The Law Society of Manitoba v Kalo, 2019 MBCA 112

Citation: The Law Society of Manitoba v Kalo, 2019 MBCA 112 Date: 20191106 Docket: AI19-30-09263 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Madam Justice Jennifer A. Pfuetzner Madam Justice Janice L. leMaistre BETWEEN : THE LAW SOCIETY OF MANITOBA ) M. Kalo ) on his own behalf ) (Applicant) Respondent ) R. H.

Kravetsky ) for the Respondent - and - ) ) Appeal heard and MICHAEL KALO ) Decision pronounced: ) November 4, 2019 ) (Respondent) Appellant ) Written reasons: ) November 6, 2019 On appeal from 2019 MBQB 60 PER CURIAM [ 1 ] The respondent appeals a judgment prohibiting him from practising, or attempting to practise law, or offering or providing legal services. [ 2 ] After hearing the appeal, we dismissed it with reasons to follow. These are our reasons. [ 3 ] The Law Society of Manitoba (the LSM) brought an application for an injunction under

section 29 of The Legal Profession Act , CCSM c L107 (the Act ) to prohibit the respondent from practising law or providing legal services based on evidence it asserted demonstrated that he is not entitled to practise law in the Province of Manitoba and that he had attempted to carry on activities that constitute the practice of law, including, acting on behalf of clients in civil proceedings and directly or indirectly giving legal advice and providing legal services. [ 4 ] The respondent brought a motion seeking to have the application converted into an action, or alternatively, to have case management, judicial dispute resolution, leave to examine third parties, affidavits filed by the LSM struck and exhibits expunged, and an adjournment. [ 5 ] The judge dismissed the motion.

In doing so, he concluded that an application was the appropriate process; case management was not necessary; judicial dispute resolution was not available without the consent of the opposing party; there was nothing to be gained by the examination of the third parties; the respondent was prepared for the hearing and agreed to proceed; and the issues regarding the affidavits and exhibits “had been eclipsed by additional filings on the application” (at para 8, point 6/7). [ 6 ] Regarding the application for an injunction, the judge found that the respondent had provided legal advice or assistance; drafted documents for court proceedings including notices of application, affidavits and a notice of appeal; represented some of the matters in court and in case conferences; and attempted to settle several matters.

The judge concluded that the respondent had breached sections 20(2)(a)-(

d) of the Act and that a permanent injunction was “necessary for protection of the public” (at para 34). [ 7 ] Accordingly, the judge ordered that:

[T]he respondent, MICHAEL KALO, be, and is hereby, enjoined and restrained from practising, or attempting to practise law, or offering or providing legal services, whether or not for reward or consideration of any kind, including, but not limited to:

i) drawing or advising upon documents for use in legal proceedings or that are intended to affect the legal rights of any person other than himself, including any corporation; ii) appearing in court on behalf of any person other than himself, including any corporation, or otherwise advocating in or advising upon proceedings in any court; iii) appearing before any board, tribunal or adjudicative body of any kind on behalf of any person other than himself, including any corporation, or otherwise advocating in or advising upon any such proceedings; iv) participating in communications for the settlement of any dispute or contested issue on behalf of any person other than himself, including any corporation;

v) holding himself out as having experience, expertise in the law or the practice of law. [ 8 ] The judge adjourned the issue of costs and we were advised at the appeal hearing that an award of costs was just recently made. [ 9 ] In the notice of appeal, the respondent lists 15 grounds of appeal, which may be summarised as whether the judge erred in law; misapplied the law to the facts; or made findings not supported by, and inconsistent with, the evidence. [ 10 ] At the commencement of the hearing, the respondent sought an adjournment in order to file materials in support of his appeal of the order for costs and for other reasons.

We granted the adjournment, but only to permit the parties to file a supplementary appeal book and supplementary factums on the issue of costs. The respondent’s appeal of the costs award will be heard at a later date. [ 11 ] We are all of the view that there is no merit to this appeal. [ 12 ] The respondent has acted as a lawyer in six matters before the Court of Queen’s Bench and intended to act as agent in a discipline matter before the College of Pharmacists of Manitoba.

He has held himself out as having legal education and experience; he has been appointed a director of three corporations as a pretense for the sole purpose of representing those companies in court proceedings; and he has been found to be in breach of sections 20(2) (b)-(

d) of the Act by attempting to appear as a lawyer in the Court of Appeal (see 7451190 Manitoba Ltd v CWB Maxium Financial Inc et al , 2019 MBCA 28 at para 57 ). [ 13 ] We are satisfied that the judge applied the correct legal test, made no palpable and overriding error in the application of the law to the facts, and that his findings of fact are amply supported by the evidence.

Therefore, the judge’s decision is entitled to deference ( see Housen v Nikolaisen , 2002 SCC 33 at paras 10 , 21-23, 26-27, 36; and Salomon v Matte-Thompson , 2019 SCC 14 at para 40 ). [ 14 ] Moreover, we agree with the judge that “the public is entitled to ethical and competent representation by skilled legal professionals” (at para 14) and that “[a] permanent injunction is not only warranted but also, in [the respondent’s] circumstances, necessary for protection of the public” (at para 34). [ 15 ] In the result, the appeal was dismissed with costs to be determined at the hearing on the costs award. JA JA JA