Dylan v. Law Society of Nunavut, 2020 NUCJ 32

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Dylan v. Law Society of Nunavut, 2020 NUCJ 32 Date: 20200923 Docket: 08-19-476 Registry: Iqaluit Plaintiff: Daniel W. Dylan -and- Defendant: Law Society of Nunavut ________________________________________________________________________ Before: Madam Justice Cooper Counsel (Plaintiff): D. Dylan Counsel (Defendant): S. Paul Location Heard: Iqaluit, Nunavut Date Heard: June 22, 2020 Matters: Decision on application for judicial review REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] This is an application by Mr. Dylan (“Dylan”) for judicial review of the practice of the Law Society of Nunavut (”LSNU”) to not prorate membership fees. II. BACKGROUND [ 2 ] Dylan was a resident member of the LSNU until his resignation in February of 2017, at which time he left Nunavut and relocated to Ontario. [ 3 ] In the summer of 2019 he sought readmission to the LSNU as there was a client in Nunavut that wished to retain him. [ 4 ] Membership in the LSNU corresponds to the calendar year, with membership fees being due by January 31st for membership from January 1st to December 31st.

Insurance fees cover a fiscal year from June 1st to May 31st. [ 5 ] On June 27, 2019, after some communication with the LSNU regarding the process for readmission, Dylan submitted an Application for Membership (Form

D) to the LSNU. [ 6 ] There was some confusion over the correct form to submit given Dylan’s circumstances. It was determined that Form D was not the correct Form. Dylan should have completed an Application for Change of Status to an Active Member or for Reinstatement of a Member Who has Resigned (Form R). [ 7 ] Further, the application submitted on June 27, 2019 was deficient, as the Insurance Exemption Certificate and Undertaking was incomplete.

Beyond stating that Dylan was applying for membership, the form did not indicate the nature of the practice nor did it indicate if insurance was required or if he was exempt. [ 8 ] On August 1, 2019, a Form R was provided to Dylan, which he completed and submitted to the LSNU on August 6, 2019. Unfortunately, the deficiency in the Insurance Exemption Certificate and Undertaking was not addressed and the Form remained incomplete. [ 9 ] On August 29, 2019, Dylan followed up with the LSNU regarding the status of his Application.

On September 9, 2019, the LSNU responded, setting out various concerns with the Application, including the deficiency in the Insurance Exemption Certificate and Undertaking. Dylan responded the same day. [ 10 ] Dylan’s Application was approved on September 13, 2019, subject to Dylan paying the required membership fees and insurance levy.

At that time he was advised that membership fees are not prorated and that the insurance levy is prorated, in accordance with the insurance policy. [ 11 ] Dylan paid the fees of $2,073.75 (consisting of a renewal fee of $1750.00, an assurance levy of $125.00, a trust account levy of $100.00 and GST of $98.75) and the insurance levy of $1668.60 a few days later. [ 12 ] On October 9, 2019, he filed this application for judicial review.

III. POSITIONS OF THE PARTIES A. Dylan [ 13 ] Dylan submits that the practice of the LSNU to not prorate membership fees is unreasonable and leads to an absurd result as it requires full payment of membership fees from applicants who may then be licensed to practice for only a small portion of the year. He submits that the practice is not supported by reasons providing a justification for the practice.

He asks for an order in the nature of certiorari quashing the decision not to prorate his fees, an order in the nature of mandamus directing the LSNU to charge him fees on a prorated basis, and an order directing the return of his non-prorated fees for the 2019 membership year, with pre-judgment interest. B. LSNU [ 14 ] The LSNU submits that the practice of not prorating fees does not involve a decision, policy, or exercise of discretion that is subject to judicial review.

LSNU submits that membership fees, being provided for in its Rules (“the LSNU Rules”), are part of a legislative scheme that does not allow for prorating. The LSNU submits that Dylan’s remedy is to take the steps necessary to bring about a change to the LSNU Rules. [ 15 ] If incorrect on this point, the LSNU submits that the remedies sought by Dylan are not available and that the court can only quash the decision and remit the matter back to the LSNU for review. IV. PRELIMINARY MATTER: SHOULD DYLAN’S AFFIDAVIT BE STRUCK? [ 16 ] Dylan filed his own affidavit along with the application for judicial review.

