Peter Shea Applicant And: The Law Society of Newfoundland v. Labrador, 2020 NLSC 91

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Shea v. The Law Society of Newfoundland and Labrador , 2020 NLSC 91 Date : June 30, 2020 Docket : 202001G0168 Between: Peter Shea Applicant And: The Law Society of Newfoundland and Labrador Respondent Before: Justice Daniel M. Boone Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: February 21 and June 16, 2020

Summary: The Applicant applied for an order staying or prohibiting publication of a

summary of a decision of an Adjudicative Tribunal of the Law Society. The Court determined that s. 51(3) of the Law Society Act, 1999 , granted the Court a discretion to order a stay of publication pending appeal, and that the conditions for ordering a stay were established in this case. Appearances: Gregory A. French, Q.C. Appearing on behalf of the Applicant

Aimee N. Rowe Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Stubart Investments Ltd. v. R., (SCC), [1984] 1 S.C.R. 536; Archean Resources Ltd. v.Newfoundland (Minister of Finance), 2002 NFCA 43; Jane Doe v. Assn. of Registered Nurses of newfoundland and Labrador, 2016NLTD(G) 22; Newfoundland (Human Rights Commission) v. Newfoundland (Workplace, Health, Safety & Compensation Commission),2005 NLCA 61; Diamond Estate v. Robbins, 2006 NLCA 1; Rees v. Royal Canadian Mounted Police, 2005 NLCA 4; RJR —MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311; Stoodley v.

Stoodley, 2020 NLCA 10;Weir’s Construction Ltd. v. Warford Estate, 2016 NLCA 65; R. v. Mentuck, 2001 SCC 76; John Doe (Re), 2020 NLSC 6 STATUTES CONSIDERED: Law Society Act, 1999, S.N.L. 1999, c. L-9.1;

Interpretation Act, R.S.N.L. 1990, c. I- 19; ProvincialCourt Act, 1991, S.N.L. 1991, c. 15; Engineers and Geoscientists Act, 2008, S.N.L. 2008 c. E-12.1; Health Professions Act, S.N.L. 2010,c. H-1.02; Medical Act, 2011, S.N.L. 2011, c. M-4.02; Chiropractors Act, 2009, S.N.L. 2009, c. C-14.01; Social Workers Act, S.N.L.2010, c. S-17.2; Publication of Adjudication Tribunal Decisions Amendment Act, S.N.L. 2014, c. 7; Court of Appeal Act, S.N.L. 2017, c.C-37.002 RULES CONSIDERED: Rules of the Supreme Court of Newfoundland and Labrador, 1986, S.N.L. 1986, c. 42, Sched. D TEXTS CONSIDERED: Elmer A.

Driedger, Construction of Statutes, 2d. ed. (Toronto: LexisNexis, 1983); Sullivan on the Construction of Statutes, 6th ed. (Toronto: LexisNexis, 2014) REASONS FOR JUDGMENT Boone J.: INTRODUCTION [1] The Applicant is a former member of the Law Society of Newfoundland and Labrador. During most of his career he workedin private practice with a large firm. [2] The Applicant was the subject of a complaint of professional misconduct. He had resigned from his firm and taken non-practicing status with the Law Society after the conduct that was the subject of the complaint, but before the complaint was made.

Afterthe complaint had been made, he obtained a job as a lawyer with an insurance company and applied to resume practicing status. A Panelof the Education Committee found that he was of good character and fit to return to practice. [3] At the time that the Education Panel held a hearing and made its determination, both the Panel and the Applicant were awarethat the complaint was before the Discipline Committee. The Discipline Committee sent the matter to an adjudication tribunal. TheApplicant pleaded guilty at a hearing before the tribunal.

The tribunal imposed a sanction consisting of a short suspension from practiceand a further period of restriction on his practice. [4] The Applicant has appealed to this Court asking that the sanctions in the order of the Adjudication Tribunal be set aside. Theessence of his argument is that the sanction is inconsistent with the determination by the Education Committee Panel that he was of goodcharacter and fit to return to practice.

He says that the Law Society was estopped from further pursuing disciplinary sanctions restrictinghis practice because the Education Committee Panel had determined the issue of his fitness for practice, and that doing so amounted to acollateral attack by the Law Society on the decision of the Education Committee Panel. [5] The Law Society says that issue estoppel and collateral attack arguments do not arise because the parties before the EducationCommittee Panel and the Panel had been aware that the Adjudication Tribunal might impose sanctions including suspension andrestrictions on the right to practice.

