Susanne Gulliver Appellant And: Law Society Complaints Authorization Committee Respondent, 2023 NLSC 23

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Gulliver v. Law Society Complaints Authorization Committee , 2023 NLSC 23 Date : February 20, 2023 Docket : 202201G0248 Between: Susanne Gulliver Appellant And: Law Society Complaints Authorization Committee Respondent Before: Justice Peter N. Browne On Appeal From: A Decision of the Law Society Complaints Authorization Committee pursuant to the Law Society Act, 1999 , S.N.L. 1999, c. L-9.1, s. 45(7) , File # C20-045, dated the 16 th day of December, 2021. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 16, 2023

Summary:

Susanne Gulliver appeals the decision from the Complaints Authorization Committee dismissing her allegation against a member of theLaw Society of Newfoundland and Labrador on the basis there were no reasonable grounds to believe her legal counsel engaged inconduct deserving of sanction. The Court determined that the intention of the legislature in using the wording contained in section 45(7) of the Law Society Act, 1999was to direct it to use the appellate standards of review as opposed to a reasonableness review.

The Court applied the standard of palpableand overriding error to the issue that the CAC drew negative factual inferences and made credibility assessments. It applied the standardof correctness to the issue that the CAC exceeded its jurisdiction by not interviewing the complainant and her father or referring thematter to the adjudicative panel. In the result, the Court found no palpable and overriding error or error of law. The appeal was dismissed with no order as to costs. Appearances: Stephen J. May, K.C. Appearing on behalf of the Appellant Aimee N.

Rowe Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Martin v. Law Society of Newfoundland and Labrador, 2010 NLTD(G) 186; Connolly v. Law Society ofNewfoundland and Labrador, 2011 NLTD(G) 152; Aylward v. Law Society of Newfoundland and Labrador, 2013 NLCA 68; Dunsmuirv. New Brunswick, 2008 SCC 9; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Law Society ofSaskatchewan v. Abrametz, 2022 SCC 29; Oleynik v. Law Society of Newfoundland and Labrador, 2022 NLSC 151; Baker v. Canada(Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817; C.U.P.E. v.

Ontario (Minister ofLabour), 2003 SCC 29; Housen v. Nikolaisen, 2002 SCC 33; Ernst v. Canadian National Railway Co., 2021 FC 16 , 2021 F.C.16; R v. Ryan, 2011 NLCA 53; R. v. Noseworthy, 2021 NLSC 115; Patient X v. College of Physicians and Surgeons of Nova Scotia, 2013NSSC 165; Knight v. Indian Head School Division No. 19, (SCC), [1990] 1 S.C.R. 653; Toutsaint v. SaskatchewanRegistered Nurses Assn. (Investigation Committee), 2023 SKCA 11 STATUTES CONSIDERED: Law Society Act, 1999, S.N.L. c. L-9.1; Human Rights Code, R.S.N.L. 1990, c. H-14; The LegalProfession Act, 1990, S.S. 1990-91, c. L-10.1, s. 3.1;

Interpretation Act, R.S.N.L. 1990, c. I-19 TEXTS CONSIDERED: Paul Daley, “Unresolved Issues After Vavilov” (2022), 85 Sask. L. Rev. 89–118 REASONS FOR JUDGMENT Browne, J.: INTRODUCTION [1] The Appellant, Ms. Gulliver (“Gulliver”), appeals the decision of the Complaints Authorization Committee (the “CAC”)pursuant to section 45(7) of the Law Society Act, 1999, S.N.L. c. L-9.1.

Her appeal alleges that the CAC erred in dismissing herallegation (“the Allegation”) that her former legal counsel, Lisa Baker (“the Member”), engaged in conduct deserving of sanction. [2] Specifically, the appeal is focused on the following grounds: 1.

The CAC drew an inference that the reason why Gulliver did not attend the Emergency Protection Order (the “EPO”) hearing wasbecause of two texts, the first being from the Member advising Gulliver that she would have to take the stand and give evidence and becross-examined; and a second and subsequent text, from her father, acknowledging the EPO was voluntarily vacated; and

2. The drawing of these inferences affected the determination by the CAC that the Member was handling a difficult file in a high conflict situation and took reasonable efforts to resolve issues and move the matter along. [ 3 ] In the result, Gulliver argues the Court should set aside the decision and remit the matter back to the CAC for further investigation and reconsideration of these two issues. FACTUAL BACKGROUND [ 4 ] In August 2019, Gulliver retained legal counsel, the Member, to represent her in a family law matter. The choice of legal counsel was based on a personal recommendation from her father.

Gulliver provided the Member with consent to communicate with her father by email or text. [ 5 ] On December 7, 2019 Gulliver obtained an EPO against her ex-husband without representation from legal counsel. He appealed the EPO and a hearing date was set for December 20, 2019.

Gulliver claims she did not receive notice of the hearing from the Member until December 18, 2019, even though the Member was aware of the date at least one week prior. [ 6 ] On December 18, 2019, the Member sent Gulliver an email stating that if she refused to vacate the EPO then the matter would proceed to a contested hearing and Gulliver would be required to give viva voce evidence and be cross-examined by her ex-husband’s legal counsel.

Gulliver alleges that at no stage during the solicitor-client relationship did she ever change her instruction to the Member that she was opposed to vacating the EPO. [ 7 ] Gulliver and her father met with the Member at her law offices on December 19, 2019.

