Davidoff v. Law Society of Alberta, 2011 ABQB 668

Court of Queen ’ s Bench of Alberta Citation: Davidoff v. Law Society of Alberta, 2011 ABQB 668 Date: 20111103 Docket: 1003 11912 Registry: Edmonton Between: Alex Davidoff Applicant - and - Law Society of Alberta Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.

Paul Belzil _______________________________________________________ The Application [ 1 ] The Applicant has filed an Originating Notice of Motion seeking an order in the nature of certiorari quashing a decision of the Respondent to dismiss a complaint against a member of the Law Society of Alberta, Arnold Piragoff, Q.C. [ 2 ] The Complainant has also filed a preliminary application seeking production of all the materials that were in the possession of the Respondent at the time of the dismissal of the complaint.

With the agreement of all counsel, these Reasons for Judgment deal only with the preliminary application. [ 3 ] Although he is not a party to the application, Piragoff was represented by counsel who filed a brief and made oral

representations. Facts [ 4 ] In 1992, the Applicant pled guilty to a number of serious criminal charges and was sentenced to a term of imprisonment. Piragoff was the Crown prosecutor whereas the Applicant was represented by counsel, Tom Engel. [ 5 ] The Applicant alleged an abuse of process on the part of the Crown.

During the abuse of process proceedings, Engel cross examined Piragoff twice in February and March 1992 before McDonald, J. who dismissed the abuse of process allegation. [ 6 ] In July 2002 the Applicant, through his counsel Engel, submitted a 22 page letter of complaint along with two binders of materials with the Respondent against Piragoff pertaining to his prosecution of the Applicant. [ 7 ] In May 2005, Don MacLeod Q.C. was appointed by the Respondent to investigate the complaint.

He was provided with all of the material submitted by Engel, seven boxes of materials from Alberta Justice and interviewed approximately 20 witnesses. Piragoff was not interviewed and submitted no materials. [ 8 ] MacLeod prepared a report which he submitted to Ms.

Whitburn, Manager, Complaints with the Respondent. [ 9 ] Following her review of the materials provided by Engel, the Respondent’s investigation including the MacLeod report, she concluded that the Respondent’s threshold test to proceed further with disciplinary proceedings was not met as there was no reasonable prospect of conviction. [ 10 ] On July 20, 2007 she forwarded a seven page letter outlining what material she reviewed and why she was dismissing the Applicant’s complaint. [ 11 ] The Applicant then appealed the dismissal of his complaints to a Bencher Appeal Panel in accordance with the Respondent’s Rules.

Engel, on behalf of the Applicant, applied for full disclosure of the MacLeod report and all materials reviewed by him. [ 12 ] The Respondent replied that it was required to keep confidential any information received during the course of a review other than any responses from the lawyer who was the subject of a complaint and noted that Piragoff had not commented on the MacLeod report. [ 13 ] Engel then requested and received an opportunity to bring a motion before the Bencher Appeal Panel for an order for disclosure of this material.

In support of the application he filed written submissions and made oral submissions. His motion was dismissed in a 31 page decision. [ 14 ] The Applicant then appealed against the dismissal of his complaint to a separate and differently constituted Benchers Appeal Panel. Engel filed written materials and made oral submissions in support of the appeal. This appeal was dismissed in a six page decision. [ 15 ] With the consent of counsel for the Applicant, the Respondent and Piragoff, I was provided copies of Ms.

Whitburn’s letter dismissing the complaint, the decision of the Benchers Appeal Panel dismissing the disclosure application and the decision of the Appeal

Panel dismissing the appeal from Ms. Whitburn’s decision. These documents were not formally exhibited. Are Court of Appeal Memoranda of Judgment Binding Authority? [ 16 ] Counsel for the Applicant acknowledges that the Court of Appeal decisions in Friends of the Old Man River Society v. Assn. of Professional Engineers, Geologists and Geophysicists of Alberta 2001 ABCA 107 ( FOMRS ) and Mitten v. College of Alberta Psychologist 2010 ABCA 159 deal with issues pertinent to the issues raised in the judicial review and this preliminary application but argues on the authority of the Court of Appeal decision in R. v.

