Take it to the Tribunal First

A Newfoundland and Labrador court has again affirmed the importance of raising appearance of bias concerns with a hearing panel before taking the issue to court. In Power v. Association of Chartered Professional Accountants of Newfoundland and Labrador, 2021 NLSC 92 (CanLII), https://canlii.ca/t/jgl4x, a discipline tribunal had made a finding of professional misconduct but had not yet determined sanction. It transpired that the complainant, who was a key witness at the discipline hearing, approached another lawyer in the firm of independent legal counsel for advice on civil litigation arising from the same series of events. The other lawyer provided some assistance before withdrawing from the matter. The practitioner sought court intervention on the basis that this assistance to the complainant by a colleague of independent legal counsel created an appearance of bias on the part of the hearing panel.

The Court treated the matter as premature and directed the practitioner to first raise the issue before the hearing panel for a ruling. The Court indicated that the issue was whether the hearing panel was tainted by this involvement of the complainant and witness with another lawyer in the firm of independent legal counsel.

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