Exceptional circumstances required for court to intervene in administration proceeding before it is completed

Administrative law – Judicial review – Judicial intervention – Appeals – Barristers and solicitors – Professional misconduct

Hemminger v. Law Society of British Columbia, [2023] B.C.J. No. 120, 2023 BCCA 36, British Columbia Court of Appeal, January 25, 2023, M.V. Newbury, J.J.L. Hunter, P.G. Voith JJ.A.

The Law Society commenced discipline proceedings against Ms. Hemminger, a practising lawyer.

During the “facts and determination” phase of the hearing, at the submissions stage, Ms. Hemminger applied through counsel to have the proceedings re-opened in order to file expert evidence. Without hearing oral submissions and without notice it would issue a decision, the panel decided not to re-open the hearing.

Ms. Hemminger filed a petition for judicial review, seeking an order prohibiting the panel from continuing with the hearing. The court dismissed the petition as premature. Ms. Hemminger appealed.

On judicial review, the chambers judge held that the statutory context weighed against intervening “midproceeding.” Hearing an application for judicial review at an interim stage of the administrative proceeding leads to delay, which is contrary to the Law Society’s duty “to uphold and protect the public interest in the administration of justice,” and would “subvert” the comprehensive statutory code laid out in the statutory scheme for disciplinary proceedings.

On appeal, the Court of Appeal held there was no error in the chambers judge’s refusal to exercise discretion to judicially intervene in the proceedings before the hearing was completed. Ms. Hemminger alleged bias against the panel; however, the “strong evidentiary foundation” required to show bias was not established. The circumstances of the case were not “exceptional” and the high threshold for interfering mid-hearing was not met.

The Court of Appeal dismissed the appeal.

This case was digested by Joel A. Morris, 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 Joel A. Morris at jmorris@harpergrey.com.

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