Administrative law – Barristers and solicitors – Disciplinary proceedings – Boards and tribunals – Jurisdiction – Natural justice – Delay – Hearings – Disclosure – Judicial review – Standard of review- Correctness test
Stinchcombe v. Law Society of Alberta,  A.J. No. 544, Alberta Court of Appeal, April 26, 2002, Conrad, O’Leary and Paperny JJ.A.
On September 9, 1987, Stinchcombe was suspended by the Law Society based upon the investigation of complaints alleging that Stinchcombe had (1) appropriated money and property entrusted to him by Jack Abrams and (2) knowingly made false representations to Jerry Schwartz to induce Schwartz to lend money to a company in which Stinchcombe had an interest. Immediately following his suspension, Stinchcombe applied to the Benchers of the Law Society to have the suspension set aside. This application was denied on September 15, 1987. Stinchcombe was notified in February 1988 that disciplinary proceedings would be taken against him. In March 1988, Stinchcombe was charged with several offences under the Criminal Code based on the same allegations as found in the Abrams and Schwartz complaints. In September 1993, six years after the suspension and while the criminal charges remained unresolved, Stinchcombe was formally charged by the Law Society with four counts of conduct deserving of sanction, two in respect of each of the Abrams and Schwartz complaints.
The lengthy criminal proceedings were ultimately resolved in Stinchcombe’s favour. Crown counsel revealed that the initial notes of the Law Society investigator had never been disclosed to Stinchcombe and that tapes of police interviews with Abrams had been destroyed. Crown counsel also disclosed a memorandum made on August 10, 1988 by the prosecutor who conducted the preliminary inquiry. This memorandum stated that Abrams’ lawyer had advised the prosecutor that Abrams was concerned about having lied. The memorandum indicated that the prosecutor was not sure if Abrams had lied when he made an earlier assignment in bankruptcy or at Stinchcombe’s preliminary inquiry.
Once the criminal proceedings were resolved, a committee was appointed to hear and determine the Law Society charges. In July 1998, Stinchcombe made a preliminary application for a stay of proceedings on the basis of prejudice and unfairness resulting from the lengthy delay in pursuing the disciplinary proceedings, combined with late disclosure by the Law Society of relevant and material information relating to the charges. The Committee stayed the charges arising from the Abrams complaint but directed the two Schwartz charges to proceed to a formal hearing. Stinchcombe unsuccessfully sought judicial review of the Committee’s decisions not to stay the Schwartz charges and brought this further appeal to the Court of Appeal.
The Court of Appeal held that there were two central issues:
- Did the Committee lack jurisdiction to hold the hearing due to a legislative gap created by the repeal of the Legal Profession Act, R.S.C. 1980, c. L-9 and the enactment of the Legal Profession Act, S.A. 1990 c. L-9.1?
- Was the delay inordinate and inexcusable and, if so, did the delay and late disclosure impair Stinchcombe’s right to a fair hearing in respect of the Schwartz charges sufficient to justify a stay, or result in personal prejudice amounting to an abuse of process justifying a stay?
With respect to the standard of review, the court held that on the jurisdictional issue, the Chambers Judge was required to apply a standard of correctness. With respect to the second issue, the court held that this involved a question of law and, based on a consideration of the factors relevant to the pragmatic and functional approach, in particular the nature of the decision and its consequence for Stinchcombe, the Chambers Judge was bound to assess the Committee’s ruling on a standard of correctness.
The Chambers Judge had found that the proceedings had been properly commenced under the old Act and validly continued under s. 140(3), the transitional provision of the new Act. On this basis, he had determined that the Committee was properly constituted and acting within its jurisdiction. The Court of Appeal agreed with the Chambers Judge and found that the Committee had jurisdiction to conduct the hearing.
In considering the issue of denial of natural justice, the court noted that the test laid out by the Supreme Court of Canada in Blencoe v. British Columbia (Human Rights Commission),  2 S.C.R. 307, is not simply whether a party knows the case against him, but whether his or her ability to answer the complaint has been impaired as a result of the delay. In this case, the issue was not simply the effect of non-disclosure, but the effect of the non-disclosure superimposed on the delay. The Court noted the following factors in finding that this delay was inordinate:
- there had been a six year delay between laying the charges and hearing;
- no explanation for this delay was provided by the Law Society;
- the matter did not involve legal complexity which would warrant such a delay;
- there was a real interest on the part of the suspended member that must be considered;
- Stinchcombe did not request the delay.
The Court then proceeded to the second branch of the test, to consider whether serious prejudice was occasioned by the inordinate delay. The Court of Appeal noted that the Law Society had found that there was serious prejudice with respect to the Abrams charges, resulting from the inability to properly test Abrams’ evidence. The Court held that this serious prejudice also existed with respect to the Schwartz charges and found that the Committee had erred in not finding that the facts underlying all the charges were inextricably linked and that Abrams’ credibility was also a vital factor in Stinchcombe’s defence of the Schwartz charges. Any inability to attack Abrams’ evidence with respect to his relationship with Stinchcombe and Schwartz could be fatal to Stinchcombe’s credibility and his ability to make full answer and defence. The means of impeachment of Abrams had already been found to be seriously impaired due to the loss of the tape and the passage of time. Therefore, the court held that the only reasonable conclusion was that Stinchcombe’s ability to defend the Schwartz charges had been prejudiced in a manner similar to that in the Abrams’ charges. The court held that to force Stinchcombe to defend charges when his ability to make full answer and defence had been prejudiced by the Law Society’s inordinate, inexcusable delay would be a denial of natural justice. In the result, Stinchcombe’s appeal was allowed and the court directed that the Schwartz charges be stayed.
To stay current with the new case law and emerging legal issues in this area, subscribe here.