Jacqueline Harris Appellant And: The Law Society of Newfoundland v. Labrador, 2019 NLSC 196

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Harris v. Law Society (Newfoundland and Labrador ) , 2019 NLSC 196 Date : November 1, 2019 Docket : 201901G3541 Between: Jacqueline Harris Appellant And: The Law Society of Newfoundland and Labrador Respondent Before: Justice Carl R. Thompson Edited Transcript of Oral Reasons for Judgment On Appeal From: A Decision of the Complaints Authorization Committee pursuant to the Law Society Act, 1999 , subsection 44(2) , File C18-043 dated the 15 th day of April, 2019 Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: October 30, 2019 Date of Oral Judgment: October 30, 2019

Summary:

A decision of the Complaints Authorization Committee of the Law Society of Newfoundland and Labrador that there were no reasonable grounds to consider the conduct of a solicitor worthy of sanction in concluding a Final Order in Family Court was reasonable. Appearances: Jacqueline Harris Appearing on her own behalf Aimee N. Rowe Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Martin v. Law Society (Newfoundland & Labrador) , 2010 NLTD(G) 186; Connolly v. Law Society (Newfoundland & Labrador) , 2011 NLTD(G) 152 STATUTES CONSIDERED: Law Society Act, 1999 , S.N.L. 1999, c.

L-9.1 ; Federal Child Support Guidelines , S.O.R./97-175 OTHER: Spousal Support Advisory Guidelines REASONS FOR JUDGMENT Thompson, J. : INTRODUCTION [ 1 ] This is an appeal filed May 21, 2019 pursuant to section 45(7) of the Law Society Act, 1999 , S.N.L. 1999, c. L-9.1 of a decision of the Complaints Authorization Committee (the “CAC”) dated April 15, 2019 following a meeting on April 11, 2019 dismissing a complaint by Ms. Harris against Gladys H. Dunne dated September 25, 2018. [ 2 ] In her complaint to the Law Society Ms. Harris explained as part of her position that: At no time did Ms.

Dunne ever advise me of the Spousal Support Advisory Guidelines (SSAG). I only became aware this existed over the last number of months. Also, I was never advised by her that the Originating Application can be brought back to court under a Variation of that order prior to the end date. Ms. Dunne did not consider, nor advised me, with regards to anything I was going through with my autistic son and lack of emotional and physical support from my husband or that it could have been factored in when spousal support was being considered under the SSAG. [ 3 ] In her appeal to this Court, Ms.

Harris further stated: I am appealing the decision because Gladys Dunne did not represent me to the best of her ability when negotiating spousal support. If you applied the Spousal Support Advisory Guidelines (SSAG) at the time I separated you will see there was a difference of approximately $1,200 - $1,700 monthly on a compensatory and non-compensatory basis. Ms. Dunne started negotiations less than ½ the amount of time I was with my husband. I was living with him from 1992 – 2009 and the maximum I could have received under SSAG would have been for 17 years.

I believe this is where negotiations should have started and met somewhere in the middle. She negotiated well beneath this. [ 4 ] On September 23, 2018 Ms. Dunne submitted her response to the complaint which included a history of the conduct of her representation of Ms. Harris. The reply addressed allegations of failure to advise on her spouse’s tax assessments for the previous year being considered, concerns of advice prior to signing of Orders in the Family Court concerning spousal support, Ms.

Dunne’s conduct on the opposite party’s non-attendance at mediation, alleged failure to advise on the Spousal Support Advisory Guidelines , future variations and impact on the child. [ 5 ] In her detailed response Ms. Dunne explained to the Law Society the circumstances of her actions and her advice. She explained the consistency of the result with the Federal Child Support Guidelines , S.O.R./97-175 . She explained the basis of the equal division of matrimonial property in the Final Consent Order against precedent and law in this province.

the law society act 45.

(1) Where an allegation has been submitted to the complaints authorization committee, the committee may exercise one or more of the following powers: (

a) refer the allegation back to the vice-president for an investigation or alternative dispute resolution in accordance with the rules; (

b) conduct an investigation itself or appoint a person to conduct an investigation on its behalf; (

c) conduct a practice review into the members practice or the conduct of a professional law corporation of which the member is a voting shareholder; and (

d) require the respondent to appear before it.

(2) Where the complaints authorization committee is of the opinion that there are no reasonable grounds to believe the respondent has engaged in conduct deserving of sanction, the committee shall dismiss the allegation and give notice in writing of the dismissal to the complainant and the respondent.

