In Malik v. the Law Society of British Columbia 2013 BCCA 337, a member of the Law Society who had been disciplined unsucessfully, asked for special costs against the Law Society. The member had been involved in a Rowbotham application seeking state funding for his father's defence against criminal charges. The judge hearing the application expressed some concerns about the member's conduct in his reasons. These came to the Law Society's attention. It investigated the member and a Citation was issued. Ultimately, all of the allegations against the member were dismisssed. They were serious in nature alleging such things as filing a false or misleading affidavit and participating in a scheme to provide false information to the Court.
The member argued that he was entitled to special costs, because the Law Society's conduct of his case had been reprehensible, and that the Law Society review panel ought to have considered the special costs regime in the Rules of Court and applied it. These arguments were rejected on two bases. The first was that as a matter of fact, there was no reprehensible behaviour on the part of the Law Society. As to the argument that the Court's regime for special costs was applicable, the Court held that since the Law Society was authorized in its legislation to regulate assessment of costs, and had done so, the Court's regime did not apply, although the Court's jurisprudence might be a helpful consideration (see Shpak v. Institute of Chartered Accountants of B.C. 2003 BCCA 149.)
http://canlii.ca/t/fzqb1
Thursday, July 25, 2013
Tuesday, July 16, 2013
JOINT SUBMISSIONS AND DISCIPLINE PROCEEDINGS
In Nanson v. Saskatchewan College of Psychologists, 2013 SKQB 191, the Saskatchwan Court of Queen's Bench considered a situation where the College and Registrant had reached an agreement on the facts and penalty for certain professional infractions. Counsel for both parties made a joint submission to the Discipline Committee regarding these matters. The hearing took 5 minutes. Some time later, the Discipline Committee issued a 13 page decision in which it rejected the recommendations made by both parties, substituting its own conclusions on characterization of the offences and penalty. There were several issues on appeal, but the most important one for today's post, is that the Discipline Committee did not advise counsel that it was considering rejection of the joint submission. It did not give counsel an opportunity to respond to its concerns. The Court ruled that this was a breach of procedural fairness and allowed the appeal in part.
In reaching this conclusion, the Court made several important observations about the role of joint submissions. It said, among other things, at paragraph 48:
Generally, the negotiations that are needed to arrive at a joint submission can only work effectively if both the offender and the prosecutor are able to proceed with a considerable amount of confidence that the agreement will be implemented. There is, of course, no guarantee that this will be done by the sentencing judge. However, the cases clearly state that such a judge should only depart from a joint submission after applying carefully considered principles. This law respecting the rejection of a joint submission is well known, and ought to have been known to the Discipline Committee here given the reference to Rault. The trial judge should not reject a joint submission unless it is unfit or unreasonable. A joint submission should only be departed from where the proposed sentence is contrary to the public interest, and, if accepted, would bring the administration of justice into disrepute. The obligation of a trial judge to give serious consideration to a joint sentencing submission stems from an attempt to maintain a proper balance between respect for the arrangement reached, and the sentencing court’s role in the administration of justice.
It may be helpful for counsel to cite this decision to a discipline committee in situations where a joint submission is being made.
http://canlii.ca/t/fxlc0
In reaching this conclusion, the Court made several important observations about the role of joint submissions. It said, among other things, at paragraph 48:
Generally, the negotiations that are needed to arrive at a joint submission can only work effectively if both the offender and the prosecutor are able to proceed with a considerable amount of confidence that the agreement will be implemented. There is, of course, no guarantee that this will be done by the sentencing judge. However, the cases clearly state that such a judge should only depart from a joint submission after applying carefully considered principles. This law respecting the rejection of a joint submission is well known, and ought to have been known to the Discipline Committee here given the reference to Rault. The trial judge should not reject a joint submission unless it is unfit or unreasonable. A joint submission should only be departed from where the proposed sentence is contrary to the public interest, and, if accepted, would bring the administration of justice into disrepute. The obligation of a trial judge to give serious consideration to a joint sentencing submission stems from an attempt to maintain a proper balance between respect for the arrangement reached, and the sentencing court’s role in the administration of justice.
It may be helpful for counsel to cite this decision to a discipline committee in situations where a joint submission is being made.
http://canlii.ca/t/fxlc0
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