A lawyer (“Peet”) was found guilty of conduct unbecoming by a Hearing Committee of the Law Society of Saskatchewan (“Law Society”) for failing to service two clients in a diligent manner and for failing to reply promptly to Law Society communications. A suspension of 30 days and costs of $16,216.80 were issued as a penalty against Peet. Peet had previously been found guilty of disciplinary offences before the Law Society in 1999, 2002, 2004 and 2008.

23. December 2014 0

Administrative law – Decisions of administrative tribunals – Law Societies – Charter of Rights and Freedoms – Barristers and solicitors – Professional misconduct / conduct unbecoming – Disciplinary proceedings – Penalties and suspensions – Judicial review – Abuse of process – Public interest – Delay – Standard of review – Reasonableness simpliciterr of Rights and Freedoms

Peet v. Law Society of Saskatchewan, [2014] S.J. No. 617, 2014 SKCA 109, Saskatchewan Court of Appeal, October 28, 2014, R.G. Richards C.J.S., P.A. Whitmore and J.A. Ryan-Froslie JJ.A.

Peet appealed and argued that the proceedings against him should have been stayed due to a long delay in bringing the complaints to Hearing, which he said constituted an abuse of process and violated his s.11(b) Charter right to be tried within a reasonable time.

Peet also argued that the evidence did not support the findings against him on the substance of the complaints, and that the penalty imposed was unreasonable and should be reduced.

A standard of review of reasonableness was applied.

The s.11(b) Charter right to be tried within a reasonable time applies to criminal or penal matters rather than disciplinary matters that are “… regulatory, protective or corrective and … primarily intended to maintain discipline, professional integrity and professional standards or to regulate conduct within a limited private sphere of activity.” ( R v. Wigglesworth, [1987] 2 SCR 541 at 560) (para. 44), unless the private matter involves true penal consequences such as imprisonment or a fine of significant magnitude.

The Court held that the fine was not of a level that would create a penal consequence. Rather it was in the nature of an order to pay costs. Generally speaking, s. 11(b) of the Charter is not engaged in disciplinary proceedings concerned with professional regulation.

Although the delay in dealing with the complaints against Peet was significant (the first complaint was filed in October 2008 and a hearing did not occur until July 2012), it did not reach the level of an abuse of process because Peet did not demonstrate significant prejudice or stigma arising from the delay; he made no suggestion of fading witness memories or missing documents. Further, it was not clear whether Peet or the Law Society was responsible for the delay, meaning a stay is not appropriate (Allen v. Alberta (Law Enforcement Review Board), 2013 ABCA.) Even long delays do not readily outweigh the public interest in having the complaints resolved on their merits.

The conclusions of the Law Society on the merits of the complaints were upheld; Peet had taken over a year to respond to legitimate client inquiry for a list of expenses paid out of an estate and, on another occasion, a client left 10 messages without a return call from Peet. In the second complaint, Peet did effectively nothing to advance the file (to probate  a will) for over a year. Expert evidence was not necessary to make a finding against Peet on these facts.

The finding of Peet’s failure to respond promptly to Law Society communications was also upheld. While he had health issues at one point, the Law Society’s counsel gave him an appropriate extension at that juncture. He was otherwise unduly difficult in terms of providing a response in a timely way.

The penalty imposed on Peet was reasonable, particularly in light of his significant disciplinary history. There is no single right answer when reviewing sentencing for professional misconduct.

Peet’s appeal was dismissed, with costs to the Law Society.

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