Scrutiny of Discipline Decisions

Another decision from western Canada carefully scrutinizes a disciplinary decision. In Phillips v Law Society of Saskatchewan, 2021 SKCA 16 (CanLII), the issue was whether a lawyer’s fees were unfair to the point of constituting professional misconduct (i.e., conduct unbecoming). The Court set aside the findings of misconduct.

In a detailed and technical discussion, the Court determined that the standard of review applied the test of correctness to the legal interpretation of the definition of misconduct (as opposed to application to the facts). It also held that in discretionary decisions, a court would review the criteria for exercising discretion on the basis of correctness but would give deference in the review of the exercise of discretion itself.

The first issue was whether an element of intent was required. The Court said that this depended on both the wording of the definition of misconduct and the actual wording of the allegations themselves. Where the allegation refers to whether the lawyer was candid about his fees, an element of intent was imported. On another allegation as to whether the fees were fair and reasonable, no element of intent was included; the strict liability criteria applied.

The second issue related to how the disciplinary tribunal used a civil court finding that the fees charged were excessive given the degree of success achieved by the lawyer. The disciplinary tribunal found that the civil court finding constituted proof of the allegations. The Court held that the civil court finding only constituted prima facie evidence of the facts found there. The discipline tribunal failed to consider all of the circumstances in deciding how much weight to give to that finding. For example, the issue in the civil case (whether the client should be charged for the work) was different than for the discipline hearing (was the work so unnecessary or poorly performed as to constitute professional misconduct). In addition, by accepting the civil court finding as proof of the allegations, the disciplinary tribunal had, in effect, shifted the overall burden of proof to the practitioner.

The third issue was centred on the discipline tribunal’s refusal to permit the practitioner to call an expert witness because the report of the expert’s proposed testimony was not provided on time. The Court held that the discipline tribunal failed to address whether the exception for cases of “manifest unfairness” should have been applied. The Court identified a number of considerations were not addressed including the seriousness of the proceedings, the importance of the evidence, and the procedural alternatives to ensure fairness to the other side. The Court concluded that this decision demonstrated a failure to identify the criteria for the decision rather than simply an exercise of discretion.

So far the Ontario courts do not seem to be applying the same degree of scrutiny as the western Canadian courts to findings of professional misconduct. Interestingly, the Supreme Court of Canada recently granted leave to appeal in another western Canada case applying a high level of scrutiny to disciplinary decisions: Law Society of Saskatchewan v. Abrametz, 2021 CanLII 13273 (SCC), The Supreme Court’s decision in that case could be significant to professional regulators.

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