Muti v Law Society of Alberta, 2016 ABQB 276

Court of Queen ’ s Bench of Alberta Citation: Muti v Law Society of Alberta, 2016 ABQB 276 Date: 20160517 Docket: 1501 02470 Registry: Calgary Between: Dalbir (Dale) Singh Muti Applicant - and - Law Society of Alberta Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice S.M. Bensler _______________________________________________________ I. Introduction [ 1 ] This is an application for judicial review of a decision by a panel of the Credentials and Education Committee (the "CEC Panel") of the Law Society of Alberta (the "Law Society").

[ 2 ] The Applicant, Mr. Dalbir (Dale) Singh Muti, applied for a Certificate of Qualification from the National Committee on Accreditation (the "NCA") in January 2013. The NCA Assessor denied Mr. Muti's application in April 2013 (the "NCA Assessor's Decision"). He appealed to the NCA Appeal Panel in June 2013 and his appeal was dismissed (the "NCA Appeal Decision"). Mr. Muti appealed the NCA Appeal Decision to the Law Society. That appeal was heard by the CEC Panel in September 2014. The CEC Panel upheld the NCA Appeal Decision. Mr.

Muti filed this application for judicial review of the CEC Panel's decision on March 12, 2015. II. Background and History of Proceedings [ 3 ] Mr. Muti obtained a Bachelor of Laws undergraduate degree from the University of Huddersfield in West Yorkshire, England. The degree was awarded in October 2012 upon Mr. Muti's completion of eight law courses over distance learning. He has worked as an immigration consultant in Calgary since 1985, after immigrating to Canada in 1972 and becoming a Canadian citizen in 1980. He has also worked as a welder, a real estate agent, and has run for political office.

In his capacity as a regulated immigration consultant, Mr. Muti has represented individuals before the Immigration and Refugee Board. He has also acted as an agent in the Provincial Court of Alberta. [ 4 ] Prior to arriving in Canada, Mr. Muti obtained a Bachelor's Degree in Science from Punjab University in India. Mr. Muti is married with four adult children. [ 5 ] Mr. Muti seeks a new hearing before a different Panel of the CEC, and to have his law degree and professional experience accepted by the Law Society in satisfaction of the requirements to be a Student-at-Law.

He acknowledges that he would have to complete the Canadian Centre for Professional Legal Education (CPLED) program, articling requirements and equivalency examinations prior to being eligible to practice law in Alberta. He takes issue with the requirement, which I will discuss below, that he complete eight courses in person at a Canadian common law institution. i. The NCA Assessor's Decision [ 6 ] The NCA is a standing committee of the Federation of Law Societies of Canada. Its primary mandate is to assess the legal credentials and professional experience of persons who attained a law degree outside Canada.

The Law Society and its counterparts in other jurisdictions have established the NCA to assess and determine equivalency and credibility of foreign law programs. Without a Certificate of Qualification from the NCA, a student is not eligible for admission to the Law Society as a Student-at-Law. [ 7 ] The NCA evaluates each individual Certificate of Qualification application with regard to both the applicant's particular circumstances and the procedures set out in the "NCA Policies and Guidelines." [ 8 ] After receiving his law degree in October 2012, Mr.

Muti applied for a Certificate of Qualification from the NCA in January 2013. The NCA Assessor reviewed Mr.

Muti's application and informed him by way of letter dated April 19, 2013, that he must complete the following requirements before receiving a Certificate of Qualification: • Examinations in six first year subjects: Torts; Property; Contracts; Canadian Criminal Law; Canadian Constitutional Law; and Foundations of Canadian Law. • Four mandatory upper year courses at a Canadian common law faculty: Canadian Administrative Law; Evidence; and Professional Responsibility. • Four optional courses at a Canadian common law faculty, choosing from: Family; Remedies; Taxation; Civil Procedure; Commercial Law; Trusts; and Real Estate. [ 9 ] The NCA Assessor's Decision required Mr.

