Articles
<< back to all ArticlesEye On Regulation
the case
In Burgener v Law Society of Alberta, 2023 ABCA 227, the Court of Appeal considered how the issue of delay was addressed in a professional disciplinary hearing where there had been delays at various stages in the process. The initial complaint was made in 2007, and the hearing occurred from October 2015 to March 2016.
At the beginning of the disciplinary hearing, the member raised the issue of delay. The Chair of the Hearing Committee acknowledged that there was a delay and suggested it could be dealt with later in the hearing. However, the Chair never clarified the process for the member to bring an application, and the issue of delay was never addressed in the hearing. The Hearing Committee found the member guilty of 14 citations, which were serious. The Hearing Committee imposed the sanction of disbarment and ordered the member to pay costs.
The member appealed the Hearing Committee’s decision and raised the issue of delay. The Appeal Panel refused to hear the new evidence on the basis that it could have been adduced at the hearing. The member’s appeal was denied, and he was ordered to pay the costs of the appeal.
On further appeal to the Alberta Court of Appeal, the Court was concerned that the Chair never explained to the member how or when his concern would be addressed. Little weight was given to the fact that the member was a lawyer. The Court expressed its concern that the process was not clearly explained to a self-represented individual in a professional disciplinary hearing.
The Court reaffirmed the duty of all administrative decision-makers to have a fair process which allows those affected by the decision to fully put forward their views and evidence. The Court noted that the delay was lengthy and obvious to all participants and called for an explanation. The Court held that “when such concerns arise, the onus is on all participants in the disciplinary process to ensure that the reasons for the delay are addressed on the record in a transparent fashion.” (para. 57) The Court concluded that there had been a breach of procedural fairness.
In assessing the remedy for the breach of procedural fairness, the Court considered the seriousness of the proven allegations. The Court did not interfere with the sanction of disbarment. Instead, the Court found that the appropriate remedy to address the unfairness was to set aside the order for costs from the hearing and appeal stages.
our two cents for free
The 2022 Supreme Court of Canada decision in Abrametz v Law Society of Saskatchewan, 2022 SCC 29, recognized that there is a high threshold before delay will be found to be an abuse of process. However, even if delay does not rise to the level of abuse of process, professional regulators should still consider addressing any delay on the record during the hearing, so that there is a record of what has occurred.
Further, especially where a member is self-represented, both the regulator and decision-maker should ensure that the process for bringing applications during the hearing is clearly explained to the member.
question
Do your Chairs and hearing tribunal members have the necessary training to recognize and address issues of procedural fairness?
Eye on Regulation is RMRF’s monthly newsletter for the professional regulatory community. Each month we offer:
- A Case: a (very) brief summary of a recent and relevant case;
- Our Two Cents for Free: practical insight inspired by the files on our desks right now; and
- A Question: something to get you thinking about ways to enhance your work.
This newsletter is for information only and does not constitute legal advice.