Gulliver alleges she had to leave the meeting early due to issues with her in-laws at her son’s daycare, but claims before leaving with her father, her instructions to the Member were clear and unambiguous that she would not consent to vacating the order. [ 8 ] The Member, in her written response to the Allegations dated October 23, 2020, claims that during the meeting on December 19, 2019 she explained to Gulliver and her father that an EPO was a temporary measure, and that the best approach to the problem would be to have similar conditions placed upon her ex-husband set out in a new family law order.

The new order would state that if he breached the conditions then it “would open him up to contempt applications, and that should be the focus moving forward.” [ 9 ] Later in the same paragraph of the written response, the Member claims Gulliver agreed to follow this approach. That same day at 4:45-4:46 p.m. an email exchange occurred between the Member and legal counsel for Gulliver’s ex-husband, Melanie Del Rizzo. In this email exchange, Ms.

Del Rizzo acknowledges the parties would be consenting to vacating the EPO and that she would advise the Court of this development the next morning, December 20, 2019. [ 10 ] At the hearing on December 20, 2019 the Member and Ms. Del Rizzo agreed to vacate the EPO. Gulliver was not at the hearing. In her letter of complaint, Gulliver alleges she was not at the hearing because she was instructed by the Member to go to the RNC and file a complaint regarding the events at the daycare the previous day. She claims the Member informed her she was not required to attend the hearing.

Later that evening, there was a 20 minute text exchange between Gulliver’s father and the Member. In this exchange, he references Gulliver was fearful for her life and the safety of her son, and goes on to state “The fact Susanne volunteered to give up the EPO … and that her ex-husband went to CSSD to complain about her.” [ 11 ] Gulliver filed her Allegation letter on September 6, 2020. The Law Society sent her correspondence on September 15, 2020 (note the Law Society brief says 2021). On September 18, 2020 Ms. Gulliver wrote back saying she agreed with the Law Society’s

summary that the Member: (

i) Failed to follow instructions regarding the EPO; (ii) Colluded with opposing legal counsel to have the EPO removed; (iii) Misled her regarding her ex’s attendance in Court; and (iv) Failed to provide the quality of service expected of a competent lawyer. [ 12 ] The Member provided her response on October 23, 2020. This was followed by two further exchanges with the CAC investigator from Gulliver and the Member. The CAC sent an inquiry letter with particular questions to each on September 14, 2021.

Gulliver replied on September 19, 2021 and the Member on October 29, 2021. [ 13 ] CAC met on December 8, 2021 and decided to dismiss the Allegation as there were no reasonable grounds to believe legal counsel engaged in conduct deserving of sanction. The written decision was provided to the parties on December 16, 2021. ISSUES 1. What is the applicable standard of review to be applied by a Court on an appeal from a decision of the CAC dismissing an allegation that there were no reasonable grounds to believe a member engaged in conduct deserving of sanction? 2.

Should I decide the standard of review is an appellate standard, then does the record disclose there were factual discrepancies from which the CAC drew negative inferences and made credibility assessments? 3. Did the investigative process followed by the CAC cause it to exceed its jurisdiction by engaging in a fact finding process and credibility assessment rather than investigating further by way of an interview of Gulliver and her father under section 42(9) of the Act , or by referring the Allegation to an adjudicative hearing thereby committing an error of law?

REASONS [ 14 ] For the reasons that follow, the appeal is dismissed. Issue 1 : What is the applicable standard of review to be applied by a Court on an appeal from a decision of the CAC dismissing an allegation that there were no reasonable grounds to believe a member engaged in conduct deserving of sanction?

The position of Gulliver [ 15 ] Gulliver’s legal counsel acknowledges that the CAC is a screening body but argues that in circumstances where the result is a dismissal of the Allegation as opposed to a referral for an adjudicative hearing, the Court must afford less deference and be satisfied that the CAC exercised this function in the context of a thorough investigation. [ 16 ] In discharging this role, a Court must conduct a probing analysis of both the record and the reasons.

Where there is a statutory right of appeal from a screening body’s decision to dismiss a complaint, then the appellate standards of correctness for errors of law and palpable and overriding error for questions of mixed fact and law apply. [ 17 ] During oral argument counsel described the issues before the Court as errors of law as opposed to errors of fact or a denial of procedural fairness. [ 18 ] In the matter under appeal, the CAC drew a negative inference as to why Gulliver did not attend the EPO hearing, as opposed to continuing to investigate the Allegation further by way of interviews of Gulliver and her father.

By failing to conduct this step or referring the matter for an adjudicative hearing, the CAC engaged in supposition and speculation as to why Gulliver did not attend thus constituting an error of law. [ 19 ] Second, the CAC exceeded its jurisdiction by relying on a text from Gulliver’s father that was cryptic and was hearsay. There being no applicable exceptions to the hearsay rule, this too constitutes an error in law considering her father was available for an interview, thus providing the CAC with the opportunity to address what he meant when he sent the Member the text regarding vacating the EPO.

The position of the Law Society [ 20 ] Counsel for the Law Society agrees that in cases where there is a statutory right of appeal then the standard of review is either (

i) correctness for statutory

interpretation, or (ii) palpable and overriding error for questions of mixed law and fact. However, these standards apply in the context of a decision from an adjudicative body, not a screening or investigative body like the CAC where the standard of reasonableness applies. To do otherwise would render the screening function of the CAC moot.

Instead, this Court should view the appeal by Gulliver as relating to whether or not the CAC made a reasonable assessment of the information contained in the record before dismissing the Allegation. [ 21 ] Counsel acknowledges that Gulliver is dissatisfied with the result, however, the reasons provided by the CAC demonstrate that it conducted an objective assessment of the evidence contained in the record.