Muti to complete the above examinations and courses by December 2014. The Assessor referred to

section 1.2.2.d of the NCA Policies and Guidelines (the "Distance Policy") as the basis for the assessment. The Distance Policy reads as follows: 1.2.2

d) Mode of Study In Canadian common law jurisdictions, law degrees are obtained primarily through in person instruction. An Applicant who holds a non- Canadian law degree that was obtained entirely by "distance education" will be required to successfully complete six NCA examinations and, in addition, eight one semester courses at a Canadian law school.

Distance education includes those programs offered asynchronously, without in-class instruction involving direct interaction between the students and the instructor. [ 10 ] The letter concluded by providing information on the NCA Appeal Policy and further details on steps to attain a Certificate of Qualification. ii. Appeal of the NCA Assessor's Decision to the NCA Appeal Panel [ 11 ]

Section 4 of the NCA Policies and Guidelines sets out the procedure, standard of review and powers of the NCA Appeal Panel. [ 12 ] Mr. Muti appealed the NCA Assessor's decision on June 18, 2013, on the basis that his work experience as an immigration consultant and court agent satisfied some of the equivalency requirements for a Certificate of Qualification.

Section 1.2.3.b of the NCA Policies and Guidelines provides that the NCA may consider "Additional Assessment Considerations":

b) Professional Legal Experience An Applicant's license to practice law and his or her experience practicing law in a non-Canadian common law jurisdiction will be considered by the NCA and may address some of the competencies or such deficiencies as length or mode of study, identified in the Applicant's assessment. [ 13 ] Mr. Muti challenged the requirement that he complete eight upper level courses. He instead requested that he be permitted to write the NCA examinations in those subjects. [ 14 ] The NCA Appeal Panel considered Mr. Muti's case and materials on September 19, 2013, and dismissed the appeal.

Specifically, the NCA Appeal Panel cited the Distance Policy, excerpted above, which emphasizes the importance in Canadian legal education of direct interaction between the student and the instructor. It also referred to the Professional Legal Experience Policy and emphasized that only work experience as a licensed lawyer in another common law jurisdiction is relevant for Additional Assessment Consideration. iii. Appeal of NCA Appeal Panel's decision to the CEC Panel of the Law Society [ 15 ] Mr.

Muti appealed the decision of the NCA Appeal Panel to the Law Society on June 17, 2014, pursuant to section 37(4) of the Legal Profession Act , RSA 2000 c L-8 (the " Act ") and Rule 50.2(4) of the Rules of the Law Society. Those provisions are as follows: THE LEGAL PROFESSION ACT 37

(4) The Benchers may in the case of a particular applicant, if they consider that special circumstances so warrant, waive or modify a requirement imposed in relation to the matters referred to in subsection (1). RULES OF THE LAW SOCIETY OF ALBERTA Evaluation of Other Law Degrees 50.2 …

(4) An applicant who is dissatisfied with the evaluation by the NCA of that person's degree or experience, and who has exhausted the internal NCA appeal process, may appeal the NCA evaluation to the Committee, but only in the following circumstances: (

a) the applicant has been required by the NCA to take courses at law school, and (

b) the application of a policy or procedure of the NCA to the applicant may be unreasonable or unfair due to special or unusual circumstances. For greater certainty, no appeal will lie to the Committee with respect to the subject matter or number of examinations required by the NCA nor the marking of any NCA examination. [ 16 ] The CEC Panel heard the appeal on September 22, 2014. The questions before the CEC Panel were: (1) is the application of the Distance Policy which requires Mr.

Muti to successfully complete the courses described above unreasonable or unfair due to special or unusual circumstances under rule 50.2; and (2) are there any other special circumstances which warrant the waiver or modification of the Distance Policy by this Appeal Panel pursuant to section 37(4) of the Act ? [ 17 ] The Applicant argued that the NCA Appeal Panel was unreasonable or unfair in requiring him to take eight upper year courses due to his professional obligations, his age, his health, and his family's financial reliance on his continued employment.

