her church, she also shared the incident with various people, including her friend Tamara from her church, co-workers, her parents, and church pastors. Ms. Harnum also does not remember when she told the pastor. She also referenced a Dr. Fordyce whom she consulted in relation to her claims of suffering PTSD. Significantly, except for Mr. Mitton, who only had hearsay evidence to offer, none of these potential witnesses were called to testify at the trial. If Ms.

Harnum wanted to corroborate her version of events, she could have called them. [ 62 ] Although Mr. Ntinu did not ask for an adverse inference to be drawn by Ms. Harnum’s failure to call such corroborative evidence, I do find that such the inference should be drawn and conclude that they were not called because their evidence concerning how her interactions with Mr. Ntinu negatively impacted her life would not support Ms.

Harnum’s theory of the case. [ 63 ] The Supreme Court of Canada has directed: [ 36 ]...The trier of fact may, upon weighing the evidence, draw an inference against a defendant who does not introduce sufficient evidence contrary to that which supports the plaintiff’s theory of causation.

In determining whether the defendant has introduced sufficient evidence, the trier of fact should take into account the relative position of each party to adduce evidence ( Snell , at p. 330) [12] . [ 64 ] The Alberta Court of Appeal has also said: [15] Whether an adverse inference should be drawn from the failure to call a witness is within the discretion of the trial judge, and the exercise of that discretion will not be interfered with on appeal unless it is unreasonable: Benhaim v St.

Germain 2016 SCC 48 at paras. 42 , 52, [2016] 2 SCR 352; Singh v Reddy , 2019 BCCA 79 at paras. 17-23 , 23 BCLR (6th) 22; Pfeifer v Westfair Foods Ltd , 2004 ABCA 422 at para. 20 , 361 AR 261. [13] [ 65 ] Accordingly, I do draw the adverse inference that Ms. Harnum chose not to call them as witnesses at trial because their evidence would have contradicted hers on the issue of how these alleged events impacted her life. I will deal with the impact of this adverse inference later in these Reasons. Events of January, 2020 [ 66 ] On January 5th, 2020, Ms. Harnum received an email from Mr.

Ntinu about the proposed four-way meeting between all parties and their counsel that had been discussed with her at the December 20 th meeting. However, she did not respond to the email. [ 67 ] Ms. Harnum contacted Legal Aid around the beginning of January, likely before January 5 th . Ms. Harnum told Legal Aid what

happened, and someone at Legal Aid said not to talk Mr. Ntinu. Ms. Harnum did not contact him to tell him that he was let go, but she agreed that she dropped Mr. Ntinu, not the other way around. [ 68 ] Ms. Harnum said that she terminated the legal certificate prior to January 17 th because she did not feel comfortable having him as her lawyer. Legal Aid did not appoint a new lawyer until February 6 th . She also testified that her new lawyer finished the consent order that Mr. Ntinu was supposed to do. [ 69 ] In January, 2020, the relationship between the two soured and broke down. Mr.

Ntinu testified that he first became aware of this when he was advised by Legal Aid that Ms. Harnum requested that it appoint a new lawyer to replace him. She testified that this occurred because of what she felt was his inappropriate behaviour toward him. [ 70 ] Ms. Harnum agreed that as of January 10 th , Mr. Ntinu was no longer her lawyer. [ 71 ] Ms. Harnum said that she did not know that the application to vary the parenting order was filed and a court date of January 17 th set until after the fact. This is vigorously disputed by Mr. Ntinu. Ms.

Harnum claims that she was not aware of the January 17 th court date, nor did she take steps to keep current of her matter in court. In cross-examination, it was suggested to Ms. Harnum that she was aware of the January 17 th court date that Mr. Ntinu had set down, which Ms. Harnum denied. [ 72 ] She said that as she was unaware of the impending court application, she did not feel any urgency to search for a new lawyer after she terminated Mr. Ntinu’s retainer. [ 73 ] The evidence, to be examined below, shows that Mr. Ntinu has have a very different take on how the retainer came to an end. [ 74 ] Ms.

Harnum agreed that Mr. Ntinu had never refused to take on Ms. Harnum’s services and she never complained about his services during the time he worked for her. Texts between the parties [ 75 ] Within the Exhibit Book, there are many text messages between Mr. Ntinu and Ms. Harnum, which were part of the evidence at trial.

The texts were relied by each party for two main purposes: • To corroborate dates and times of meetings and exchanges; and • To imply that there were romantic overtones from each party to the other, which was denied by each of the parties. [ 76 ] For example, several of the texts contained heart emojis which had been inserted by Ms. Harnum. She testified that she sends heart emojis to everyone and that they are like a ‘smiley face’ for her. However, her best friend, Ms. Homan, testified that Ms. Harnum never attached heart emojis to her texts to Ms.

Homan. [ 77 ] In one series of texts, the following occurred, about which Ms. Harnum was cross-examined: Q So -- and you did say you just got home, you have a glass of wine, and going to bed. Please confirm that. Yes, huh? A Yes. Q Thank you. And then you gave emoji heart. A Yeah. I was happy to be having a glass of wine and going to bed. Q That's good. And then on page 65 please -- could you go to page 65? So, in response to you saying you had a glass -- you were going to have a glass of wine and go to bed, he responded: "You are bad. You should have stopped by for a drink." A Yeah. [14] [ 78 ] Ms.

