In a divided decision, the majority of the Ontario Divisional Court has held that having a public member on a discipline panel can be essential to the legitimacy of its decision: Law Society of Ontario v Schulz, 2023 ONSC 3943 (CanLII).
The facts are straightforward. The lawyer was convicted criminally of possession of child pornography. An allegation of conduct unbecoming of a licensee was referred to discipline. The Chair of the tribunal appointed a three-person hearing panel consisting of only professional members. No one objected to the composition of the panel. A finding of conduct unbecoming was made on the basis of agreed facts. The Law Society of Ontario (LSO) sought revocation of the lawyer’s licence. The hearing panel ordered a nine-month suspension. The LSO appealed to the appeal panel. On the appeal the LSO raised, for the first time, that the hearing panel was improperly constituted because it did not have the required public member. The appeal panel concluded that the composition argument should be dismissed as it was not raised at the hearing and because there was no loss of jurisdiction or procedural unfairness. The appeal panel upheld the nine-month suspension. The LSO appealed to the Divisional Court.
The legislation requires that hearing panels have at least one lay adjudicator. However, the legislation also provides that the Chair of the tribunal can depart from the required composition in specific circumstances, such as where compliance with the usual rule would result in undue delay. In this case, no explanation was offered as to why the usual composition requirements were not followed.
In the past, courts have held that composition and quorum requirements are jurisdictional and cannot be waived: Connor v. Law Society of British Columbia, 1980 CanLII 2992 (BC SC). As a result, many enabling statutes provide some flexibility on the point, especially where panel members can no longer continue to sit mid-hearing. In addition, in Ontario, the Statutory Powers Procedure Act has several saving provisions (although none applied on these facts).
The majority of the Court held that the composition of the panel was a jurisdictional duty requiring compliance. While exceptions could be made, there was nothing to suggest that the criteria for doing so was met. In the circumstances, the Chair of the tribunal, or the hearing panel itself, should have indicated which of the specific exceptions applied to reassure the parties and the public that the statutory requirements had been met.
The majority of the Court emphasized the importance of public representation on hearing panels in general:
The regulatory requirement that they sit on every hearing panel is prescribed by a government-promulgated Regulation. As independent representatives of the public, who are neither elected nor subject to re-election by their professional colleagues, lay adjudicators serve to legitimize the tribunal’s decisions in the eyes of the public.
The majority indicated that public representation was particularly important in this case:
In the circumstances of this case, where the misconduct related to a conviction for possession of child pornography, the presence of a lay adjudicator on the panel was essential to ensure that the hearing panel included a public interest perspective regarding the profession to maintain confidence in the administration of justice. Moreover, the absence of a lay adjudicator in a case of this nature gives rise to a concern that the public could potentially perceive the hearing panel as lacking the necessary degree of impartiality or independence…. Moreover, the absence of a lay adjudicator on a hearing panel could give rise to the perception that the Tribunal, in disciplining a fellow member of the profession, was inappropriately or unjustifiably lenient in imposing a penalty.
The majority also stated that since this was a jurisdictional issue, it was appropriate for the LSO to raise the issue for the first time before the appeal panel.
The majority also said that, in the alternative, there was procedural unfairness in not having a public representative on the hearing panel in this case:
Given the societal harms that arise from child pornography and the exploitation of children, it was crucial that the public interest perspective be incorporated in this proceeding. The Regulation contemplates that this be done through the participation of a lay adjudicator on every hearing panel where a lawyer is subject to discipline. In my view, in this case, the absence of a lay adjudicator on the hearing panel raises an issue as to the fairness of the proceeding from a public interest perspective.
The majority returned the matter for a new discipline hearing before a properly constituted panel.
The dissenting Justice was particularly concerned about the LSO raising the composition issue only after it did not achieve its desired result at the discipline hearing. According to the dissenting reasons, the legislation permitted panels with no lay adjudicators and there was no obligation for the Chair of the tribunal to explain their exercise of discretion. The LSO made no attempt to supplement the record to clarify that the composition was made in accordance with the exception provision. In terms of procedural fairness, the lawyer had already been put through two proceedings and should not be put through another.
Tribunals should be careful to strictly follow their composition and quorum requirements and explain their reliance on any applicable exceptions. Even where an exception is possible, tribunals should consider whether the legitimacy of their proceedings might be affected if there are no public representatives on a particular panel.
This article was originally published by Law360 Canada, part of LexisNexis Canada Inc, at Law360 Canada.