[ 6 ] This is an Interlocutory Application within the Appeal. The Applicant is asking for an order that the Law Society not publish a

summary of the Adjudication Tribunal decision either permanently or at least until the Appeal is heard. [ 7 ] I previously granted a temporary injunction banning publication of the

summary until the hearing of this Application. [ 8 ] I have decided to allow the Application for an Order banning the Law Society from publishing the

summary of the decision of the Adjudication Tribunal. ANALYSIS The Law Society Act, 1999 [ 9 ] The Law Society says that it is required to publish a

summary of the decision of the Adjudication Tribunal. This obligation is found in the Law Society Act, 1999 , S.N.L. 1999, c. L-9.1 , (the “ Act ”) which provides as follows: 51(3) The society shall publish a

summary of a decision or order of an adjudication tribunal in a newspaper of general circulation in or nearest to the community in which the respondent practises within 14 days of the expiry of the appeal period under

section 55.2, unless a court orders otherwise, where the decision or order (

a) suspends the respondent; (

b) allows or directs the respondent to surrender his or her licence; (

c) restricts the respondent's practice; (

d) disbars the respondent; (

e) specifies conditions for the continuing practice of the respondent; or (

f) requires that a

summary of the decision or order be published. [ 10 ] The Applicant says that this provision creates an automatic stay of publication pending an Appeal of the decision of an Adjudication Tribunal and, in the alternative, that it gives the Court the discretion to order that the Law Society not publish. [ 11 ] Determining whether I have discretion, and the parameters of my discretion, is an exercise in statutory

interpretation that is complicated by the choices made by the drafters of s. 51(3). It is not a model of plain legal drafting. There are four legislative directions expressed in the provision. First, there is a requirement to publish in a local newspaper. Second, there is a description of the circumstances when publication is mandated. Third, there is a timeline for publication. Fourth, there is a discretion granted to the Court to intervene in respect of publication. [ 12 ] The expression of the first two of those legislative directions is clear. First, the Law Society is required to publish a

summary of any decision of an Adjudication Tribunal that suspends the lawyer; allows or directs the lawyer to surrender his or her license; restricts or places conditions on the lawyer’s practice; disbars the lawyer; or directs publication of a

summary of the decision or order.

Second, the publication must be in a local newspaper. [ 13 ] The required timeline for publication is also easy to discern: 14 days from the expiry of the period of appeal to this Court from a decision of the Adjudication Tribunal (30 days under s. 55.2 of the Act ). [ 14 ] However, the expression of the timeline by reference to the expiry of the appeal period implicitly introduces another idea: that the filing of an appeal may somehow affect the requirement for publication. [ 15 ] Another interpretive issue arises because of the grammar used in granting the Court a discretion to intervene in publication.

It is not clear which legislative thought the phrase “unless a court orders otherwise” is intended to limit. It appears to limit the requirement to publish, but the placement of this phrase after the description of the timeline raises the question whether the jurisdiction of the Court extends only to discretion to alter the timeline. Issues [ 16 ] The questions described in the preceding paragraphs are the first two issues that I must decide in this matter. The remaining issues concern other bases for the relief claimed by the Applicant. The issues, in the order in which I will deal with them, are as follows: 1.

Does an appeal by a member from a decision or order of an adjudication tribunal of the Law Society automatically stay publication in the newspaper of the

summary required by s. 51(3) ?;

2. If not, then does s. 51(3) confer a discretion on the Court to order a stay? 3. If the answer to the latter issue is yes, what is the basis for the exercise of that discretion? 4. Should a stay under the discretion accorded by s. 53(1) issue in this case? 5. Should the Court order a stay of publication under its inherent jurisdiction or as injunctive relief? Positions of the Parties [17] The Applicant says that s. 53(1) should be interpreted to mean that the filing of an Appeal automatically stays publication in thepaper. In the alternative, he says that the Court has the discretion to order that the Law Society not publish the

summary in thenewspaper and that the Court should exercise its discretion to make such an order in this case, at least pending the outcome of theappeal. In the further alternative, the Applicant relies on the inherent jurisdiction of the Court to order a publication ban on Courtproceedings or injunctive relief. [18] The Law Society responds that publication is mandatory, that the Court does not have jurisdiction to stop publication, and thatin any event the Applicant has not demonstrated the existence of circumstances that should move the Court to prohibit publication.

