View source for Legal Profession Regulation

==General Principles==

The regulation of lawyers is a matter in the provincial domain. The legislation for each province is as follows:
* [https://canlii.ca/t/5656q Legal Profession Act, SBC 1998, c 9]
* [https://canlii.ca/t/561bl Legal Profession Act, RSA 2000, c L-8] 
* [https://canlii.ca/t/55d5z Legal Profession Act, CCSM c L107] 
* [https://canlii.ca/t/55dw7 Law Society Act, RSO 1990, c L.8]
* [https://canlii.ca/t/564x2 Act respecting the Barreau du Québec, CQLR c B-1]
* [https://canlii.ca/t/5476m An Act Respecting the Law Society of New Brunswick, SNB 1996, c 89]
* [https://canlii.ca/t/lc4c Legal Profession Act, SNS 2004, c 28]; Regs: https://nsbs.org/legal-profession/nsbs-regulations/
* [https://canlii.ca/t/556r7 Law Society Act, 1999, SNL 1999, c L-9.1] 
* [https://canlii.ca/t/55fwq Legal Profession Act, RSNWT 1988, c L-2]

;Codes of Conduct
* [https://nsbs.org/legal-profession/code-of-professional-conduct/ NS Code]
* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/ British Columbia Code]
* [https://lawsociety.mb.ca/wp-content/uploads/2019/12/LSM-Code-Complete-Document-English.pdf MB Code of Conduct]
* [https://documents.lawsociety.ab.ca/wp-content/uploads/2017/01/14211909/Code.pdf Alberta Code]
* [https://lso.ca/about-lso/legislation-rules/rules-of-professional-conduct/complete-rules-of-professional-conduct Ontario Rules]
* [https://www.lawsociety.sk.ca/pdfviewer/code-of-professional-conduct/?auto_viewer=true#page=&zoom=auto&pagemode=none Saskatchewan Code]
* [https://lsnl.ca/wp-content/uploads/2021/11/NL_Code-of-conduct_2020Jan01_WORD.pdf Newfoundland Code]

==Offences==
* [[Legal Profession Offences]]

==Procedure==

Where procedures are not set by statute, regulations, or precedent, a Tribunal may adopt "by analogy" rules prescribed from a criminal law context.<ref>
{{CanLIIRC|Law Society of Ontario v. Odeleye|hz48z|2019 ONLSTH 42 (CanLII)}}{{AtL|hz48z|21}} ("The Tribunal has adopted by analogy the rules that are prescribed in the criminal law context.")<Br>
{{CanLIIRC|Law Society of Upper Canada v. Watson|fttdq|2012 ONLSHP 174 (CanLII)}}<br>
{{CanLIIRC|Law Society of Upper Canada v. Talarico|fr59r|2012 ONLSHP 59 (CanLII)}}<br>
{{CanLIIRC|Law Society of Upper Canada v. Resetar|gjm6s|2015 ONLSTH 103 (CanLII)}}<Br>
</ref>

{{reflist|2}}

===Panel Rules===

* [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/law-society-rules/ BC Rules] [see Part 5]

===Procedural Fairness===
Fiarness can be violated where there are inadequate particulars of the allegations provided to the accused. This would includes particulars that "deprive" the member of hte facts alleged that constitutes misconduct and deprives the member of "knowledge of his case to meet".<Ref>
Law Society of Alberta v Heming, 2020 ABLS 15 (CanLII), at para 35, <https://canlii.ca/t/j89zv#par35>, retrieved on 2024-02-15
</ref>

Fairness will be satisfied where the member had a "fair opportunity to response to the substance of the allegations."<ref>
Law Society of Upper Canada v. Roy Francis Dmello, 2013 ONLSAP 5 (CanLII), at para 108, <https://canlii.ca/t/fwjb5#par108>, retrieved on 2024-02-15<Br>
Heming at para 36
</ref>

It is not necessary that all particulars be proven. It is only necessary that the citation/charges be proven on the evidence as a whole.<Ref>
Heming at para 37
</ref>

{{Reflist|2}}

===Duty of Fairness===
A tribunal is subject to a duty of fairness. This duty can include:<ref>
Bryan Salte, The Law of Professional Regulation
</ref>
* Notice of the nature of allegations; 
* disclosure to prepare a response;
* opportunity to provide a response;
* notice of time and place of hearing;
* hearing before an unbiased tribunal;
* adjournment to deal with hearing;
* following legitimate expectation;
* exclusion of witnesses before testifying;
* right to cross-examination;
* decision without unreasonable delay;
* reason for decision.