Arcand 2010 ABCA 363 that they are not binding authorities as they are Memoranda of Judgment as contrasted to reserved Judgments. [ 17 ] I do not accept this argument. In Arcand the Court of Appeal was dealing with sentencing decisions. In both FOMRS and Mitten judgment was reserved by the Court and the description of these Judgments as being Memoranda does not detract from their precedential value. Indeed, Mitten relied on FOMRS as being a prior authority of the court which it followed. I consider myself bound by the reasoning in both decisions.

Position of the Parties [ 18 ] The Applicant’s position is that, as a complainant, he is owed a duty of procedural fairness by the Respondent which includes disclosure of all information in its possession pertaining to the complaints made against Piragoff and that he can only verify if the proceedings were conducted properly if this information is disclosed to him. [ 19 ] In support of his position he relies on Rule 3.18(2) of the Alberta Rules of Court which reads as follows:

(2) The notice must require the following to be sent or require an explanation of why an item cannot be sent: (

a) the written record, if any, of the decision or act that is the subject of the originating application for judicial review, (

b) the reasons given for the decision or act, if any, (

c) the document which started the proceeding, (

d) the evidence and exhibits filed with the person or body, if any, and (

e) anything else relevant to the decision or act in the possession of the person or body. [ 20 ] The Respondent, supported by Piragoff, acknowledges that the Applicant as a complainant is owed a duty of procedural fairness, but submits that any duty owed has been satisfied.

It disputes that the duty of procedural fairness owed to a complainant is analogous to the duty owed to the subject of a complaint and argues that this distinction is recognized in the jurisprudence. [ 21 ] It also argues that the investigation of complaints against members necessarily involves obtaining confidential information and that there are sound policy reasons for maintaining a balance between disclosure and maintaining confidentiality.

It does not accept that Rule 3.18(2) of the ARC should be interpreted to mean that an application for judicial review automatically triggers full disclosure of all information otherwise the important public policy balance would become meaningless. Furthermore, it does not accept that the ARC trump its own rules enacted under statutory authority. Discussion

[22] It has long been recognized that defining the concept of procedural fairness before a tribunal is variable and contextual. Thereis no such thing as a uniform standard of procedural fairness before administrative tribunals. [23] In FOMRS the Court discussed this issue and referred to the Supreme Court of Canada cases of Knight v. Indian HeadSchool Division No. 19, (SCC), [1990] 1 S.C.R. 653 and Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817.

The following passages at paras. 44 and 45 are instructive: 44 In Knight, supra, L'Heureux-Dubé J. observed at 682 that the concept of the duty of procedural fairness to be followed by atribunal is variable and its content is to be determined "by reference to all the circumstances under which the tribunal operates". Sheelaborated in Baker v. Canada (Minister of Citizenship and Immigration), supra, where the parties agreed that a duty of proceduralfairness applied to the proceedings leading to the impugned decision.

With respect to the content of the duty of fairness, she said at 837: The existence of a duty of fairness, however, does not determine what requirements will be applicable in a given set of circumstances. AsI wrote in Knight v. Indian Head School Division No. 19 . . . at p. 682, 'the concept of procedural fairness is eminently variable and itscontent is to be decided in the specific context of each case'. All of the circumstances must be considered in order to determine thecontent of the duty of procedural fairness. . . .

Although the duty of fairness is flexible and variable, and depends on an appreciation of the particular statute and the rights affected, it ishelpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set ofcircumstances.

I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within theduty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to thedecision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to putforward their views and evidence fully and have them considered by the decision-maker. 45 L'Heureux-Dubé J. then considered the factors relevant to a determination of the content of the duty of procedural fairness in agiven set of circumstances.

At paras. 23 - 27 she referred to the following relevant factors: (

i) the nature of the decision; (ii) the nature ofthe statutory scheme and the terms of the statute pursuant to which the body operates; (iii) the importance of the decision to theindividual or individuals affected; (iv) the legitimate expectations of the person challenging the decision; and (

v) the choice of proceduremade by the agency or tribunal itself, particularly where the statute leaves that choice to the agency or tribunal. She continued at840-841: I should note that this list of factors is not exhaustive. These principles all help a court determine whether the procedures that werefollowed respected the duty of fairness. Other factors may also be important, particularly when considering aspects of the duty offairness unrelated to participatory rights.

