It is human nature to avoid difficult issues. However, doing that when writing reasons for a regulatory decision can result in having to do it all over again.
In Gulliver v Law Society of Newfoundland and Labrador, 2024 NLCA 23 (CanLII), a complaint was made against a lawyer alleging that she failed to follow instructions to oppose an application to set aside a protective order in a “high-conflict” family law matter. The lawyer said she had been instructed by the client to consent to the application to set aside the order brought by the client’s former spouse so that they could deal with the issue in a different forum (i.e., in Supreme Court, Family Division rather than in Provincial Court). The complaint was dismissed by the regulator’s screening committee because an email from the client’s father suggested that instructions to consent to the application had indeed been given by the client and because the client did not attend in court for the application (the latter of which was seen to support the lawyer’s version of events because in order to oppose the application to vacate the order, the client would have to attend in court to give testimony). However, the screening committee did not, in its reasons, address a subsequent contradictory email from the client’s father or the client’s continued assertion that the lawyer told her that she did not need to attend the application because her former spouse would not be attending.
The Court returned the matter to the screening committee for further consideration and a new decision, indicating that the outcome of the complaint was not a foregone conclusion. It might be that the decision might still be to dismiss the complaint despite more investigation (e.g., interviewing the client’s father) or better reasons (e.g., explaining why the contrary evidence did not warrant regulatory action) but the key evidence in support of the complainant’s version of events must be addressed. Failing to do so was unfair to both the lawyer and the complainant.
The Court recognized that the screening committee was not adjudicating the matter; it was screening the concerns to determine if informal or formal action was warranted.
However, at the investigation stage the Committee’s inquiry is focused on the threshold question of whether there are “reasonable grounds to believe” the lawyer engaged in conduct deserving of sanction. The Committee does not decide the merits at this stage; nor does it make evidentiary rulings. Information may be considered by the Committee in assessing the threshold question on an allegation, that might not ultimately be admissible on a subsequent hearing, by an adjudication tribunal, to decide the merits of a complaint.
Regulatory decision makers must address the hard issues.