Imputing Bias by Independent Legal Counsel to the Tribunal

Can independent legal counsel (ILC) for a discipline hearing tribunal create an appearance of bias for the tribunal itself?

In Power v. Association of Chartered Professional Accountants of Newfoundland and Labrador, 2024 NLSC 12 (CanLII), the Court held that a conflict of interest on the part of ILC tainted the tribunal. In that case the complainant was a witness at the discipline hearing of the registrant, an accountant. The credibility of the complainant was in issue. The complainant and the registrant were involved on opposite sides of several civil lawsuits.

After the hearing on the merits, but before the decision was released by the tribunal, the complainant consulted with another lawyer in the ILC’s firm about the civil litigation. Even after the conflict was identified, the other lawyer continued to provide advice and services for a few days as a deadline for appeal was quickly approaching. The required separation of the two lawyers had not been properly established and the affected parties did not consent to the conflict of interest.

The Court held that, in the absence of effective safeguards and consent, the presumption was that confidential information was known by both lawyers. More surprisingly, the Court also equated the role of ILC with that of a member of the tribunal for the purposes of an appearance of bias. Despite the strong presumption of impartiality, the Court found that the lawyers’ conflict of interest created a reasonable apprehension of bias on the part of the tribunal. The Court did not discuss in detail the role of ILC at this stage of the proceedings, other than noting that ILC assisted with the review of the tribunal’s decisions. For example, there was no information to suggest that ILC participated in the deliberations. In addition, typically, any legal advice provided by ILC would be disclosed to the parties for the purpose of making submissions. In this case, the Court found that procedural unfairness had occurred and returned the matter for a new hearing.

Should this decision stand or be applied in other jurisdictions there may be increased scrutiny of the degree of neutrality expected of ILC.

 

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