; Reasonable Expectations 
The doctrine of "legitimate expectations" requires that a tribunal follow the procedure it has previously acknowledged.<ref>
Agraira v Canada, 2013 SCCC 36 at paras 94 to 97 
</ref>
Only reasonable expectations that are "clear, unambiguous and unqualified" are binding.<Ref>
{{ibid1|Agraira}} at para 95<br>
MacDoanld v Alberat Health Services, 2013 ABQB 404 at para 71
</ref> 

Legitimate expectations is part of natural justice and procedural fairness.<ref>
MacDoanld v Alberat Health Services, 2013 ABQB 404 at para 68
</ref>

The accepted elements of reasonable expectations consist of:<ref>
Worthington v Canada (Minister of Citizenship and Immigration), 2008 FC 626 at para 48
</ref>
# A promise was made by a Minister or other public authority in the exercise of a discretionary promise;
# The promise was procedural in nature and not substantive;
# The promise was to be clear, unambiguous and unqualified;
# There was reliance on the promise;
# The reliance on the promise was to the detriment of the person asserting a legitimate expectation; and
# The promise was not in conflict with a statutory duty.

{{reflist|2}}

===Oral Hearing===
An oral hearing that meets the requirements of fairness must look at nature of the decision and credibility of witnesses. 

There is no absolute right to cross-examine a witness before a tribunal.<Ref>
Kuntz v College of Physicians and surgeons of British Columbia  1987 BCJ 724 and 1999 BCJ 199<Br>
Abrahams v College ... 2006 BCJ 990<br>
Armstrong v Canada 1998 FCA<Br>
Riad v Ontario 2012 ONSC 2728
</ref>

Some factors to consider include:<ref>
Kaberwal v Saskatchewan (Economy), 2013 SKQB 244 (CanLII), <https://canlii.ca/t/fzmvp
</ref>
# serious allegation;
# decision was "final and decisive"
# decision "important to the applicant's interest"
# no established process for investigation;
# clear issue of credibility;
# lack of "meaningful opportunity to challenge the evidence and cridbiilty" of the witnesses or and provide meaningful opportunity t respond.

{{Reflist|2}}

===Summons of Witnesses===
There is a prima facie right to examine witnesses.<ref>
{{CanLIIRC|Law Society of Ontario v. Isaac|hsb6v|2018 ONLSTH 72 (CanLII)}}{{atL|hsb6v|11}}
</ref>

{{reflist|2}}

===Adjournments===
The burden is upon the party seeking an adjournment.<ref>
{{CanLIIRC|Chiang (Re)|jrmqr|2014 LSBC 28 (CanLII)}}{{atL|jrmqr|14}}
</ref>

Even where the member is not practicing law, the public, profession and complainants expect that matters will be "dealt with in a timely way."<ref>
{{CanLIIRC|Law Society of Upper Canada v Abrahams|g6mzv|2014 ONLSTH 64 (CanLII)}}{{atL|g6mzv|23}}
</ref>
The need for an expeditious hearing must be balance with the paramount right to a fair hearing.<ref>
{{supra1|Chiang (Re)}}{{atL|jrmqr|20}}<Br>
{{CanLIIRC|Howatt v. College of Physicians and Surgeons of Ontario|7bdd|2003 CanLII 29563 (ON SCDC)}}{{atL|7bdd|31}} ("There is no doubt that the right to an adjournment before an administrative tribunal, including a disciplinary body, is not an absolute right.  In each case, whether or not the adjournment should be granted must be considered in the light of the circumstances, having regard to the right of the applicant to a fair hearing weighed against the obvious desirability of a speedy and expeditious hearing into charges of professional misconduct.  When balancing these two factors, the right of the applicant to a fair hearing must be the paramount consideration. ")<Br>
Howatt v. College of Physicians and Surgeons of Ontario, 2003 CanLII 29563 (ON SCDC), at para 31, <https://canlii.ca/t/7bdd#par31>, retrieved on 2024-02-15
</ref>