Issue 1: Does an appeal by a member from a decision or order of an adjudication tribunal of the Law Society automatically staypublication in the newspaper of the

summary required by s. 51(3)? [19] The

Interpretation Act, R.S.N.L. 1990, c. I- 19, expresses the primary rule of statutory construction that applies to thelegislation of this Province: 16. Rule of construction Every Act and every regulation and every provision of

an Act or regulation shall be considered remedial and shall receive the liberalconstruction and

interpretation that best ensures the attainment of the objects of the Act, regulation, or provision according to its truemeaning. [20] The so-called modern approach to statutory

interpretation adopted by the Supreme Court of Canada in Stubart Investments Ltd.v. R., (SCC), [1984] 1 S.C.R. 536, and other cases was taken from a formulation of the approach first stated in Elmer A.Driedger, Construction of Statutes, 2d. ed. (Toronto: LexisNexis, 1983) at page 87: “Today there is only one principle or approach,namely, the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with thescheme of the Act, the object of the Act, and the intention of Parliament..” [21] In Archean Resources Ltd. v. Newfoundland (Minister of Finance), 2002 NFCA 43, our Court of Appeal also adopted themodern approach, and in this excerpt, Green J.A. (as he then was), expressed the approach mandated by s. 16 of the

Interpretation Actand the modern approach in these terms: 22 Instead of mandating some fictionalized search for a collective "legislative intention", s. 16 directs the court to consider everyprovision "remedial" and to interpret it so that it "best" ensures the attainment of its "objects" according to its "true" meaning.

Thisrequires a consideration, as an integral part of the interpretive exercise, of the problem or "mischief" to which the legislature directed itslegislative act as a remedy and then the drawing of an inference, based on the language of the whole enactment and the court's generalknowledge of the state of the pre-existing law and any information as to the broad social context in which the legislative act occurred, asto what, broadly speaking, the object or objects of the legislative act must have been. The end result is to arrive at a "true" meaning.

Thatinevitably requires an examination of more than the bare words of the legislative enactment that is in issue, no matter how clear orunambiguous they may at first blush appear. The surrounding text, the interrelation of other related statutes, the social and legislativecontext in which the provision was enacted, and other extrinsic aids are all sources to be consulted in this exercise.

Obviously, if the barewords of the relevant provision appear to be straightforward and seem on their face to admit of only one meaning, they may end upcontrolling the result, but even in such a case, it is not sufficient to stop the interpretive exercise at this "plain" meaning; s. 16 requiresthat at the very least this plain meaning be given a "reality check" by being tested against other relevant sources of meaning to ensure thatthere is not some nuance or variation in the normal or apparent meaning that might indicate a different meaning in the particular contextunder consideration.

"True" meaning is not plain meaning; it is a conclusion arrived at by reconciling all the appropriate indicators ofmeaning that the court is directed to consider. 23 In truth therefore, s. 16 enunciates a principle of harmonization in which the courts are directed, in cases of dispute, to adopt andapply an

interpretation that fairly reconciles the language used in the enactment with the broader objects of the legislation so as toachieve the general goal, or to rectify the mischief, to which the legislative act appears to have been directed. That exercise determinesthe general ambit of impact of the legislative act and provides the basis for the court to conclude whether the particular fact situationbefore it should fall inside our outside that ambit. [22] Statutory

interpretation ought to be a purposive exercise. In Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed.(Toronto: LexisNexis, 2014), at p. 259, Professor Sullivan describes the purposive approach as based on the following propositions:

(1) All legislation is presumed to have a purpose. It is possible for courts to discover or adequately reconstruct this purpose throughinterpretation.

(2) Legislative purpose must be taken into account in every case and at every stage of

interpretation, including initial determination of a

text’s meaning.

(3) In so far as the language of the text permits,

interpretations that are consistent with or promote legislative purpose should be adopted, while

interpretations that defeat or undermine legislative purpose should be avoided. [ 23 ] The purpose of the Law Society Act, 1999 , is to regulate the practice of law. I agree with Butler J. (as she then was) in the view that she expressed in Jane Doe v. Assn. of Registered Nurses of newfoundland and Labrador , 2016 NLTD(G) 22, at paragraph 10: that the primary purpose of statutes providing for self-regulating professions is to protect the public through the adoption and enforcement, by way of discipline and admission procedures, of standards of professional conduct. [ 24 ] The obligation on the Law Society to publish a

summary of the decision of an adjudication tribunal that revokes or restricts the ability to legally practice law is obviously a measure adopted in the interest of public protection. Stating this purpose alone would lead to the conclusion that any ambiguity in the provision should be resolved by the

interpretation that most promotes public protection.

