When a participant in a discipline matter is concerned about the conduct of an adjudicator, they typically bring a motion to the discipline panel. However, where an adjudicator is a registrant, it is also possible to make a misconduct complaint against them to the regulator. How should a regulator respond? In most cases it would be inappropriate for a complaints screening committee to interfere with the processing of a discipline matter. There might be extremely rare exceptions where the impugned conduct was outside of the panel member’s discipline role (e.g., if the adjudicator allegedly sexually harasses a participant in a hearing or solicits a bribe).
Many complaints screening committees have the authority to take no action if a complaint is considered to be frivolous, vexatious, or an abuse of process. That option might be appropriate in many cases where a complaint is made about a registrant-adjudicator’s conduct in a hearing. In those cases, the screening committee might direct the hearing participant to take the issue up with the tribunal itself.
This situation arose in Deokaran v. Law Society Tribunal and Law Society of Ontario, 2023 ONSC 5432 (CanLII). The registrant complained about the adjudicative conduct of the Chair of the discipline tribunal. The details are unclear, but it appears to relate to the refusal of the Chair to recuse themselves from the registrant’s hearing despite objections that the Chair was biased, and allegations that the Chair acted in a discriminatory manner and failed to provide procedural fairness. In an unusual step, the regulator “transferred” the complaint to the tribunal itself. Also unusual, the tribunal advised that it would look into the complaint once the registrant’s discipline hearing was concluded.
The registrant sought judicial review of both the rulings by the Chair and of the failure of the regulator to deal with the complaint. The Divisional Court found that the application was premature and there were no exceptional circumstances warranting intervention before the discipline process was concluded. The Court said: “Characterizing an issue as a question of jurisdiction or denial of procedural fairness does not automatically create “exceptional circumstances” warranting early judicial intervention ….” The Court also noted that the registrant had already caused delays in the case that was more than two years old, with the hearing on the merits yet to begin. The Court said the registrant could make these arguments before the tribunal.
While this case does not provide a definitive ruling on the issue, it supports the idea that complaints screening committees can generally decline to determine, on their merits, complaints about the regulator’s adjudicators in relation to conduct that allegedly takes place in the course of a discipline matter.