Further, the listed courses are not available to NCA students in Alberta, and Mr. Muti's business and family are in Calgary. He also argued that the NCA Appeal Panel failed to properly recognize his work experience in its decision. [ 18 ] With regard to the first question, the CEC Panel found that the knowledge, expertise and experience of the NCA warranted deference. The decision was full and complete and did not require interference under Rule 50.2.

On the second question, the CEC Panel acknowledged that the scope of review under section 37(4) is broader than Rule 50.2, but found that there were no circumstances to justify a waiver or modification of the Distance Policy. [ 19 ] The CEC Panel found no evidence to support Mr. Muti's position that his employment history or life experience is sufficient to satisfy the requirements for a Certificate of Qualification. Specifically, the CEC Panel referred to the Professional Legal Experience Policy,

section 1.2.3.b of the NCA Policies and Guidelines, and reiterated the NCA Appeal Panel's decision that work experience may only be considered if it relates to working as a lawyer in another common law jurisdiction. [ 20 ] The Panel further commented that while relocation and financial hardship would result from Mr. Muti's enrolment in a Canadian common law institution, such realities are not unusual or special to him; rather these are challenges faced by many students pursuing a legal education. [ 21 ] Mr. Muti exhausted his avenues of appeal under the NCA Policies and Guidelines and the Act .

He now seeks judicial review of the CEC Panel's decision. Mr. Muti argues that the CEC Panel fettered its discretion in interpreting Rule 50.2 and in finding that the applicability of the Distance Policy was fair and reasonable in this case. He further argues that the CEC Panel's decision not to waive or

modify the Distance Policy in his case is unreasonable. III. Issues [ 22 ] There are several issues before the Court: i. What is the appropriate standard of review for the CEC Panel's decision with regard to Rule 50.2 and section 37(4) of the Act , respectively? ii. Does the CEC Panel's decision that Mr. Muti does not meet the test set out in Rule 50.2 that the Distance Policy is "unreasonable or unfair due to special or unusual circumstances" amount to an unreasonable fettering of its discretion? iii. Was the CEC Panel reasonable in finding that Mr.

Muti's professional experience does not constitute "special or unusual circumstances" that warrant the waiver or modification of the Distance Policy under section 37(4) ? IV. Analysis i. Standard of Review [ 23 ] Determining the standard of review in the administrative context recognizes the constitutional roles of the court and the legislature. A court must exercise its power of review to ensure the administrative decision maker does not act beyond the scope of its legal authority.

It is also important, however, that the court respects the intention of the legislature by showing deference to the statutory authority granted to the decision maker in the governing legislation. [ 24 ] The Supreme Court of Canada has articulated two standards upon which the merits of an administrative decision can be reviewed: reasonableness and correctness. Under the deferential standard of reasonableness, a reviewing court will not interfere with the decision of the administrative tribunal so long as the process reveals justification, transparency and intelligibility.

The decision itself must be within a range of possible reasonable and defensible outcomes. [ 25 ] The reasonableness standard acknowledges that there is no one correct result; rather the range of reasonable outcomes that are acceptable is informed by the statutory purpose, the nature of the expertise of the decision maker, and the nature of the issue: New Brunswick (Board of Management) v Dunsmuir , 2008 SCC 9 , [2008] 1 SCR 190 (SCC) at paras 47-49 ; Canada (Citizenship & Immigration) v Khosa , 2009 SCC 2012, [2009] SCR 339 at para 4 . [ 26 ] In contrast, when applying the correctness standard, a reviewing court will not show deference to the decision maker's reasoning process.

Rather it will undertake its own analysis of the issue in question, and will come to a determination of whether it agrees with the conclusion of the administrative tribunal. If there is no agreement, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal's decision was correct: Dunsmuir para 50 . [ 27 ] The appropriate standard of review is determined by applying a two-step approach set out in Dunsmuir .

