



COURT OF APPEAL FOR ONTARIO

CITATION:
The
    Law Society of Upper Canada v. Kelly, 2012 ONCA 222

DATE:  20120404

DOCKET: C54501

Doherty, LaForme JJ.A. and Turnbull J. (
ad hoc
)

BETWEEN

The Law Society of Upper Canada

Applicant (Respondent in Appeal)

and

Terence Austin Kelly

Respondent (Appellant)

Andrew D. Burns, Donald Park and Douglas Hunt, Q.C., for
    the respondent (appellant)

Nadia Musclow and Margaret Cowtan, for the applicant
    (respondent)

Heard:  April 3, 2012

On appeal from the order of Justice Pollak of the Superior
    Court of Justice, dated September 28, 2011.

APPEAL BOOK ENDORSEMENT


[1]

The order of Lederer J. was made under s. 49.47 of the
Law Society
    Act
.  The Law Society, as trustee, then applied for directions affecting
    the property under s. 49.48 and sought an order for distribution of the
    property.

[2]

We are satisfied that the part of the order under appeal directing
    payment of the unallocated funds into the compensation fund is a distribution
    under s. 49.47(2).

[3]

We do not read s. 51(2) as exhaustively setting out the monies that can
    be paid into the compensation fund.  Rather, it identifies certain monies which
    must be paid into the compensation fund.

[4]

Sections 59.6 through 59.14 do not create a scheme requiring payment
    of unallocated funds into the unclaimed trust fund account.  Those sections are
    designed primarily as a mechanism by which lawyers may apply to have unclaimed
    trust funds paid into the account, thereby relieving the lawyer of associated
    fiduciary duties.

[5]

We are, therefore, satisfied that there was authority under the
    statutory scheme to make the order.  We see no error in the motion judges
    exercise of her discretion in granting the order in the terms sought.

[6]

We see no merit to the due process claims.  They were not pursued in
    oral argument.

[7]

The appeal on the merits is dismissed.

[8]

We see no basis to make any order of costs of the appeal against Mr.
    Burns personally.  We would order costs in the amount of $15,000 all in
    payable by the appellant.  The monies may come from any funds of the appellant
    presently held by the Law Society.  To the extent that the funds do not exhaust
    the cost order, the appellant is liable for the remainder.


