Judge accuses 'zealous' Vancouver lawyer of 'blackmail' in unusual court ruling
‘We are hoping that the new government will take a fresh look at this case,’ says lawyer who plans to appeal
A Vancouver judge wrote that a senior, well-respected Vancouver lawyer tried to, in effect, "blackmail" B.C.'s director of adoptions, and ordered the lawyer to pay special costs for engaging in an "egregious" abuse of court process.
The unusual court ruling names two lawyers — Jack Hittrich and Nathan Ganapathi — who were both involved in a drawn-out adoption case involving a Métis toddler.
"It gives me no pleasure to make this order," said B.C. Supreme Court Justice Barbara Fisher in the civil ruling on court costs released July 11. The judge ruled in favour of the director of Child, Family and Community Services and the Public Guardian and Trustee, which acted for the child.
"[These lawyers] were acting zealously in their efforts to secure a result that their clients felt was in the best interests of the child S.S. But in doing so, they overstepped their proper role as counsel."
The two lawyers were involved in challenges to a decision by the provincial ministry to place the child — who cannot be identified — with a non-Métis family in Ontario to live with siblings, against the wishes of the foster parents who had raised the child since birth in B.C.
The child was moved to Ontario last fall, despite the foster parents' fight to keep her in an Indigenous home.
Eight different legal proceedings were initiated in different levels of court — and some remain unresolved — causing delays and ignoring the child's best interests, the judge ruled. A bid to appeal the case in Supreme Court was withdrawn.
Hittrich, who initially represented the foster parents, was ordered to pay 75 per cent of costs and Ganapathi, who represented the child's birth parents, was ordered to pay 25 per cent.
Hittrich is also accused of using the threat of a secret recording of a meeting two social workers had with the child in May 2016 to try to "blackmail" B.C.'s director of adoptions into allowing his clients to adopt the toddler. He alleged the social workers had perjured themselves and planned to reveal that unless his clients got their way.
It's unclear how the meeting was recorded, and it was never produced in court.
"I consider Mr. Hittrich's threats to amount to a form of blackmail," the judge wrote in her decision.
The tactic both failed and went too far, the judge ruled, despite the defence that both lawyers were bound by solicitor-privilege, and so were limited in how well they could defend themselves, because they could not divulge their clients' instructions.
Hittrich says he plans to appeal.
"My former clients have not waived solicitor client privilege and therefore I could not properly defend myself. With the installation of a new government, we are hoping that the new government will take a fresh look at this case," he said in an emailed statement.
Ganapathi told CBC News, "it's highly unusual for a judge to be that severe in her criticisms."
The scathing ruling is rare and has caught the attention of lawyers across B.C. who are messaging it furiously to one another, says Vancouver lawyer Leena Yousefi.
She says it will make lawyers much more careful.
Yousefi says she's seen more strict rulings coming down from law societies recently to ensure lawyers are staying within the bounds of their roles, especially given concerns over shortages of judges and overwhelmed courts.
"An overarching obligation that we have is to be an officer of the court, and our obligation to the court is even higher than to our own clients. So, if we use these type of tactics to get what our clients want, we are undermining public confidence in our work."