A complainant’s application to the Law Society of Alberta to disclose its investigative report was dismissed. On judicial review, the Court agreed stating that a self-regulating profession has a duty to the public to respond to complaints properly, and disclosure of its records might hamper its ability to investigate complaints.

Administrative law – Decisions of administrative tribunals – Law Societies – Barristers and solicitors – Professional misconduct – Investigations – Abuse of process – Disclosure of record – Judicial review – Procedural requirements and fairness

Davidoff v. Law Society of Alberta, [2011] A.J. No. 1442, 2011 ABQB 668, Alberta Court of Queen’s Bench, November 1, 2011, R.P. Belzil J.

In 1992, Davidoff pled guilty to serious criminal charges, and was sentenced to prison. Piragoff had been the Crown prosecutor. Davidoff alleged an abuse of process by the Crown, which was dismissed. In 2002, Davidoff, through counsel, filed a Law Society complaint against Piragoff for his role in the prosecution.

The Law Society appointed a member to investigate the complaint against Piragoff, and dismissed it. Piragoff was not interviewed and he provided no materials, but cross-examination of him during the abuse of process proceedings was included in the complaint materials. The complaint did not meet the threshold test for disciplinary proceedings.

Davidoff appealed the dismissal of his complaint to a Bencher Appeal Panel. His lawyer applied for full disclosure of the investigation report and all materials reviewed by the investigator. The Panel refused disclosure, saying it was obliged to keep all material confidential with the exception of any responses from the lawyer who was the subject of the complaint. There was no response from Piragoff and so no disclosure was made. The disclosure applications and the appeals from the complaint disposition were all dismissed.

Davidoff applied to the Court for an order of certiorari quashing the dismissal of his complaint against Piragoff. Davidoff argued that the duty of procedural fairness should include an obligation on the Law Society to disclose to him all information in its possession pertaining to the complaints made against Piragoff.

The Law Society acknowledged that Davidoff was owed a duty of procedural fairness, but said it had been satisfied. While the subject of a complaint might be entitled to disclosure, a complainant is not. There are sound policy reasons for balancing disclosure and confidentiality.

The Court agreed that the content of the duty of procedural fairness before a tribunal is “variable and contextual.” Here, the nature of the decision is limited to conduct proceedings regarding whether Davidoff engaged in professional misconduct and, if established, what penalty should be imposed. The Legal Profession Act creates a scheme for investigation of complaints made against members of the Law Society. The complainant has the right to file a complaint and receive a written response to it, and to participate in hearings where available. However, the Act does not make the complainant a party to the proceedings or give him any role in the complaint’s investigation. The Law Society Rules provide that records in the Law Society’s possession are confidential, subject to a few exceptions.

Although the decision in the complaint is important to Davidoff, and he is entitled to an assurance that a proper investigation was carried out, the complainant’s interests are outweighed by those of the member, Piragoff. Professionals responding to complaints are also entitled to a duty of procedural fairness. Piragoff could be subject to sanctions including disbarment if serious misconduct were established against him; his professional reputation is at risk, and his privacy interest is significant, particularly given his vehement denial of wrongdoing. “He is the sole individual in jeopardy.” (para. 32)

A self-regulating profession has a duty to the public to respond to complaints properly, and disclosure of its records might hamper its ability to investigate complaints. Not every application for judicial review attracts a requirement for full disclosure.

In this context, the duty of procedural fairness to Davidoff does not encompass a right to disclosure of the Law Society’s investigation of the complaint. The application for disclosure was dismissed

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