She distinguishes the jurisprudence cited by Gulliver’s counsel concerning the applicability of the appellate standard as being limited to the context of a human rights commission screening process where a complainant has alleged a violation of their individual rights and has a vested interest in the outcome. [ 22 ] In the framework of an allegation against a law society member the guiding principle is the protection of the public, so there will be no impact to the complainant analogous to a human rights complaint.

Also, unlike a human rights commission screening body, statutorily, the CAC has no authority to make findings of fact. The Law Standard of review for a screening body (

a) The relevant legislation Law Society Act, 1999 , S.N.L. 1999, c. L-9.1 (“the Act ”) [ 23 ] The parties agree that Gulliver’s right to challenge the CAC’s dismissal of her allegations is governed under

section 45 of the 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 (

i) an investigation in accordance with the rules, (ii) further investigation in accordance with the rules where the vice-president conducted an investigation in accordance with subsection 44(1.1), or (iii) alternate 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 member’s 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.

(1.1) An investigation referred to in paragraph (1)(

a) or (

b) may be delegated by the vice-president or the complaints authorization committee to the staff of the society.

(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. …

(7) A complainant whose allegation is dismissed by the complaints authorization committee under subsection (2) may, within 30 days after receiving notice of the dismissal, appeal the dismissal to the Supreme Court by filing a notice of appeal with the court . (Emphasis mine) (

b) The relevant jurisprudence (

i) The pre-Vavilov jurisprudence on standard of review for a screening body Martin v. Law Society of Newfoundland and Labrador , 2010 NLTD(G) 186 [ 24 ] In Martin at paragraphs 17 to 18 , Orsborn, C.J. (as he then was) determined, based on a review of jurisprudence from the human rights context, that the standard of review of a decision not to refer a matter to the adjudication panel was one of “reasonableness”: 17 I was not provided with any authority that has considered the standard of review of a decision of a complaints authorization committee under the Law Society Act, 1999 .

There is authority in the human rights context to suggest that the appropriate standard of review of a decision to refer or not refer a matter to a formal hearing is one of reasonableness. See Spurrell v. Newfoundland (Human Rights Commission) , 2003 NLSCTD 28 ; Coady v.

Memorial University of Newfoundland , 2004 NLSCTD 73 . (Emphasis mine) 18 Given the legislated right of appeal, the screening or vetting stage of the process, and the particular expertise of the standing committee as part of the scheme by which the conduct of lawyers is regulated, I am satisfied that the appropriate standard of appellate review of a decision of the Complaints Authorization Committee to dismiss a complaint is reasonableness . [1] Connolly v.

Law Society of Newfoundland and Labrador , 2011 NLTD(G) 152 [ 25 ] Later in Connolly at paragraphs 22 to 23, Orsborn, C.J. examined the legal rationale behind a complainant’s right of appeal. Included in his analysis is dicta that a Court, when reviewing a decision of the CAC dismissing a complaint, should apply a standard of reasonableness as per Martin: 22 Why does the complainant have a right of appeal from a decision of the Complaints Authorization Committee to dismiss a complaint and not proceed further with it?

It is only the complainant that has a right of appeal at this stage -- the lawyer in question has no right of appeal from a decision of the Complaints Authorization Committee to pursue the matter further.

In my view, and bearing in mind the above context, the statutory right of appeal given to the complainant is not to protect any interest of the complainant, but rather to ensure that the regulation of the conduct of the members of the profession is conducted so as to protect the broader public interest and not the interests of the members of the profession. 23 On appeal, the process followed by the Complaints Authorization Committee and its decision to dismiss a complaint are reviewed by the Court against a standard of reasonableness. See the discussion in Martin.

Since no reasons are required -- see also Martin -- and none were given in this case, the court must perform its appellate review on the basis of the record before the Complaints Authorization Committee. As I noted in Martin , while it may be preferable for the Complaints Advisory Committee to provide reasons for dismissing a complaint: "... it is under no obligation to do so and I am not prepared to read such a requirement into a detailed and comprehensive statutory regime". ( Martin -- par. 22). In the absence of appellate guidance, I do not propose to revisit the issue.

Aylward v. Law Society of Newfoundland and Labrador, 2013 NLCA 68 [26] In Aylward at paragraphs 20 to 24 our Court of Appeal, citing the Supreme Court of Canada’s decision Dunsmuir v. NewBrunswick, 2008 SCC 9, held there are two possible standards of review where a Court is reviewing a substantive decision of a tribunal,namely reasonableness and correctness: Substantive Issue 20 A reviewing judge must be correct in his or her determination of the applicable standard of review: Burke v. Newfoundland andLabrador Association of Public and Private Employees, 2010 NLCA 12, 294 Nfld. & P.E.I.R. 230 at para. 49.

Here, the reviewing judgeheld that the standard of review applicable to the substantive issues on both the judicial review application arising from the caution ofMs. van Driel and the appeal arising from the dismissal of the collusion complaint was reasonableness. 21 As noted in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, there are two possible standards of review where aCourt is reviewing the decision of a tribunal: reasonableness and correctness.

In determining which standard should be applied, this Courtmust first look to existing jurisprudence to see whether the applicable standard has already been satisfactorily established. 22 A number of cases have dealt with the standard of review applicable to an appeal from a decision of the Committee to dismiss acomplaint. In Martin v.