Harnum thought that the request to stop by for a drink was inappropriate. [ 79 ] These types of communications are not necessarily indicative of a romantic interest by either party, but they might also just as likely be interpreted as attempts at playful banter by either side. They could also appear to push the limits of what might be considered professional interactions between a barrister and his client. [ 80 ] In another set of texts, Ms. Harnum texted Mr. Ntinu “see you later today for coffee”. Ms. Harnum does not recall the text message or ever making a coffee date with Mr. Ntinu. Ms. Harnum also told Mr.

Ntinu to “watch the messages”. In her explanation, she said that she tells lots of people to ‘watch messages’ from the church because considered them to be great messages. [ 81 ] After meeting with Mr. Ntinu, Ms. Harnum accepted that it became normal for them to text each other and reserve seats at church for him. She qualified this answer by saying that she reserved seats for anyone coming to Church and that this is for everyone she talks to, not everyone generally. [ 82 ] In a text message from Ms. Harnum to Mr. Ntinu, Ms. Harnum told him that she was saving a seat for him at a church event.

In the text, she says “I love bringing people”. She explained that she loves connecting people to the church and making them feel welcome. [ 83 ] Ms. Harnum texted Mr. Ntinu to know whether he would be attending a program at church called The Christmas Experience because she is the type of person who wants to get everyone engaged with the church. She also invited Mr. Ntinu to sit with her at the

event because she did not want him to sit alone. On the date of the Christmas Experience, December 14, 2019, Ms. Harnum saw Mr. Ntinu and a female friend in the foyer. She went to go say ‘hi’. [ 84 ] In a later text message, Ms. Harnum wanted to know who his female friend was. Rachel Lynn Fauser [ 85 ] Ms. Fauser is a member of the Law Society of Alberta and a lawyer at a community legal clinic practicing family and civil litigation. She was called to the Alberta bar in 2017. Ms. Harnum had waived solicitor-client privilege in relation to any discussions she had with Ms.

Fauser. [ 86 ] She was not tendered as an expert witness to provide opinion evidence on the issue of the standard of care for a barrister and solicitor. She was simply an occurrence witness who had been retained by Ms. Harnum to represent her interests after she terminated Mr. Ntinu’s retainer. [ 87 ] Ms. Fauser was assigned to represent Ms. Harnum in February, 2020. Ms. Harnum met with Ms. Fauser at an intake appointment where they discussed Ms. Harnum’s family law issues with her ex-husband. During the first appointment, they discussed her issues and goals.

It was clear she wanted to proceed with a new application after a previous one was dismissed. Key details about parenting concerns were collected during the interview. [ 88 ] Ms. Fauser was advised that the previous counsel was Mr. Ntinu. Mr. Ntinu’s office sent a fax with the pleadings that had been filed along with previously filed orders and other documents in the proceeding. [ 89 ] Ms. Fauser never asked for details on what Ms. Harnum provided to Mr. Ntinu. She assumed that Mr. Ntinu would have attached the documents with any information Ms.

Harnum would have provided. [ 90 ] Reviewing the faxed documents, Ms. Fauser stated that there was not anything there that they could use. Mr. Ntinu also filed statements and affidavits which were not supposed to be used in divorce actions. [ 91 ] She felt that “lots of documents” appeared to be missing from Mr. Ntinu’s faxed items. [ 92 ] There was a great deal of confusion at trial concerning five invoices that Ms. Harnum tendered as evidence of her pecuniary losses. Ms.

Fauser stated that “possibly 50 percent of the total final bill” for her services would have been included in the four potentially five invoices in the exhibit. [ 93 ] She received several documents, which included the divorce judgment and the order Ms. Harnum sought to amend. Additionally, she obtained Mr. Ntinu’s submissions for the January 2020 application and the supporting paperwork, although it's unclear if she received all the orders. [ 94 ] During her visit to the office, Ms. Harnum expressed confusion about her case. She mentioned that her matter had gone to court without her awareness and showed Ms.

Fauser an order granted by Justice Bast, either on her phone or that had been forwarded to her. Ms. Fauser reviewed the order to advise Ms. Harnum on next steps, considering any conditions, such as a costs award, that might affect her ability to bring a new application. Ms. Fauser cannot recall whether the order from January 17 th was sent to her or whether Ms. Harnum brought it with her to show Ms. Fauser in person. [ 95 ] Ms.

Fauser refuted the notion put to her in cross-examination that she had not been prepared to conduct a trial in the matter, and she, but conceded that she lacked the physical file pertaining to Ms. Harnum due to her relocation from her prior office. Nevertheless, she pointed out that she possessed digital copies of numerous documents that were previously scanned. The documents sent via fax by Mr. Ntinu were also digitized for her examination. She stated that an affidavit, around three pages in length, had been provided by Mr. Ntinu. She reviewed these scanned records from Mr. Ntinu. [ 96 ] Ms.

Fauser testified that Ms. Harnum never told her about the proposed four-way meeting. [ 97 ] Ms. Fauser testified that from her review of the documents provided by Mr. Ntinu’s office, it was evident that statements and an affidavit should not be filed in a divorce action. Instead, a disclosure statement with specific attachments is required. She testified essential information should be included to present a case effectively to the court. Upon reviewing the materials, it was apparent that crucial elements were missing or incorrectly done. Recognizing this, Ms.

