Canada: Merely a Witness? The Uncertain Rights of a Complainant in Disciplinary Proceedings

Is the law surrounding the rights of complainants in disciplinary proceedings sufficiently settled so as to allow for a Court to dismiss the complainants' application for judicial review without a full hearing on the merits? That is the question that the Alberta Court of Queen's Bench was required to determine in Warman v. Law Society of Alberta, 2015 ABQB 230.

The Court determined that the standing of a complainant and the fairness to be afforded to a complainant prior to a hearing are not settled issues and that a full hearing regarding the issues was required.

Background

Two complainants each made separate complaints against a member of the Law Society, who is also a journalist (the "Lawyer"). The complaints alleged that the Lawyer acted inappropriately in his role as a television host and columnist for Sun Media, and with respect to some online postings. In October 2012, the Law Society's Conduct Committee, which is responsible for determining whether complaints should be referred to a hearing, reviewed both complaints together, issued nine citations against the Lawyer and referred the citations for determination by a Hearing Committee.

Sixteen months passed without a Hearing Committee being convened. In March 2014, the Lawyer applied to a different panel of the Conduct Committee for a discontinuance of both complaints. The Lawyer was successful in having the proceedings discontinued. The discontinuance application was supported by the Law Society's counsel who believed there was no reasonable prospect of conviction.

The second Conduct Committee issued a brief "Resolution" which stated that all the parties submitted the "threshold test" was not met and that that some of the citations may violate the Lawyer's freedom of speech. The Resolution concluded that the Law Society's counsel had a unique prosecutorial perspective and that the arguments advanced by the Law Society's counsel that there was no reasonable prospect of conviction were entitled to greater deference than the original Conduct Committee's decision that concluded the threshold test had been met. The "threshold test" referenced in the Resolution refers to whether or not there is a reasonable likelihood of conviction, based on an assessment of a number of factors.

Complainant's Lack of Involvement in Discontinuance Application

The complainants were not notified of the Lawyer's discontinuance application and did not participate. The Legal Profession Act (LPA), the legislation governing the Law Society disciplinary process, does not require that complainants be given notice of this type of application, nor does it provide for participation by a complainant. In fact, neither the LPA nor the Law Society Rules address the procedure or process to be followed in an application for discontinuance.

Application for Review by the Court

After being notified that their complaints had been discontinued and were not proceeding to a hearing, the complainants sought judicial review of the second Conduct Committee's decision to discontinue the disciplinary proceedings, alleging that the process was unfair and an abuse of process. The complainants alleged several breaches of fairness, including that they had no notice of the discontinuance application and therefore had no opportunity to make submissions.

After the complainants filed their application for judicial review of the decision to discontinue their complaints, the Law Society applied to the Court for summary dismissal of the Complainants' application for judicial review, arguing that the application should be dismissed without a full hearing on the merits.  The Law Society argued that the Complainants had no standing to bring an application for judicial review and, in the alternative, that the decision to discontinue the disciplinary hearings was akin to prosecutorial discretion which was not reviewable.

Decision of the Court

The Court confirmed that after a matter is referred to a hearing, in the absence of a statutory scheme giving the complainant status as a party, the parties at a hearing are considered to be the regulator and the member who is the subject of the hearing.   The LPA does not contain a provision giving complainants "party" status at a hearing, thus a complainant's rights during the course of a hearing before the Hearing Committee are limited. However, the Court noted that the more difficult question is the scope of a complainant's rights prior to the commencement of a hearing.

In considering that question, the Court revisited the Alberta Court of Appeal's decisions in Friends of the Old Man River Society v. Association of Professional Engineers, Geologists and Geophysicists of Alberta, 2001 ABCA 107 (Friends of the Old Man River), and Mitten v. College of Alberta Psychologists, 2010 ABCA 159 (Mitten) in an attempt to determine if the law surrounding the rights of complainants had been settled.