The first step asks whether prior jurisprudence has already determined, in a satisfactory manner, the degree of deference accorded to a particular category of question. If the standard of review has not been determined in prior jurisprudence, the second step requires a contextual standard of review analysis to determine whether the standard is one of reasonableness or correctness. [ 28 ] The Supreme Court in Dunsmuir sought to simplify the process through which the standard of review is determined: para 172.

Toward this end, the deferential reasonableness standard will usually apply where there is a privative clause; where the question is one of fact, discretion, or policy; where the decision maker is interpreting its own statute; or where the decision maker has developed particular expertise in the application of the law in relation to a specific statutory context: para 54. The correctness standard will apply when a decision maker is interpreting questions of law beyond the scope of its expertise, including constitutional issues.

Questions of vires , or "true jurisdiction," will also be reviewed on a standard of correctness. [ 29 ] In cases where there is no clear indicator that reasonableness or correctness ought to apply, the reviewing court must weigh the following factors to determine the level of deference owed to the tribunal: 1. The presence or absence of a privative clause or statutory right of appeal. 2. The nature of the issue decided by the tribunal. 3. The expertise of the tribunal on the issue in question, relative to that of the reviewing court. 4.

The purposes of the legislation as a whole and the particular provision in question. Dunsmuir , para 64 . [ 30 ] As Mr. Muti's case deals with several discrete issues, the appropriate standard of review must be assessed separately for each question. The parties agree that the standard of review for issue (ii) regarding Rule 50 is reasonableness. I agree for the reasons set out in

section "a", below. [ 31 ] The parties disagree on the appropriate standard of review for issue (iii), regarding the CEC Panel's decision under section 37(4) of the Act . Mr. Muti submits that the appropriate standard of review on this question is correctness. The Law Society submits it is reasonableness. For the reasons set out in

section "b" below, I find that the appropriate standard of review for section 37(4) is

reasonableness. a. Rule 50 [ 32 ] The Rules of the Law Society of Alberta are made pursuant to the authority granted to the Law Society under

section 37 of the Act , excerpted above, as well as

section 7 : Rules of Society 7(1) The Benchers may make rules for the government of the Society, for the management and conduct of its business and affairs and for the exercise or carrying out of the powers and duties conferred or imposed on the Society or the Benchers under this or any other Act . [ 33 ] Sections 7(2)(a)-(

c) specifically authorize the Law Society to make rules regarding students-at-law: 7(2) (

a) prescribing the manner of proof as to matters required to be proven by applicants for admission as students-at-law or for enrolment as members; (

b) respecting the requirements to be met by applicants for enrolment as members of the Society or for admission to the Society as students-at-law; (

c) respecting the waiving of or exceptions to the requirements referred to in clause (b); ... [ 34 ] The creation of the Rules, including Rule 50.2, is a valid exercise of the authority granted to the Law Society under sections 7 and 37 of the Act ; indeed, it is an essential element of the Law Society’s mandate. The purpose of the Law Society in this province and other Canadian jurisdictions is to protect and serve the public interest by promoting a high standard of legal services and professional conduct. The Law Society implements this goal through the Code of Conduct and the Rules. [ 35 ] The authority granted to the Law Society in sections 7 and 37 of the Act is expressed in

part in Rule 50.2, which delegates the evaluation of "degrees and experience" to the NCA. While the law is clear that an administrative body may not delegate its authority unless expressly authorized, it may do so when the scope of the delegate's role is defined and guidelines are established for the exercise of discretion: Therrien v Québec (Minister of Justice) , 2001 SCC 35 , [2001] 2 SCR 3 at para 93 . The delegation of authority from the Law Society to the NCA is consistent with the requirements.