Fauser felt that it was necessary to begin anew. [ 98 ] The family application had several issues, including an incorrect style of cause, differing relief sought, and “messy” drafting of the FL18 form. Practice Note 2 and Court Rules for post-divorce judgment relief required that filed forms include the FL18, an affidavit, and a disclosure statement, given the request for child support. Mr. Ntinu's submissions consisted of a child support statement, parenting statement, and a brief affidavit. [ 99 ] During her testimony, Ms. Fauser highlighted two key problems with the work performed by Mr. Ntinu.

Firstly, the affidavit contained only limited information, with some details scattered across different statements. It failed to encompass all the necessary information that should have been provided by Mr. Ntinu to the court, as certain elements were mistakenly placed in the statements, which are not meant to be filed. Secondly, Ms. Fauser identified crucial information gaps - notably absent from the affidavit were details about how parenting issues affected the children and essential information about income. Recognizing these discrepancies, Ms.

Fauser concluded that the submitted documents wouldn't fulfill their intended purpose. [ 100 ] Ms. Fauser did accept that Mr. Ntinu filed an affidavit and statements. He had filed four documents total. One was the FL18 family application form, and there were two statements. There was also the vary child support statement, the vary parenting statement, and an affidavit. However, the witness stated that the affidavit included inappropriate information and lacked certain necessary details present in the statements or missing altogether from the documents.

[ 101 ] Ms. Fauser only spoke to the information Ms. Harnum provided to her. She was unable to speak on what information Ms. Harnum provided to Mr. Ntinu and she could not speak to whether Mr. Ntinu followed Ms. Harnum’s instructions. She did say that she could tell that he did not follow Practice Note 2 or the Rules of Court even without knowing what Ms. Harnum’s instructions were because there are very strict rules about statements that are not allowed to be filed. [ 102 ] Ms. Fauser received the file from Mr. Ntinu and noticed somethings were missing.

She was asked in cross-examination whether she had contacted Mr. Ntinu to inquire about that. She confirmed that she had not reached out to him to check if the missing document was filed. She was asked whether the witness had gone to the Court to get a procedural card or clerk’s notes regarding Ms. Harnum’s struck application, to which Ms. Fauser stated she did not recall doing so. [ 103 ] She stated that the issues between Ms. Harnum and her ex-husband were ultimately resolved by consent so there was never a trial. [ 104 ] I find that Ms. Fauser acknowledged that Mr.

Ntinu had done work to prepare for and move Ms. Harnum’s application along, but that Ms. Fauser concluded that some material was missing and that she needed to pursue the application in the way she deemed best. She did not testify that there was no value to the work he had done on behalf of Ms. Harnum but conceded that some of his work material was used by her. Roy Welling Mitton [ 105 ] Mr. Mitton is a missionary with Home Church and works as a minister specializing in domestic abuse. He works with people struggling with intimate partner abuse. Someone would get a referral to Mr.

Mitton through a psychologist, pastor, or someone who had used his services in the past. People would come to see him for a variety of reasons stemming from trauma. [ 106 ] Ms. Harnum came to him to talk about the incident at issue in November, 2020 on two occasions. She had brought her friend Candace for support in her appointments. During his testimony, Mr. Mitton began to describe what Ms. Harnum had told him. He said that the conversation focused more on how the alleged incident had affected Ms. Harnum, rather than the specifics of the allegations. Objections were raised by Mr.

Ntinu’s counsel on the basis that counsel for Ms. Harnum was attempting to elicit hearsay information. [ 107 ] As he was not qualified as an expert witness, I refused to allow the witness to continue and as such, I place no weight on anything Mr. Mitton said about what he was told. I will not refer to his evidence further, as it had no bearing on my determinations. Candace Charmaine Homan [ 108 ] Ms. Homan is a friend of Ms. Harnum’s. The friendship began in 2018. Ms. Homan shared how she came across an advertisement by Ms. Harnum’s business concerning a possible job.

They arranged a casual coffee interview that turned into a personal discussion. Although the job was not a fit, their interaction led to the development of a mutual friendship. As part of their friendship, they mostly communicated through text messages or phone calls. [ 109 ] Ms. Homan stated that even though Ms. Harnum showed immense enthusiasm for her church, Ms. Harnum never tried to recruit her to Home Church. Without actively recruiting, she would suggest it as a great place to meet others. Despite the witness's satisfaction with her current situation, she occasionally attended Ms.

Harnum's Home Church because of mutual friends. Although Ms. Homan had briefly attended Home Church years before and found it unsuitable, Ms. Harnum never pressured her. Instead, she received invitations to special events. [ 110 ] Ms. Homan testified that she attended the meeting on November 25 th with Ms. Harnum because Ms. Harnum felt uncomfortable after the last meeting on November 19 th . [ 111 ] In relation to what Ms. Harnum told her about the November 19 th meeting, her evidence was: Q Why did you attend this meeting with her?

A The reason I attended this meeting was because there was a meeting that Robin had had prior to that date, a meeting she had on November 19 th where she called me after and felt very confused -- oh, sorry. Q That’s okay. So, what happened -- A Just -- Q -- at this meeting on November 25th? A Okay. And I just wanted to say the reason I was there was because she was uncomfortable so she wanted me to come with her [15] . (emphasis added) [ 112 ] Ms. Homan did not relate that Ms. Harnum said anything about a kiss at the November 19 th meeting. Her evidence does not corroborate Ms.

