2013 NBCA 67, 2013 NBCA 67

COURT OF APPEAL OF NEW BRUNSWICK 135-12-CA J. SHAWN O’TOOLE APPELLANT J. SHAWN O’TOOLE APPELANT - and - - et - LAW SOCIETY OF NEW BRUNSWICK RESPONDENT BARREAU DU NOUVEAU-BRUNSWICK INTIMÉ O’Toole v. Law Society of New Brunswick, 2013 NBCA 67 O’Toole c.

Barreau du Nouveau-Brunswick, 2013 NBCA 67 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Larlee The Honourable Justice Deschênes CORAM : L’honorable juge en chef Drapeau L’honorable juge Larlee L’honorable juge Deschênes Appeal from a decision of the Court of Queen’s Bench: October 12, 2012 Appel d’une décision de la Cour du Banc de la Reine : Le 12 octobre 2012 History of Case: Historique de la cause : Decision under appeal: 2012 NBQB 336 Décision frappée d’appel : 2012 NBBR 336 Preliminary or incidental proceedings: [2012] N.B.J.

No. 436 Procédures préliminaires ou accessoires : [2012] A.N.-B. n o 436 Appeal heard: October 9, 2013 Appel entendu : Le 9 octobre 2013 Judgment rendered: November 28, 2013 Jugement rendu : Le 28 novembre 2013

Counsel at hearing: For the appellant: Frederick C. McElman, Q.C. For the respondent: John D. Townsend, Q.C. Avocats à l’audience : Pour l’appelant : Frederick C. McElman, c.r. Pour l’intimé : John D. Townsend, c.r. THE COURT The appeal is dismissed with costs. The following is the judgment delivered by THE COURT I.

Introduction [ 1 ] This is an appeal, with leave, from a refusal to judicially review: (1) the decision of the Registrar of Complaints under the Law Society Act, 1996 , S.N.B. 1996, c. 89 , to “refer issues regarding the [appellant] to the Complaints Committee”; and (2) the latter’s decision “to refer issues regarding the [appellant] to the Discipline Committee” for a hearing.

The application judge declined to engage in the sought-after review of those pre-hearing decisions on the grounds that: (1) the record did not reveal the requisite “exceptional or extraordinary circumstances”; and (2) the Discipline Committee has sufficient authority to grant any “adequate alternative” or “effective” remedy for any “procedural unfairness during the investigative steps” or for any “lack of a full and appropriate compliance” with the Law Society Act ( see O’Toole v. Law Society of New Brunswick , 2012 NBQB 336 , 395 N.B.R. (2d) 391 , at para. 34 ). II.

The position of the parties [ 2 ] The appellant submits the application judge erred in coming to those conclusions, in finding that a duty of fairness was not owed to him “at the investigatory stage” and in considering extraneous circumstances. As might be expected, the respondent disagrees. In particular, and perhaps significantly for future purposes, it articulates, in its Respondent’s Submission, the following position regarding the Discipline Committee’s jurisdiction: 70. In this case, we are not dealing with a formal statutory appeal procedure.

Rather, we are dealing with the issue as to whether the Discipline Committee, before whom a full hearing on the merits has yet to be held, has the power to address Mr. O’Toole’s alleged procedural defects regarding the investigatory stage of the process. 71. In this regard, the Law Society says that its process actually offers Mr. O’Toole two alternate adequate remedies with respect to

his allegations. 72. Firstly, pursuant to ss. 58(2) of the [Law Society Act], the Discipline Committee is granted a very wide degree of power in dealingwith matters before it: A panel of the Discipline Committee has jurisdiction to decide all questions of fact and law, including the admissibility of evidence, and,subject to this Act, may determine its own procedure. [Emphasis in original.] 73. The Supreme Court of Canada has repeatedly endorsed the modern principle of statutory

interpretation as follows: 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 grammaticaland ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 , [2000] 2 S.C.R. 559, [2002] S.C.J. No. 43, at para. 26] 74. As such, the provisions of the Act must be read in light of its overall purpose: namely, the protection of the public and theregulation and discipline of lawyers in the Province of New Brunswick. 75. In that regard, as stated by Justice Robertson in [Violette v.

New Brunswick Dental Society, 2004 NBCA 1 , [2004] N.B.J.No. 5 (C.A.)], in terms of the “nature of the alleged error and the ability of the [Discipline Committee] to address it effectively”,allegations of procedural fairness and reasonable apprehension of bias […] are questions of law. See also Precision Drilling Corp. v.Calgary (City), [2011] A.J. No. 907 (Alta. C.A.) at para. 18. 76. Based on a plain and ordinary reading of the Act, the Discipline Committee has the power to deal with all of Mr.

O’Toole’sallegations and as a matter of law determine if there are breaches of procedural fairness and make such remedies to cure same as it deemsappropriate. […] 77. Support for the broad power of the Discipline Committee to fashion an appropriate remedy in the event of alleged proceduralfairness is found in the common law maxim that administrative bodies are the “masters” of their own procedures (which is codified in ss.58(2) of the Act). […] […] 79. Secondly, pursuant to ss. 66(1) of the Act, Mr.

O’Toole also has a broad right of statutory appeal to this Court following a finaldecision of the Discipline Committee: Any respondent who is affected by a decision, determination or order of the Competence or Discipline Committee may appeal to theCourt of Appeal on a question of law or fact. III. Decision [3] In exercising his discretion to refuse judicial review of the pre-hearing decisions in question,the application judge applied the correct legal test, ultimately concluding he was “not satisfied that this Court should interfere with thestatutory process under the Law Society Act” (para. 34).

Moreover, and contrary to the appellant’s submission, the judge did not takeextraneous circumstances into account in the actual exercise of his discretion. That said, some of the judge’s objectionable obiter

comments are addressed later in these reasons. Finally, and once again contrary to the appellant’s contention, the judge did not determine what duty of fairness, if any, was owed the appellant at the investigatory stage. [ 4 ] Simply put, the case for reversal has not been made. IV. Disposition [ 5 ] Accordingly, the appeal is dismissed. Costs on appeal are set at $2,500. [ 6 ] Additional observations are nonetheless required in the interests of justice.

The application judge made a number of comments, which might be construed as casting doubt on the reasonableness or plausibility of the appellant’s account of the events that gave rise to the “issues” referred to the Discipline Committee for a hearing. In making those comments, the judge overstepped his authority. [ 7 ] The appellant is entitled to an unbiased hearing by the Discipline Committee and a determination by that body of the facts based upon the materials submitted for its consideration. ____________________________________ J.

ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK ____________________________________ M.E.L. LARLEE, J.A. _____________________________________ ALEXANDRE DESCHÊNES, J.A.