Procedural Fairness When Screening Complaints

There seems to be a flurry of cases recently on the procedural fairness requirements for committees that investigate and screen complaints. The most recent offering is from Newfoundland and contains some interesting propositions.

In Gulliver v. Law Society Complaints Authorization Committee, 2023 NLSC 23 (CanLII), a client complained against a registrant (a lawyer) for failing to follow the client’s instructions in a highly charged family law matter. The registrant disputed the instructions claimed to have been given by the complainant. The screening committee determined that a referral to discipline was not warranted because some of the circumstances (e.g., the client’s failure to attend a hearing and a text message from the client’s father to the registrant) supported the registrant’s position. Under this legislation there was a statutory right of appeal to the Court. The complainant was particularly concerned that the screening committee had not interviewed them or their father. The Court upheld the screening committee’s decision. In doing so, the Court indicated the following:

1. There is a distinction between the screening committee making findings of credibility (which it was not doing) and determining that the evidence did not support a referral to discipline (which it was doing).
2. Since more was at stake for the registrant than for the complainant, the procedural rights afforded to the registrant could exceed that afforded to the complainant (e.g., whether to conduct an interview).
3. While there may be some circumstances in which a complainant or their proffered witnesses needed to be interviewed, this was not one of them.
4. That the appellate standard of review (i.e., palpable and overriding error) applied to issues of procedural fairness on an appeal. This is a different framing of the approach than what is taken in Ontario (see Matheson v. College of Physicians and Surgeons of Ontario, 2021 ONSC 7597 (CanLII)), although it seems that the difference in framing did not result in a difference in approach.

This decision provides an interesting counterbalance to the decision of Kastner v. Health Professions Appeal and Review Board, 2023 ONSC 629 (CanLII), where the failure to interview key witnesses proffered by the complainant amounted to a breach of procedural fairness (albeit on very different facts).