Harnum’s evidence on this point, and actually contradicts it. She was not told by Ms. Harnum that Mr. Ntinu kissed her at that meeting. [ 113 ] Ms. Homan described the initial process upon arrival. Ms. Homan and Ms. Harnum waited in the reception area for a period of time that Ms. Homan could not precisely recall. Eventually, they received permission from the reception to enter the appointment together. Ms. Homan described the lawyer as not coming across as friendly as Ms. Harnum had previously described him. He looked frustrated and did not seem friendly. Mr.

Ntinu did not suggest that the meeting should be rescheduled.

[ 114 ] Ms. Homan recounted that during the November 25 th meeting, she sat alongside Ms. Harnum across from Mr. Ntinu. Over the course of the meeting, she observed Mr. Ntinu displaying signs of agitation and frustration, including behaviors like forcefully typing on the keyboard and using inappropriate language. At one instance, he searched for a specific page within a document, and she noticed other clients' information among the papers on the desk, which raised ethical concerns for her. [ 115 ] Ms. Homan testified that the substance of discussion was that Ms.

Harnum was dealing with a family matter related to custody arrangements. Ms. Homan, who was present as a support person, did not retain the specifics of the custody agreement. The main objective was for Ms. Harnum to address her case with her lawyer, involving professional discussions and questions aimed at resolving the matter at hand. [ 116 ] She does not remember how long the meeting lasted or at what time of day it took place. She remembers walking out of the office together with Ms. Harnum but does not remember if the lawyer walked out before or after them. [ 117 ] November 25 th was the only time Ms.

Homan interacted with Mr. Ntinu. Ms. Harnum mentioned after the visit that she thought that Mr. Ntinu’s behavior was unprofessional and that both she and Ms. Homan each came to that conclusion separately. [ 118 ] Ms. Homan also provided hearsay evidence in her testimony that Ms. Harnum called immediately after a later meeting with Mr. Ntinu and said that he had pushed her against the wall and kissed her on the cheek, even though she had turned her head to avoid it. Ms.

Harnum said that she felt stunned but continued with the appointment. [ 119 ] I allowed the evidence, not for the truth of its contents, but as part of the narrative offered by Ms. Homan as to what Ms. Harnum had said during the telephone call. [ 120 ] Ms. Homan conveyed to Ms. Harnum that in her view, such behavior was unacceptable and constituted assault. She recommended ending the lawyer-client relationship and considering legal action. She cannot recall the time of day the phone call and she admitted that she had not checked her phone records to see when it was. Ms. Homan urged Ms.

Harnum to report the incident. [ 121 ] Ms. Homan further admitted to chatting about the incident in the late weeks of 2019 with Ms. Harnum. Ms. Homan said that she was told by Ms. Harnum that she had informed Legal Aid, RCMP Victim Services, and the Law Society of Alberta about the incident. [ 122 ] Ms. Homan later on went to the Blackfalds RCMP with Ms. Harnum as support but didn’t remember the date it occurred. She was unsure what Ms. Harnum said to police and was not interviewed herself. [ 123 ] When Ms. Harnum wanted to talk to Roy Mitton and sought Ms. Homan’s support, she agreed to accompany her.

She attended a meeting with Mr. Mitton alongside Ms. Harnum, but she does not remember the date of that meeting or what took place at that meeting since it was early in 2020. [ 124 ] Under cross-examination, it was put to Ms. Homan that the phone call on December 20 was a fabrication which, which she denied. Ms. Homan also denied colluding with Ms. Harnum in the lawsuit. [ 125 ] Ms. Homan conceded that she and Ms. Harnum had discussed the ongoing process of the lawsuit and that there was a discussion about the lawsuit between Ms. Harnum and Mr.

Ntinu, but she could not remember when that took place, saying that it might have been in the fall of 2022. She stated that Ms. Harnum never told her that it was going to trial, just that it might. [ 126 ] She was asked about the impact that Ms. Harnum’s interactions had on her, but Ms. Homan testified that she does not remember whether Ms. Harnum saw a doctor for her issues in relation to what she said happened with Mr. Ntinu. She concluded her evidence by agreeing that she did not observe Ms. Harnum’s life being disrupted. [ 127 ] Ms. Homan’s testimony is at odds with Ms.

Harnum’s evidence on two major points: 1. She was not told, in the November 19 th phone call, that Mr. Ntinu kissed her, and 2. Her observations were that Ms. Harnum’s life was not disrupted by the alleged events. Thricia Nicolette Edwards [ 128 ] Ms. Edwards works at Rexall Drugstore and attends Home Church, where she is part of the Home Church choir. [ 129 ] She met Mr. Ntinu at the drugstore because he would come to the store daily when he was a student-at-law and spoke they spoke the same language. She invited Mr.

Ntinu to go to church and he would sometimes drive her to church. [ 130 ] She said that after church, it is common for people to stay and interact with friends and family. On one occasion, when church was over, Mr. Ntinu was introduced to Ms. Harnum and her parents. Recounting that incident, Ms. Edwards observed Mr. Ntinu engaging with a female client, who turned out to be Ms. Harnum. Mr. Ntinu introduced the client and her mother. However, Ms. Edwards said that she found the level of warmth from Ms. Harnum surprising, within a professional context.