The role of the NCA is clearly set out in the Rules, and the guideline policies of the NCA are clearly set out in the NCA Policies and Guidelines. [ 36 ] As discussed above, the Supreme Court sought to simplify the standard of review analysis in Dunsmuir by enumerating indicators that, when present, can end the analysis. These indicators obviate the need for the reviewing court to continue with a lengthy weighing of the other factors.

Jurisprudence has strongly emphasized one of these indicators; that when a decision maker is interpreting or applying its own statute or statutes closely connected in function, there should be a presumption of review on a reasonableness standard: Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association , 2011 SCC 61 at para 34 . [ 37 ] The Rule 50.2 issue in this case is concerned with whether the CEC Panel fettered its discretion by upholding the NCA's application of its Policies and Guidelines.

Prior to Dunsmuir , judicial review of discretion questions were often categorized as jurisdictional issues. The Supreme Court narrowed the category of vires questions in the administrative context to issues of "true jurisdiction", in the tapered sense of whether or not the decision maker has the authority to make the inquiry. Discretion is now properly categorized as a question of law: Pastore v Aviva Canada Inc , 2012 ONCA 642 at para 25 ; Alberta (Director, Assured Income for the Severely Handicapped Program Delivery Services) v Januario , 2013 ABQB 677 at para 36 .

Dunsmuir requires that, aside from questions of general law "that [are] ... of central importance to the legal system as a whole", a standard of reasonableness should apply: paras 60 and 70. The standard of review for issue (ii) is therefore reasonableness. b.

Section 37 [ 38 ] Dunsmuir states that in cases where prior jurisprudence has determined the degree of deference accorded to a particular category of question in a satisfactory manner, that standard of review will continue to apply: para 62. [ 39 ] The Applicant referred this Court to Woods v Law Society (Alberta) , 2006 ABQB 610 . In that decision Wilkins J considered a number of issues, including a decision of the CEC Panel made pursuant to Rule 50 and section 37(4) . Wilkins J performed the pre- Dunsmuir "pragmatic and functional analysis" to determine the appropriate standard of review.

He determined the standard for Rule 50 to be reasonableness and section 37(4) to be correctness. [ 40 ] The Applicant submits that this conclusion in Woods satisfies the standard of review analysis in Dunsmuir . I cannot agree with Mr. Muti that the correctness standard is applicable to section 37(4) in the matter now before me. [ 41 ] While past jurisprudence ought to be considered, the Supreme Court in Dunsmuir emphasized the deference that a reviewing court ought to show to an administrative tribunal that is interpreting or applying its own statute.

The pre- Dunsmuir "pragmatic and functional analysis" performed by Wilkins J in Woods did not emphasize the indicators of reasonableness to the same extent as the standard of review analysis in Dunsmuir . The extent to which

interpretation of a decision maker's home statute ought to result in reasonableness was emphasized by the Supreme Court in ATA v Alberta (Information & Privacy Commissioner) , 2011 SCC 61 : 34 ... unless the situation is exceptional, and we have not seen such a situation since Dunsmuir , the

interpretation by the tribunal of "its own statute or statutes closely connected to its function, with which it will have particular familiarity" should be presumed to be a question of statutory

interpretation subject to deference on judicial review.

[42] A recent decision of the Ontario Supreme Court of Justice reviewed similar principles as the present case in Grant-Kinnear vLaw Society of Upper Canada, 2013 ONSC 1571. The Law Society of Upper Canada upheld the NCA's refusal to grant Mr. Grant-Kinnear a Certificate of Qualification. Molloy J assessed the standard of review at paras 10-11: This judicial review application is against the Law Society but the Law Society has delegated its responsibility in this regard to the NCA. ... it must be recognized that the standard of review is reasonableness.

This is a highly expert panel operating in a specialized area ofexpertise. Applying the principles in Dunsmuir v. New Brunswick, clearly the standard of review cannot be correctness, which means itcan only be reasonableness. [43] The same observation applies in this case. The Law Society and the NCA are experts within their respective realms; the LawSociety at interpreting and applying its home statute, and the NCA at assessing equivalency of foreign degree programs.

