By Karly Lyons
On August 20, 2019 motions to certify three class proceedings for the purpose of settlement came before Justice Perell of the Ontario Superior Court. All three lawsuits were against immigration and refugee lawyers and alleged professional negligence. The claims involved Roma refugee claimants fleeing a far-right organization in Hungary called the Hungarian Guard. All of the class members had hired either Viktor Serhey Hohots, Joseph Stephen Farkas or Erzsebet Jazi to file their refugee claim and all were denied refugee status. The class members all advanced the following common questions: (1) did the Defendants owe a duty of care to the class; (2) did they breach this duty of care; and (3) did they owe a fiduciary duty? Justice Perell certified the three actions as class proceedings.
Mr. Istvan Horvath is one of the representative plaintiffs. According to the Statement of Claim filed by class counsel Flaherty McCarthy LLP, Mr. Horvath was a Roma refugee claimant who arrived from Canada in 2009. He alleged after one initial meeting with counsel a different individual attended the hearing and was unprepared to adequately proceed. Mr. Horvath alleged that as a result of inadequate legal representation, his refugee claim was rejected one month after his initial Refugee Hearing. Fortunately, he was allowed to remain in Canada on Humanitarian and Compassionate Grounds.
Mr. Horvath’s counsel were officially disciplined by the Law Society of Upper Canada (as it then was) in 2015 for abdicating their professional responsibilities. The other representative plaintiffs in the action also had counsel who were disciplined by the Law Society. The disciplinary decisions led to discussion of the vulnerability of refugee claimants and the need for dedicated counsel. These disciplinary proceedings formed the basis of the causes of action in the class actions.
Class actions against lawyers for professional negligence are unusual but not unprecedented. In Ontario, the first such claim was certified twenty years ago. Just this past month a Calgary judge certified a class action against a lawyer by residential school survivors he previously represented, for negligence and charging excessive fees.
A class proceeding is complex and can involve a confluence of laws and procedures. What began as Immigration and Refugee Board decisions then led to official discipline by a self-regulated profession which in turn led to certified and settled class proceedings. The traumatic individual situation of Mr. Horvath led to a more complex resolution than he likely anticipated. This settlement will also surely raise issues surrounding notice as the certified class consists of Roma refugees, many of whom were deported once their refugee claims were rejected and continue to be displaced elsewhere.
Class proceedings based on a cause of action of professional negligence raise important questions about competency of counsel and self-regulation. When counsel is professionally negligent, disciplinary measures of law societies are triggered. However, when negligence is on a large scale with a population who may be deported as a result of the negligence – does self-regulation still work? Had Mr. Horvath (and others in his community) not been allowed to remain in the country on compassionate and humanitarian grounds, would counsel have been disciplined? Will the class ever be properly compensated given their potential geographical dispersal? Is it a failure of self-regulation that the harm done reached a scale where a class proceeding was the appropriate procedure?
The Roma refugee class proceedings remind us of the importance of competent counsel when dealing with vulnerable individuals. They are also unique applications of the class action device to claims of professional negligence in a self-regulating profession.