Two lawyers at the centre of a high-profile adoption tug of war involving a Métis toddler on Vancouver Island have been slammed by the B.C. Supreme Court.
In a stinging decision, Justice Barbara Fisher said it gave her “no pleasure” to levy a rare special-costs order to rebuke the Metro Vancouver practitioners: “They were acting zealously … [and] overstepped their proper role as counsel and pushed the limits of the litigation process beyond what is acceptable and for that, the court must respond.”
Fisher denounced allegations of surreptitious recordings and perjury that were never substantiated, calling the threats “a form of blackmail.”
“I do not doubt that the motivations of counsel reflected those of their clients,” she said.
But Fisher maintained the extraordinary award was “justified ‘where the lawyer’s acts have seriously undermined the authority of the courts or seriously interfered with the administration of justice,’ a high threshold that is met ‘where a court has before it an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer.’ ”
Considered the more blameworthy, lawyer Jack Hittrich called the ruling “chilling” in a context where counsel might have a duty to challenge the actions of the government: “I’m pretty upset over this — if you advocate for your client’s novel arguments you can be penalized in a major way.
“We think the judgment is incorrect and are preparing an appeal,” continued the lawyer, who was also at the centre of the “J.P.” custody fight, which helped spark a review of the Ministry of Children and Family Development in 2015 by ex-deputy minister Bob Plecas.
“My former clients have not waived solicitor-client privilege and therefore I could not properly defend myself,” he said. “Because of this claim for costs against me, my former clients have had to retain new counsel, at great expense and hardship to them.”
Fisher said Hittrich and Nathan Sutha Ganapathi “identified too closely with their client,” a Vancouver Island foster family.
The family, who cannot be identified to protect the child’s privacy, vainly fought, supported by the birth parents, for custody of the little girl taken into care days after she was born in October 2013.
But the ministry view prevailed that she was better off adopted by the Ontario family rearing her two older sisters, whom she had not met.
The justice criticized the lawyers for initiating eight proceedings before every level of court seeking the same relief, even though the underlying facts didn’t change.
Hittrich said Wednesday his former clients are continuing to litigate in the Northwest Territories over what they consider their Métis “custom adoption” of the girl.
They and the new parents have had phone calls since the child moved to Ontario and she appears to be adjusting, he added.
The B.C. director of child, family and community services, the director of adoptions and the Public Guardian and Trustee argued the lawyers should be punished after Fisher dismissed two of their petitions as an abuse of process.
The last of those rulings is under appeal, Hittrich said.
Fisher cited as troubling inconsistent pleadings and the tailoring of evidence, but was particularly incensed by what she considered Hittrich’s inappropriate attempt to settle the litigation.
“Mr. Hittrich advised that he had a copy of a recording and a transcript of a meeting that took place in May 2016 with the child, S.S., and two social workers, which, he asserted, would prove that the social workers perjured themselves,” Fisher explained.
“In my view, Mr. Hittrich’s threats to expose his assertions of perjury, made with the consent of Mr. Ganapathi as counsel for the birth parents, were egregious … I consider Mr. Hittrich’s threats in this context to amount to a form of blackmail, which cannot be countenanced.”
She said he never produced either the tape or a transcript, which “constitutes reprehensible conduct by any measure. That a lawyer would suggest that the directors could or would ‘bargain away S.S.’s interests in that way’ as the [Public Guardian and Trustee] put it, demonstrates a serious disregard for the proper administration of justice.”
Since the lawyers played different roles, she said Hittrich should pay 75 per cent of the costs, which have not yet been totalled.
“This is a case that has never been heard on its merits and needs to be heard on its merits,” he said. “With the installation of a new government, we are hoping that it will take a fresh look at this case.”