The answer suggested by that approach would be the one suggested by the Law Society in argument on the hearing of this application: the reference to the expiry of the appeal period in s. 51(3) is included only as a measure of time and, therefore, filing an appeal has no effect whatsoever on the obligation to publicize a decision. [ 25 ] However, that answer would ignore that there are other purposes achieved by the discipline provisions of the Law Society Act, 1999 , not least of which is ensuring fair process to members in the administration of admission and discipline.

A stay of publication pending appeal would protect the reputation of a member pending the exhaustion of rights of appeal. [ 26 ] In order to avoid arriving at a result that is facile, the authorities suggest steps in the interpretative exercise that, as Green J.A. described, can provide other relevant sources of meaning as a “reality check.” One important such step is the consideration of context, and the presumption in favour of legislative coherence, which has been described in Sullivan on the Construction of Statutes , 6 th edition, in the following terms at page 352: It is presumed that the provisions of legislation are meant to work together, both logically and teleologically, as parts of a functioning whole.

The parts are presumed to fit together logically to form a rational, internally consistent framework; and because the framework has a purpose, the parts are also presumed to work together dynamically, each contributing something toward accomplishing the intended goal. [ 27 ] The presumption in favour of coherence is most often applied to resolve apparent conflict within statutes or between provisions of different statutes (see Newfoundland (Human Rights Commission) v. Newfoundland (Workplace, Health, Safety & Compensation Commission) , 2005 NLCA 61 ; Diamond Estate v. Robbins, 2006 NLCA 1 ).

However, it also means that context for

interpretation of one legislative provision can come from review of other statutes on which the subject provision appears to be based, or with which it forms part of a legislative scheme. [ 28 ] A reader of the Act who encounters the reference to the expiry of the appeal period in s. 51(3) would expect that the filing of an appeal has impact on the obligation to publish. If, as the Law Society argues, the reference to the appeal period is only to define a time period for publication (appeal period of 30 days + 14 days = 44 days), then it would have been much easier and less ambiguous if the drafters had simply said that the Law Society must publish a

summary of a decision or order within 44 days of the decision or order. [ 29 ] But, the reader’s anticipation that the Act would expressly provide for a stay of publication on appeal by a member goes unfulfilled. No such provision is included in the Act .

The legislature could have enacted such a provision if it had intended that to be the case, rather than leaving it to implication. [ 30 ] The reference to the appeal period in s. 51(3) must be read with s. 55.2 of the Act , enacted at the same time as the current version of s. 51(3) , which reads: 55.2 Appeal 55.2(1) The society or the respondent may, within 30 days after receiving notice of a decision or order of an adjudication tribunal under this Part, appeal the decision or order or a part of it to the Trial Division by filing a notice of appeal with the court. 55.2(2) An appeal under this

section does not stay the decision or order being appealed unless the Trial Division orders otherwise. [ 31 ] The requirement in s. 51(3) to publish certain decisions or orders of an adjudication tribunal obviously arises out of concern that a lawyer whose right to provide legal services has been suspended or revoked or restricted might nevertheless continue to offer services to an unsuspecting public. This legislative purpose in requiring publication would not be met, and indeed would be undermined, if the requirement to publish was stayed but the decision or order affecting the lawyer’s right to practice was not. [ 32 ] The inclusion of s. 55.2 therefore tends toward an

interpretation that the filing of an appeal does not automatically stay publication. [ 33 ] S. 51(3) must also be read with s. 51(5), which provides: 51(5) Where a decision published under this

section is varied or set aside, the society shall within 14 days of the filing of the subsequent decision or order publish a

summary of the decision or order and subsections (3) and (4) apply, with the necessary changes. [ 34 ] A decision of an adjudication tribunal that suspends or restricts or imposes conditions on a member’s right to practice may be varied or discharged by another adjudication tribunal on the basis of new evidence or material change in circumstances under s. 54. However, the only manner in which a decision can be set aside is through appeal to this Court. Therefore, s. 51(5) obviously

contemplates a publication of the original decision or order notwithstanding the filing of an appeal. [ 35 ] Those other provisions of the Law Society Act, 1999 certainly suggest that a stay of publication does not automatically follow on the filing of an appeal by the member; but, those provisions still do not provide any explanation as to why s. 51(3) refers to the expiry of the appeal period in setting the timeline for publication. The answer to that question can be gleaned from review of the broader legislative context. [ 36 ] There are numerous self-regulated professions created by provincial statutes.

