Entitlement to Special Costs

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

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

SCC Addresses Guidelines in Administrative Context

The SCC has issued a useful decision in Agraira v. Canada (Public Safety and Emergency) 2013 SCC 36, a case involving review of a Ministerial decision denying a Libyan citizen relief from an order that he was not admissible to Canada because of sustained contact with known terrorist and/or terrorist connected organizations.  Although it is not directly relevant to professional regulation, the decision contains an excellent summary of current jurisprudence about the reasonableness standard on an application for judicial review (Paragraph 48 ff).  Beginning at paragraph 76, it also contains a useful analysis of the principles of statutory interpretation, examining the purpose of the legislative provision in question and the context in which it operates.  The main reason I have noted the decision is because it may be the first in which the SCC discusses the use that may be made by an administrative agency of guidelines - in other words, directions that are in the form of policy rather than legislation.  In this case the Minister made his decision regarding the applicant, in part relying on a manual prepared by Citizenship and Immigration Canada entitled Inland Processing Manual:"Refusal of National Security Cases/Proecessing of National Interest Requests".  At paragraph 60 the SCC said that the  manual's guidelines contained a set of factors that were relevant and reasonable to be used in evaluating applications of the kind before the Minister.  It noted that these guidelines did not have to be applied formulaically, but guided the exercise of his discretion and assisted in framing a fair administrative process for such applications.  As a result, the Guidelines can be of assistance to the Court in understanding the Minister's implied interpretation of...."  In my mind this is an important recognition which can be relied upon in the regulatory context of professions.  Inquiry Committees, Discipline Panels, Registrars and others working within the system can safely rely upon policy directives, knowing that they have weight before a Court.

http://canlii.ca/t/fz8c4