Doniger v Law Society of Alberta, 2021 ABQB 136

Court of Queen’s Bench of Alberta Citation: Doniger v Law Society of Alberta, 2021 ABQB 136 Date: 20210222 Docket: 1901 08155 Registry: Calgary Between: H. Kim Doniger Applicant - and - Law Society of Alberta Respondent _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I. Introduction [ 1 ] On February 4, 2021, H. Kim Doniger [Ms. Doniger], filed an “Application”, naming the Law Society of Alberta [LSA] as the Respondent.

The entire body of the Applicant’s Application reads: Basis for this claim: 1. Judicial Review pursuant to Rule 3.15 (1) of the Alberta Rules of Court of the Citations and Particulars in the Disciplinary

Hearing in the Matter of the Law Society v Kim Doniger, HE20190137 Remedy sought: 2. An order in the nature of mandamus, prohibition, certiori, quo warranto or habeas corpus pursuant to Rule 3.15(1) (

a) and/or a declaration or injunction pursuant to Rule 3.15(1) (

b) quashing section 78(5) , 78(6) , 78(7) and 78(8) of the Legal Profession Act of Alberta , all contents of the investigation, citations, and criminal code violations issued by the Conduct Committee as a result of ultra vires jurisdiction. Affidavit or other evidence to be used in support of this application: 3. Affidavit of H.

Kim Doniger, and attendant exhibits; exhibits of the Law Society of Alberta in respect of the Discipline Hearing in the Matter of the Law Society of Alberta and Kim Doniger, communications between Law Society of Alberta general counsel, the Conduct Department, the Custodianship Department, and the President of the Law Society; all of which will be submitted one month before hearing date pursuant to Rule 3.15(5). Applicable Acts and regulations: 4. Rules 3.15 (1) (

a) and 3.15 (1) (

b) of the Alberta Rules of Court ; the Constitution Act , Legal Profession Act , and the Code of Conduct [ 2 ] Ms. Doniger, on February 4, 2021, also filed a 31 page “Brief of H. Kim Doniger, The Applicant”. No Affidavit was filed in support. [ 3 ] The “Brief” indicates Ms. Doniger is a member of the LSA, but at present her licence is suspended. It seems Ms. Doniger’s licence is currently under review by an LSA Conduct Committee. As I understand Ms. Doniger’s Application and Brief, Ms.

Doniger is arguing that a number of provisions of the Legal Profession Act , RSA 2000, c L-8 are unconstitutional as those breach Charter ss 7, 11(c), and 13, and should be struck out, and she also calls these provisions “ultra vires” because they “impinge on criminal law power”. [ 4 ] The provisions of the Legal Profession Act in question read, in part: 78(5) where the Conduct Committee is of the opinion that there are reasonable and probable grounds to believe that a member has committed a criminal offence, it may direct the Executive Director to advise the Minister of Justice and Solicitor General. 78(6) ... if following a hearing under this Division, the Hearing Committee or the panel of Benchers is of the opinion that there are reasonable and probable grounds to believe that the member has committed a criminal offence, the Hearing Committee or the panel, as the case may be, shall forthwith direct the Executive Director to send a copy of the hearing record to the Minister of Justice and Solicitor General. 78(7) On receiving a direction under subsection (6), the Executive Director shall forthwith provide to the Minister of Justice and Solicitor General the following: (

a) the member’s name; (

b) the criminal offence suspected to have been committed; (

c) copies of all witness statements but not compelled statements given by the member; (

d) copies of all relevant evidence, including transcripts, but not transcripts subject to claims of solicitor-client privilege or client confidentiality, nor transcripts of the member’s testimony; (

e) a general description of relevant evidence in the possession of the Society that the Society claims may be subject to solicitor-client privilege; (

f) a general description of relevant evidence in the possession of the Society, that the Society claims may be confidential to the client.

