The Saskatechewan Court of Queen’s Bench dismissed an application for judicial review by an applicant seeking to quash the Law Society’s decision refusing him admission to membership. The court held that as gatekeeper of admissions, the Law Society’s participatory role in judicial review was appropriate and necessary. The Admissions and Education Committee of the Law Society (the “Committee”) and Benchers’ decisions were reviewable on a reasonableness standard on questions of fact and credibility. The standard of correctness applied to questions of law and mixed fact and law. The Committee’s decision, affirmed by the Benchers, denying the applicant’s application for membership on the basis he had not satisfied the Committee of good character, fell within the range of reasonable outcomes having regard to evidence and credibility of witnesses. The Committee did not err in concluding the applicant had not met the onus of proving good character.

Administrative law – Decisions of administrative tribunals – Law Societies – Standing – Barristers and solicitors – Admission to profession – Judicial review – Disclosure – Jurisdiction – Natural justice – Bias – Standard of review – Reasonableness simpliciter – Correctness

DeMaria v. Law Society of Saskatchewan, [2013] S.J. No. 292, 2013 SKQB 178, Saskatchewan Court of Queen’s Bench, May 10, 2013, L.M. Schwann J.

In June 2008, the applicant began articles with the Merchant Law Group. During the course of his articles, a fellow student came forward to the Law Society concerning improper collaboration and cheating on bar course assignments. In doing so, he implicated the applicant. On the heels of his admission, the applicant entered into an agreed statement of facts with the Law Society, taking responsibility for his conduct. The Admissions and Education Committee (the “Committee”) imposed a sanction extending the applicant’s period of articles. In July 2010, the applicant applied to become a Law Society member, submitting with his applicant an affidavit from his principal deposing that he was a “fit and proper person” for admission as well as 30 letters of reference. The Law Society referred the application to the Committee for consideration and the Committee in turn ordered a viva voce hearing to assess the applicant’s application. Following 3 days of hearings, the Committee issued a written decision denying the application on the basis the applicant had not satisfied the Committee of his good character. The Committee concluded that the applicant had demonstrated an ongoing series of inexplicable behaviour that included threatening, a tendancy to physical violence, lying, intimidation and obsessive behaviour. He surreptitiously accessed a fellow lawyer’s computer and regularly taped telephone and personal conversations. He was unable to explain the behaviour, which continued after the cheating incident.

The applicant sought a review of the Committee’s decision before a quorum of Benchers who upheld the Committee’s decision. The applicant then sought judicial review of the Committee’s and Bencher’s decisions.

At judicial review, the applicant raised a preliminary issue with respect to standing of the Law Society in the proceedings, arguing that as a statutory tribunal, its participatory rights were limited to submissions on jurisdiction alone, not the substantive merits. The court noted that self governence of professions has two central features: the authority to license and the ability to discipline. Admission, unlike discipline, requires the Law Society to play a screening role to ensure prospective members have appropriate accreditation and otherwise comply with the Act and Rules. It is not adversarial in nature; there is no “complainant” driving the decision-making function, that is the Law Society is not called upon in admissions to discharge an adjudicative function between two competing parties. As gate-keeper of admissions, the Law Society can hardly be said to be a detached observer, and given the legislative role assigned to the Law Society in acting in the public interest, its participatory role in relation to the admission process was not only appropriate, but necessary.

The reasonableness standard of review applied to questions of fact and credibility. Reasonableness required the court to consider (i) the existence of justification for the reasons; and (ii) the defensibility of the outcome in light of the reasons. On questions of law and mixed fact and law, the standard of correctness should apply.

The court agreed that the Benchers were correct in determining amendments to section 24(1) of the Legal Profession Act did not remove the good character requirement found in Rule 180(1) of the Law Society of Saskatchewan Rules. Assessment of good character must be undertaken with the primary object of public interest and protection, viewed through the touchstones of integrity, knowledge, skill, proficiency and competence. Previously satisfying the good character threshold when being admitted as a student-in-law did not satisfy the good character requirement to be admitted for membership in the Law Society. The signature process by the Committee, signed by the members on different dates and in counterpart, was not fatal. Corrective reformatting of the Committee’s decision by the Law Society did not render the decision a nullity. The Law Society did not err in characterizing the applicant’s application as a question of admission instead of a question of discipline. The Law Society did not err in assessing credibilty of witnesses nor did it err in attaching little weight to the reference letters. The Benchers had necessary quorum and the decision reflected the unanimous decision of the Benchers who heard the review. The applicant had failed to establish a reasonable apprehension of bias.

To stay current with the new case law and emerging legal issues in this area, subscribe here.