An appeal by Roeder from the dismissal of his action as an abuse of process was dismissed. There is no cause of action for breach of the rules of procedural fairness. The proper remedy for “process allegations” is judicial review.

Administrative law – Decisions of administrative tribunals – Securities Commission – Conflict of interest – Hearings – Disclosure – Delay – Procedural requirements and fairness – Judicial review – Abuse of process – Appeals – Remedies – Alternative remedies

Roeder v. Lang Michener Lawrence & Shaw, [2007] B.C.J. No. 501, British Columbia Court of Appeal, March 14, 2007, Newbury, Levine and Chiasson, JJ.A.

The Appellant was found by the BC Securities Commission (the “Commission”) to have breached his statutory and fiduciary duties to a corporation, of which he was an officer and director. The Appellant alleged that the corporation’s former counsel had inappropriately disclosed confidential information to another member of his firm who was acting on behalf of the Commission in 1994. The Appellant’s legal counsel at the time objected to this person acting for the Commission, but the lawyer continued to act. In 2000, the Appellant applied to the Commission to have the order revoked. The Commission dismissed the Appellant’s application on the basis of an unjustified delay. The Appellant appealed the Commission’s decision dismissing his application to the BC Court of Appeal.

Prior to the Commission’s dismissal of his application, the Appellant commenced an action for damages in the Supreme Court against the lawyers involved, their firm, and the Commission. The pleadings alleged several breaches of duty including breach of professional duty, breach of a “duty to disclose”, breach of fiduciary duty, false representation, abuse of public office and conspiracy to injure the appellant. The Appellant’s action was predicated on the assumption that the panel had used information inappropriately disclosed to their counsel.

A chambers judge ordered that the Appellant’s action for damages be struck as constituting a collateral attack on the Commission’s order and thus, an abuse of process. In making this finding, the chambers judge concluded that the Panel’s findings of fact supported its decision and that those findings did not include reliance on information relating to anything that may have been inappropriately disclosed.

On appeal, the Appellant took a different approach, stating that the Commission’s 1995 findings were not being challenged, but that the “process” allegations gave rise to an independent cause of action for a breach of a right or loss of chance to have moved before the Commission in 1994 to have the lawyer disqualified as counsel for the Commission. In making this concession, the Appellant accepted that the Commission’s findings were correct, but sought to challenge the process leading to the Commission’s order. The Appellant suggested that the process allegations were not a collateral attack because they no longer sought to overturn the finding of the Commission.

The Court cited with approval Monogram Properties Ltd. v. Etobicoke (1996), 34 M.P.L.R. (2d) 48 (Ont. Gen. Div.) for the proposition that there is no action in law for damages for breach of the duty of fairness. The remedy, if any, must be found in administrative law and not in civil liability.

The Court held that given the Appellant’s concession that the result of the 1994 hearing would have been the same without the allegedly improper conduct on the part of the lawyers or the Defendants in the present proceeding, that a re-hearing, the remedy usually granted where the rules of natural justice have not been observed by an administrative tribunal, would not have availed the Appellant in any concrete terms.

The Court further noted that the Appellant’s claim for civil damages was inextricably linked to the Commission’s 1994 decision, and could not be viewed as anything other than an abuse of process by re-litigation. This principle was held to be wider than the rule against collateral attack.

In the result, the Appellant’s appeal was dismissed.

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