It is important to the effective administration of a tribunal to minimize the length and number of adjournments.<ref>
{{ibid1|Abrahams}}{{atL|g6mzv|24}}
</ref>

; Factors
There are factors to consider for an adjournment:<Ref>
{{CanLIIRC|De Lange (Re)|js7fk|2022 LSBC 35 (CanLII)}}{{atL|js7fk|14}} ("In both Welder and in Law Society of BC v. Hart, 2019 LSBC 39 the panel cited the following non-exhaustive list of factors to be considered for adjournment motions as set out in Macaulay & Sprague, Practice and Procedure Before Administrative Tribunals, (Toronto: Thomson Carswell, 2004):...")<br>
De Lange (Re), 2022 LSBC 35 (CanLII), at para 14, <https://canlii.ca/t/js7fk#par14>, retrieved on 2024-02-15<Br>
Hart (Re), 2019 LSBC 39 (CanLII), at para 13, <https://canlii.ca/t/j3kxx#par13>, retrieved on 2024-02-15
</ref>
# the purpose of the adjournment (relevance to the proceedings, necessary for a fair hearing);
# has the participant seeking the adjournment acted in good faith and reasonably in attempting to avoid the necessity of adjourning;
# the position of other participants and the reasonableness of their actions;
# the seriousness of the harm resulting if the adjournment is not granted;
# the seriousness of the harm resulting if the adjournment is granted (to the other participants, etc., including the length of adjournment required);
# is there any way to compensate for any harm identified;
# how many adjournments has the party requesting the adjournment been granted in the past; and
# was the hearing to be peremptory, and if so, were the parties consulted in selecting the date and were they advised of its peremptory nature.

see also {{CanLIIRC|Baker (Re)|k0szf|2023 CanLII 98517 (NL LS)}}, {{CanLIIRC|LSO v Oti|k0xcp|2023 ONLSTH 141 (CanLII)}}, {{CanLIIRC|LSO v Lulic|k1f8j|2023 ONLSTH 159 (CanLII)}}, {{CanLIIRC|Re Guo|k0l7c|2023 LSBC 41 (CanLII)}}, {{CanLIIRC|Macdonald v. Institute of Chartered Accountants of British Columbia|2d6tw|2010 BCCA 492 (CanLII)}}

In Ontario, the assessment of an adjournment should include:
<ref>
{{CanLIIR|Igbinosun v Law Society of Upper Canada|23zpw|2009 ONCA 484 (CanLII)}}{{atL|23zpw|37}} ("A non-exhaustive list of procedural and substantive considerations in deciding whether to grant or refuse an adjournment can be derived from these cases. Factors which may support the denial of an adjournment may include a lack of compliance with prior court orders, previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay. Factors which may favour the granting of an adjournment include the fact that the consequences of the hearing are serious, that the applicant would be prejudiced if the request were not granted, and a finding that the applicant was honestly seeking to exercise his right to counsel and had been represented in the proceedings up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant's reasons for being unable to proceed on the scheduled date and the length of the requested adjournment should also be considered.")<br>
{{CanLIIRC|Law Society of Upper Canada v. Abrahams|g6mzv|2014 ONLSTH 64 (CanLII)}}{{atL|g6mzv|21}}</ref>
* Procedural Considerations:
** lack of compliance with prior court orders;
** previous adjournments that have been granted;
** previous preemptory hearings;
** desirability of having the matter decided;
** evidence of the applicant seeking to manufacture delay;
** honest attempt to seek counsel;
** seriousness of the allegations;
** whether the applicant is prejudiced by failure to delay the case;
** timeliness of the request;
** reasons for being unable to proceed;
** length of time being requested.
see also: {{CanLIIRC|Yune v. Royal College of Dental Surgeons of Ontario|1lrk8|2005 CanLII 36460 (ON SCDC)}}, {{CanLIIRC|Kalin v. Ontario College of Teachers|1kw63|2005 CanLII 18286 (ON SCDC)}}