It is notappropriate to review any of the issues now before me on a correctness standard. [44] At para 13 of Woods, Wilkins J stated that "in relation to the section 37(4) application...that issue involves the

interpretationof the Act and the Law Society Rules. No arguments were raised before the Committee on these matters. The standard of review iscorrectness." I am not able to infer what Wilkins J was referring to in his statement that "no arguments were raised before the Committeeon these matters," though it may have affected his decision to review the CEC Panel's decision on a correctness standard. The lawrequires a determination of whether the jurisprudence has already determined in a satisfactory manner. I do not find Woods to bepersuasive on this point.

The standard of review for section 37(4) must be reasonableness. ii. Does the Law Society's application of the NCA Distance Policy amount to anunreasonable fettering of its discretion? [45] The Supreme Court in Dunsmuir provided some general guidance to courts reviewing a decision on a standard ofreasonableness. The standard assumes that there is no one correct answer to a question that an administrative decision maker is requiredto give.

Rather, the reviewing court ought to determine whether a decision is "within a range of possible, acceptable outcomes which aredefensible in respect of the facts and the law" Dunsmuir, para 47. [46] Application of the reasonableness standard requires a characterization of the question being reviewed. This characterizationshapes the range of outcomes that will be considered reasonable. A highly discretionary decision based on factual determinations willwarrant an expansive range of acceptable outcomes. In contrast, when a court reviews legislative

interpretation, or the application of alegislative provision, the range of reasonable decisions may be narrower: Abraham v Canada (Attorney General), 2012 CAF 266, 2012FCA 266, paras 43-48. [47] As discussed above, reasonableness is concerned with the "existence of justification, transparency, and intelligibility withinthe decision-making process," Dunsmuir para 47. A reviewing court must therefore look to the reasons given and inquire if theexplanation offered is rational.

The court ought not dissect the decision in a part-and-parcel manner; rather the question is whether thedecision as a whole is reasonable. [48] The Applicant submits that the Law Society's determination that the NCA's application of the Distance Policy was not unfairor unreasonable was itself an unreasonable fettering of the CEC Panel's discretion. He challenges the CEC Panel's choice to uphold theNCA Appeal Panel decision rather than making an "independent decision." He further submits that the words "must defer" used by theCEC Panel with regard to the NCA indicate unreasonable fettering of discretion.

These concerns are rooted in the fact-finding andexercise of discretion by the CEC Panel, so the range of what is reasonable in this context is broad. [49] An administrative decision maker must not, by the adoption of a fixed rule or policy, disable itself from exercising itsdiscretion in individual cases: see HEU, Local 180 v Peace Arch District Hospital (1989), (BC CA), 35 BCLR (2d)64, 57 DLR (4th) 386 (BCCA) at para 29.

The question is whether the CEC Panel's decision based on Rule 50.2 regarding the DistancePolicy is reasonable when viewed in light of the statutory language, purpose and other contextual indicators. [50] I find that the CEC Panel did not fetter its discretion by upholding the requirements set out in the Distance Policy. TheApplicant suggests that the CEC Panel ignored his professional experience in its determination of equivalency between his degree and asufficient Canadian legal education. I cannot agree. The CEC Panel discussed why it did not consider Mr.

Muti's experience to beequivalent to the "practice of law" to some length at paras 18-19 of its decision. The CEC Panel emphasized that the NCA possesses thenecessary expertise to assess foreign degrees; this emphasis is not a fetter of discretion, but rather a recognition and explanation as towhy it decided to uphold the NCA assessment of Mr. Muti's application. Indeed, the decision-maker is best placed to explain and justifya policy statement or guideline in terms of the context in which it operates. [51] The Applicant emphasized in his submissions that the CEC Panel was inflexible in its

interpretation of the Rule 50.2 becauseit did not consider his professional experience to be sufficient to warrant diverging from the Distance Policy. He submits that the CECPanel's refusal to recognize his work as an immigration consultant is at odds with the law as set out by the Supreme Court in Law Societyof British Columbia v Mangat, 2001 SCC 67. [52] The Applicant's position that the CEC Panel improperly interpreted the law is not fettering of discretion, rather it is anargument that the CEC Panel was wrong.

