Courts have been fond in recent years of dispensing with hard and fast rules and using a contextual approach of whether, “in all of the circumstances” the conduct is unacceptable. That phrase seems to be replacing the previous chestnut of “it depends”. In Xiao-Phillips v Law Society of Saskatchewan, 2024 SKCA 44 (CanLII) this contextual approach is used in several issues.
There, a lawyer was disciplined for repeated examples of making frivolous and vexatious arguments in court and for incompetent behaviour involving clients and adjudicators. The most significant issue, according to the Court, was whether the lawyer had to know that their conduct was frivolous and vexatious in order for a finding to be made. The Court said the lawyer did not have to be subjectively aware that their arguments were frivolous and vexatious. However, the Court also said that it was not sufficient for the arguments to be legally incorrect. Rather, a contextual approach of examining all of the circumstances was required in order to determine whether the arguments were disciplinable. The Court found that there was no palpable and overriding error by the discipline panel which held that the arguments were so baseless as to be obviously inappropriate or the product of wilful blindness by the lawyer.
Another issue of concern was that the discipline panel had cut and pasted large portions of the written brief of the prosecuting counsel in its reasons for decision. The Court indicated that this could be an issue if, in all of the circumstances, it created an appearance that the panel had not made its own determinations. However, in this case, most of the excerpts were of a factual nature on matters that were not disputed. For each finding the panel had created its own explanation as to the basis for its conclusions. The Court also drew some solace from the panel’s evaluation of the evidence and issues where it had dismissed two of the allegations, indicating independent decision making. While expressing caution about copying large swaths of a party’s submissions, the Court concluded that the panel had made its own independent assessment on each allegation.
The Court also made some interesting comments about how discipline panels should approach joint submissions on sanction. First, the Court suggested that the deferential approach likely only applies where the joint submission is accompanied by an admission of the allegations. The rationale for the deference includes that the registrant has given up their right to dispute the allegations and have a hearing. In this case, the joint submission was made after the allegations were proved at a lengthy and disputed hearing. Second, the Court noted that procedural fairness was provided by the panel. The panel expressed its concerns to the parties about the joint submission and provided opportunities for the parties to introduce further evidence and make additional submissions. Third, the Court concluded that the panel gave detailed reasons as to why the joint submission would cause a reasonable and informed public to lose confidence in the regulation of the profession.
As a result, the Court upheld a 71-day suspension (albeit one already served in an interim order) where the joint submission involved no suspension.