(8) On request by the Minister of Justice and Solicitor General, the Executive Director shall forthwith provide to the Minister of Justice and Solicitor General any compelled statements of the member or any testimony of the member not subject to claims of solicitor-client privilege or client confidentiality. [ 5 ] Ms. Doniger’s Brief indicates that a number of the citations made against her by the Conduct Committee reference Criminal Code , RSC 1985, c C-46 ss 137-138, that prohibit fabricating evidence and falsifying affidavits, respectively. [ 6 ] Ms.

Donager’s filings are difficult to understand, but I believe, from review of her Brief, that Ms. Doniger’s argument is that the combination of her obligation to provide testimony and evidence during her Conduct Committee proceeding, and the Legal Professions Act , ss 78(5-8) referral authority together, mean that the Conduct Committee has put her in criminal jeopardy, that impinges on the criminal law authority of the federal government, and made Ms. Doniger a compelled witness against herself. [ 7 ] Ms.

Doniger also alleged in her Brief that the LSA Conduct Committee breached the principle of procedural fairness, and there was “an abuse of process and bad faith”. Neither of these claims is pled in the “Application”, and I will not reference them further. [ 8 ] On February 16, 2021, Counsel for the LSA referred Ms. Doniger’s Application to the Court as a candidate Apparently

Vexatious Application or Proceeding [AVAP] pursuant to Civil Practice Note No. 7 [CPN7] paragraph 6. I am designated to receive and review potential CPN7 processes in Southern Alberta. Counsel for the LSA identified a number of potential issues with Ms. Doniger’s application, including that the Application is irregular, does not provide for a meaningful response, and is premature and therefore abusive. [ 9 ] Ms. Doniger, on the same day, wrote me in response, disagreeing with the LSA referral. I will make no further comment on Ms.

Doniger’s February 16, 2021 letter since that is a premature response, and, in a CPN7 process, Ms. Doniger is responsible to answer to the Court’s inquiries, not the CPN7 referral. [ 10 ] I have reviewed Ms. Doniger’s Application and Brief, and conclude, on multiple bases, that this filing is an AVAP that should be reviewed under the CPN7 document-based “show cause” procedure. II. CPN7 [ 11 ] CPN7 is a practice implemented by the Court to better manage litigation that, on its face, appears to be unmeritorious, has no prospect of success, or is otherwise abusive and vexatious.

This practice is intended to provide a timely, proportionate, and cost-effective response to the litigants: Unrau v National Dental Examining Board , 2018 ABQB 874 [ Unrau #1 ]. [ 12 ] If, on initial review by the Court, the pleading appears to be unmeritorious, has no prospect of success, or is otherwise abusive and vexatious, then the Court issues a first written decision that identifies the apparent issue(

s) which may be a basis to apply Rule 3.68 and strikes out the pleading. The party who filed the pleading is then given an opportunity to, within 14 days, provide the Court a Written Submission of up to a total of ten pages in length that responds to, and demonstrates why, the pleading is a legitimate action and should be permitted to continue. The Written Submission must be served on the other parties to the litigation. [ 13 ] CPN7 is not for “close calls”, but instead the Court intervenes by this mechanism when the defect(

s) in question are “apparent on the face of the pleading”, and the suspect pleadings are “clearer cases of abuse”: Unrau #1 , at paras 22, 24 . Only restricted forms of evidence are considered by the Court when it conducts a CPN7 review, since this process has a very narrow focus, and operates to examine a single document and its content: Ubah #2 at paras 24-48. There are exceptions to that rule.