She further stated that she found the conversation overly friendly between Mr. Ntinu and Ms. Harnum. [ 131 ] Questioning Mr. Ntinu's connection with the client, Ms. Edwards received an explanation from him that it was purely professional, centered around a legal case. Accepting this clarification, Ms. Edwards acknowledged the situation and moved forward. [ 132 ] She later on received a text from him about the incident at the church. Mr. Ntinu texted her saying that the client she had met was asking who Ms. Edwards was.

She gave advice to him about not being overly friendly and maintaining a professional relationship. [ 133 ] Ms. Edwards never interacted with Ms. Harnum again.

[ 134 ] I have given no weight to her evidence concerning the interaction between Ms. Harnum and Mr. Ntinu. Jennifer Arlene Plamondon [ 135 ] Ms. Plamondon is currently a stay-at-home mother but previously worked at Lema Law Chambers and Top Edge Law in 2019 and 2020. She was a receptionist and mostly answered phones, booked clients, and sometimes would enter time and other stuff into esiLaw, a software program for legal/clerical records. [ 136 ] In respect to Top Edge Law, Ms. Plamondon worked for two lawyers at the time 1- Mr. Ntinu and another lawyer, Leonard Magawa. [ 137 ] Ms.

Plamondon stated that she answered calls with clients and occasionally booked appointments for Mr. Ntinu but that Mr. Ntinu preferred booking appointments himself. Mr. Ntinu managed his own files and the most Ms. Plamondon would do is open files. [ 138 ] Ms. Plamondon outlined the layout of the office. Upon entering, the reception desk was situated to the left, accompanied by couches along the right wall. Further on, Mr. Magawa's office was found directly behind the reception desk, followed immediately by Mr. Ntinu's office. [ 139 ] Ms.

Plamondon elaborated that the client seating area did not extend all the way to Mr. Ntinu's office. Instead, there was a built- in desk that partially partitioned the space. Her own desk was situated adjacent to this partition, extending about six feet in length. From the door, it took around five steps to reach Mr. Magawa's office and seven steps to arrive at Mr. Ntinu's office. [ 140 ] Mr. Magawa worked long hours and he was usually at the office. [ 141 ] She testified that in relation to her interactions with clients, in the regular process, visitors arrived at the office and informed Ms.

Plamondon of their purpose. If Mr. Ntinu was in, she would inform him about the specific client's presence by knocking on his door. If Mr. Ntinu was absent, she would tell the client and then message Mr. Ntinu via text, relaying that the client "So-and-so" was at the office. She also testified that if there were clients in the office, her usual practice was not to leave until the clients left: Q And would you get to leave at 4:30, regardless of whether there were clients still in the office?

A Depending on what work I still had to do, but if I didn't have any extra work to finish up, then, yes, I would leave if there was [sic] no clients in the office. [16] (emphasis added) [ 142 ] Regarding Mr. Ntinu's client relations, Ms. Plamondon described them as professional. Despite potential lack of respect from clients, Mr. Ntinu consistently treated them with respect and professionalism. [ 143 ] On all the visits between Mr. Ntinu and Ms. Harnum, except the last one, Mr. Ntinu would come out of the office to say goodbye with a handshake. On the last visit, Ms. Plamondon remembers seeing Mr.

Ntinu take a couple of minutes in his office because he was finishing up some paperwork. [ 144 ] Goodbyes between Mr. Ntinu and Ms. Harnum were usually done with a handshake. She did not see a hug from either of them. She said that Mr. Ntinu “wasn’t the touchy type” and she never observed him being “chummy to a client.” [ 145 ] Ms. Plamondon stated that Mr. Ntinu treated Ms. Harnum the same way as any other client and always treated clients with respect. First Meeting: [ 146 ] Ms. Plamondon stated that Mr. Ntinu had mentioned to her that he had a new client that he met at church.

After getting the Legal Aid certificate and opening the file, Mr. Ntinu mentioned to Ms. Plamondon that he knew her from Church. She remembered that it was a family law matter. She recalled doing at least two affidavits and that she commissioned one of the affidavits, but she does not remember work on her files beyond that. [ 147 ] She remembered first seeing Ms. Harnum in fall or summer of 2019 when she came with her mother. Ms. Plamondon did not remember Ms. Harnum coming with a friend to that meeting, only with her mother. November 19, 2019 Meeting [ 148 ] Ms.

Plamondon had no recollection of the ‘second meeting’ and thus had no evidence to offer in that regard. However, her evidence was clear that she would not leave the office if Mr. Ntinu was still meeting with clients. November 25 th 2019 Meeting: [ 149 ] Ms. Plamondon said that Ms. Harnum came with a friend to that meeting. She testified that she had a conversation with Ms. Harnum that lasted around 10-15 minutes. She mostly had a conversation with Ms. Harnum while the friend sat there focussed on her phone. [ 150 ] She spoke to Ms. Harnum before and a little bit after the meeting. [ 151 ] Ms.

Harnum never complained about how the file was being handled. Ms. Plamondon testified that there was nothing special about the November 25 th meeting. The only notable thing was that Ms. Harnum talked to her about how great Mr. Ntinu was and how

excited she was to have him as her lawyer. [ 152 ] Ms. Plamondon stated that Ms. Harnum was concerned about what was going into the affidavits and she was concerned that the affidavit evidence was not what “specifically what she wanted”. [ 153 ] Ms. Plamondon testified to having a ten-to-fifteen-minute conversation with Ms. Harnum every time she came but clarified it was about “day-to-day stuff”, not about why she was there. She later clarified that on the first appointment date there was not a ten-to- fifteen-minute discussion but just a little chat.

