Perspectives on Incompetence

The concept of “incompetence” on the part of a practitioner (“registrant”) for the purposes of disciplinary action has not been frequently discussed by the courts. Arguably, the last significant judicial discussion could go as far back as Mason v. Registered Nurses’ Association of British Columbia, 1979 CanLII 419 (BC SC). In that case, the concern was the attitude of the registrant that seemed to prevent them from learning from their mistakes.

As such, Manitoba’s highest court’s recent discussion in Jhanji v The Law Society of Manitoba, 2022 MBCA 78 (CanLII) provides a welcomed analysis of the issue. While it is in the context of the legal profession, the analysis is broad enough to apply to many professions. In fact, the Court cited several cases of incompetence from non-legal regulators. Unlike Mason, the type of incompetence in issue was an alleged absence of capabilities.

The Court made the following observations:

  • Incompetence harms not only the clients of the registrant, but also the registrant’s colleagues and the systems in which they practice.
  • Whether a registrant is incompetent depends very much on the facts; no two cases are alike.
  • Different language was used to describe incompetence, including “want of ability suitable to the task”, “lack of knowledge, skill and judgment” and “a basic lack of understanding of the applicable law”. The Court contrasted these descriptions to a situation where a registrant had “a bad day”.
  • In a nod to the Mason kind of case, the Court indicated that the causes of incompetence are diverse. It “can arise from the member’s natural qualities or experience” or it can be the result of “deficiencies in their disposition to use their ability and experience properly”.
  • Even though it recognized that incompetence findings are quite different from findings of professional misconduct, the court noted that “It matters little to the public interest in the competent practice of law that the appellant provided incompetent service with integrity or that he tried his best in providing incompetent service.” The Court agreed with the regulator that no amount of diligence, if exercised incompetently, is an adequate answer to the allegation. In fact, in this case the Court accepted that the registrant was a sincere person of good character with good intentions.
  • Incompetence findings are often established through expert opinion evidence given by practitioners with broad knowledge and experience in the practice of the profession. In this case the Court was reassured by the fact that the two expert witnesses had insight into the context in which the registrant worked (i.e., a sole practitioner practising mainly in litigation and commercial matters).
  • The evidence of incompetence was not confined to the registrant’s work product, such as documents he prepared. The evidence also included testimony about the registrant not having an office management system, his files being in disarray, practising without mentoring or practice supports, taking positions on files that were “nonsensical”, and not following the rules applicable to trust funds. Of particular interest, the expert witnesses also relied on their interviews with the registrant.
  • The Court acknowledged that this was not a case of “instances of reasonable differences of opinion that are common in discussions about the exercise of professional judgment”, which the Court implied might not constitute incompetence. Rather, the Court concluded that the registrant “lacks the minimum qualities needed to give effective professional [legal] services”.
  • Courts tend to be cautious about using the conduct of a registrant’s defence at their discipline hearing as evidence to support a finding. Such observations can amount to undermining a registrant’s right to make full answer and defence without fear that doing so can be used against them. It can also amount to finding fault for conduct not contained in the allegations. However, in this case, the Court supported the discipline panel’s consideration of the registrant’s manner of conducting his defence as reinforcing the concern about his competence. In fact, the Court also mentioned the registrant’s conduct of his appeal to court in the same way (i.e., it described his submissions as “prolix and unfocused”).
  • The Court noted that discipline panel’s reasons cited seven examples of incompetence. These examples assisted the Court in rejecting the registrant’s defence that he was a fearless advocate working on complex matters.
  • A panel of peers are best able to determine incompetence and, as such, deference will be accorded by the courts to the findings of a discipline panel. Even where there is a right of appeal, a Court would disturb the finding only where there is palpable and overriding error.

The Court supported the discipline panel’s conclusion that the registrant should never have been admitted to the profession.

The utility of this decision for other regulators might be hampered somewhat because it was such an obvious case. According to the Court, the registrant lacked the capacity to be a member of the profession, finding that “The appellant’s professional incompetence is not an isolated, or even a pattern of, gross mistake or the breakdown of previous competent practice; it is more egregious.” As such, the case may provide less guidance in cases that are not as clear-cut. However, the decision is still helpful in its extended analysis of the concept of incompetence.

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

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