Administrative law – Decisions of administrative tribunals – Law Societies – Barristers and solicitors – Disciplinary proceedings – Professional misconduct / conduct unbecoming – Penalties and Suspensions – Judicial review – Bias – Standard of review – Reasonableness simpliciter
Ritchot v. Law Society of Manitoba,  M.J. No. 28, 2010 MBCA 13, Manitoba Court of Appeal, February 5, 2010, M.A. Monnin, F.M. Steel and B.M. Hamilton JJ.A.
The appellant was a member of the Respondent Law Society. She had been the subject of disciplinary proceedings arising out of her conduct before the Automobile Injury Compensation Appeal Commission, in which she appeared in her personal capacity, appealing the compensation awarded to her by Manitoba Public Insurance for injuries and loss of income arising from a motor vehicle accident. A panel of the Law Society’s Discipline Committee found that the Appellant had walked out of a pre-hearing conference after swearing at the Chief Commissioner. The Chief Commissioner sent a complaint to the Law Society about the Appellant’s conduct. The Appellant was ultimately charged with conduct unbecoming a lawyer.
A few months after the incident before the Chief Commissioner, the Appellant behaved inappropriately before a Master, who called for sheriff’s officers to escort the Appellant from the courtroom, and later complained to the Law Society. That complaint resulted in restrictions on the Appellant’s practicing certificate because of concerns about her “conduct and competence”. The restrictions were that she practice under the supervision of a member approved by the Law Society and that she obtain a psychiatric or psychological assessment and comply with any recommendations arising therefrom.
In September 2007, a panel of the Discipline Committee, following a hearing, concluded that the Appellant’s conduct with respect to the Chief Commissioner constituted conduct unbecoming a lawyer. Subsequently, following submissions as to penalty, the panel found that the Appellant had not met the onus on her to demonstrate that the psychological assessment restriction should be removed from her practising certificate and imposed a restriction requiring the Appellant to provide a fresh and detailed medical report and request a hearing before the Discipline Committee at which time the doctor who provided the report would testify. The panel rejected the Law Society’s position that the Appellant practise under supervision and refused to make a finding of incompetence or ungovernability. It ordered the Appellant to pay costs in the amount of $8,500.00 within two years of the Appellant’s practising certificate being re-issued. It also issued a formal reprimand.
The Appellant appealed both the finding of conduct unbecoming a lawyer and the consequences imposed by the panel.
First, the Appellant raised an allegation of bias on the part of the panel. Following her conviction by the panel, the Appellant had discovered that the former Director of Appeals for the Commission was practicing law in association with the chair of the panel of the Discipline Committee. That individual had had some dealings with the Appellant with respect to her accident claim, and had left his position with the Commission several months before the Appellant met with the Chief Commissioner for the pre-hearing conference. Several months before the pre-hearing conference, he had written to the appellant in response to a letter she had written to the provincial ombudsman about her concerns with her accident claim, and expressed disappointment in the Appellant’s “inappropriate and unwarranted comments” regarding the conduct of the Commission.
The Court referred to the leading decisions from the Supreme Court of Canada regarding questions of bias. Judges are presumed to be impartial and “the burden of proof is on the party alleging a real or apprehended breach of the duty of impartiality … [to] establish actual bias or a reasonable apprehension of bias”. A similar presumption of impartiality applies to an administrative tribunal. The facts of each case are crucial to the question of whether or not there is a reasonable apprehension of bias. Here, the panel had carefully considered the facts giving rise to the Appellant’s allegation of bias on the leading case law. The Court concluded there was no evidence whatsoever of bias. As in most cases where bias is alleged, the real question is whether the facts demonstrate a reasonable apprehension of bias. In the court’s view, the Appellant’s allegation was simply too remote and speculative and the facts did not raise a reasonable apprehension of bias.
With respect to the finding of conduct unbecoming a lawyer, the Appellant asserted that the panel had erred in finding that she swore at the Chief Commissioner at the pre-hearing conference. The Court held that that finding was simply unassailable, given the evidence before the panel and its findings of credibility. The Appellant also asserted that the panel erred in finding her guilty of conduct unbecoming a lawyer because she was not acting “as an advocate” when she was dealing with her own accident claim. The panel had not accepted this argument and concluded that Rules 1 and 9 of the Code of Professional Conduct call for a lawyer to treat a tribunal with courtesy and respect, whether acting as an advocate for himself or herself, or a client. The Court found that the panel had given a broad and purposive interpretation to the words “acting as an advocate” in Rule 9 given that the panel was interpreting its “home statute”, on matters within its expertise, its interpretation was owed deference and was to be reviewed on the standard of reasonableness. Given the standard of review, the Appellant had not demonstrated that the panel had committed an error when it ruled that Rules 1 and 9 apply to her notwithstanding that she was representing herself before the Commission.
Finally, as to penalty, the Court found that the panel had not heeded its own admonition not to impose a consequence for conduct that was not the subject of the citation before it. The restriction on the Appellant’s practising certificate cannot reasonably have been imposed as a consequence for her spontaneous outburst at the Chief Commissioner. The panel’s concern was the Appellant’s fitness, or competence, to practice law because of her conduct subsequent to the citation in that matter. Although the panel had broad discretion as to what factors to consider when imposing a consequence for conduct, it did not include the discretion to impose a consequence that was directed at its articulated concern about her competency (or her fitness), when competency had not been the subject of a citation properly laid and proven. In the result, the reasons in the panel’s conclusion did not meet the standard of reasonableness, and nor did the medical restriction imposed.
Having dismissed the Appellant’s conviction appeal, and allowed her sentence appeal, the court considered whether the matter of the appropriate consequence should be referred back to the panel for reconsideration given the court’s decision. The Court declined to do so in this case. Even though it would order the medical restriction removed from the Appellant’s practising certificate, the medical restriction had been, in fact, a dire consequence for the appellant. Thus, the consequence for the conduct unbecoming in that matter would be the reprimand ordered by the panel. The Court declined to disturb the order of costs.
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