All of the professional statutes contain provisions within the discipline sections titled “Filing and Publication of Decisions.” The legislature amended all of these provisions, including s. 51(3) of the Law Society Act, 1999 in the period from 2008 to 2014, to provide for a requirement for publication in a local newspaper of certain disciplinary decisions.

The first set of amendments were proclaimed into law on the same date in December 2008 and, therefore, were part of a considered legislative scheme. [ 37 ] The Provincial Court Act, 1991 , S.N.L. 1991, c. 15 , inter alia , governs the discipline of Provincial Court Judges. Although judges are not part of a self-regulating profession per se, the structure of the discipline provisions of this Act is similar to that in the statutes that establish the self-regulating professions. The

section of this Act titled “Filing and Publication of Decisions” was also amended in December, 2008 and reads as follows: 25.3 Filing and publication of decisions 25.3(1) An adjudication tribunal shall file a decision or order made under subsection 25.1(2) or 25.2(2) or (3) with the director and provide a copy to the complainant and the judge and the chief judge or, where the judge against whom the complaint was made is the chief judge, the associate chief judge. 25.3(2) The director shall maintain a copy of a decision or order filed under subsection (1) for a minimum of 5 years after the day the decision is filed and shall upon receiving a request to view the disciplinary records in relation to a judge permit a person to view a

summary of a decision where that judge was the respondent, prepared in accordance with subsection (4). 25.3(3) The director shall publish a

summary of a decision or order of an adjudication tribunal in a newspaper of general circulation in the province within 14 days of the expiry of the appeal period provided in

section 25.4, where the decision or order (

a) suspends the judge; (

b) allows the judge to resign his or her office; (

c) removes the judge from the court; or (

d) requires that a

summary of the decision or order be published. 25.3(4) The

summary of the decision published under subsection (3) shall include (

a) the name of the judge; (

b) a brief description of the conduct of the judge that was found to be deserving of sanction; (

c) the name of the complainant, unless the complainant has requested that his or her name be withheld; (

d) the contents of the order in relation to the actions referenced in paragraphs (3)(

a) to (c); and (

e) other information specified for publication in the decision or order.

25.3(5) Where a decision of an adjudication tribunal is appealed under

section 25.4, the publication of the decision of the tribunal as required by this

section is stayed until the outcome of the appeal. 25.3(6) Where, on appeal, a decision is confirmed, varied or set aside, the director shall, within 14 days of the filing of the decision as confirmed, varied or set aside, publish a

summary of the decision and subsections (2) and (3) apply, with the necessary changes. [ 38 ] This

section is in the exact same terms as 51(3) of the Law Society Act, 1999 with one notable exception: the express automatic stay of publication on the filing of an appeal fulfills the reader’s expectation that arises from tying the timing of publication to the expiry of the appeal period. [ 39 ] The legislature chose not to include an automatic stay of publication in any of the other amendments to professional regulation statutes proclaimed in December 2008.

The clear expression of legislative intention in that omission is that a stay of publication does not follow automatically on appeal of a disciplinary decision. This makes sense in light of the purpose served by the requirement for publication. A Provincial Court Judge who has been suspended, allowed to resign, or removed from the bench cannot continue to represent themselves as a Provincial Court Judge and hear cases.

This contrasts with the situation that the requirement for publication in other professional regulatory statutes is obviously designed to guard against - that a professional who has had their license revoked, suspended, or restricted might continue nonetheless to offer services to the public. [ 40 ] The Acts governing dentists, engineers and geoscientists, health professionals, chiropractors, social workers and doctors, like the Law Society Act, 1999 , all used the language included in the Provincial Court Act, 1991 , as amended in 2008, tying the timing of publication to the expiry of the appeal period.

The Acts governing other professions, such as denturists, dietitians, opticians, hearing aid practitioners, licensed practical nurses, massage therapists, occupational therapists, optometrists, pharmacist, physiotherapists, psychologists, and registered nurses stated only that publication was required to occur within 14 days of the decision.

It seems to me as if the Acts that tied publication to the expiry of the appeal period may at some point in the drafting process have been intended to include a provision for stay of publication on appeal, but this drafting intention was not carried through in the legislation as passed. [ 41 ] I therefore conclude that a stay of publication on appeal does not arise automatically on appeal because of the reference to the expiry of the appeal period in s. 51(3) of the Law Society Act, 1999 .