Law Society of Newfoundland and Labrador, 2010 NLTD 186 , 2010 NLTD(G) 186, 302 Nfld. &P.E.I.R. 293, Chief Justice Orsborn held that a reasonableness standard applied to such appeals: [18] Given the legislated right of appeal, the screening or vetting stage of the process, and the particular expertise of the standingcommittee as part of the scheme by which the conduct of lawyers is regulated, I am satisfied that the appropriate standard of appellatereview of a decision of the Complaints Authorization Committee to dismiss a complaint is reasonableness. 23 Relying on Martin, Chief Justice Orsborn applied a reasonableness standard in Connolly v.

Law Society of Newfoundland andLabrador, 2011 NLTD(G) 152, 315 Nfld. & P.E.I.R. 281, at para. 23. Similarly in Tilley v.

Law Society of Newfoundland andLabrador, 2010 NLTD(G) 187, 303 Nfld. & P.E.I.R. 301, Faour J. held that the reasonableness standard applied, noting that theCommittee's main role is deciding whether to refer a complaint and such similar decisions are generally accorded considerable deference. 24 In general, "applying the Dunsmuir principles results in reasonableness remaining the applicable review standard for disciplinarypanels": see Doré v.Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 at para. 45. (See also Law Society of New Brunswick v.Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247.) The Committee is no exception, as the persuasive analysis in Martin, Connolly,and Tilley shows.

I agree with the Trial Division judge that the reasonableness standard applies both to the decision of the Committee todismiss one allegation and its decision to issue a caution with respect to the second allegation. (ii) Vavilov and the post-Vavilov jurisprudence on the standard of review for a screening body Canada (Minister of Citizenship and Immigration) v.

Vavilov, 2019 SCC 65 [27] In 2019, the Supreme Court, in Vavilov, revamped the judicial landscape as it pertained to the role of the courts when reviewingadministrative tribunal decisions. [28] Of particular interest to this appeal are the Court’s reasons at paragraph 33 and paragraphs 36 to 38, regarding instances wherethe departure from the presumption of reasonableness standard will be rebutted. One such instance cited by the Court was where thelegislature signaled a departure through the use of a statutory appeal mechanism, thereby invoking the application of appeal standards: B.

Derogation From the Presumption of Reasonableness Review on the Basis of Legislative Intent 33 This Court has described respect for legislative intent as the "polar star" of judicial review: C.U.P.E. v. Ontario (Minister ofLabour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 149. This description remains apt. The presumption of reasonableness reviewdiscussed above is intended to give effect to the legislature's choice to leave certain matters with administrative decision makers ratherthan the courts.

It follows that this presumption will be rebutted where a legislature has indicated that a different standard should apply.The legislature can do so in two ways. First, it may explicitly prescribe through statute what standard courts should apply whenreviewing decisions of a particular administrative decision maker. Second, it may direct that derogation from the presumption ofreasonableness review is appropriate by providing for a statutory appeal mechanism from an administrative decision maker to a court,thereby signalling the application of appellate standards. …

(2) Statutory Appeal Mechanisms 36 We have reaffirmed that, to the extent possible, the standard of review analysis requires courts to give effect to the legislature'sinstitutional design choices to delegate authority through statute. In our view, this principled position also requires courts to give effect tothe legislature's intent, signalled by the presence of a statutory appeal mechanism from an administrative decision to a court, that thecourt is to perform an appellate function with respect to that decision.

Just as a legislature may, within constitutional limits, insulateadministrative decisions from judicial interference, it may also choose to establish a regime "which does not exclude the courts but rathermakes them part of the enforcement machinery": Seneca College of Applied Arts and Technology v. Bhadauria, (SCC),[1981] 2 S.C.R. 181, at p. 195.

Where a legislature has provided that parties may appeal from an administrative decision to a court, eitheras of right or with leave, it has subjected the administrative regime to appellate oversight and indicated that it expects the court toscrutinize such administrative decisions on an appellate basis. This expressed intention necessarily rebuts the blanket presumption ofreasonableness review, which is premised on giving effect to a legislature's decision to leave certain issues with a body other than acourt. This intention should be given effect.

As noted by the intervener Attorney General of Quebec in its factum, [TRANSLATION] "[t]he requirement of deference must not sterilize such an appeal mechanism to the point that it changes the nature of the decision-makingprocess the legislature intended to put in place": para. 2. 37 It should therefore be recognized that, where the legislature has provided for an appeal from an administrative decision to a court,a court hearing such an appeal is to apply appellate standards of review to the decision.

This means that the applicable standard is to bedetermined with reference to the nature of the question and to this Court's jurisprudence on appellate standards of review. Where, forexample, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions ofstatutory

interpretation and those concerning the scope of a decision maker's authority, apply the standard of correctness in accordancewith Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. Where the scope of the statutory appeal includes questions offact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and lawwhere the legal principle is not readily extricable): see Housen, at paras. 10, 19 and 26-37.

Of course, should a legislature intend that adifferent standard of review apply in a statutory appeal, it is always free to make that intention known by prescribing the applicablestandard through statute. 38 We acknowledge that giving effect to statutory appeal mechanisms in this way departs from the Court's recent jurisprudence.However, after careful consideration, we are of the view that this shift is necessary in order to bring coherence and conceptual balance tothe standard of review analysis and is justified by a weighing of the values of certainty and correctness. (Emphasis mine) Law Society of Saskatchewan v.

Abrametz, 2022 SCC 29 [29] Recently, the Supreme Court of Canada revisited its analysis in Vavilov at paragraphs 26 to 30 of Abrametz. Rowe, J., speakingfor the majority, stated that the Court was “categorical” that where a legislature provides for a statutory appeal mechanism then appellatestandards are to apply. This would include both substantive issues and procedural fairness issues: A. Standard of Review 26 This case allows the Court to clarify the standard of review applicable to questions of procedural fairness and abuse of process ina statutory appeal.