For example, the Court may examine other documents in the same proceeding that are related to the suspect filing ( Ubah #2 at para 35), or documents and records that are evidence that the AVAP is an attempt to litigate an issue that has already been decided or closed ( Ubah #2 at para 45). III. CPN7 Analysis [ 14 ] Ms. Doniger’s Application exhibits a number of apparent deficiencies. I am not going to evaluate the irregular form and filing of the Application and Brief, since I conclude these do not reach the Rule 3.68(2)(

e) threshold to defeat Ms. Doniger’s application. There are other more serious apparent prima facie issues. A. Premature Judicial Review [ 15 ] The Supreme Court of Canada has determined that administrative tribunals have the authority to engage constitutional questions, and that constitutional questions ought to be first raised with a tribunal, rather than at the superior court level, so as to avoid bifurcated proceedings: R v Conway , 2010 SCC 22 at paras 78-79 .

A tribunal may evaluate constitutional issues if “... the empowering legislation implicitly or explicitly grants to the tribunal the jurisdiction to interpret or decide any question of law. ...”: Paul v British Columbia (Forest Appeals Commission) , 2003 SCC 55 at para 39 .

The Legal Profession Act , ss 53-82(1) lays out a process to evaluate potential sanctions to lawyers licenced in Alberta, with, ultimately, a right to appeal to the Alberta Court of Appeal. [ 16 ] It is an abuse of process to pursue judicial proceedings without first exhausting the administrative regime: Al-Ghamdi v Alberta , 2017 ABQB 684 at paras 126-128 , aff’d 2020 ABCA 81 . I request that Ms. Doniger explain why her “Application” is not a premature and abusive proceeding since she has not exhausted the Legal Profession Act procedure in relation to her alleged problematic conduct. B.

Standard of Proof and Criminal Liability [ 17 ] There are two standards of proof in Canada: 1. proof beyond a reasonable doubt that operates when there is a presumption of innocence, such as in criminal proceedings, and 2. proof on a balance of probabilities, which is the only civil standard. [ FH v McDougall , 2008 SCC 53 at paras 41-49 .] [ 18 ] Professional disciplinary proceedings operate on the civil balance of probabilities standard: Fitzpatrick v Alberta College of Physical Therapists , 2012 ABCA 207 at paras 12-15 , leave to appeal to SCC refused, 34993 (11 April 2013). [ 19 ] I note that the Legal Profession Act , ss 78(5-8), authorize the LSA to direct to the Minister of Justice and Solicitor General that “reasonable and probable grounds” exist for potential criminal proceedings.

However, those provisions do not indicate that, the LSA may, on its own accord, initiate criminal proceedings, or impose criminal sanctions. Instead, litigation under the Criminal Code is initiated by the Provincial and Federal Solicitor Generals, with the exception for private informations, pursuant to Criminal Code , ss 504, 507.1.

[ 20 ] I also note that courts have found that a Criminal Code provision may be breached on a balance of probabilities, and although that does not lead to criminal liability, that finding on a balance of probabilities may be relevant to other legal issues, e.g. Re Boisjoli , 2015 ABQB 629 at paras 58-69 . [ 21 ] I therefore request that Ms. Doniger indicate how the criminal law authority and her presumption of innocence is implicated when all LSA decision-making relating to Ms.

Doniger’s legal practice and licence is on a balance of probabilities, and the LSA does not have the authority to initiate or impose criminal sanctions. C. Application of Charter ss 7, 11(c), and 13 [ 22 ] Charter s 7 states: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 23 ] I ask Mr. Doniger to indicate how the Complaint Commission proceedings implicate Ms. Doniger’s life, liberty, or security of the person.

I note that the Complaint Commission has no apparent authority to incarcerate Ms. Doniger (Part III(B)), and that there is no constitutionally guaranteed right to employment, or a particular form of employment: Siemens v Manitoba (Attorney General) , 2003 SCC 3 at paras 45-46 . [ 24 ]

