The Appellant Lienaux appealed a decision of the Respondent Barristers’ Society (the “Respondent”), which had found him guilty of conduct unbecoming of a barrister. The Appeal was dismissed because the Court of Appeal found the majority of the rulings of the Respondent were reasonable and the standard of review was reasonableness. Lienaux was successful on one ground of appeal as the Court of Appeal held the Respondent’s decision to prohibit him from representing himself was not reasonable.

Administrative law – Decisions of administrative tribunals – Law Societies – Barristers and solicitors – Disciplinary proceedings – Self-representation – Judicial review – Fresh evidence – admissibility – Standard of review – Reasonableness simpliciter – Jurisdiction – Compliance with legislation

Lienaux v. Nova Scotia Barristers’ Society, [2009] N.S.J. No. 32, Nova Scotia Court of Appeal, January 28, 2009, M. MacDonald C.J.N.S., N.J. Bateman J.A. and J.D. Murphy J. (ex officio)

The Appellant (“Lienaux”) was a member of the Respondent Nova Scotia Barristers’ Society (the “Respondent”) for 32 years. In 1993, Lienaux and his wife became involved in litigation against a former business partner named Campbell. Lienaux and his wife (the “Lienauxs”) were self-represented litigants throughout this matter. This litigation carried on for several years and included several applications and several related actions.

The Lienauxs were largely unsuccessful in their litigation with Campbell. Lienaux then turned to make allegations against both the trial judge and three Nova Scotia Court of Appeal judges. The substance of his allegations were that these judges ruled against him because they were part of an “old boys network” with Campbell. In addition, Lienaux alleged that Campbell’s lawyer had looked through Lienaux’s private papers during a recess in the initial trial with Campbell.

The Respondent commenced discipline proceedings against Lienaux because his allegations did not appear to have any merit. The Respondent’s hearing panel (the “Panel”) found Lienaux guilty of conduct unbecoming for his conduct in making allegations against the judges and opposing counsel. The Panel ordered that Lienaux be suspended for one month, prohibited from representing anyone in any matter related to the litigation with Campbell, and pay $30,000 in Costs. Lienaux appealed on the basis that the Panel had erred in not permitting him to call evidence about the “old boys network”.

As a preliminary matter however, the Court referred to the Law Society of New Brunswick v. Ryan decision in respect of the standard of review on appeals from bar societies’ decisions. That decision found that, generally speaking, such decisions command deference. The Court then dealt with Lienaux’s specific grounds of appeal one by one as outlined below.

First, Lienaux alleged the Panel erred in law and exceeded its jurisdiction when it conducted a hearing without investigating the matters alleged in the Complaint. The Court found this was not a jurisdictional issue but rather the Panel’s interpretation of its enabling statute that permitted it to control its own process and discipline its members. The standard of review was, therefore, reasonableness and the Panel’s decision was reasonable because Lienaux’s allegations against the judiciary were unsupported bare allegations.

Second, Lienaux alleged the Panel erred in finding him guilty when he had a duty to complain to the court about injustices. This is an issue of mixed fact and law and is, therefore, subject to a reasonableness standard. The Panel’s decision was reasonable given that Lienaux’s allegations were baseless.

Third, Lienaux alleged the Panel erred in refusing him the opportunity to call witnesses to substantiate certain allegations. The applicable standard of review was reasonableness for the same reasons as outlined in the first ground of appeal. The Panel’s decision was reasonable because the prohibited evidence did not appear relevant to their inquiry.

Fourth, Lienaux alleged the Panel erred in finding him guilty of conduct unbecoming when he was acting for himself in a personal capacity. The Court found this was an interpretation of enabling legislation and the standard of review was reasonableness. The Court found the Panel was reasonable in finding that the Respondent had jurisdiction over Lienaux even though he was not acting for a client.

In arguing the fourth issue, Lienaux made different oral submissions and also challenged the jurisdiction for the Panel’s order that he not represent himself in any of the litigation involving Campbell. The Court found the standard of review was reasonableness and the Panel’s decision was unreasonable because it cannot oust the common law principles about the right to be self-represented. The portion of the Panel’s order relating to this issue was, therefore, overturned.

Fifth, Lienaux alleged the Panel erred in determining the Respondent had jurisdiction to discipline him for personal conduct unbecoming because the Legal Profession Act empowers it to do this only upon three grounds. The Court found this was an interpretation of enabling legislation and, therefore, the standard of review was reasonableness. The Court found the Panel’s decision was reasonable because the three grounds in the Legal Profession Act are introduced by the phrase “including” and, therefore, allow for other grounds as well.

Finally, Lienaux alleged the Panel erred in finding guilt on the evidence tendered. The Court found this issue was one of mixed law and fact and, therefore, the reasonableness standard was appropriate. The Court found the Panel’s decision was reasonable because there was no evidence, aside from Lienaux’s testimony, to substantiate Lienaux’s allegations.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at [email protected] or review his biography at http://www.harpergrey.com.

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