The Court received submissions from the parties and interveners on this point. 27 In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, the Court held that when thelegislature provides for a statutory appeal mechanism from an administrative decision maker to a court, this indicates thatappellate standards are to apply: paras. 33 and 36-52. While this proposition was stated in the context of substantive review, the directionthat appeals are to be decided according to the appellate standards of review was categorical.

Thus, where questions of proceduralfairness are dealt with through a statutory appeal mechanism, they are subject to appellate standards of review. 28 This does not depart from Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, and MissionInstitution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, as those decisions related to judicial review and to the granting of prerogativewrits. Here, we are dealing with a statutory appeal.

As our Court has stated in Vavilov, at para. 36, "[w]here a legislature has providedthat parties may appeal from an administrative decision to a court, either as of right or with leave, it has subjected the administrativeregime to appellate oversight and indicated that it expects the court to scrutinize such administrative decisions on an appellate basis." 29 This case is a statutory appeal pursuant to The Legal Profession Act, 1990. Therefore, the standard of review is correctness forquestions of law and palpable and overriding error for questions of fact and of mixed fact and law: Housen v.

Nikolaisen, 2002 SCC33, [2002] 2 S.C.R. 235; Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, at paras. 24-25.

30 Whether there has been an abuse of process is a question of law. Thus, the applicable standard of review is correctness.(Emphasis mine) Oleynik v. Law Society of Newfoundland and Labrador, 2022 NLSC 151 [30] In Oleynik, my colleague, Noel, J., was faced with different issues than that which exist in this appeal. First, the Law Societyargued that Mr. Oleynik was required to bring a judicial review application on the grounds that he was denied procedural fairness.

Noel,J. denied this request and held, relying on Aylward, that in the context of procedural fairness there was no need to engage the standard ofreview analysis (see paras. 68 and 70). [31] Second, he distinguished jurisprudence referenced by counsel for the Law Society that the appellate standard of palpable andoverriding error is to be applied to decisions of the CAC.

Instead, he preferred to apply the reasonableness standard as palpable andoverriding error is a more deferential standard than a reasonableness review (see paras. 73-76): 73 The case law authorities submitted by counsel for the Law Society on the applicable appellate standard of review aredistinguishable. The authorities from Saskatchewan concern appeals from tribunal decisions. The tribunals made factual findings afterdiscipline committee hearings had occurred (as opposed to a screening committee determination without a hearing).

A tribunal's factualfindings are reviewable under the standard of palpable and overriding error. The NL Court of appeal authority involves the standard ofreview for an appeal of a lower court's discretionary decision: Hosseini v. College of Dental Surgeons of Saskatchewan, 2022 SKQB13; Strom v. Saskatchewan Registered Nurses' Association, 2020 SKCA 112; and Eimskip, USA, Icelandic Steamship Inc. v. NordicaFoods A/S, 2015 NLCA 17, at para. 29. 74 This is not an appeal under s. 55.2(1) of the Act from a decision of "an adjudication tribunal," which hears a complaint that hasbeen referred under s. 45(3)(b).

The appeal does not concern the standard of review applicable to an adjudication tribunal decision. 75 The Committee did not hear from witnesses or make credibility determinations in its assessment of the evidence. Accordingly,the post-Vavilov appellate standard of palpable and overriding error does not apply to the Committee's decision on its assessment ofevidence and the application of the evidence to the professional standard of conduct. 76 The standard or review on Issues 6 and 7 is therefore reasonableness. Analysis [32] Using the demarcation point of Vavilov in the

section above, I set out the relevant juridical passages I consider reflective of theevolution of the standard of review to be applied to appeals under section 45(7) of the Act. What follows is a

summary of my analysis ofthis evolution and what conclusion I drew regarding the intended standard of review arising from the wording used by the legislature. Pre-Vavilov: Unraveling the jurisprudence relating to section 45(7) [33] In Martin and Connolly, Orsborn, C.J. determined that the standard of review for a decision not to refer a matter to theadjudication panel was one of “reasonableness” (see Martin at para. 18; Connolly at para. 23).

He did so by relying upon jurisprudencein the human rights context as he was not provided with any authority that considered the standard of review for a decision of acomplaints authorization committee under the Act (see Martin, at para. 17). [34] In my view, the wording in section 21(4) of the Human Rights Code, R.S.N.L. 1990, c.

H-14 (the “Code”), which existed at thetime of Martin, contemplated an application for a judicial review as opposed to a right of appeal as contemplated by the wording used insection 45(7) of the Act. [35] Later in Aylward, the Court of Appeal, citing Dunsmuir, held there are two possible standards of review where a Court isreviewing the decision of a tribunal: reasonableness and correctness (see para. 21).

The Court went on to determine that should an issueinvolve a question of procedural fairness then there is no standard of review and the decision should be set aside (see Aylward, para. 19). [36] Citing Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, at paragraph26, the Court determined tribunals performing complaint screening roles are non-adjudicative (see Aylward, at paras. 40-41) and appliedthe doctrine of legitimate expectations as it pertained to a complainant in the context of a non-adjudicative screening committee. [37] It went on to state that the doctrine involves taking into account the promises or regular practices of administrative decision-makers.

In so doing, it will generally be unfair to act in contravention of representations as to procedure, or to backtrack on substantivepromises without according significant procedural rights. [38] In the case under appeal there was no evidence that pointed to any substantive promises, policies or regular practices of theLaw Society which might accord Gulliver additional procedural rights and, therefore, no legitimate expectation that there would be anyprocedure beyond what was afforded (see Aylward, at para. 45).