Section 11(

c) of the Charter states: 11(c). Any person charged with an offence has the right ... not to be compelled to be a witness in proceedings against that person in respect of the offence; [ 25 ] I request that Ms. Doniger indicate how she is a “person charged with an offence” so that Charter s 11(

c) applies. [ 26 ] The Legal Profession Act , s 69(2) states: 69(2) A witness in proceedings before a Hearing Committee may be examined on oath on all matters relevant to the hearing and shall not be excused from answering any question on the ground that the answer (

a) might tend to incriminate the witness, (

b) might subject the witness to punishment under this Part, or (

c) might tend to establish the witness’s liability (

i) to a civil proceeding at the instance of the Crown or of any other person, or (ii) to prosecution under any Act, but the answer so given, if it tends to incriminate the witness, subject the witness to punishment or tends to establish the witness’s liability, shall not be used or received against the witness in any other proceedings under this or any other Act except as [to limited exceptions that do not include Criminal Code proceedings.] [Emphasis added.] [ 27 ] Charter s 13 reads: 13.

A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence. [ 28 ] The Conduct Committee does not appear to have any authority to directly sanction Ms. Doniger ( Legal Profession Act s 56(3)), nor any authority to incarcerate Ms. Doninger (Part III(C)). The Legal Profession Act s 69(2) appears to prohibit self- incrimination resulting from any Hearing Committee testimony, where Ms.

Doniger is a compellable witness ( Legal Profession Act s 69(1)). [ 29 ] Ms. Doniger is therefore requested to explain how the Legal Profession Act s 69(2) does not guarantee the right to be free of compelled self-incrimination, as provided for in Charter ss 11(

c) and 13. IV. CPN7 Analysis [ 30 ] Ms. Doniger’s Application appears to be a suitable candidate for review per CPN7. The Court therefore seeks a response from Ms. Doniger on these questions: 1. Why Ms. Doniger’s Application is not a premature and abusive proceeding since she has not exhausted the Legal Profession Act procedure in relation to her alleged problematic conduct? 2. How is the criminal law authority implicated when all decision-making relating to Ms.

Doniger’s legal practice and licence is on a balance of probabilities, and the LSA does not have the authority to initiate or impose criminal sanctions? 3. How do the Complaint Commission proceedings implicate Ms. Doniger’s life, liberty, or security of the person?

4. How is Ms. Doniger a “person charged with an offence” so that Charter s 11(

c) applies to her? 5. Why does Legal Profession Act s 69(2) not prohibit compelled self-incrimination so as to satisfy Charter ss 11(

c) and 13? [ 31 ] Ms. Doniger’s Alberta Court of Queen’s Bench Action 1901 08155 February 4, 2021 Application is stayed. The May 6, 2021 Chambers appearance date is cancelled. CPN7 now advances to its second step. 1. Ms. Doniger has until 14 days after this decision is filed to file and serve a Written Submission of no more than a total of 10 pages, pursuant to CPN7, para 3(b). The Written Submission should be clearly addressed: “To the Attention of Associate Chief Justice Rooke”. 2.

If no Written Submission is received by the Court by that deadline, the Court will proceed to render its final decision on whether the Application should be struck out in whole or in part, pursuant to Rule 3.68 (CPN7, para 3(c)). 3. If Ms. Doniger provides and serves a Written Submission, then the LSA has seven days to make a Written Reply of up to a total of 10 pages in length (CPN7, para 3(d)). The Written Reply should be clearly addressed: “To the Attention of Associate Chief Justice Rooke”. 4. After receipt of Ms.

Doniger’s Written Submission, and the LSA’s Written Reply, if any, the Court will render its final decision on whether the Alberta Court of Queen’s Bench Action 1901 08155 February 4, 2021 “Application” should be struck out in whole or in part, pursuant to Rule 3.68 (CPN7, para 3(e)). [ 32 ] The Court will prepare and serve the Order staying this action. Ms. Doniger’s approval of that Order is dispensed with, pursuant to Rule 9.4(2)(c). Ms. Doniger may be served this Decision and the corresponding Interim Stay Order by email to: hyok@ualberta.ca.

Dated at the City of Calgary, Alberta this 22 nd day of February, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: H. Kim Doniger Self-represented Litigant Karen Hansen for the Law Society of Alberta