Many charges against professionals for misconduct or incompetence are resolved by way of agreement between the regulator and the member. These agreements usually involve the professional pleading guilty in exchange for lesser sanctions and are commonly referred to as "joint submissions."
However – and critically – joint submissions must be presented to and accepted by the disciplinary decision-maker. While these joint submissions are frequently accepted, decision-makers can and do reject joint submissions in some circumstances. For example, the Saskatchewan Court of Appeal recently issued a decision in Xiao-Phillips v Law Society of Saskatchewan, 2024 SKCA 44, which serves as a useful reminder of when and how a decision-maker may reject joint submissions agreed to by the regulator and the professional's counsel.
The underlying facts
Following a contested hearing on a formal complaint, the Law Society Hearing Committee (the "Hearing Committee") found a lawyer guilty of conduct unbecoming on 12 of the 14 counts laid in the formal complaint.
After the lawyer was found guilty, the lawyer and the Conduct Investigation Committee (the body responsible for prosecuting the formal complaint) reached an agreement on the appropriate penalty for the lawyer's conduct. They submitted a joint submission proposing two penalties: (1) a written reprimand; and (2) costs of $15,000. The joint submission did not contemplate any suspension for the lawyer.
The parties submitted this joint submission to the Hearing Committee. However, at the outset of the hearing, the Hearing Committee advised that it was not prepared to accept the joint submission without further information. It identified its concerns and adjourned the hearing to allow the lawyer and the Conduct Investigation Committee to consider their positions. The parties then provided a further agreed statement of facts and the lawyer provided written submissions. The Hearing Committee advised that it was still not prepared to accept the joint submission without receiving additional information, allowed the parties to make oral submissions and offered the lawyer the opportunity to call more evidence.
The Hearing Committee ultimately rejected the joint submission. While it issued a reprimand and ordered the lawyer to pay $15,000 in costs, it also imposed a 71-day suspension – which had already been served.
In rejecting the joint submission, the Hearing Committee considered and relied on the Supreme Court of Canada's decision in R v Anthony-Cook, 2016 SCC 43, a criminal case about when a sentencing judge can depart from a joint submission. The Hearing Committee adapted and applied that decision, concluding that joint submissions should only be departed from where they bring the administration of lawyer regulation into disrepute and are contrary to the public interest.
It then found that accepting this joint submission was against the public interest and that "imposing a sentence of a reprimand and partial costs without clearly recognizing that the conduct in these matters also warrants a suspension would undermine the general public's confidence in the LSS to appropriately regulate its members."
The Court of Appeal's decision
The lawyer appealed to the Court of Appeal on various grounds, including the rejection of the joint submission. He argued that the Hearing Committee had failed to properly apply Anthony-Cook when it rejected the joint submission..
The Saskatchewan Court of Appeal upheld the Hearing Committee's decision. It found that the Hearing Committee had understood that it was constrained by the joint submission – but had explained in detail why it chose to reject that submission. It emphasized that the Hearing Committee had focused on the need to protect the public's confidence in the integrity of the legal profession.
However, there are two significant legal issues arising from the Court of Appeal decision that may have implications for future regulatory decision-makers:
- whether Anthony-Cook actually applies to professional disciplinary proceedings, or whether it applies only in the criminal realm; and
- whether Anthony-Cook applies where a joint submission is agreed to after a contested hearing, rather than where a member pleads guilty as part of an agreement regarding penalty.
Notably, the Anthony-Cook test has been widely applied in professional discipline sentencing decisions involving joint submissions, such as in Timothy Edward Bradley v. Ontario College of Teachers, 2021 ONSC 2303.
Main takeaways
Joint submissions are routinely considered by discipline committees and it is important that all participants in the professional regulatory proceeding – including members, prosecuting bodies and decision-makers – be aware of the law respecting joint submissions.
This includes when they may be rejected and the procedure surrounding a potential rejection. Existing case law has established some general principles relating to these issues such as:
- Joint submissions should not be rejected lightly. While the applicable standard for rejecting a joint submission is an open question, any decision-maker should give serious consideration to the joint submission before deciding to reject it.
- If a discipline committee is not satisfied with a joint submission, the committee should notify counsel of their concerns, and invite further submissions on those concerns before making a decision.
- The discipline committee's reasons should identify the law respecting joint submissions (including whether it followed Anthony-Cook) and explain why that committee accepted the joint submission or chose to reject the agreed-upon sanction(s).
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