Vavilov and Post-Vavilov Jurisprudence [39] The Supreme Court in Vavilov, citing its decision in C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, described the

reasonableness standard as the “polar star” of judicial review. It may only be rebutted where a legislature has indicated a differentstandard should apply. [40] The Court cited two examples, one of which being where a legislature directed a derogation from the presumption ofreasonableness review by providing a statutory appeal mechanism from an administrative decision maker to a court, thereby signalingthe application of appellate standards (see paras. 33, and 36-38 of Vavilov). [41] Applying its analysis in Housen v. Nikolaisen, 2002 SCC 33, the Court stated this meant when considering questions of law,including questions of statutory

interpretation and those concerning the scope of a decision maker's authority, the standard of correctnessshould be applied.

Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questionsis palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable). [42] In providing this direction, the Supreme Court acknowledged that giving effect to statutory appeal mechanisms in this waydeparted from the Court's recent jurisprudence, but that the shift was necessary in order to bring coherence and conceptual balance to thestandard of review analysis by a weighing of the values of certainty and correctness (see para. 37 of Vavilov). [43] In its recent decision in Abrametz, citing Vavilov, the Supreme Court held that when the legislature provides for a statutoryappeal mechanism from an administrative decision maker to a court, this indicates that appellate standards are to apply.

This includesquestions of procedural fairness which are dealt with through a statutory appeal mechanism (see paras. 26-30 of Abrametz). [44] As noted previously in the

section above concerning Martin, the jurisprudence relied upon by counsel for the Law Society inthat case involved wording borrowed from section 21(4) of the Code. I interpret the wording used by the legislature in the Code asconveying a complainant the right to apply to the Trial Division for a judicial review, hence the standard of reasonableness would apply.This still remains the case today with similar wording used by legislatures post-Vavilov. [45] This analysis is supported further in Abrametz where the statutory provision under consideration was section 56(1)(

a) of TheLegal Profession Act, 1990, S.S. 1990-91, c. L-10.1, s. 3., which granted a member of the Law Society of Saskatchewan a statutory rightto appeal from an adjudicative tribunal.

The words used in the statute are as follows: “may appeal the decision of the hearing committeeor a penalty assessed or requirement imposed by the hearing committee resulting from the decision to the Court of Appeal”; whereas thewording used in section 43(1) of the same statute for a dismissal of complaint by the screening committee reads as follows: If there is adecision that no further action be taken with respect to the determination of a complaint, a complainant may apply to the society for areview of that decision.” (Emphasis mine) [46] Before concluding, I note that in Oleynik, Noel, J. determined that the standard to be applied to decisions of the CAC isreasonableness because it is less deferential than palpable and overriding error.

This analysis has garnered support among Canadian legalscholars. I will discuss this further in my palpable and overriding error analyses below. Conclusion [47] Based on my reading of the wording contained in section 45(7) of the Act, and relying on the Supreme Court’s analysis as setout in paragraph 33 and paragraphs 36 to 38 of Vavilov, and paragraphs 27 to 29 of Abrametz, I conclude the legislature intended theappellate standard to be applied to appeals from a decision of the CAC dismissing an allegation.

The standard of reasonableness is to bereserved exclusively for statutory wording which permits a Court to conduct a judicial review. Issue 2: Should I decide the standard of review is an appellate standard, then does the record disclose there were factualdiscrepancies from which the CAC drew negative inferences and made credibility assessments? The position of Gulliver [48] Gulliver’s legal counsel argues that the CAC failed to fulfill two conditions of its statutory duty to investigate. Specifically, todo so with neutrality and thoroughness. Citing the decision in Ernst v.

Canadian National Railway Co., 2021 FC 16 , 2021 F.C.16 at paragraph 54, he says the CAC must consider crucial or critical issues and the decision must not be clearly deficient in conductingthis analysis. [49] In the current appeal this would have meant conducting interviews of Gulliver and her father under section 42(9) of the Act andif discrepancies remained then it should have referred the Allegation to the adjudicative panel. [50] Instead, the CAC’s approach to the discrepancies between the Member’s version and Gulliver’s version was to make acredibility assessment of the Allegation by drawing the following negative inferences: (

a) that if Gulliver had told the member to keepthe EPO in place then she would have attended the hearing, and (

b) interpreting text from her father as questioning and dismissingGulliver’s allegation that her instructions were not followed. [51] In counsel’s view, this constitutes a process of fact finding arising from factual inferences and

interpretations of hearsayevidence, therefore, making it a matter of law with the standard of review being correctness. The position of the Law Society [52] Counsel for the Law Society states that it is incorrect to suggest the CAC made credibility assessments based on itsinterpretation of the evidence and factual inferences. She argues it did not assess the credibility of either Gulliver or the Member. Ananalysis or any comment regarding the credibility of either party to the Allegation is not included in the decision letter. Rather, the CAC

assessed the information in the record as against the Member’s professional obligations. [53] The CAC’s assessment of the information is subject to a reasonableness standard of review and should be affordedconsiderable deference. The Law Standard of review for the drawing of factual inferences [54] In R v. Ryan, 2011 NLCA 53, at paragraph 20, our Court of Appeal had the following to say about the standard of review forfactual inferences: 20 The standard of appellate review on questions of law is correctness and on findings of fact is palpable and overriding error.(Housen v. Nicholaison, 2002 SCC 33). In R. v.

