Quickly Correcting Missteps

Where a tribunal makes a procedural error, prompt correction can permit the hearing to continue without immediate challenge. In Hemminger v. Law Society of British Columbia, 2023 BCCA 36 (CanLII), the registrant (a lawyer) faced discipline for various alleged infractions of her trust fund obligations. The finding phase of the hearing ended and closing arguments were about to begin. But the registrant then asked to make a motion for the hearing to be reopened as she wanted to introduce expert evidence on her mental illness. Without hearing argument, the panel refused her request. Within two days, after the registrant indicated that she was going to seek judicial review, the panel reconsidered its refusal and proposed to hear the registrant’s motion. The registrant declined the offer and continued with her application for judicial review.

The lower Court held that the judicial review application was premature as the registrant should first make their motion to the hearing panel. The lower Court did not accept that the registrant had established an appearance of bias by the panel’s initial refusal, given the entire context. As such the registrant had not established there were exceptional circumstances warranting the Court’s intervention. The Court of Appeal upheld the lower Court’s decision.

Courts recognize that a tribunal’s reconsideration of a decision that already appears to have been made raises concerns as to whether it truly has an open mind: Fox North Bay Inc. v. Registrar (Alcohol and Gaming Commission of Ontario), 2022 ONSC 5898 (CanLII). However, as this case illustrates, quickly offering to reconsider a matter can often cure a procedural misstep.

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