Administrative law – Decisions of administrative tribunals – Law Societies – In-house counsel – Barristers and solicitors – Admission to profession – Competence – Public interest – Judicial review – Procedural requirements and fairness – Bias – Standard of review – Reasonableness simpliciter – Remedies – Mandamus
DeMaria v. Law Society of Saskatchewan,  S.J. No. 506, 2015 SKCA 106, Saskatchewan Court of Appeal, October 9, 2015, R.K. Ottenbreit, N.W. Caldwell and J.A. Ryan-Froslie JJ.A.
Applicants to the Law Society of Saskatchewan must satisfy certain integrity and competency requirements. DeMaria was a student-at-law applicant for admission. He had been the subject of academic sanction due to the nature of his participation in the bar admission program and there were questions about his character and suitability to become a lawyer.
The executive director of the Law Society referred his application for admission to the Admissions and Education Committee which ordered a hearing to assist in the determination of whether DeMaria ought to be admitted as a lawyer. A three‑day hearing was held on the question of whether DeMaria satisfied the requirements and was of good character such that he could be admitted.
The panel found that there was evidence of a lack of good character sufficient to refuse his admission. DeMaria applied to the Benchers for a review of the panel’s decision. The Benchers conducted a review hearing, which included consideration of transcripts from the hearing below, and fresh affidavit evidence produced by DeMaria. Part of the fresh evidence alleged that his legal counsel had been ineffective at the hearing due to a malfunctioning hearing aid, among other issues. The Benchers found, on a reasonableness standard of review, that it was open for the panel to conclude that DeMaria had not met the onus of proving good character.
DeMaria then applied for judicial review since there was no statutory right of appeal from the Benchers’ decision. A judge in chambers upheld the Benchers’ decision finding that the Law Society’s refusal of DeMaria’s application for admission was reasonable and that the underlying decisions on matters of law had been determined correctly. The court of appeal found that findings of fact and assessments of credibility made by an administrative law decision maker are reviewable on a standard of palpable and overriding error. The Chambers judge correctly concluded that the panel’s findings were supported by the evidence and could not be said to be unreasonable. There was no basis to interfere with the credibility and factual findings of the panel below.
The Benchers and the Chambers judge proceeded to review the question of whether DeMaria’s admission to the bar would be in the best interests of the public, on a standard of correctness. The court of appeal noted that the panel had been called upon to interpret its home statute and its own rules and that therefore the appropriate standard of review was the standard of reasonableness. Both the Chambers judge and the Benchers had erred in applying a standard of correctness.
However, the choice of standard of review did not have bearing on the overall conclusion regarding DeMaria’s character. Both the Benchers and the Chambers judge found that the panel’s interpretation was a correct interpretation which is to say that it withstood a more demanding standard than the standard of reasonableness. Therefore the conclusion would still be upheld on a reasonableness review.
The applicant also alleged that there was evidence that the Law Society had “doctored” the panel’s decision and that this constituted a denial of procedural fairness. The court of appeal found that although there were irregularities in the preparation, execution, collation and distribution of the final decision, these were explained by the Law Society’s evidence in such a way that detached them from impropriety. However, the court of appeal noted that the Law Society’s handling of the panel’s final decision was sloppy and that the Law Society should not take pride in the result because it should not have had to prove an absence of impropriety.
The court of appeal found no merit to the applicant’s assertion that the Chambers judge erred by concluding that these were “admissions proceedings”.
DeMaria’s allegation that there was a reasonable apprehension of bias arising out of certain interactions between the Law Society’s in-house counsel and the Benchers, and certain observations about the Benchers themselves, were not borne out. DeMaria had submitted that a reasonable apprehension of bias arose because Law Society’s in-house counsel who appeared for the Law Society at the Bencher review hearing ate breakfast in the hearing room with the Benchers immediately before they undertook their review, and that a Bencher who was chair of the panel had contacted the Law Society’s in-house counsel directly before the decision was released to DeMaria, and, at the end of that communication, the Bencher invited the in-house counsel to play golf with him, and that one Bencher who sat on the review panel’s decision was a Facebook friend to the Law Society’s in-house counsel.
The Law Society’s in-house counsel is a lawyer who fills an in-house position but wears many hats. Given that there is a strong presumption of impartiality and factors specific to the institutional context at play, a single flippant display of familiarity between a Bencher and in-house counsel for the Law Society does not demonstrate to a reasonable and informed person that there is bias.
Finally, DeMaria had alleged that the Chambers judge was incorrect in declining to grant a mandamus order. The court of appeal held that an order in the nature of mandamus did not lie here because the Law Society possesses a discretion to admit DeMaria, and had exercised that discretion but there was no specific duty imposed upon them to admit him and therefore it was not within the Chambers judge’s power to issue an order in the nature of mandamus requiring it to do so. The appeal was dismissed with each party bearing their own costs.
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