Issue 2: Does s. 51(3) confer a discretion on the Court to order a stay? [ 42 ] The Applicant says that even if s. 51(3) does not imply an automatic stay of publication on appeal, then it nevertheless grants the Court a discretion to order a stay, by including the phrase “unless the court orders otherwise.” As I noted earlier, it is unclear from the structure of the subsection which operative part of s. 51(3) this phrase intends to limit. [ 43 ] Again, review of the other professional regulatory statutes - that together appear to make up a legislative scheme - is helpful. [ 44 ] As noted, several professional regulatory statutes continue to set the time for publication by reference to the expiry of the appeal period.

However, after the amendments of 2008 only two - the Law Society Act, 1999 , and the Engineers and Geoscientists Act, 2008 , S.N.L. 2008 c. E-12.1 - included the language “unless the court orders otherwise.” Several other statutes (the Health Professions Act , S.N.L. 2010, c. H-1.02, s. 44(3) ; the Medical Act, 2011 , S.N.L. 2011, c. M-4.02, s. 50(3) ; the Chiropractors Act, 2009 , S.N.L. 2009, c. C-14.01, s. 30(3) ; and the Social Workers Act , S.N.L. 2010, c. S-17.2, s. 33(3) ) were originally passed following 2008 with the inclusion of this language in the equivalent to s. 51(3).

However, all four of those statutes were amended in 2014 by the Publication of Adjudication Tribunal Decisions Amendment Act , S.N.L. 2014, c. 7 to remove the reference to “unless the court otherwise orders.” [ 45 ] The Publication of Adjudication Tribunal Decisions Amendment Act was an omnibus statute that amended the publication provisions within the disciplinary sections of several professional regulatory statutes. I have already mentioned that that Act deleted the language “unless the court otherwise orders” from the obligatory publication sections of four acts.

The amendments to all of the Acts , including the four mentioned, changed the provision that mandated what is to be included in the

summary published in the paper (equivalent to the Law Society Act, 1999 , s. 53(4) ). The amendments used the language “unless the court otherwise orders”, but in reference to the information to be included in the

summary. All these amendments read:

(4) Unless a court orders otherwise, the

summary of the decision published under subsection (3) shall include (

a) the name of the respondent and the address where he or she practises; (

b) the date, location and a brief description of the conduct of the respondent that was found to be deserving of sanction; (

c) the name of the complainant, unless the complainant has requested that his or her name be withheld; (

d) the contents of the order in relation to the actions referenced in paragraphs (3)(

a) to (d); and (

e) other information specified for publication in the decision or order. [ 46 ] In other words, the statutes amended by the Publication of Adjudication Tribunal Decisions Amendment Act grant the Court a discretion to interfere only in the question of the information to be included in the

summary of a decision published in the newspaper. [ 47 ] The legislature did not amend the Law Society Act, 1999 , or the Engineers and Geoscientists Act, 2008 , along with these other statutes and this is presumed to have been intentional on the part of the legislature. The legislature must have intended to give the Court dealing with these two acts a greater discretion than merely to interfere in the content of the published

summary. [ 48 ] I conclude that s. 51(3) of the Law Society Act, 1999 , gives this Court a discretion to order that the Law Society not publish a

summary of an adjudication decision. Issue 3: on what basis should that discretion be exercised? [49] There is nothing in s. 51(3), however, that delineates the nature of discretion given to the Court. As the language continuedinto s. 51(3) refers to the expiry of the appeal period, and the phrase “unless the court orders otherwise” seems to limit the whole clause,I conclude that s. 51(3) gives the Court discretion to order that publication not occur when an appeal is filed.

In effect, the legislature hasreplaced a mandatory stay like that set out in s. in s. 25.3(5) of the Provincial Court Act, 1991 with a discretionary stay. [50] As the legislature chose not to make a stay of publication mandatory, it follows that the Court should grant a stay only inunusual circumstances and not as a matter of course. [51] My conclusion that s. 51(3) provides for a discretionary stay of publication pending appeal provides the answer to the questionas to the standard for exercise of the discretion. The discretion to stay publication is equivalent to a stay pending appeal provided in s.8(1)(

d) of the Court of Appeal Act, S.N.L. 2017, c. C-37.002. [52] Our Court of Appeal determined in Rees v. Royal Canadian Mounted Police, 2005 NLCA 4, at paragraph 42, that the test to beapplied in determining an application for a stay in the Trial Division ought to be the same as applied by the Court of Appeal. The Courtof Appeal also determined in that case that the test to be applied to any application for a stay is the test set out in RJR — MacDonald Inc.v.

Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311: 42 In my view, that decision sets out a clear description of a standard by which judges hearing applications for stays can exercise theirdiscretion judicially, in the differing circumstances of each case. As well, it provides, to parties and the public generally, some degree ofcertainty, not as to the outcome in any case, but as to the standard by which the outcome will be determined. [53] The Court of Appeal has recently confirmed that this is the test to be applied on any application for a stay: Stoodley v. Stoodley,2020 NLCA 10; Weir’s Construction Ltd. v.

Warford Estate, 2016 NLCA 65. [54] As I have decided that s. 51(3) of the Law Society Act, 1999 grants a discretion to this Court to order a stay of publicationpending appeal, but does not define the factors that the Court must consider, I am bound to apply the three-part test in RJR-MacDonald. [55] I note that the Law Society urged me to apply the so-called Dagenais-Mentuck test to this application. The Supreme Court ofCanada stated that test in R. v. Mentuck, 2001 SCC 76, at paragraph 32: … A publication ban should only be ordered when: (

a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternativemeasures will not prevent the risk; and (

b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public,including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of theadministration of justice. [56] I find that this test is not suited to resolve the issue before me.

As noted by Orsborn J. in John Doe (Re), 2020 NLSC 6, the testapplies in the following circumstances: 11 Any request to restrict full public access to the Court and its proceedings requires the Court — absent statutory authority — tobalance the interests of the public in an open and transparent system of judicial adjudication and the interests said to be at risk of harm orloss in the absence of protection from public knowledge. [57] This case is not about the open court principle but, rather, about the application of a statutory obligation to publish, moderatedby a discretionary jurisdiction to stay publication.

Proceedings before the Law Society are not the same as Court; public access toinformation about such proceedings is determined through application of the Law Society Act, 1999. There is a presumption of inherentopenness in the Court at the heart of the Dagenais-Mentuck test; there is no presumption of openness in proceedings before the LawSociety. That is not to say that proceedings before the Law Society are intended to be secret but that the Law Society Act, 1999, governspublic access to information concerning those proceedings.

The Act provides that the Law Society is usually required to publicize certaindecisions of the discipline committee, subject to the discretion of the Court to stay publication pending an appeal. [58] I also note that a decision of an Adjudication Tribunal is not secret because a

summary is not published in the paper. The Act ins. 51 provides for other access to the outcome of an Adjudication Tribunal proceeding: 51. Filing and publication of decisions 51(1) An adjudication tribunal shall file a decision or order made under subsection 49(2), 50(2) or 50(3) with the society and provide acopy to the complainant, the respondent and the respondent's partners and employers, as designated in the rules, and the minister.

51(2) The society shall maintain a copy of a decision or order filed under subsection (1) for a period of 5 years, or the longer period the society may set, after the day the decision is filed and shall upon receiving a request to view the disciplinary records in relation to a member permit a person to view those records. … 51(6) The society may give notice of the decision and information respecting the decision to the other persons the benchers may direct and shall, in a certificate of good standing issued in relation to the respondent, include a

summary of the decision. The Test for a Stay Pending Appeal [ 59 ] Cory and Sopinka JJ. stated the RJR-MacDonald test succinctly in writing for the Court in that case: 48 Metropolitan Stores adopted a three-stage test for courts to apply when considering an application for either a stay or an interlocutory injunction. First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused.

Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. It may be helpful to consider each aspect of the test and then apply it to the facts presented in these cases. Serious Issue [ 60 ] As stated by the Court of Appeal in Weir’s Construction at paragraph 16: “The first prong of the test is whether there is a serious issue to be argued on appeal.

This requires a preliminary, but not a detailed or extensive, investigation of the merits of the appeal to ascertain whether the appeal is frivolous or vexatious.” [ 61 ] In this case, the Applicant admitted before the Education Committee panel that he committed the acts that were subject of the complaint. He pleaded guilty before the Discipline Committee Adjudicative Tribunal. He does not dispute the finding made by the Adjudicative Tribunal that he was guilty of professional misconduct.

His appeal contests the sanction imposed by the Adjudicative Tribunal which he says is inconsistent with the decision of the Education Committee Panel that found that he was of good character and fit to return to practice.

As the Education Committee Panel had determined the issue of his fitness for practice, he says that the Law Society was estopped from further pursuing that issue before the Adjudication Tribunal and that doing so amounted to a collateral attack on the decision of the Education Committee Panel. [ 62 ] The Law Society says that issue estoppel and collateral attack arguments do not arise because the parties and the Panel contemplated that the Adjudication Tribunal might impose sanctions including suspension and restrictions on the right to practice.

