2015 NBCA 37, 2015 NBCA 37

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK THE LAW SOCIETY OF NEW BRUNSWICK, abody corporate APPELLANT 119-13-CA BARREAU DU NOUVEAU-BRUNSWICK, corpsconstitué APPELANT - and - - et - PHILIP C. MIX RESPONDENT PHILIP C. MIX INTIMÉ The Law Society of New Brunswick v. Mix, 2015NBCA 37 Barreau du Nouveau-Brunswick c.

Mix, 2015 NBCA37 CORAM: The Honourable Justice Richard The Honourable Justice Quigg The Honourable Justice Green CORAM : l’honorable juge Richard l’honorable juge Quigg l’honorable juge Green Appeal from a decision of the Court of Queen’sBench: October 18, 2013 Appel d’une décision de la Cour du Banc de laReine : le 18 octobre 2013 History of case: Decision under appeal: 2013 NBQB 345 Preliminary or incidental proceedings: [2014] N.B.J. No. 32 [2014] N.B.J.

No. 173 Historique de la cause : Décision frappée d’appel : 2013 NBQB 345 , 2013 NBBR 345 Procédures préliminaires ou accessoires : [2014] A.N.-B. no 32 [2014] A.N.-B. no 173

Appeal heard: May 21, 2015 Judgment rendered: May 21, 2015 Appel entendu : le 21 mai 2015 Jugement rendu : le 21 mai 2015 Counsel at hearing: For the appellant: John D. Townsend, Q.C. Philip C. Mix appeared in person Avocats à l’audience : Pour l’appelant : John D. Townsend, c.r. Philip C. Mix a comparu en personne THE COURT The appeal is dismissed without costs except that Mr. Mix is entitled to disbursements, if any. LA COUR Déboute l’appelant sans condamnation aux dépens, mais M. Mix a droit à des débours, s’il en est. The following is the judgment delivered by THE COURT (Orally) [ 1 ] Philip C.

Mix practiced law in New Brunswick as a member of the Law Society of New Brunswick from 1974 to 1993 and from 2002 to 2005. From 1995 to 1996, he undertook further studies at Dalhousie University and was admitted to the Nova Scotia Bar, and, in late 1997, commenced practicing law in that province. He continued practicing law in Nova Scotia until early 2000. [ 2 ] Between July 2004 and May 2005, the Law Society of New Brunswick received a number of complaints from clients of Mr. Mix. When the Law Society of New Brunswick attempted to contact him regarding some of these complaints, Mr.

Mix was found to be absent indefinitely from his practice for medical reasons. This led to a custodianship of his practice that took effect June 10, 2005, at a cost to the Law Society of New Brunswick of $31,110.58. Eventually, the Law Society of New Brunswick compensated some of Mr. Mix’s clients, in amounts totalling $26,841.50, from the Law Society of New Brunswick’s Compensation Fund. Subsequent disciplinary proceedings against Mr. Mix led to his disbarment and an order that he pay the costs of the disciplinary proceedings. The Discipline Committee’s decision finding Mr.

Mix guilty of conduct deserving sanction is dated September 22, 2008, and the subsequent one regarding sanction and costs was issued August 7, 2009, after a further hearing. The costs were not assessed at that time. In light of medical evidence indicating Mr. Mix was totally and permanently disabled from the practice of law, the Discipline Committee did not consider it necessary to attach any conditions for his possible re-admission.

[ 3 ] On August 16, 2006, Mr. Mix declared bankruptcy and, on November 17, 2008, he was discharged from it. [ 4 ] On April 16, 2012, Mr. Mix sent the Law Society of New Brunswick correspondence applying for reinstatement. The Law Society of New Brunswick took the position Mr. Mix’s application could not be routed through the usual path to the Admissions Committee because Mr. Mix had not complied with s. 29(1)(

c) of the Law Society Act, 1996 , S.N.B. 1996, c. 89 , which precludes his reinstatement unless he has paid “any fees, assessments or costs in respect of which the applicant is in arrears, except to the extent that the amount owing is waived by Council”. According to the Law Society of New Brunswick, Mr. Mix needed to either pay the amounts owed or obtain the waiver of Council before his application for reinstatement could be considered by the Admissions Committee. [ 5 ] This impasse led to Mr. Mix applying for various relief from the Court of Queen’s Bench.

