This was a judicial review of a decision of the Law Society of Newfoundland and Labrador not to refer an allegation of collusion between the presiding judge and a member of the Law Society to a disciplinary panel for hearing. The Supreme Court dismissed plaintiff’s allegation that he received unfavourable results in a matrimonial dispute due to collusion stating that Committee had acted reasonably in rejecting the complaint.

24. July 2012 0

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

Aylward v. Law Society of Newfoundland and Labrador, [2012] N.J. No. 194, 2012 NLTD(G) 85, Newfoundland and Labrador Supreme Court, Trial Division, May 25, 2012, G. Handrigan J.

A lawyer named Gordon Aylward (“Aylward”) initiated divorce proceedings against his wife Joan Marie. Aylward represented himself, and Ms. Aylward was represented by Gerlinde Van Driel Q.C.  Aylward, his former wife, and Ms. Van Driel attended a settlement conference in December 2009. Madam Justice Mary Noonan presided. Aylward alleged that Ms. Van Driel had acted unprofessionally toward him when they were discussing scheduling the settlement conference, and further that she had colluded with Madam Justice Noonan to deprive him of the value of some of his matrimonial property. Aylward made a complaint to the Canadian Judicial Council and copied that complaint to the Law Society, asking that it investigate allegations he had made against Ms. Van Driel in the Canadian Judicial Council complaint. The Complaints Authorization Committee of the Law Society investigated, and issued a letter of caution to Ms. Van Driel sanctioning her for failing to be courteous to Mr. Aylward in one instance and for being misleading in court about her own actions. Ms. Van Driel, in her response to the Law Society, counter complained against Aylward saying that he acted unprofessionally towards her by making an accusation of collusion between her and Madam Justice Noonan. The Committee dismissed the counter complaint.  Aylward applied for judicial review and claimed that the Law Society had erred in failing to refer his complaint against Ms. Van Driel to a disciplinary panel.

Justice Handrigan decided the application for judicial review and found that the Complaints Authorization Committee (the “Committee”) acted reasonably in finding Van Driel guilty of professional misconduct in being discourteous and misleading, and issuing a letter of sanction to her. However, the Court held that the Committee had failed to consider the allegation of collusion made by Aylward. The Court referred Aylward’s complaint of collusion back to the Committee.

The Committee met again to consider the allegation of collusion only. The Committee decided that there was no evidence of any arrangement between Madam Justice Noonan and Ms. Van Driel to act in collusion against Aylward. The decision to sanction Ms. Van Driel for her discourteous acts and her misleading remarks was confirmed.

Aylward appealed the Committee’s decision on the collusion allegation and sought an order reversing the Committee’s decision and referring his collusion allegation to a disciplinary panel for hearing.

The court noted that Aylward could not appeal a decision of the Committee deciding to caution Ms. Van Driel. Only dismissals could be appealed by the complainant pursuant to the Law Society Act, 1999. He could request judicial review, which he had done and the Committee’s decision had been upheld in that process. However, with respect to the allegation of collusion, which the Committee had dismissed, Aylward could properly appeal the dismissal.

The parties agreed that the appropriate standard of review was reasonableness. The Committee could, if it found there were reasonable grounds to believe that the respondent had engaged in conduct deserving sanction, either (a) cancel or caution the respondent or (b) instruct the vice-president of the Law Society to file a complaint, and refer the matter to a disciplinary panel.

Aylward argued that the Law Society failed to investigate the allegation of collusion between Madam Justice Noonan and Ms. Van Driel. However, Aylward had not made a direct complaint to the Law Society but had simply copied his complaint to the Canadian Judicial Council, with a request that the Law Society consider the allegation against Ms. Van Driel. The Committee had Ms. Van Driel respond to the allegation, and Aylward provided some further information in response to Ms. Van Driel’s cross complaint about his conduct. Overall, 29 letters went back and forth between the Law Society, Ms. Van Driel, Aylward and Madam Justice Noonan. The Law Society Act vests the Committee with a broad discretion about whether, when and how to investigate a complaint. In this case, the Committee did not speak to the respondent verbally, but relied on the documentary record. The Committee was authorized to do this and had acted reasonably. The court would not interfere with their decision and the extent of their investigation into the allegation of collusion.

Aylward made separate arguments that the Law Society failed to speak to Ms. Van Driel or Madam Justice Noonan. Madam Justice Noonan was not obliged to respond to the Complaints Authorization Committee’s written inquiry. The Committee did not have the power to compel Madam Justice Noonan to do so.

With respect to Ms. Van Driel, the Committee could require her attendance to appear before it, but it chose not to make this request. The court upheld this decision and inferred, from the Committee’s silence, that Ms. Van Driel had addressed the allegations thoroughly in her written materials.

The Law Society Act, 1999 does not clarify whether a respondent will be examined on oath if the Committee requires their attendance, and then whether they can also compel the complainant to appear, and whether that complainant would then be examined on oath. The court commented that if Aylward had wanted to cross examine Ms. Van Driel on all aspects of his allegations, it would seem inappropriate, since the Committee’s main purpose is to screen allegations to see if they warrant further action.

Aylward conceded that there was no direct evidence that Madam Justice Noonan and Ms. Van Driel had colluded against him. However, he argued that there were compelling circumstances that should lead to an inference of collusion. These included postponement of the settlement conference that occurred when Ms. Van Driel contacted the settlement conference coordinator, without advising Aylward in advance, to change a date so that Madam Justice Noonan would be available to preside over the settlement conference, and Madam Justice Noonan’s support for certain aspects of the claim that Ms. Van Driel had argued vigorously.

Although circumstantial evidence can be as persuasive as direct evidence, it often takes an accumulation of circumstances to demonstrate what direct evidence can prove without effort.

The Committee was aware of the circumstances around the collusion allegation and of the evidence that Aylward said led to an inference of collusion. The Committee noted that much of the evidence related only to Ms. Van Driel and that there was no evidence about Madam Justice Noonan’s conduct. When there is evidence about only one party in respect of a collusion allegation, and even that evidence is “vague and inconclusive” it is hard to infer that two people acted together to “defraud another or to do or obtain something forbidden by law”.

Aylward’s claim also supposed that Madam Justice Noonan and Ms. Van Driel would somehow benefit by colluding together. Although it could be argued that Ms. Van Driel would benefit by advancing her client’s interests, there was no evidence of any possible benefit to Madam Justice Noonan.

Thus, the Committee acted reasonably in rejecting Aylward’s contention that there was circumstantial evidence demonstrating collusion between Madam Justice Noonan and Ms. Van Driel.

Costs were awarded against Aylward since he should have accepted the Complaints Authorization Committee’s reasonable decision to reject his claim of collusion.

The appeal was dismissed with costs against Aylward on a party and party basis.

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