Therefore, says the Law Society, the Applicant knew that imposition of the sanction was a possibility and the result was not unfair to him. [ 63 ] In order to resolve the dispute between the parties, the Court will have to review the transcript of the proceedings before both the Panel and the Tribunal, and consider case law on collateral attack and the requirements of procedural fairness, in order to determine whether the decision of the Adjudication Tribunal - which appears inconsistent on its face with the decision of the Education Committee Panel - should be upheld on appeal.

A preliminary review of the Applicant’s appeal leads to the conclusion that it raises a serious issue. Certainly, it cannot be said that the issues raised on the appeal are frivolous or vexatious. Irreparable Harm [ 64 ] The statutory obligation imposed on the Law Society to publish a

summary of the decision of the Adjudication Tribunal arises because of the sanction imposed by the tribunal. The issue of sanction is the very issue contested by the Applicant in his appeal. If he successfully persuades the Court that the sanction of suspension and practice restriction was unfair, and that a lesser sanction was appropriate, then the result will be that there will be no publication. [ 65 ] The Applicant says that a lawyer has a vital interest in his, her or their reputation. In this case, if the publication proceeds, then the main motivation underlying the appeal will be rendered moot.

The Appeal will not necessarily be technically rendered nugatory, but the outcome will no longer matter to the Applicant. [ 66 ] Unlike the factors considered in application of the Dagenais- Mentuck test, there is no requirement that the irreparable harm requirement considered in application of the RJR-MacDonald test relate to the administration of justice.

The interest protected can be personal to the litigant. [ 67 ] I find that publication in a circumstance where it is later rendered unnecessary by a successful appeal against sanction does constitute irreparable harm. [ 68 ] There is some provision for repair of reputational harm provided by s. 53(6) of the Act , which requires a new publication if the decision under appeal is varied or set aside.

However, for the purposes of the application of this test, I find that in the event of a successful appeal, the Applicant will experience a residue of reputational damage that will remain notwithstanding a new publication. That is sufficient to constitute irreparable harm. As the Court of Appeal said in Weir’s Construction at paragraph 17: “It is the nature of the harm, rather than its magnitude, that must be considered.” Balance of Convenience

[ 69 ] The legislative purpose behind the requirement for publication is protection of the public. The legislature has obviously chosen that reputational harm to a disciplined lawyer, even in the event of a successful appeal, is less important than the goal of public protection. In most circumstances where this Court is considering a stay of publication pending appeal, the balance of convenience will match with that policy choice by the legislature. [ 70 ] However, this case is different because it does not engage the goal of public protection.

The Applicant has already served the suspension imposed by the order of the Adjudicative Tribunal. The practice restrictions imposed related to a position with one particular employer. He lost that job. I find that there are no public protection concerns remaining. [ 71 ] I accept that the Law Society also has legitimate concerns with general deterrence and with transparency. However, those interests would still be served by publication if the Applicant is unsuccessful in his Appeal.

Further, the legislature has decided that serving the goals of deterrence and transparency does not require publication in most circumstances where the sanction imposed following discipline does not restrict the member’s right to practice. The harm to the Applicant in this case outweighs those interests of the Law Society. Issues 4 & 5: Should the Court order a stay of publication under its inherent jurisdiction or as injunctive relief? [ 72 ] In light of my findings, there is no need to deal with these alternative bases on which the Applicant grounds his claim for relief.

I do note that Orsborn J. has already denied the Applicant’s request for a publication ban on this proceeding, and I would not have revisited that issue in the context of this Application. I also note that, generally speaking, the Court will not entertain a request for injunctive relief when the circumstances are covered by a statutory remedy. I would therefore have denied the Plaintiff’s application for an order prohibiting publication in the form of either a publication ban or an injunction. [ 73 ] The Applicant has also asked that this decision be anonymized, by leaving his name off the case report.

I decline to make such an order as Orsborn J. has already refused the Applicant’s request for a publication ban. Moreover, my decision does not find that the decision of the Adjudication tribunal ought to be kept secret or confidential, only that publication of a

summary of the decision in the newspaper ought be stayed pending appeal. Conclusion and Disposition [ 74 ] The Application for a stay of publication of the decision of the Law Society Adjudicate Tribunal is allowed under s. 51(3) of the Law Society Act, 1999 . [ 75 ] The Applicant is entitled to his costs of this Application, taxed on Column III of the Rules of the Supreme Court of Newfoundland and Labrador, 1986 , S.N.L. 1986, c. 42, Sched. D . _____________________________ Daniel M. Boone Justice