;Last minute adjournments 
Adjournments at the last minute there is a cost on the aministration of the tribunal as it results in lost time for the panel members and others to prepare and set aside time.<ref>
{{supra1|Abrahams}} at para 24
</ref>

; Parallel Proceedings
Where there is a request to delay or stay the proceedings pending the outcome of other litigation, the court should consider:<Ref>
{{CanLIIRC|Law Society of Ontario v Hutton|jj1db|2021 ONLSTA 23 (CanLII)}}}}{{atL|jj1db|38}}
</ref>
# degree of overlap;
# seriousness and nature of the allegations;
# whether the licensee is actively practising law;
# how soon the other proceeding is to be heard or determined; and
# the nature of the other proceedings.

{{reflist|2}}

===Withdraw of Admissions===

Under limited circumstances, a party may withdraw agreement of facts.<ref>
Law Society of Upper Canada v. Abrahams, 2014 ONLSTH 64
Law Society of Upper Canada v Fitz Gibbon, 2015 ONLSTH 130
Law Society of Ontario v Phukela, 2022 ONLSTH 110
Andriuk v Merrill Lynch Canada Inc., 2011 ABQB 59
</ref>

The factors to consider on a request to withdraw from an agreement consist of:<ref>
{{CanLIIRC|Law Society of Upper Canada v Abrahams|g6mzv|2014 ONLSTH 64 (CanLII)}}
</ref>
# The reasons for the request to withdraw the admissions.
# The reasons why a response or request for an extension was not made within the time period set out in the Rules.
# The length of time since the Request to Admit was filed and the length of time until the hearing.
# Any preparation that has been done, based on the deemed admissions.
# Previous adjournments or other delay in the process.
# Specific case management directions that have been made.
# The effect of the deemed admissions and their withdrawal on the hearing process and on the interests of the parties.
 
{{reflist|2}}

===Proceeding Without Respondent===
The respondent has a right to notice of a hearing. However, absent statutory obligations, there is no right be present at a determination hearing.

Reasons of health will normally need to be substantiated and connected with their inability to participate.<ref>
{{CanLIIR|LSO v Oti|k0xcp|2023 ONLSTH 141 (CanLII)}}
</ref>

{{reflist|2}}

===Ordering a Medical Examination===

In Ontario, s. 39(1) of the LSA permits ordering of a medical examination. Before an assessment can be made there must be:<ref>
Law Society of Upper Canada v. Warren Augustine Lyon, 2014 ONLSHP 1 (CanLII), at para 29, <https://canlii.ca/t/g2ng5#par29>, retrieved on 2024-02-14
</ref>
# "that there are reasonable grounds to believe that the licensee might be or might have been incapacitated within the meaning of the Law Society Act; and"
# "that the proposed examination will provide significant additional assistance, given the evidence available, in deciding the issues in the case."

===Evidence===

Rule 21.06 of the Rules of Practice and Procedure permits hearsay on interlocutory suspensions.<Ref>
{{CanLIIRC|Law Society of Upper Canada v. Ejidike|gtxg5|2016 ONLSTA 18 (CanLII)}}{{atL|gtxg5|48}}
</ref>

{{reflist|2}}

===Incapacity=== 
In Ontario, s. 37 of the LSO provides that a member is incapacitated where he is unable to meet his obligations for reason of one or more enumerated circumstances.<ref>
{{CanLIIRC|Law Society of Ontario v. Fiorillo|k2qw3|2024 ONLSTH 17 (CanLII)}}{{atsL|k2qw3|63| to 67}}
</ref>

{{quotation1|
37 (1) A licensee is incapacitated for the purposes of this Act if, by reason of physical or mental illness, other infirmity or addiction to or excessive use of alcohol or drugs, he or she is incapable of meeting any of his or her obligations as a licensee.
|
}}

Incapacity must be established on a balance of probabilities.<ref>
Law Society of Upper Canada v. Lyon, 2015 ONLSTH 15 (CanLII), <https://canlii.ca/t/gg39b
</ref>

===Revisiting Decisions===
Once a panel makes a finding of conviction, the panel cannot revisit the determination as they are "functus officio."<ref>
{{CanLIIRC|Law Society of Upper Canada v. Charles Douglas Sutherland|fmm5b|2011 ONLSHP 112 (CanLII)}}
</ref>