December 20 th 2019 Meeting : [ 154 ] She remembers the meeting on December 20 th meeting between Ms. Harnum and Mr. Ntinu, which would have been around 4:00 pm. She stated that the conversation before the meeting was short since Mr. Ntinu was in the office ready to see Ms. Harnum. [ 155 ] Although the office walls were paper thin, she could not make out any specific details of a conversation, but she could hear that people were talking. The first place she could hear talking would be Mr. Magawa’s office but she did not remember if Mr.

Magawa had clients at the office on December 20 th . [ 156 ] She was not in Mr. Ntinu’s office but did not hear anything noisy. The walls were thin so she would have heard anything that was loud. Ms. Plamondon believes that the meeting between Ms. Harnum and Mr. Ntinu was about an hour since she was halfway done her paperwork before Ms. Harnum left. Ms. Plamondon stated that she was still there when Ms. Harnum left because she had to finish entering the time before the New Year. There was nothing unusual about that meeting compared to other meetings. [ 157 ] She did not remember if Mr. Ntinu followed Ms.

Harnum out of the office. After the meeting, she talked to Ms. Harnum for 10 to 15 minutes, mostly about the holidays. Ms. Plamondon stated that Ms. Harnum seemed fine, not mad or happy, just “normal”. [ 158 ] Ms. Plamondon stated that she remembered having a conversation with Ms. Harnum on that day because they were talking about Christmas gifts. She said that she had a long conversation with Ms. Harnum including showing pictures to her. The witness stated that it was closer to 15 minutes long. [ 159 ] She remembered Ms.

Harnum being excited when talking to her because of her daughter getting a dollhouse for Christmas. [ 160 ] Ms. Plamondon testified that after Ms. Harnum left the office, Ms. Plamondon probably left the office around 5:30-6:00 p.m. and she recalled that Mr. Magawa was still there when she left work. January, 2020 Events: [ 161 ] Ms. Plamondon had no involvement in communicating any court dates, including the January 17 th court date that Ms. Harnum had. For the most part, Mr. Ntinu would prefer contacting clients about court dates. [ 162 ] She remembered scanning a Notice of Withdrawal to be emailed to Ms.

Harnum and phoning her to confirm that she received the notice. She remembers doing this in early 2020 before COVID. [ 163 ] Ms. Plamondon also recounted a phone call when she contacted Ms. Harnum to confirm email receipt of the Notice of Withdrawal. Ms. Harnum responded with frustration, confirming that she received the Notice, but she stated that she has been instructed not to communicate with Mr. Ntinu. Ms. Plamondon was surprised by her intense reaction. Ms. Harnum even referred to the email as the "damn email." Despite attempting clarification, the call ended abruptly as Ms. Harnum hung up.

When asked about investigating further, Ms. Plamondon mentioned that her previous interactions with Ms. Harnum had always been positive, leaving her unaware of any underlying problems. Mr. Uche Ntinu [ 164 ] Mr. Ntinu is a barrister and solicitor who, at all relevant times, was licensed to practice law in Alberta and was a member of the Law Society of Alberta, having been called to the bar in 2018. [ 165 ] His legal education consisted of attending law school in Nigeria and he was called to bar in Nigeria in September, 1990.

He was then obtained admission to the bar in the Republic of Kenya in 1996, before practicing law in England. Thereafter, he immigrated to Canada in 2003, living and practicing in Toronto. [ 166 ] He ultimately came to Alberta and commenced his articles, handling mostly family law matters but some immigration and criminal matters as well. He testified that ninety five percent of the time, he was working on family law. [ 167 ] After being called to the Alberta bar, he worked initially with mostly criminal files but a few months later, his practice was split 50/50 between criminal and family files. [ 168 ] Mr.

Ntinu emphatically denied committing sexual battery against Ms. Harnum nor anything like it, including attempting to kiss her. His evidence was: So, what you are saying now is that you were the one that opened the door -- A Yes. Q -- and when you closed the door --

A Yes. Q -- did you push her against the wall? A I did not. Q Did you kiss her on the cheek when -- because you wanted to kiss her and she -- she turn her head? A I did nothing of such. [17] [ 169 ] He also testified: Q And so if I may ask you, do you agree that you committed sexual battery against Ms. Harnum? A Absolutely not. [18] [ 170 ] Mr. Ntinu testified that he served Ms. Harnum to the best of his abilities and even went “overboard”. ‘First’ Meeting – September 1 st or 2 nd , 2019 [ 171 ] Mr. Ntinu remembered being involved with Ms. Harnum’s file starting at August 30, 2019. He first contacted Ms.

Harnum by telephone. He contacted Ms. Harnum to let her know that he had picked up Ms. Harnum’s Legal Aid certificate. [ 172 ] Mr. Ntinu stated that the first meeting with Ms. Harnum at which she brought her mother was at the end of August or in the first week of September since he travelled to Europe in mid-September. He stated that it “would be September 1 st or 2 nd , around that time in 2019.” [19] He told her that he needed all the previous orders and documentation and that he would take them with him during his trip to Europe and that they would meet again when he returned.

