Beyond the Supervisory Role – chambers judge fails to properly apply reasonableness standard by seeking to determine the “correct” test the Director of the Law Society should have applied

Administrative law – Decisions reviewed – Law Societies – Judicial review – Appeal – Standard of review – Reasonableness – Remedies – Mandamus – Barristers and solicitors – Professional misconduct – Fees

Party A v. Law Society of British Columbia, [2021] B.C.J. No. 600, 2021 BCCA 130, British Columbia Court of Appeal, March 29, 2021, E.A. Bennett, G.B. Butler and J.C. Grauer JJ.A.

The Court of Appeal determined that the chambers judge failed to apply the deferential standard required in reviewing a decision of the Director of the Law Society to not anonymize a citation to a lawyer. The chambers judge erred by determining the “correct” test that the Director should have applied, instead of focusing on whether the Director’s decision was reasonable. Nevertheless, the Court of Appeal reached the same end result as the chambers judge, finding that the Director’s decision was unreasonable because it failed to explain a so-called unwritten practice it applied.

Relevant Facts

The Law Society issued a citation against the respondent lawyer (the “Lawyer”) alleging that he committed professional misconduct by taking unreasonably high fees from a trust without entitlement. When the Lawyer was notified of the pending citation, he applied to the Executive Director of the Law Society (the “Director”) to issue the citation anonymously on the basis of the irreparable harm he would suffer if not anonymized.

After receiving submissions on the issue, the Director declined to anonymize the citation (the “Decision”). The Decision was brief. The Director determined that he had the discretion to anonymize the citation, but elected to follow a “established practice of not doing so except in rare circumstances”. The Lawyer successfully petitioned for judicial review of the Decision. The chambers judge quashed the Decision. The chambers judge also declined to remit the matter back to the Law Society for reconsideration, but instead issued an order of mandamus restraining the Director from publishing the Lawyer’s name.

The Law Society appealed. There were two central issues on appeal. First, whether the chambers judge erred in her application of the reasonableness standard of review and failed to show any meaningful deference to the Decision. Second, whether the chambers judge erred in not remitting the matter back for reconsideration.

Did the chambers judge err in her application of the reasonableness standard?

On the first issue, the Court of Appeal agreed with the chambers judge that the Decision was unreasonable, but nevertheless concluded that the chambers judge went beyond her proper role of a reviewing court and, in essence, failed to properly apply the reasonableness standard. The critical shortcoming, according to the Court of Appeal, was that the chambers judge set out to establish what she believed was the correct test the Director was supposed to apply when determining whether to anonymize the citation or not. Instead, the chambers judge ought to have focused on whether the Director’s approach was reasonable. The difference may seem subtle, but the Court of Appeal said it was critical. As the Court of Appeal stated clearly:

Nevertheless, the task on this judicial review was to determine whether the Director’s exercise of discretion within the statutory scheme was reasonable or not; it was not to determine the “correct” solution. In other words, the judge erred by determining the “correct” test and then applying that to the Director’s decision.

It was not the role of the chambers judge to determine the correct test and, after doing so, apply it to the facts. In doing so, the chambers judge went beyond her supervisory role and failed to apply the deferential reasonableness standard. This conclusion was buttressed, according to the Court of Appeal, by the fact that the Director’s discretion to anonymize the citation was purely discretionary, “unconstrained” by the Legal Profession Act or the Rules, and had not been explained or determined in other decisions.

Was the Director’s Decision unreasonable?

While the Court of Appeal concluded that the chambers judge went beyond her supervisory role, it nonetheless agreed with her that the Decision was unreasonable, albeit for different reasons. In particular, the Court of Appeal concluded that the Decision failed to grapple with the key issues, namely: what test applied; the basis or rationale for that test; and how the test applied to the circumstances. The Director relied on a so-called “policy” or “practice” whereby citations were only anonymized in “rare and exceptional cases where one or more individuals would suffer extraordinary prejudice to such an extent that it would outweigh the public interest in having the Law Society carry out its discipline process in a transparent and accountable manner”. However, according to the Court of Appeal, the Director failed to explain the policy or its genesis in his Decision. By applying this unwritten “policy”, without any meaningful explanation to the Lawyer in its Decision, the Court of Appeal concluded that the Director’s Decision failed to contain the necessary hallmarks of transparency and justification to make it reasonable.

Should the matter have been remitted for reconsideration?

Finally, on the issue of remittance, the Court of Appeal concluded that the chambers judge ought to have remitted the matter back to the Law Society for reconsideration. This necessarily flowed from the court’s conclusion that the legislature’s intention was to entrust these issues to the Law Society and its designed decision makers.

This case was digested by Adam R. Way, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact Adam R. Way at away@harpergrey.com.

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