A lawyer (“Arsenault”) obtained an order quashing an interim suspension imposed upon him by the Law Society of New Brunswick (the “Law Society”) on the basis that he was not afforded procedural fairness

28. December 2004 0

Administrative law – Barristers and solicitors – Disciplinary proceedings – Penalties – Suspension – Judicial review – Administrative decisions – Procedural requirements and fairness

Arsenault v. Law Society of New Brunswick, [2004] N.B.J. No 395, New Brunswick Court of Queen’s Bench, August 10, 2004, Russell J.

On May 10, 2004, Arsenault was suspended from practising law pending a Disciplinary Committee hearing into complaints against him. The Registrar of Complaints prepared a report to the Complaints Committee dated May 7, 2004 detailing what the Court described as “egregious conduct” by Arsenault if the allegations it contained were established. Arsenault received a copy of the report on Friday, May 7. On May 7, Arsenault was told he could make written representations to the Complaints Committee but he did not do so. He was not advised that he could appear before the Committee, nor was he advised that he could have counsel present.

A hearing was held by telephone on Monday May 10th wherein the Complaints Committee referred the complaints to the Discipline Committee, and Arsenault was subjected to an interim suspension.

Arsenault sought recision of the suspension order pursuant to Section 35(2) of the Law Society Act, 1996. Arsenault participated in a telephone conference with the Complaints Committee on May 14, 2004, following which the interim suspension was unanimously confirmed.

Arsenault sought review of the administrative procedures leading to the suspension of May 10.

Although Russell J. held that procedural fairness is a variable requirement, following the decision of Kane v. University of British Columbia, [1981] 1 S.C.R. 1105, the importance of the interim suspension to Arsenault was substantial in that it removed his right to earn a living. The Disciplinary Committee could take up to one year to make final disposition of the complaints. Although the Complaints Committee has the power to suspend, “if it does so … it should afford the member at least the same protection he would have at the substantive hearing before the Discipline Committee”.

The Court quashed the interim suspension on the basis that Arsenault was deprived of the right to earn a livelihood on short notice and without the right to a hearing. The Court did not determine whether the failure to give Arsenault reasons why his continued practice would be harmful to the public violated the duty of fairness.

The interim suspension was quashed and Arsenault was awarded costs of $1000 plus provable disbursements.

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