The affidavit is largely non-contentious as it sets out the general chronology of the application process and attaches as Exhibits various emails between the parties which are also found in the Record filed by the LSNU. [ 17 ] The LSNU submits that Dylan’s affidavit should be struck in its entirety, as a judicial review application must proceed only on the basis of the record that was before the decision maker. [ 18 ] The rules respecting applications for judicial review are found in

Part 44 of the Rules of the Supreme Court of the Northwest Territories (“the Rules”). They provide that the general rules, including those respecting originating notices in

Part 4, apply unless

Part 44 provides otherwise. [ 19 ] Rule 597(1) of

Part 44, dealing with judicial review in civil matters, provides:

(1) The originating notice respecting an application for judicial review and the affidavits in support of it shall be served on… (emphasis added) [ 20 ] Rule 24 of

Part 4, dealing with originating notice, provides: 24 The applicant on an originating notice shall serve a copy of the originating notice and a copy of each affidavit in support of the notice… (emphasis added) [ 21 ] As can be seen, the Rules are ambiguous at best, as they contemplate the filing of affidavits in support of all originating notices, including those seeking judicial review, however they do not mandate the filing of affidavits nor do they circumscribe the circumstances

under which affidavits should be filed. [22] The jurisprudence on judicial review addresses the question of whether affidavits should be permitted. A succinct statement of thelaw in this regard is found in Sierra Club Canada v Ontario (Ministry of Natural Resources and Ministry of Transportation), 2011ONSC 4086: [13] The general rule is that, on an application for judicial review, affidavits containing material that was not before the decision-makerat first instance will not be allowed.

The record that goes before the reviewing court should essentially be the material that was beforethe decision-maker at the time the decision was being made. See e.g.: Mianowski v. Ontario (Human Rights Commission), 2003CarswellOnt 3671 (Div. Ct.); Lincoln (County) Board of Education v. Ontario (Information & Privacy Commissioner) (1994), 76 O.A.C.235 (Div. Ct.); Ontario Hydro v. Ontario (Assistant Information & Privacy Commissioner) (1996), 97 O.A.C. 324 (Div.

Ct.). [14] Affidavit evidence is permissible to supplement the record in exceptional circumstances to demonstrate an absence of evidence onan essential point in the decision (which is to say, to demonstrate a jurisdictional error) or to show a breach of natural justice that cannotbe proved by mere reference to the record: Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), (ON CA), 114 D.L.R. (3d) 162 (Ont. C.A.), at 170. [23] In Association of Universities and Colleges of Canada v.

Canadian Copyright Licensing Agreement, 2012 CAF 22 at para 20, thecourt identified three exceptions to the general rule of a court on judicial review not receiving evidence: • background information that will assist the court in understanding the issues on judicial review; • to bring forward procedural defects that cannot be found in the record; and • to highlight the absence of evidence before an administrative tribunal. [24] As indicated, with the exception of two statements in the affidavit which might be characterized as editorializing or commentary (atparas 16 and 17), Dylan’s affidavit is non-contentious.

However, that is not the test. The test is whether the affidavit is necessary toassist the court in determining the issues relevant on the judicial review application. The affidavit filed in this matter is not provided todemonstrate an absence of evidence on an essential point or to highlight a procedural failure, nor is the matter so complex that it assiststhe reviewing court in understanding the process that was followed or the issues to be determined on review. [25] The LSNU has provided the Record, as required by Rule 598. Each of the parties have filed Briefs setting out the issues to bedetermined.

The matter is extremely straight forward. The court must ensure that there is no blurring of its role in a judicial reviewapplication and its role in applications of a different nature. One way of doing this is by ensuring that only proper materials are before thecourt given the nature of the application. Indifference in this regard in a particular matter simply because the materials may not becontentious risks a broader, more general indifference in all matters. [26] The affidavit is struck. V.

