Delay Duties

What duty does a discipline panel have when there is a lengthy delay before the concerns come for a hearing? In Burgener v Law Society of Alberta, 2023 ABCA 227 (CanLII), Alberta’s highest court says that procedural fairness requires creating an explicit process to address the issue.

In that case, a lawyer was investigated for a broad range of significant concerns including “breach of confidence, conflict of interest, bribery, extortion, uttering false documents, breach of trust, counselling an improper purpose”. It took almost four years to investigate and refer the matter to a hearing, almost eight years to begin the hearing, and almost nine years from the initial complaint to complete the hearing. During that time the lawyer had health issues, including a heart attack, that he attributed, at least in part, to the ongoing proceedings.

At the discipline hearing the lawyer was unrepresented. He raised, informally, concerns about the delay. The panel deferred the issue to later in the hearing, but it was never formally addressed. The allegations were found to have been proved and the lawyer was disbarred. During the internal appeal, the lawyer attempted to introduce fresh evidence about the delay, but the request was denied. The appeal panel denied the appeal including finding that the delay argument should have been raised by the lawyer at the discipline hearing and it was too late to raise it now.

On further appeal, the Court concluded that there was an insufficient record to make a ruling on whether the delay amounted to an abuse of process. In particular, there was insufficient evidence as to the causes of the delay, the degree of prejudice it caused, and whether in the circumstances it brought the administration of justice into disrepute.

However, the Court found that there was procedural unfairness in how the issue of delay was handled by the hearing panel. It was obvious that there had been a significant delay, and during the hearing the lawyer and others, including witnesses, expressed concerns about the impact of the delay on their ability to participate in the hearing. The lawyer regularly mentioned the stress of the process, its impact on his life, and his heart attack. The Court said:

In our view, the manner in which the appellant’s delay concerns were handled constituted a breach of the common law duty of procedural fairness. Indeed, the situation facing the appellant verged on the Kafkaesque. It is true that the appellant is a lawyer, but it is no answer. He was a self-represented party at disciplinary proceedings facing serious allegations with serious potential consequences, including disbarment and the loss of his livelihood. He raised concerns about delay at the outset of the proceedings. The delay was lengthy and called out for an explanation. That there had been a lengthy delay in the process would have been apparent to all participants; the Law Society and the Chair of the Hearing Committee both acknowledged as much during the course of the proceedings. The Chair told the appellant the issue of delay could be dealt with later in the proceedings, but the appellant was never told, by the Hearing Committee or otherwise, when or how that could occur. In the end, the concerns about delay were never addressed by the Hearing Committee.…

In our view, in these circumstances it was incumbent on the Hearing Committee to at least advise the appellant of the process they proposed be followed in the event he wished to make the argument on delay. Had that occurred, and had the issue not been abandoned, it could have been addressed in a substantive fashion by the Hearing Committee and there would have been a record to permit appellate review before the Appeal Panel and before this Court.

The Court indicated that the duty on the hearing panel was not just to the lawyer, but also to the public who might lose confidence in the regulation of the profession in these circumstances.

However, having found that there was a denial of procedural fairness, the Court was not prepared to set aside the findings and restore the professional status of the lawyer. The allegations were quite serious and had been established. A new hearing now, some sixteen years after the events in issue, was also not in the public interest. Instead, the Court set aside all of the orders for costs payable by the lawyer during the process.

This case, if applied in other jurisdictions, may impose a duty on hearing panels to raise delay issues on their own initiative, especially where the registrant is unrepresented.

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