In the end, most of the relief sought was abandoned, but the judge did rule on the question of whether the Law Society of New Brunswick should be ordered, “through its Admissions Committee to consider Mr. Mix’s Application for Reinstatement without any conditions attached”: Mix v. Law Society of New Brunswick , 2013 NBQB 345 , 412 N.B.R. (2d) 154 , at para. 17 . [ 6 ] The application judge ruled Mr. Mix’s application for reinstatement must be presented to the Admissions Committee, and it will be for that Committee to decide whether Mr.

Mix meets the requirements for reinstatement, including whether he is in arrears of any fees, assessments or costs. [ 7 ] Initially, both Mr. Mix and the Law Society of New Brunswick appealed the application’s judge’s decision, but Mr. Mix has since abandoned his appeal. The Law Society of New Brunswick pursues its appeal on a single ground, namely whether the application judge erred in law in failing to find that Mr.

Mix’s bankruptcy rendered him “ineligible for reinstatement to the Law Society as he cannot comply with subsection 29(1) of the Law Society Act, 1996 ”. [ 8 ] The Law Society of New Brunswick acknowledges that, because of Mr. Mix’s bankruptcy, it cannot collect any of the amounts owed. However, the Law Society of New Brunswick argues that “the Admissions Committee has no jurisdiction to consider [Mr.

Mix’s] request for readmission since the fees, assessments and costs referred to in subsection 29(1)( c )(ii) have not been paid or have not been waived by Council”. [ 9 ] Effectively, the Law Society of New Brunswick frames its appeal as whether Mr. Mix’s bankruptcy and consequential discharge from the amounts owed to the Law Society of New Brunswick render him “ineligible” for readmission unless Council waives payment of a debt that no longer exists. With respect, this question did not arise in the application proceeding in the Court of Queen’s Bench. It was Mr.

Mix who filed a Notice of Application that delineated the questions before the Court, which, at the end, boiled down to two: whether the Law Society of New Brunswick should be ordered to process Mr. Mix’s application for reinstatement through its Admissions Committee, and whether the Court should interfere with the Law Society of New Brunswick’s findings that Mr. Mix had been dishonest. The judge ruled on the first question and not on the second. The question of “eligibility” was not raised in the Notice of Application, although the Law Society of New Brunswick argued it at the hearing.

The judge ruled it was not a decision he had to make and that, if there was a valid argument to be made on point, it was one to be advanced before the Admissions Committee. [ 10 ] The Act is clear, as are the General Rules under the Law Society Act, 1996 . There is no ambiguity.

A person who has been disbarred may apply for reinstatement if that person “satisfies the Admissions Committee with respect to the requirements of subsection 29(1) of the Act ” (Rule 52(1)( a )), and therefore it is the Admissions Committee that may reinstate a former member who has been disbarred if satisfied the conditions set out in s. 29(1) have been met. This includes the condition that the former member has paid “any fees, assessments or costs in respect of which the applicant is in arrears , except to the extent that the amount is waived by Council” (emphasis added).

Questions of fact, questions of law and questions of mixed law and fact that may arise in determining whether Mr. Mix is in arrears of any amounts and, if so, whether he has obtained the necessary waiver, are questions the Legislature has entrusted to the Admissions Committee. It is the only reasonable

interpretation of the readmission scheme set out in the Act and the Rules. Thus, the application judge was correct in deciding as he did. [ 11 ] For these reasons the Law Society of New Brunswick’s appeal is dismissed. Since Mr. Mix was self- represented, we do not order costs, but he is entitled to his disbursements, if any exist.

____________________________________ J.C. MARC RICHARD, J.A. ___________________________________ KATHLEEN A. QUIGG, J.A. ___________________________________ BRADLEY V . GREEN, J.A.