STANDARD OF REVIEW [27] The standard of review is determined in accordance with the Supreme Court of Canada direction in Canada (Minister ofCitizenship and Immigration) v Vavilov, 2019 SCC 65, which sets out a presumptive standard of review of reasonableness. Thepresumptive standard is rebutted if the legislation provides for a different standard of review or for an appeal (in which case the standardof review applicable to appeals applies).

The presumption will also be rebutted where the rule of law requires a correctness standard ofreview, such as when the issue is a constitutional one, is a general question of central importance to the legal system as a whole, or isrelated to the jurisdictional boundary between two or more administrative tribunals. None of these exceptions applies to this matter.Accordingly, the standard of review which must be brought to bear is that of reasonableness. VI. APPLYING THE REASONABLENESS STANDARD

[ 28 ] The Supreme Court of Canada in Vavilov recognized, as did the jurisprudence that predated it, that not all administrative decisions require reasons.

Vavilov states at para 77 : Cases in which written reasons tend to be required include those in which the decision making process gives the parties participatory rights, an adverse decision would have a significant impact on an individual or there is a right of appeal. [ 29 ] The decision whether to charge the full membership fee, prorate the fee, or use some other method to determine the amount of the membership fee payable does not fall into those types of decisions that require written reasons.

In collecting membership fees the LSNU was not exercising an adjudicative function; it was carrying out an administrative act. It is not the type of decision for which reasons were required or expected. [ 30 ] Where no reasons are provided or required, the Supreme Court of Canada directs the reviewing court to look to the record as a whole; the debate, discussion, and policy arguments that led to the adoption of the particular rule or policy applied in the rendering of a decision.

In those instances, such as in the matter before me, where the record does not provide anything from which reasons can be ascertained, the reviewing court is directed to examine the decision in light of the relevant constraints on the decision maker to determine if the decision is reasonable. The focus must be on the decision itself, not on the reasons for it. [ 31 ] The approach to reviewing decisions for which reasons were not given was considered in The Architectural Institute of British Columbia v.

Langford (City) , 2020 BCSC 801 at para 74 : …when all the relevant passages of Vavilov are considered together in the circumstances of this case, where a decision maker has made a decision without providing reasons and based on a disputed

interpretation of their empowering legislation, a reviewing court should follow these principles:

a) Examine the decision as a whole and the outcome that was reached (at paragraphs 116, 138);

b) Consider whether a decision maker’s

interpretation of a statutory provision is consistent with the text, context and purpose of the provision at issue (at paragraph 120);

c) Consider whether the interplay of text, context and purpose leaves room for more than one reasonable

interpretation of the statutory provision, or aspect of the statutory provision, that is at issue (at paragraph 124);

d) Examine the decision in light of the relevant constraints on the decision maker, focussing the analysis on the outcome rather than on the decision maker’s reasoning process. (at paragraph 138); and

e) Consider whether the outcome of the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (at paragraph 86). VII. ANALYSIS [ 32 ] The issue to be determined is whether the LSNU Rules regarding the payment of fees for the reinstatement of members permit for the exercise of discretion and a reduction in fees in instances such as those before me or if they allow only for the payment of the full membership fee. The issue is one of statutory

interpretation. If the

interpretation given by the LSNU is reasonable and falls within the range of reasonable

interpretations, then the application for judicial review must be dismissed. [ 33 ] For the reasons that follow I find that the

interpretation of the LSNU Rules is not only within the range of reasonable

interpretations but is the correct and only

interpretation. [ 34 ] The LSNU Rules are promulgated pursuant to authority delegated to the LSNU by the Legal Profession Act , RSNWT 1988, c L-2 (Nunavut), which states:

(1) The Executive shall make rules for the regulation of the Society, the management and conduct of its business affairs and for the exercise of the powers conferred or the performance of the duties imposed on the Society or the Executive by or under this Act and, without restricting the generality of these powers to make rules, may make rules … (

d) fixing the admission fees and the annual and other fees payable to the Society by members and students-at-law; …

(2) Subject to subsection (5), a rule shall have effect only until the end of the next annual meeting of the Society unless before that time the rule is confirmed by resolution of the Society. …

(5) If a resolution to confirm a rule is defeated by the society, the rule ceases to have effect immediately. [ 35 ] The LSNU Rules provide for various types of applications for membership.