Clarke, 2005 SCC 2 , [2005] 1 S.C.R. 6 (S.C.C.), Fish J., succinctly expressedthe latter standard in the context of a criminal case at paragraph 9: Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they areclearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And itmust be shown to have affected the result.

"Palpable and overriding error" is a resonant and compendious expression of this well-established norm: ... [55] If the palpable and overriding error standard applies, appellate judges must show great deference to trial judges with respect totheir findings and inferences (see R. v. Noseworthy, 2021 NLSC 115). Analysis [56] Contrary to the submission of Gulliver’s legal counsel, I conclude, based on my

interpretation of Ryan, that should a screeningbody like the CAC engage in the drawing of factual inferences and rely on the use of hearsay then it would be subject to the appellatestandard of palpable and overriding error, not the standard of correctness. [57] After making the determination that the appellate standard of palpable and overriding error is to be applied in the context ofthis case, then I must decide whether the CAC made such an error when dismissing Gulliver’s Allegation. [58] As referenced above in my analysis regarding Oleynik, some legal scholars have questioned this approach.

Professor Paul Daleyposits that palpable and overriding error is a more deferential standard than the reasonableness review as suggested in Vavilov. Whenexamined in the context of a statutory appeal, it would create a mismatch between palpable and overriding error analysis and areasonableness review. This will likely prompt legal arguments that in administrative law these standards should converge, especially ifthe palpable and overriding error standard is less generous to appellants (see Paul Daley, “Unresolved Issues after Vavilov” (2022), 85Sask. L. Rev. 89–118).

Did the CAC make credibility assessments by drawing factual inferences in making its decision to dismiss Gulliver’s allegations, therebycommitting a palpable and overriding error? [59] My answer to this question is “no.” [60] As noted in Patient X v.

College of Physicians and Surgeons of Nova Scotia, 2013 NSSC 165 where a committee is performinga screening role (see Aylward, paras. 40-41), the process is meant to be a simple and expeditious way of investigating and screening outcomplaints where there is insufficient evidence to warrant referral to a full hearing. [61] A review of the record discloses that the CAC considered the following evidence as being relevant to their decision to dismissthe allegation: (

i) In her allegation document, Gulliver noted Ms. Baker arranged for a meeting with her and her father the next day, December19th, 2019 for after 4pm (see Record, Tab 3, page 2). (ii) On the day of the meeting, an incident arose with respect to the Gulliver’s son and his paternal grandfather requiring her and herfather to leave the meeting unexpectedly. The incident resulted in a CCSD report and as recorded in her allegation document stated thatshe was “in a tizzy” that day (see Record, Tab 3, page 2). (iii) An email, dated December 19, 4:37 pm from Lisa Baker to Melanie Del Rizzo– in the email, Ms.

Baker states: My client agrees to withdraw the EPO on the conditions that Mr. Conway have no communication with Ms. Gulliver barring an absoluteemergency. (at page 134 of the Record) (iv) The transcript from the Court appearance on December 20, 2019 at 2:00 p.m. confirms Ms. Baker consenting to the EPO be

vacated and mentioning the high-conflict nature of the relationship that gave rise to it. (

v) Gulliver’s father’s letter to the CAC wherein he states “I had been informed by Ms. Baker that the EPO would be set aside temporarily and if Mr.

Conway ‘stepped out of line’ it would be reinstated” (Record, Tab 3, page 2). [ 62 ] Using this evidence from the record, the CAC gave the following reasons when dismissing Gulliver’s Allegation against the Member: With respect to allegation (i), that Lisa Baker failed to follow Susanne Gulliver’s instructions with respect to the EPO that was in place against her ex-husband, the Committee is of the opinion that there are no reasonable grounds to believe that Lisa Baker engaged in conduct deserving of sanction as alleged.

The Committee noted that Susanne Gulliver takes the position that Lisa Baker failed to follow her instructions with respect to the EPO that was in place against her ex-husband. She contends that at a meeting on December 19, 2019 she advised Lisa Baker that she wanted to fight to keep the EPO in place. Lisa Baker takes the position that at the meeting on December 19, 2019, Susanne Gulliver provided instructions to consent to having the EPO vacated.

The Committee noted that both Susanne Gulliver and Lisa Baker have highlighted that prior to the December 20, 2019 hearing, Lisa Baker had noted that if the EPO hearing were to go ahead, Susanne Gulliver would have to take the stand and give oral evidence. The record demonstrates that Susanne Gulliver did not attend court on December 20, 2019 to give evidence. The Committee noted that if Susanne Gulliver had provided instruction to fight to keep the EPO in place, it would have been reasonable for her to conclude that her attendance at Court was required.

As she did not attend at Court, this reasonably lends itself to the position taken by Lisa Baker. The Committee also noted that the records indicate that Wayne Gulliver was present at the December 19, 2019 meeting. The Committee highlights a text message sent from Wayne Gulliver to Lisa Baker, on December 20, 2019. In the text message, Wayne Gulliver states “The fact that Susanne volunteered to give up the EPO”.

This reasonably lends itself to the position taken by Lisa Baker. [ 63 ] From my review of the record, I conclude the CAC did not engage in a process of factual inference drawing and credibility assessment when providing its reasons that there were no reasonable grounds to believe the Member engaged in conduct deserving of sanction. [ 64 ] Rather, I determine that it relied solely on the evidence contained in the record itself. Gulliver has not demonstrated that the CAC’s reasons are clearly wrong, unsupported by the evidence or otherwise patently unreasonable.