The values underlying the duty of procedural fairness relate to the principle that the individualor individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights,interests or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of thedecision. [24] In the context of this preliminary application the following observations respecting the above noted factors are apposite: 1. Nature of the Decision

[ 25 ] The focus of the Respondent’s conduct proceedings is limited to whether one of its members engaged in professional misconduct and if established, what sanction should be imposed. 2. Statutory Scheme and Choice of Procedure [ 26 ] Complaints against lawyers are governed by

Part 3 of the Legal Profession Act R.S.A. 2000, c. L-8 as amended, sections 49 - 86 and

Part 3 of the Law Society Rules being Rules 82-107.1. The Benchers are given the authority to make rules governing the disciplinary process pursuant to sections 7 and 52 of the Act . [ 27 ] The Act and Rules create a comprehensive scheme for the investigation of complaints made against members and responding to same. A complainant has a right to file a complaint, receive a written response to it and participate in hearings including those initiated by a complainant’s appeal of a dismissal of a complaint.

A complainant is entitled to be represented by counsel throughout. [ 28 ] Neither the Act or Rules stipulate that a complainant is a party to these proceedings and a complainant has no role in the investigation of a complaint. [ 29 ] The Respondent’s Rule 45(13) expressly provides that all records in the possession of the respondent are confidential subject to limited exceptions which are not relevant.

Importance of the Decision and the Legitimate Expectation of the Parties [ 30 ] I accept that the filing of a complaint against Piragoff is important for the Applicant and as a complainant he is entitled to an assurance that the complaint was properly investigated. [ 31 ] I do not accept however, that the complainant’s interests are equivalent to those of Piragoff. [ 32 ] Firstly, as a member of the Respondent Society, Piragoff is subject to sanctions up to and including disbarment if serious misconduct were established.

He is the sole individual in jeopardy. [ 33 ] Secondly, aside from his status as a member of the Respondent Society, his professional reputation is at risk. [ 34 ] Thirdly, he has a significant privacy interest particularly given that he vehemently denies any wrong doing. [ 35 ] Finally, it cannot be overlooked that he too is entitled to procedural fairness. [ 36 ] As well, the Respondent is justifiably concerned with maintaining the integrity of its complaints procedures. As a self regulating profession, it has an overarching duty to the public to respond to complaints properly.

Disclosure of its records would have a chilling affect on its ability to investigate complaints. [ 37 ] It necessarily follows, that determining the parameters of the duty of fairness owed to the Applicant involves balancing his interests against those of Piragoff and the Respondent. Rule 3.18(2) of the ARC cannot be interpreted to mean that every application for judicial review attracts a requirement for full disclosure.

[ 38 ] Counsel for the Applicant cited a number of case authorities in support of his argument. [ 39 ] It is not necessary for me to review these cases in detail as none of them is authority for the proposition that an applicant for Judicial Review is automatically entitled to full disclosure of all information. [ 40 ] A number of the cases cited predate Baker and thus are of no assistance whereas others deal with the Law Enforcement Review Board established under the Police Act R.S.A. 2000, c. P-17. [ 41 ] Section 20(1) (

d) of the Police Act requires production of all records pertaining to a complaint to the Board. The Board then determines what records are produced to a complainant. The Police Act does not contain an equivalent provision to the Respondent’s Rule 45(13). [ 42 ] I do not accept that the issues before the LERB are analogous to the issues before the Respondent. The context is different.

Conclusion [ 43 ] While it is clear and uncontroverted, that the Applicant is owed a duty of procedural fairness, there is no justification for the proposition that the duty owed encompasses a right to disclosure of the Respondent’s investigation of the complaint. [ 44 ] In the result, the Applicant’s preliminary application for disclosure is dismissed. Costs of this preliminary application may be spoken to following the conclusion of the application for Judicial Review. Heard on the 18 th day of October, 2011. Dated at the City of Edmonton, Alberta this 1 st day of November, 2011. R. Paul Belzil J.C.Q.B.A.

Appearances: Thomas M. Engel for the Applicant

Lindsay MacDonald, Q.C. for the Respondent Alexander D. Pringle, Q.C. for Arnold Piragoff, Q.C.