{{reflist|2}}

===Production of Records===

A panel may order disclosure of records held by third parties. 
The requirements to make such an order, which were adopted from the criminal law, consist of:<Ref>
{{CanLIIRC|LSO v Campisi and Murray|k0l6s|2023 ONLSTH 137 (CanLII)}}{{atL|k0l6s|31}}<Br>
{{CanLIIRC|Law Society of Ontario v Odeleye|hz48z|2019 ONLSTH 42 (CanLII)}}
</ref>
# first, the panel should ask whether the records sought by the licensee are “likely relevant” to the matters at issue in the conduct application, and production is necessary in the interests of justice;
# if that requirement is met, the panel should order the third party to disclose those records to it;
# the panel must then decide whether the documents should be produced to the licensee. To do so, the panel must balance the licensee’s right to respond to the conduct allegations against the privacy interests of the third party.

{{Reflist|2}}

===Delay===

In the admininstratvie context, the following principles apply:<Ref>
* Law Society of Alberta v. Odishaw, 2011 ABLS 28 (CanLII), at para 67, <https://canlii.ca/t/g0ksp#par67>, retrieved on 2024-02-15
</ref>
# The administrative process must be conducted in a manner that is entirely consistent with the principles of natural justice and procedural fairness [para. 105];
# Unreasonable delay is a possible basis upon which to raise issues of natural justice, procedural fairness, abuse of process and abuse of discretion [para 106];
# Delay, without more, will not warrant a stay of proceedings as an abuse of process [para. 101, 121];
# Where administrative delay impairs a party's ability to answer the complaint – as examples, where memories have faded, essential witnesses have died or are unavailable, or evidence has been lost – the delay may be invoked to impugn the validity of the administrative proceedings and provide a remedy [para. 102];
# Unacceptable delay may amount to an abuse of process in certain circumstances even where the fairness of the hearing has not been compromised. Those circumstances may include where inordinate delay has directly caused significant psychological harm or attached a stigma to a person's reputation, such that the administrative process would be brought into disrepute. However, "few lengthy delays will meet this threshold". Further, the "respondent must demonstrate that the delay was unacceptable to the point of being so oppressive as to taint the proceedings". The process must be "tainted to such a degree that it amounts to one of the clearest cases". The proceedings must be "unfair to the point that they are contrary to the interests of justice". "Cases of this nature will be extremely rare." [para.  115, 120 and 121];
# The determination of whether a delay has become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to the delay or waived the delay, and other circumstances of the case. The determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the various rights at stake in the proceedings, in the attempt to determine whether the community's sense of fairness would be offended by the delay [para. 122];
# The determination of whether the delay is unreasonable is, in part, a relative exercise, comparing the length of time for the impugned proceeding against the length of time normally taken for processing analogous cases in the same jurisdiction and other Canadian jurisdictions [para. 129 and 130];
# There must be proof of "significant prejudice" which results from the unacceptable delay. [para. 101]

The applicant must show that there was "damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted".<Ref>
Odishaw at para 68
</ref>

This will also account for the "common sense of fair play and decency."<ref>
Odishaw at para 69<Br>
Nisbett v. Manitoba (Human Rights Commission) (1993), 1993 CanLII 3366 (MB CA), 101 D.L.R. (4th) 744, at 757 (Man. C.A.), 
</ref>

{{Reflist|2}}

==Sentencing==
* [[Sentencing for Legal Profession Offences]]

==See Also==
* [[Nova Scotia Legal Profession Offences]]
* [[Ontario Legal Profession Regulation]] and [[British Columbia Legal Profession Regulation]]

; Databases
* ON: https://www.canlii.org/en/on/onlst/
* BC: https://www.canlii.org/en/bc/lsbc/
* AB: https://www.canlii.org/en/ab/abls/
* SK: https://www.canlii.org/en/sk/sklss/
* MB: https://www.canlii.org/en/mb/mbls/
* NB: https://www.canlii.org/en/nb/nblsb/
* NS: https://www.canlii.org/en/ns/nsbs/
* NL: https://www.canlii.org/en/nl/nlls/