In Friends of Old Man River, the Association's Investigative Committee dismissed a complaint against members of the Association. The complainant appealed the dismissal to Council, and Council upheld the decision dismissing the complaint. The complainant then sought judicial review of that decision. The Association sought to strike out the application for judicial review, on the basis that the complainant was not a party and judicial review was not available in these circumstances.  The Alberta Court of Appeal agreed that judicial review was not available to the complainant, given the scheme of the legislation, which did not afford the complainant with status as a party. In addition, the Court noted that decisions that are akin to prosecutorial discretion are not amenable to judicial review.

In Mitten v. College of Alberta Psychologists, the Registrar dismissed a complaint against a psychologist, and the complainant sought a review of that decision. The review was heard by the College's Discipline Committee, which upheld the Registrar's decision and confirmed the decision to dismiss the complaint. The complainant sought judicial review of the decision to dismiss the complaint, advancing a number of grounds, including the alleged unfairness of the proceedings before the Discipline Committee. The College, relying on Friends of Old Man River, successfully applied to the Court of Queen's Bench to strike the application for judicial review. The Court of Appeal confirmed that while the complainant was not a party to the proceedings, and could not challenge the merits of the decision to dismiss the complaint, the complainant was entitled to initiate proceedings to challenge the fairness of the process. The Court of Appeal overturned the decision striking the judicial review application, so that a full hearing concerning the complainant's allegations of unfairness could be considered by the Court in a separate proceeding.

The Court of Appeal in Mitten did not make any specific findings on the nature and content of the duty of fairness that is owed to a complainant during the course of an investigation, or when there is an appeal of a decision to dismiss a complaint.

In the most recent case in Warman, the Court noted that the Complainants' situation had proceeded well past the investigatory or initial appeal stage, as was the case in Friends of the Old Man River and Mitten respectively, and that it was not provided any case law which discussed the scenario before it. The Court concluded that it is "not a foregone conclusion" that a complainant's right to judicial review is limited to fairness of the proceedings to which the legislation provides a specific right of participation.

The Court concluded that having been afforded rights of participation at an earlier stage, the complainants may have been entitled to procedural fairness during the course of the discontinuance application. The Court found that the right to procedural fairness may exist independently of the concept of "standing" enjoyed by complainants in a disciplinary process. As a result, it was inappropriate for the Court to grant the application for summary dismissal of the complainants' application for judicial review. A full hearing on the merits of whether the complainants had standing, their role as complainants, and if they were entitled to procedural fairness for the purpose of the discontinuance application, was necessary.

The Court also held that the determination of the scope of the second Conduct Committee's prosecutorial discretion required a full hearing, particularly because the analysis of whether an abuse of process occurred demanded a clear understanding of the factual foundation for the decision of the second Conduct Committee which was intertwined with the issues of standing and the scope of procedural fairness owed.

Accordingly, the Law Society's application for summary dismissal was dismissed.

Implications for Regulators

The Courts have repeatedly held that a complainant is not a "party" during the course of a hearing before a disciplinary tribunal.  Therefore, although the complainant may have the right to be notified of the hearing, or to attend the hearing, the complainant does not have the same rights as the member who is the subject of the hearing. In addition, the complainant cannot direct the regulator to prosecute the complaint in a particular manner and has no standing to make submissions. At a hearing, the complainant's role is more analogous to the role of a witness in a criminal proceeding.

The law is less settled regarding the nature and extent of a complainant's rights, including the duty of fairness owed to the complainant, prior to a hearing.

In Warman, while the Court did not make any specific findings on these issues, the Court's unwillingness to summarily dismiss the applications without a full hearing suggests that the nature of the duty of fairness owed to complainants during the investigation and when being considered by the person or committee who determines whether a complaint should be referred to a hearing may be evolving. Undoubtedly, these issues will be considered by the Court after a full hearing on the merits.

In the meantime, Regulators should continue to consider whether the complainant has the right to participate in a review process or decision to discontinue proceedings, and what information, if any, should be provided to the complainant.  The answer to these questions will depend on a number of factors, including the nature of the proceeding, and the wording of the governing statute.

Field Law's Professional Regulatory Group will continue to follow the proceedings and provide an analysis of the Court's decision on the nature and content of the duty of fairness that may be owed to the complainants when it is issued. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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