Schedule A sets out fees for the six types of membership available: • Active; • Inactive; • Reinstated; • transfer under Territorial Mobility Agreement or Quebec Mobility Agreement; • Restricted Appearance Certificate; and • Student-at-law. [ 36 ] The fees required for all types of membership are set out in

Schedule A of the LSNU Rules, which provides a comprehensive scheme pertaining to all fees and levies payable for all types of membership (see attached Appendix). [ 37 ] Generally, fees of $1750 are due annually [1] and membership is valid for a calendar year, commencing January 1st and renewable annually. [ 38 ] The LSNU Rules indicate that the LSNU made a choice in two instances to permit variance from payment of the full membership fees and from a membership that runs the calendar year. [ 39 ] The first variance applies when an inactive member is applying to change their status to active.

In such circumstances the applicant is required to pay the difference between an inactive membership fee and an active membership fee. [ 40 ] The second variance is when an applicant is seeking a Restricted Appearance Certificate (RAC). RACs are valid for a period of time that does not necessarily coincide with the calendar year, which is one way it is distinguished from other types of memberships.

[ 41 ] The significance of these variances is not in the details of what they are, but in the fact that they are provided for. This indicates that when the LSNU developed the LSNU Rules it turned its mind to those instances in which payment of the full membership fee would not be required or when the membership year would not be a calendar year and specifically provided for those situations.

The fact that other types of application for membership, including an application for reinstatement after having resigned, are silent on the issue is an indication that there is no discretion for the LSNU to accept anything other than the full membership fee. [ 42 ] Given the structure of the LSNU Rules and the comprehensive scheme set out in

Schedule A regarding fees and levies in their entirety, the statutory

interpretation doctrine of implied exclusion applies. The LSNU turned its mind to those instances when the full membership fee should not be paid and when the membership term should not coincide with the calendar year. It expressly provided for those exceptions that were intended. One would expect that if other exceptions were also intended, they would be expressly provided for ( Sullivan on the Construction of Statutes , 6 th ed.). [ 43 ] Further, in the one instance where proration of levies is permitted, that being for the payment of insurance, the LSNU Rules specifically provide for it (Rule 95).

Again, the presence of this specific provision for the proration of one type of levy (insurance) and the silence on the proration of another type of levy (membership) further supports the conclusion that proration of membership fees is not provided for. VIII. REMEDIES [ 44 ] Although it is not necessary given my finding on the reasonableness of the LSNU’s

interpretation of the LSNU Rules regarding membership fees, I do wish to comment on the remedies being sought by Dylan. [ 45 ] Dylan asks that the court not only quash the decision to charge the full membership fee, he also asks the court to direct that membership fees be prorated and that he be reimbursed a portion of his fees. [ 46 ] Even if the application for review had been successful, the remedy would have been to remit the matter to the LSNU for reconsideration. The remedies sought would not have been available.

There are a multitude of fee structures that an organization may choose to implement, prorating being just one option. Even if an organization chooses to prorate fees, there are further choices to made, such as whether prorating will be done on a daily, weekly, or monthly basis. These are not decisions for a court to make on judicial review. They are decisions for the governing organization to make. As stated in Redfern v Qikiqtani Inuit Association , 2018 NUCJ 13 at para 76 , mandamus lies to compel an imperative duty. The LSNU is not bound by the Legal Profession Act to prorate membership fees.

Accordingly, it would be beyond the jurisdiction of this court to compel it to do so. IX. CONCLUSION [ 47 ] The application for judicial review is dismissed. [ 48 ] If counsel wish to speak to costs they should contact the trial coordinator to set a date to do so. Dated at the City of Iqaluit this 23rd day of September , 2020 ___________________ Justice S. Cooper

Nunavut Court of Justice