A lawyer (Merchant) successfully obtained an order quashing a decision of the Law Society of Alberta (“Law Society”) disbarring him, on the basis that there was a reasonable apprehension of bias due to an ex parte communication between the chair of the hearing committee and a witness

Administrative law – Decisions of administrative tribunals – Law Societies – Barristers and solicitors – Disciplinary proceedings – Penalties and suspensions – Judicial review – Procedural requirements and fairness – Bias – Reasonable apprehension of bias – test – Witnesses – Compliance with legislation – Remedies – Alternative remedies

Merchant v. Law Society of Alberta, [2007] A.J. No. 1226, Alberta Court Q.B., November 2, 2007, C.A. Kent J.

In late January 2007, a hearing committee found Merchant guilty of six citations. The issue of penalty was adjourned to a later date. The day before submissions were to be heard on sanction, the Chair of the Hearing Committee telephoned a complainant in the proceedings and asked whether Merchant had sent him a letter of apology. The complainant indicated he had received a letter of apology.

The hearing reconvened and the Committee ordered that Merchant be disbarred immediately. The telephone conversation between the Hearing Chair and the witness was not made known to Merchant.

When the prosecutor contacted the complainant to advise him of the outcome, the complainant told the prosecutor that he had been contacted by the Hearing Chair. The prosecutor wrote to counsel for Merchant and advised him that the telephone call had taken place.

On the application for judicial review, the Law Society admitted that the conversation between the Chair and the complainant should not have occurred. The Law Society also admitted that if the Court found that the telephone call had tainted the process, the entire process should be set aside and not just the sanction portion of the hearing.

The Court first considered whether there was a reasonable apprehension of bias created by the telephone conversation between the adjudicator and the witness. The Court applied the test of whether a reasonably informed bystander could reasonably perceive bias on the part of the decision maker. The Court indicated that the analysis should include a review of the facts, and whether these established a real likelihood or probability of bias. The threshold for finding real or perceived bias is high. The Court defined this high threshold as follows: “…the apprehension of bias must be real in the sense that there must be some fact from which a reasonable person would conclude that the adjudicator may not have an open mind”.

Merchant argued that where any person acting in a quasi judicial capacity has private communications with a party or witness outside of the hearing process, there is a reasonable apprehension of bias. The Court held that ex parte communication does not automatically void the process. The pragmatic and functional approach adopted by the Canadian courts when engaged in the judicial review of the decision of an administrative tribunal requires that the Court consider the content and nature of the communication, and the surrounding circumstances, to determine what an informed person would conclude.

Turning to the facts of the case, the Court found that although the response of the witness to the hearing Chair’s inquiry was favourable for Merchant, the telephone call was clearly made to determine whether a representation made by Merchant about sending a letter of apology was true. The contact between the adjudicator and the witness was intentional, for the purpose of gathering information about Merchant. The Court concluded that “a reasonable person could conclude that by making the call, the hearing chair stepped out of the role of impartial adjudictor and took on an investigatory role. It is not the content of the call that is significant. Rather, it is stepping out of the role of impartial adjudicator which is critical. That creates a reasonable apprehension of bias”.

The Court then turned to consider the issue of whether the finding of a reasonable apprehension of bias mandates that the decision of an administrative tribunal be quashed. The Court held that, as with the analysis of whether ex parte communication between an adjudicator and a witness automatically gives rise to an apprehension of bias, the pragmatic and functional approach requires that not every breach of procedural fairness renders the decision of a tribunal void. However, the Court went on to find that where an irregularity gives rise to a reasonable apprehension of bias, the decision of the tribunal is fundamentally undermined.

The final issue for the Court was whether, despite the Court’s jurisdiction to review the Law Society decision, the Court should abstain from reviewing the decision because the legislation provided an effective right of appeal from the decision. The Court held that although a finding of bias does not automatically result in the exclusion of a legislated appeal, here the finding of a reasonable apprehension of bias was made on the part of the Hearing Chair, and anybody sitting on appeal would be a Bencher, and therefore worked in other capacities alongside the Bencher whose conduct had been called into question. The Court held that an appeal could not be an adequate alternate remedy and Merchant’s application to quash the findings of the Hearing Committee, both on the merits and on the sanction, was granted.

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