The first appointment lasted about ten minutes and she had her children with her. [ 173 ] It should be pointed out that this meeting being in September is not consistent with the ASF, which indicates that the first meeting was October 23, 2019, and that her mother attended with her October 23 rd , 2019 Meeting [ 174 ] The purpose of the meeting was to begin drafting the application for variation of parenting and child support. [ 175 ] Mr. Ntinu discussed the meeting with Ms. Harnum wherein they reviewed her previous orders and discussed a proposed course of action. Ms.

Harnum wanted full custody due to her ex-husband's lack of involvement with her children. She also sought an adjustment in child support, as her partner's income had increased since their divorce. [ 176 ] Sometime during this period, Mr. Ntinu met Ms. Harnum at church for the first time. Prior to bumping into her at church, Ms. Harnum asked for Mr. Ntinu’s number three times. The first two times, he ignored her. The last time, he told her no. At church, he dropped his guard and gave his cellphone number to Ms. Harnum which is when the text communications started. Mr.

Ntinu further added that he had all of her information from legal aid so could have initiated text conversations with Ms. Harnum earlier. He gave his number because he accepted Ms. Harnum’s excuse that she does not check her emails that often. November 19, 2019 Meeting [ 177 ] Ms. Harnum attended this on her own without her mother. It was to review and revise the evidence for an upcoming variation application. [ 178 ] Mr. Ntinu found Ms. Harnum to be talkative and nice. He gave the following evidence: Q So after -- after the meeting -- A Yes. Q -- did you see Ms. Harnum off? A No, I didn't see her off.

I just remember that we chatted -- you know, she's a very chatty person, you know, we chatted and, honestly, in my mind at that time, I said, Whoa, this is a -- a nice person, that's just what I thought. A shame that bad things happen to nice people, but at that time that was my opinion of her. She was bubbly, chatty, and I had to follow, you know. Q Okay. Was there any time after the meeting – A Yes. Q -- that you held her and inform her that you like her? A That did not happen. ... Q Did you kiss her on the cheek?

A God forbid, I never tried. Q So when the meeting ended -- A Yes. Q -- did you see her to the door -- A No. Q -- or did you leave -- or did you just allow her to go? A Which meeting are you talking about? Q 23rd of October, that's what we are still on, the one that you just -- A 23rd of October, I probably shook her hands and she left. Q Okay. A Yes. [20] [ 179 ] Mr. Ntinu denied informing Ms. Harnum that he liked her. Mr. Ntinu further stated that he did not kiss her or tried to. [ 180 ] I have concluded that the meeting referred to Mr.

Ntinu as the October 23 rd meeting must have actually been the November 19 th meeting. November 25, 2019 Meeting [ 181 ] Ms. Harnum called Mr. Ntinu prior to the meeting to inform him that she was bringing her friend to the meeting. Ms. Harnum told Mr. Ntinu that she was “hyper” and wanted a friend who was level-headed to attend the appointment with her. [ 182 ] Mr. Ntinu remembered Ms. Harnum attending with her friend Candace Holman. When asked about his behavior during the meeting, he clarified that he did not bang his desk, speak loudly, or strike his keyboard without reason.

He mentioned having a naturally loud voice and emphasized that the perception of "loud" is subjective. [ 183 ] The affidavit and application were reviewed, and the meeting concluded. [ 184 ] Mr. Ntinu stated he was composed and fine on that day and speculated that Caucasians might misinterpret his African tone as being agitated. He had some textbooks and hand notes on his desk during the meeting, but no client files. He testified: Q And did you bang your desk at that meeting? A I did not. Q And were you speaking very loudly at that meeting? A I did not. I have a laud [sic] voice. What is loud is relative.

Q And did you at all strike your keyboard? A For no reason. I did not. [21] December 20, 2019 Meeting [ 185 ] After filing and serving the application, Mr. Ntinu received a call from opposing counsel, Ms. Goerling. She proposed a four- way meeting and asked if Mr. Ntinu's client would agree to meet. Mr. Ntinu discussed this via email with Ms. Harnum. She texted him that she was preferred to meet at Mr. Ntinu's office the next day, December 20th. Ms. Harnum wanted to see Mr. Ntinu in person, so Mr. Ntinu chose to delay his travel to Calgary to meet with Ms. Harnum. Despite having travel plans, Mr.

Ntinu chose to stay to address the matter before their trip. [ 186 ] His evidence on this point is as follows: A And she said to me that she will be in the city the next day – Q Okay. A -- and she will drop by my office. Q I see. A If you allow me to just go on a little bit, the date is significant, it was December the 20th, I wasn't supposed to work on that day, I was going to go to the States the next day, so my plan was to go to Calgary and await my flight the next day. So, for me, it was a sacrifice to wait to deal with this matter first before I travelled away.

Q I see. A Yes. Q Because she said, instead of dealing with it on the email side – A Yeah. Q -- she would rather see you – A See me, yes. Q -- and talk it over? A And talk it over. So, I agreed to delay my traveling to Calgary that day -- Q Okay. A -- so that I can meet with Ms. Harnum and deal with this matter. [22] [ 187 ] He provided further evidence concerning the circumstances of the meeting on that day: That was the last day of the -- of the year. So, I didn't go to the office specifically to wait for Ms. Harnum. I had a few other stuff to accomplish. Ms. Harnum just happened to be one of them.

