Administrative law – Decisions of administrative tribunals – Law Societies – Hearings – Conduct of hearings – Barristers and solicitors – Disciplinary proceedings – Judicial review – Evidence – Compliance with legislation – Jurisdiction – Natural justice – Procedural requirements and fairness – Standard of review – Patent unreasonableness
Sheddy v. Law Society of British Columbia,  B.C.J. No. 495, British Columbia Court of Appeal, March 14, 2007, Finch C.J.B.C., Huddart and Chiasson JJ.A.
The Appellant was a member of the Respondent Law Society and appealed from two decisions of the Benchers of the Society, the first finding incompetence in the Appellant’s conduct in permitting a witness to swear an affidavit with one exhibit not attached, and the second imposing a reprimand as penalty for the incompetence.
The Law Society had cited the Appellant for presenting in Court an affidavit that he had, in the Law Society’s view, completed in an irregular manner. The citation was presented by Law Society counsel as a matter of professional misconduct and neither side appeared to have contemplated the alternative finding of incompetence. In the course of the hearing, an error in the schedule to the citation (which functions as particulars) was noted, referring to an affidavit of the Appellant’s client, rather than the witness who had actually sworn the affidavit. The single-member Hearing Panel held that while he thought that the Appellant’s behaviour was professional misconduct, he refused to make such a finding because the citation could not be amended after the close of evidence and an essential averment, the name of the affiant, was wrong. The citation was dismissed.
The Discipline Committee of the Law Society then referred the matter to the Benchers for review. The Review Panel issued a written report reversing the Hearing Panel’s refusal to amend the citation and substituting for the Hearing Panel’s opinion of professional misconduct an alternate finding of incompetence. At the penalty phase of the citation, the Hearing Panel imposed a reprimand.
The Appellant’s first ground of appeal was that the Review Panel did not have jurisdiction to find incompetence in a proceeding that, by consent, had been treated as an allegation of professional misconduct. The Court of Appeal held that the appeal should succeed on this first ground, as it was fundamentally unfair to make a finding of incompetence on a review when that issue was not included in the Notice of Review.
The second ground of appeal was that there was an insufficient evidentiary basis for a finding of incompetence. The Court held that the appeal should also succeed on that ground. There was no evidence before the Review Panel concerning any practice or convention in the handling of exhibits to affidavits. In this case, the exhibit not attached to the affidavit apparently exceeded five pages in length and there was therefore an argument to be made as to whether it should have been attached to the affidavit. The Review Panel had made findings of fact based on its own experience and their review of accepted practice may or may not be sound. It was not necessary for the Court to decide on this appeal what sort of evidence, if any, must be adduced to establish an allegation of incompetence in a citation against a member of the Law Society. In this case, there was an absence of evidence that could reasonably support a finding of competence. To make a finding of fact on no evidence, in the absence of a clear rule, is an error of law.
The third ground of appeal was that there was a breach of the rules of natural justice in failing to provide the Appellant an opportunity to make full answer to the allegation of incompetence. The Court held that its findings with respect to the first two grounds led to the conclusion that the appeal should also succeed on the third ground. By deciding the citation on an issue that was not before it, and without any evidence to support it, other than the opinion of the Panel members, the case did not conform to minimum requirements of natural justice.
The Court declined the Law Society’s request that the matter be remitted to the Benchers and questioned whether the substance of the complaint should have been made the subject of a formal citation. A further hearing was not merited in the circumstances.
In the result, the order of the Review Panel was set aside and the Appellant entitled to his costs throughout.
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