An appeal by Tilley from the decision of the Law Society of Newfoundland and Labrador (“Law Society”) dismissing Tilley’s complaint against a lawyer was allowed where the court held that the Law Society failed to examine whether the lawyer had owed a duty to Tilley as a member of the public and whether special considerations applied where the lawyer had a personal interest in the transaction at issue

Administrative law – Decisions of administrative tribunals – Law Societies – Investigations – Barristers and solicitors – Disciplinary proceedings – Professional misconduct – Public interest – Judicial review – Standard of review – Reasonableness simpliciter

Tilley v. Law Society of Newfoundland and Labrador, [2010] N.J. No. 381, 2010 NLTD 187, Newfoundland and Labrador Supreme Court, December 8, 2010, A.E. Faour J.

Tilley complained to the Law Society concerning the conduct of the solicitor who acted for the vendor in a transaction in which Tilley was the purchaser. The deal fell through and the next day Tilley became aware that the sale was completed in the conveyance to a company in which the lawyer had a personal interest. Leading up to the failure of the transaction there had been three extensions of the deadline for closing while certain title issues were worked on. In the end, Tilley was not prepared to close with what the lawyer had provided on title and the deal fell through.

The Law Society’s investigation initially involved an examination of documents related to the transaction and a response from the lawyer. The lawyer’s client refused to waive solicitor/client privilege but indicated that he felt the transaction failed for the valid reason of the issue with the title. The Complaints Authorization Committee (the “Committee”) of the Law Society concluded there was insufficient evidence to make a finding against the lawyer and dismissed the complaint. Tilley appealed to the court under the Law Society Act, 1999, S.N.L. 1999, c. L-9.1.

The court held that the applicable standard of review was reasonableness noting that a fair degree of deference had to be given to the deliberation and decision of the Committee citing Spurrell v. Newfoundland (Human Rights Commission), 2003 NLSCTD 28. The court noted that the Committee has a broad discretion and, absent some flaw in its process, the court ought not to intervene with its decision.

Turning to the complaint, the court noted that Tilley’s complaint was about a lawyer’s ethical behaviour and was not about whether the lawyer had fulfilled a duty to a client as the lawyer at issue was not Tilley’s lawyer. However, the Committee was charged to determine whether the allegation had sufficient merit to warrant referral to the Discipline Committee. The court noted that Tilley’s complaint arose from the lawyer’s failure to complete the transaction in circumstances where Tilley, as a member of the public, saw a result involving a member of the Law Society benefiting personally from Tilley’s losing the transaction. The court noted that these were serious matters and reflected on the profession as a whole and the confidence of the public in the ethical treatment of legal transactions. The Committee erred in focusing solely upon its assessment of whether the lawyer’s duty to his client was met. In its decision, the Committee did not address the complaint before it and failed to examine whether the lawyer owed a duty to the complainant as a member of the public and whether special considerations applied where the lawyer had a personal interest. These were core elements of the complaint and the failure to address them was unreasonable.

In the result, Tilley’s appeal was allowed and the complaint was remitted back to the Complaints Authorization Committee for reconsideration.

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