I am not reviewing this question for whether the reasoning of the CEC Panel was correct.Rather I am assessing if the application and consideration by the CEC Panel of Rule 50.2 with regard to the Distance Policy wasjustifiable, transparent and intelligible. [53] The CEC Panel gave ample reasons why the NCA Policies and Guidelines are appropriate for assessing equivalency, and whyconsideration of the policy with regard to Mr. Muti's educational and professional experience lacks sufficient equivalency to a Canadianlegal education. It further distinguished the context of Mangat from the present case, namely that Mr.

Mangat was not a person

attempting entry into the professional as a Student-at-Law. His competence in areas of study necessary for legal practice in Canada were not at issue, as they are in the present case. Further, the CEC Panel distinguished Mangat from Mr. Muti's case in that paramountcy was largely at issue in Mangat , whereas that is not relevant to this matter whatsoever. The CEC Panel's review and discussion of Mangat is not unreasonable. [ 54 ] The Ontario Superior Court of Justice's decision in Grant-Kinnear involved the Law Society of Upper Canada's acknowledgement of the NCA's expertise in assessing foreign degrees.

The Court Grant-Kinnear endorsed the Law Society's delegation of authority to the NCA, and noted its expertise in assessing legal education. I agree with the Ontario Superior Court of Justice's assessment that "it is not the role of the reviewing Court to rewrite the policies or to substitute its own views or those of the applicant as to what is the best way to assess foreign qualifications" para 13. [ 55 ]

Interpretation of Rule 50.2 involves

interpretation of the Law Society's governing legislation; it is therefore entitled to deference. Even where the argument is, as here, that the decision-maker has relied on a policy statement or guideline to the exclusion of all other relevant factors, the question is ultimately remains whether the weight accorded to competing factors by the decision-maker is reasonable. It is a question of "substantive unacceptability" which I do not believe has occurred here. The CEC Panel decision, when read as a whole, is clearly an independent factual assessment of Mr.

Muti's application, and is a proper exercise of the CEC Panel's discretion. The determination that Mr. Muti does not meet the requirements set out in Rule 50.2 that the Distance Policy is "unreasonable or unfair due to special or unusual circumstances" is reasonable and will not be disturbed. iii. Was the CEC Panel's finding that Mr.

Muti's professional experience does not constitute "special or unusual circumstances" that warrant the waiver or modification of the Distance Policy under section 37(4) reasonable? [ 56 ] The Applicant asserts that the CEC Panel's decision not to waive or modify the Distance Policy was unreasonable in several respects. First, he argues that the CEC Panel conflated the appeal under Rule 50.2 with the application under section 37(4) . Second, he submits that the CEC Panel failed to properly consider and apply the Woods decision.

Third, he argues that the CEC Panel improperly limited the scope of consideration as so what can constitute "special circumstances." These issues are focused on legal analysis and

interpretation, therefore the range of reasonable outcomes is narrower than the previous question regarding Rule 50.2. [ 57 ] On the first issue, I find no unreasonable conflation in the CEC Panel's

interpretation of the Rule 50.2 appeal with the section 37 (4) application. The CEC Panel introduced each issue separately in its written reasons. It also expressly acknowledged the broader nature of the potential remedy under section 37(4) - to waive or modify policies - than the right of appeal under Rule 50.2. Though Mr.