(3) Where the complaints authorization committee is of the opinion that there are reasonable grounds to believe that a respondent has engaged in conduct deserving of sanction, the allegation shall be considered as constituting a complaint, and the committee may (

a) counsel or caution the respondent; (

b) instruct the vice-president to file the complaint against the respondent and refer it to the disciplinary panel; (

c) make an application under

Part III for the appointment of a custodian of the members practice or of a professional law corporation of which the member is a voting shareholder; and (

d) suspend or restrict the respondents licence. complaints authorization committee [ 6 ] The decision of the CAC stated in part: … The Committee considers the allegation and determines whether there are reasonable grounds to believe that the lawyer has engaged in conduct deserving of sanction. Conduct deserving of sanction is defined in the Law Society Act, 1999 , subsection 41 (

c) to include professional misconduct, failure to maintain the standards of practice, conduct unbecoming a member of the Society, acting in breach of the Law Society Act, 1999 , the Law Society Rules, or the Code of Professional Conduct (the “Code”). As outlined by the Supreme Court of Newfoundland and Labrador in Martin v.

Law Society (Newfoundland & Labrador) , ‘The function of the Complaints Authorization Committee is not to make a final determination of guilt, but rather to form an opinion on whether reasonable grounds exist to conclude that the member has engaged in conduct worthy of sanction.’ … The Committee noted that as a matter of procedure, spousal support is an important factor in family law files, and the material on file supports that this was an issue being pursued in your file.

The Committee is of the opinion that your file was managed in accordance with the standard of practice prescribed by the Code of Professional Conduct. Gladys Dunne has provided a reasoned response and a detailed explanation of her management of your file.

conclusions [ 7 ] It is accepted that the standard of review is reasonableness. [ 8 ] Notably, the relief request by Ms. Harris in this review is that the decision of the CAC be overturned. She also seeks financial relief. [ 9 ] The role of the CAC has been discussed in Martin v. Law Society (Newfoundland & Labrador) , 2010 NLTD(G) 186 and Connolly v.

Law Society (Newfoundland & Labrador) , 2011 NLTD(G) 152. [ 10 ] In Martin it was noted that the CAC gathers information and assesses it as a preliminary process and in so doing, decides if there is a reasonable basis for considering if the member has engaged in conduct worthy of sanction. [ 11 ] In Connolly the Court noted that the CAC engages first an assessment of the complaint and then information from the complainant and then considers whether the lawyer in question has engaged in conduct deserving of sanction.

The complainant is not a party to the proceedings by the Law Society once the complaint is engaged.

It is then a matter between the member and the Law Society ( Connolly at paragraph 18). [ 12 ] Connolly further notes that the client’s right of appeal to this Court is not so as to protect the interest of the complainant but to ensure that the Society regulates conduct in the broader public interest ( Connolly at paragraph 22). [ 13 ] No reasons other than the full disclosure of the record considered and the ultimate conclusion are before me, which is the accepted requirement as noted in Martin . [ 14 ] I have to take it as given that the CAC fully reviewed the material it disclosed to the complainant in its April 11 meeting. [ 15 ] The main concern of the complainant dealt with the advice given and work completed in respect of spousal support.

The record discloses the presence of this as a live issue in the Settlement Conference Briefs and Consent Order concluded. The CAC noted the significance of spousal support and that the material before it supports that issue being pursued. In its opinion the file was managed in accordance with the standard of practice prescribed by the Code of Professional Conduct . The CAC was also of the opinion that Ms.

Dunne’s response, which it included in its appendices, provided a reasoned response and a detailed explanation of the management of the file. [ 16 ] I note that the record disclosed that the amount of spousal support negotiated had taken into consideration that Ms. Harris’ then spouse was contesting the issue of any entitlement to such support. As well, the record indicates the relative applicability and use of the Spousal Support Advisory Guidelines at the time of the provision of professional services. [ 17 ] I also note that the record discloses Ms.

Dunne’s position that she explained that a Consent Order was final and that any future variation would have to be based on a material change of circumstances of either of the parties. [ 18 ] On the record of the CAC filed in this review, the CAC’s opinion that there were no reasonable grounds to believe Ms. Dunne engaged in conduct deserving of sanction was, in my view, reasonable. [ 19 ] Accordingly, the application before me is dismissed. _____________________________ Carl R. Thompson Justice