Merchant wins appeal against conduct unbecoming judgment

Well-known Regina lawyer Tony Merchant has won his case against a 2019 conviction for conduct unbecoming a lawyer.

In 2014, Merchant had a client, identified only as JS in the court documents, who had won a settlement through the Indian Residential School Settlement Agreements. Merchant represented JS in that case and the money was paid to his firm in trust.

Merchant had also represented JS and her son in several other matters, which ended up in outstanding bills totalling more than $20,000.

In 2014, Merchant sent a strongly-worded letter to JS reminding her of the outstanding debt and telling her that she could let them take it out of her settlement before paying it to her, or if she didn’t pay they could sue her for the monies and potentially seize her property.

JS quickly allowed the debt to be taken from her settlement, but others got wind of what happened and Merchant was taken to court over it.

Eventually, a BC court ruled that Merchant had to pay the money back because settlement monies paid to a residential school survivor cannot be “assigned” elsewhere, and the court found that the “direction to pay” undertaken by Merchant was the same as an assignment.

Merchant tried to appeal that decision to the Supreme Court of Canada but was denied.

JS filed a complaint with The Law Society of Saskatchewan that Merchant induced her to provide the money.

Merchant argued at the hearing that he didn’t realize a direction to pay is the same as an assignment, that he acted in a transparent manner, that he sought advice from the Ethics Committee of the Law Society, and had sought direction from the court.

The law society found Merchant guilty of conduct unbecoming a lawyer and was suspended from practicing law for eight months.

Merchant appealed the law society decision and, this month, the Court of Appeal of Saskatchewan decided in his favour – concluding that an assignment is not the same as a direction to pay.

“The pre-2014 jurisprudence is clear that directions to pay fall within the purview of Article 18.01 of the (Indian Residential School Settlement Agreement),” read the decision.