Muti is seeking two distinct avenues of relief in this matter, the submissions made under each avenue are substantively similar. [ 58 ] Both Rule 50.2 and section 37(4) contain the phrase "special circumstances," which may justify waiver or modification of the NCA requirements under section 37(4) or constitute grounds for appeal under Rule 50.2. Mr. Muti put forward many of the same documents and submissions in support of both the Rule 50.2 appeal and the application under section 37(4) ; he argued that his professional experience ought to be considered under Rule 50.2.

He made the same argument under section 37(4) , along with his familial obligations, age and health to amount to "special circumstances." It is therefore not surprising that the reasons of the CEC Panel contain some overlap of Rule 50.2 and section 37(4) . Avoiding such overlap would result in unnecessary repetition. I am not reviewing the reasons of the CEC Panel with such exactitude as to dissect this claim any further. I am satisfied that the CEC Panel properly addressed and assessed Mr.

Muti's claim with regard to both the Rule 50.2 appeal and the 37(4) application. [ 59 ] Much of the Applicant's oral submissions focused on his claim that the Woods and Mangat decisions were improperly considered and applied by the CEC Panel. The section 37(4) approach from Woods was noted in the decision, though the CEC Panel did not reproduce the analysis in full. Mr. Muti submits that this omission amounts to a refusal by the CEC Panel to follow the rule of stare decisis and is therefore unreasonable. [ 60 ] I do not find the extent to which the CEC Panel did or did not rely on Woods to be problematic.

As the reviewing Court, I am more concerned with the substantive content of the section 37(4) analysis than the framework used to structure the analysis. Further, as discussed above, Wilkins J reviewed the section 37(4) issue in Woods on a correctness standard. The content and concern of a reviewing court applying correctness is very different from a review on reasonableness. Woods did not involve assessment of a foreign law degree, nor was the professional experience of Mr. Woods at issue. [ 61 ] The CEC Panel in Mr.

Muti’s case engaged in a fact-based review of his application and considered those facts in relation to the statutory language of section 37(4) ; specifically, the meaning of "special or unusual circumstances." The CEC Panel considered the meaning of the term in the context of the Act and determined that the circumstances which ought to be considered "special or unusual" relate to the assessment of competencies and not personal hardships. This determination is not unreasonable. The CEC Panel provided a lengthy review of the NCA decisions and Mr. Muti's circumstances.

The issue which remained central throughout the stages of Mr. Muti's application was the lack of equivalency between his professional and educational experience and what is required for a Certificate of Qualification and ultimately the practice of law. It is entirely justifiable and intelligible that the CEC Panel highlighted this issue as the competency obstacle in Mr. Muti's case. [ 62 ] Finally, the CEC Panel provided extensive reasons why Mr. Muti's circumstances are not sufficient to merit waiver or modification under section 37(4) . It acknowledged Mr.

Muti's professional experience and that, while it may parallel the work of lawyers in some respects, important differences exist that justify the requirement of further legal education. The CEC Panel also acknowledged the hardships that Mr. Muti would face if he enrolled in a Canadian common law program. Again, however, these hardships are not unique to Mr. Muti; familial upheaval and financial strain are unfortunate yet common facets of the decision to attend law school for many students.

The CEC Panel clarified that the type of special circumstances that would constitute modification or waiver under section 37(4) are properly limited to circumstances regarding competency and not personal or financial hardship.

[ 63 ] These reasons easily satisfy the justifiable, transparent and intelligible requirements of a reasonable decision. The CEC Panel applied objective criteria, took into account the individual circumstances of Mr. Muti, and reached a decision that was within the range of reasonable outcomes. There is no basis to intervene. [ 64 ] The application is therefore dismissed. [ 65 ] If the parties cannot agree to costs, they may be spoken to within three months of today’s date. Heard on the 17 th day of November, 2015. Dated at the City of Calgary, Alberta this 17 th day of May, 2016. S.M. Bensler J.C.Q.B.A.

Appearances: Raj Sharma, Stewart Sharma Harsanyi for the Applicant Sharon Heine, Law Society of Alberta for the Respondent