Administrative law – Barristers and solicitors – Disciplinary proceedings – Professional misconduct – Penalties – Suspension – Costs – Decisions of administrative tribunals – Law Societies – Investigations – Fairness – Judicial review – Bias – Natural justice – Standard of review – Reasonableness simpliciter
Histed v. Law Society of Manitoba,  M.J. No. 290, Manitoba Court of Appeal, September 13, 2006, Scott C.J.M., Huband and Hamilton JJ.A.
The Appellant lawyer appealed his conviction by a panel of the Discipline Committee of the Law Society of Manitoba on two charges of professional misconduct. He also appealed the Panel’s decision to suspend him from the practice of law for one month and that he pay $18,000 in costs.
The Appellant asserted that the decisions were nullities because there was a reasonable apprehension of bias resulting from the participation of several individuals at the meeting of the Complaints Investigation Committee (the “CIC”) of the Law Society, which authorized the charges against him.
The charges concerned the Appellant’s conduct while he was representing “A”, a woman who was opposing an application of the Winnipeg Child and Family Services for an order of permanent guardianship of her infant child. The Appellant withdrew as her counsel so that he could pursue a constitutional challenge, based on A’s case, concerning the rates of remuneration paid by Legal Aid Manitoba. A was not represented by a lawyer for the trial concerning the CFS application. After a 17-day hearing, the Trial Judge granted an Order of permanent guardianship, which was upheld by the Court of Appeal.
At the outset of the discipline hearing, the Appellant brought a motion to dismiss the proceeding because of the alleged reasonable apprehension of bias of four individuals at the CIC meeting. The Panel dismissed the motion on the basis that the Appellant had not demonstrated a reasonable apprehension of bias and, in any event, if such an apprehension existed, it could be cured by the discipline hearing.
The Court held that the standard of review for the question before it was that of correctness. The issue raised a question of law that was not within the specific expertise of the Panel.
The Court concluded that any reasonable apprehension of bias that may have existed at the time the CIC decided to issue the citation against the Appellant was cured by the discipline hearing, which the Appellant was given full opportunity to answer the charges against him. The CIC’s function was investigative in nature and not adjudicative. A reasonable apprehension of bias at an early investigative stage of proceedings can be cured by a subsequent hearing that adheres to the principles of natural justice. The Panel was correct in ruling that the CIC’s proceedings remained entirely investigative throughout and that any reasonable apprehension of bias could be cured by a full and fair hearing before the Panel. Because such a hearing occurred, any reasonable apprehension of bias was cured.
The Court also held that the findings of professional misconduct, the one month suspension and the order of costs were all decisions that met the applicable standard of review of reasonableness simpliciter.
The appeal was therefore dismissed.
To stay current with the new case law and emerging legal issues in this area, subscribe here.