So, if she had responded by email, yes, it might have been easier for me, but I didn't go to the office to wait for Ms. Harnum. I had other things to do. The assistant was there. [23] [ 188 ] Mr. Ntinu testified that at around 11:00 a.m. on December 20 th , Ms. Harnum texted to ask if Mr. Ntinu was in the office, which struck Mr. Ntinu as odd since they already had an appointment scheduled. Mr. Ntinu responded affirmatively, and Ms. Harnum's response indicated uncertainty about her ability to make it due to being busy. This frustrated Mr. Ntinu, as he had adjusted his plans to accommodate the meeting.

In response, Mr. Ntinu sent a text saying that the meeting was not meant to be a professional and not a friendly visit and it should be taken seriously. [ 189 ] During cross-examination, Mr. Ntinu was agreed that he could have chosen between an in-person meeting or dealing with this matter via email. He stated that he was busy and preparing for a holiday around December 20, 2019. [ 190 ] Mr. Ntinu let Ms. Harnum choose between meeting in his office or using email. He said that he could have suggested discussing this by email in hindsight, but he offered her the choice.

When asked if he considered email might be easier for Ms. Harnum, he replied that it was why he gave her the option. He clarified he had other work on that day and wasn't specifically waiting for her. He denied delaying his plans to see her. [ 191 ] The purpose of the meeting was about the application that had been filed and to discuss the proposed four-way meeting with her ex-husband and his counsel. [ 192 ] When Ms. Harnum arrived, Mr. Ntinu opened the door and greeted her. He clarified that the interaction needed to be professional despite their friendship.

He recalled holding her right hand during this conversation. Afterward, they both entered Mr. Ntinu's office, when Mr. Ntinu explained the terms presented by opposing counsel and the need for Ms. Harnum’s permission to hold the first four-way meeting in his office. [ 193 ] Mr. Ntinu acknowledged a discrepancy in his version and Ms. Harnum’s version regarding who opened the door for her. Mr. Ntinu affirmed that he was the one to open the door and usher Ms. Harnum into the office. [ 194 ] He resolutely denied that he pushed Ms. Harnum against the wall or attempted to kiss her on the cheek. His evidence was: Q Okay.

So, what you are saying now is that you were the one that opened the door -- Yes. Q -- and when you closed the door -- A Yes. Q -- did you push her against the wall? 31 A I did not. Q Did you kiss her on the cheek when -- because you wanted to kiss her and she -- she turn her head? A I did nothing of such. [24] [ 195 ] The date for the application had been set for January 17 th , 2020, and he testified that he told her that: Q What was the purpose of that meeting? A Okay. The purpose for that meeting was we had filed an application –

Q Okay. A -- and the dates had been given for that application. Q Okay. And what day was that? Let me -- A It was 17th of January. Q So was she aware of that date? A Yes. She signed the affidavit. ... THE COURT: Okay. Can I clarify? So, you directly told Ms. Harnum – A I did. THE COURT: -- the January 17th date? A Yes. Yes, Sir. [25] [ 196 ] Mr. Ntinu testified that opposing counsel, Ms. Goerling, wanted to canvass dates for the four-way meeting. He testified about his discussion with Ms.

Harnum: I said, I’m going to go away, I’m going away today, I won’t be back until early January, and I will not be in a position to do this very early. She also told me that she will not be around, she’ll be going away around the 20 th of January or thereabout. So, we said, okay, so she – she gave me some dates in February and that was what I was doing, sending an instant message to Ms. Goerling while she walked out of my door. By the time I finished doing that, I printed it, and I went outside to go give Jennifer Plamondon to scan from the printer so I can forward the – everything to Ms. Goerling. I found Ms.

Harnum and Jennifer Plamondon chitchatting and I came back to my office, and I continued my job. [26] [ 197 ] After discussing the process with Ms. Harnum and agreeing to hold the initial four-way meeting in his office, Mr. Ntinu drafted a response to Ms. Goerling's request. Once the meeting concluded and the location was set, Ms. Harnum left Mr. Ntinu's office. Mr. Ntinu briefly spoke with Ms. Plamondon about scanning the document detailing plans for the four-way meeting. He then noticed Ms. Harnum chatting with Ms. Plamondon outside his office and in the reception area. Mr. Ntinu didn't sense any upset from Ms.

Harnum. [ 198 ] Mr. Ntinu spent about 5 minutes finishing his task before finding Ms. Harnum chatting. He didn't say anything more to Ms. Harnum, as he needed to leave quickly due to travel plans. Mr. Ntinu stated there was no reason to send a note to Ms. Harnum after this meeting. [ 199 ] Mr. Ntinu said that he informed Ms. Harnum about the scheduled court date for the matter, which was January 17 th , 2020. This was conveyed through a phone call, as the initially planned date was unavailable when the application was filed. He said that he had directly informed Ms.

Harnum about the January 17 th date and had also instructed Ms. Plamondon to convey this information to her. Mr. Ntinu confirmed that both Ms. Harnum and Ms. Plamondon were aware of the date. [ 200 ] This evidence contradicts that of Ms. Plamondon, who said that she was not aware of the January 17 th date. Events of January, 2020 [ 201 ] On January 5 th Mr. Ntinu returned from a trip and focused on work tasks, including Ms. Harnum's case and other trials. He checked for a response from opposing counsel regarding a

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