The Applicant solicitor was successful in obtaining an Order prohibiting the Respondent Law Society of New Brunswick (the “Law Society”) from continuing any proceedings against him arising out of charges contained in a Notice of Complaint. The court found that the subject matter of the present complaint had already been considered and dealt with by the Law Society and that the matter was res judicata.

Administrative law – Barristers and solicitors – Professional misconduct – Disciplinary proceedings – Decisions of administrative tribunals – Law Societies – Judicial review – Estoppel and res judicata

A Solicitor v. Law Society of New Brunswick, [2004] N.B.J. No. 81, New Brunswick Court of Queen’s Bench, February 25, 2004, Guerette J.

Over the period of January and February in 1999, the Applicant had a substance abuse problem which stemmed, in part, from marital difficulties. During this period, he forged the signature of his wife and that of a witness on a mortgage instrument on the marital home. Around the same time, the Applicant falsified disbursements on his clients’ accounts and pocketed the money. This happened on eight different occasions. Subsequently, the Applicant revealed the nature of his problem to his partners and told them what he had done. The partners remedied the situation including what they described as the “irregularities” in the disbursements. By letter dated April 27, 1999, the partners of the Applicant reported the incidents to the Executive Secretary of the Law Society. This letter confirmed a meeting that the Managing Partner had had with the Executive Secretary of the Law Society and outlined the misconduct, specifically the mortgage transaction and the “irregularities” in the billing of disbursements. The Managing Partner advised the Law Society that the firm unanimously agreed to support the Applicant’s rehabilitation and set out some strict conditions which the Applicant agreed to meet. The Executive Director of the Law Society referred the matter to the Registrar of Complaints, who then put together a complaint for the Complaints Committee. This complaint included the April 27 letter from the Managing Partner as well as medical reports, correspondence and other documents. No further investigation was conducted. The Applicant agreed to allow the Complaints Committee to make a decision based upon the information without a formal hearing. The Complaints Committee rendered its decision on March 13, 2000 reprimanding the Applicant for professional negligence and misconduct and then referred his rehabilitation to the Competence Committee for monitoring of the Applicant’s practice and medical condition.

The Competence Committee received the decision of the Complaints Committee and indicated that they did not agree with the decision and noted that the issue of the disbursement billings was not specifically mentioned in the decision. The Competence Committee indicated that they required further investigation and directed the Registrar of Complaints to investigate the matter further. The Applicant applied to the court for a judicial review of the decision of the Competence Committee, submitting that the matter was res judicata since all issues had been dealt with by the Complaints Committee in 1999.

The court reviewed the evidence and noted that the issue of the fictitious disbursements was certainly before the Complaints Committee when it made its decision in March 2000. The court noted that the current matter appeared to stem from the fact that the Competence Committee did not agree with the decision of the Complaints Committee and decided, on their own, to set things right.

The court reviewed the doctrine of res judicata and noted the statement of this doctrine in Desrosiers v. Banque Nationale du Canada (1998), 201 N.B.R. (2d) 103 (N.B.C.A.) where the court held that the doctrine was sufficiently broad to encompass not only the issues the court considered at trial, but also any issue which formed an integral part of the initial dispute and which the parties could have reasonably raised at the time. Applying this reasoning, the court concluded that the subject matter of the present complaint was considered and dealt with the Law Society in 1999 and that the matter was res judicata. The court was not persuaded that the apparent omission or oversight of the Complaints Committee in its findings and judgment on March 13, 2000 had sufficient merit to re-open the case against the Applicant. In the result, the Applicant obtained an Order prohibiting the Law Society from continuing any proceeding against him arising out of the charges.

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