Most importantly, I cannot find a plainly identified error that has affected the result. [ 65 ] Should I be incorrect in my analysis above, and the CAC’s decision is subject to a reasonableness review, then I also find the CAC’s decision is acceptable and defensible based on my review of the record (see Vavilov , at para. 83 ). [ 66 ] The CAC is an investigative body and therefore it is more constrained in its decision-making scope than an adjudicative tribunal.

As I will discuss later in my reasons, the Member is owed a duty of fairness whereas a complainant is not a party and is not entitled to participate in the same manner as the Member. [ 67 ] When the decision of the CAC is viewed in the context of the record, its reasons are internally coherent and provide a rational chain of analysis on the critical points (see paras. 85 and 102-103 of Vavilov ) and they meaningfully address the key issues raised by Gulliver and the Member (see paras. 127-128 of Vavilov ).

Conclusion [ 68 ] The appellate standard of palpable and overriding error is not engaged and I defer to the CAC’s reasons in dismissing the Allegation. Therefore, this ground of appeal is dismissed. Issue 3: Did the investigative process followed by the CAC cause it to exceed its jurisdiction by engaging in a fact finding process and credibility assessment rather than investigating further by way of an interview of Gulliver and her father under section 42(9) of the Act , or by referring the Allegation to an adjudicative hearing thereby committing an error of law?

The position of Gulliver [ 69 ] Gulliver’s counsel argues that the CAC went beyond its investigative role by making credibility assessments based on an

interpretation of the evidence and the drawing of factual inferences. [ 70 ] He says the Law Society in its Appeal Factum claims that the CAC does not engage in fact finding or credibility assessment, yet in Gulliver’s case this is the very process it engaged in when dismissing the Allegations. Instead, this is a function to be reserved for a disciplinary panel. [ 71 ] Alternatively, as a minimum requirement, the CAC pursuant to section 42(9) of the Act , should have conducted an interview of Gulliver’s father to determine the meaning of his texts. Section 42(9) reads as follows:

The complaints authorization committee, the fitness to practice committee, an adjudication tribunal appointed under

section 46 and aperson appointed by any of them may summon a respondent or other person and require the respondent or other person to give evidence,orally or in writing, upon oath or affirmation, and produce the documents and things that any of them considers necessary for the fullinvestigation and hearing of an allegation or complaint and shall have the powers, privileges and immunities that are conferred on acommissioner appointed under the Public Inquiries Act, 2006. [72] The failure to pursue either step constitutes an error of law.

The position of the Law Society [73] Counsel for the Law Society argues the suggestion that the CAC exceeded its jurisdiction by making credibility assessmentsbased on its

interpretation of the evidence and factual inferences is incorrect. [74] Many allegations received by the Law Society are based on differing views expressed by lawyers and clients. To suggest allthey-said/they-said allegations should be referred to a hearing because they may require a credibility assessment is contrary to JusticeShaw’s comments adopted in Martin, particularly where there is a reasonable basis in the record to dismiss the allegation. [75] Requiring this course of action is contrary to the role of the CAC as a statutory committee and as a screening body and servesno public interest.

The Law The role of the CAC and its duty to investigate [76] At paragraphs 18 to 19 of Aylward, the Court of Appeal characterized the issues of the failure to interview the Law Societymember and the failure to refer the allegations to an adjudicative hearing as questions of procedural fairness as opposed to substantivequestions.

The Court went on to hold that where a breach of the duty of procedural fairness is established the decision must be set aside: Procedural Fairness Issue 18 On this appeal, the Appellant raises questions relating to whether the Committee breached its duty of procedural fairness by nothaving interviewed Ms. van Driel about the scheduling of the settlement conference and about her dealings with Justice Noonan withrespect to the actual conference.

He also asserted the right to be heard at an adjudication tribunal hearing, an issue not raised before theTrial Division judge. 19 Where a party alleges a breach of the duty of procedural fairness, the Court does not need to engage in an assessment of theappropriate standard of review: Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249 at para. 74. Ifthe tribunal being reviewed failed to accord appropriate procedural safeguards to an interested party, the decision must be setaside. Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 43.

See also McAdam v. Law Societyof Newfoundland and Labrador, 2010 NLTD 39, 302 Nfld. & P.E.I.R. 284, at para. 11, citing Ellis-Don Ltd. v. Ontario (LabourRelations Board), 2001 SCC 4, [2001] 1 S.C.R. 221 at para. 65. [77] However, in Abrametz at paragraph 27, the Supreme Court confirmed the appellate standard of review applies to proceduralfairness issues in instances where the legislature has provided wording for a statutory appeal mechanism: 27 In Canada (Minister of Citizenship and Immigration) v.

Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, the Court held that when thelegislature provides for a statutory appeal mechanism from an administrative decision maker to a court, this indicates thatappellate standards are to apply: paras. 33 and 36-52. While this proposition was stated in the context of substantive review, the directionthat appeals are to be decided according to the appellate standards of review was categorical.

Thus, where questions of proceduralfairness are dealt with through a statutory appeal mechanism, they are subject to appellate standards of review. (Emphasis mine) [78] At paragraphs 29 and 35 of Aylward, the Court of Appeal had the following to say about the concept of procedural fairness inthe context of the CAC: 29 As noted by Justice L'Heureux-Dubé in Knight v.

Indian Head School Division No. 19, (SCC), [1990] 1 S.C.R.653, "the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case." Indetermining the content, Courts are directed to look at the following non-exhaustive factors: (1) the nature of the decision; (2) the natureof the statutory scheme; (3) the significance of the interests; (4) the legitimate expectations of the person challenging the decision; and(5) the previous procedural choices of the administrative decision maker (Patient X v.

College of Physicians and Surgeons of NovaScotia, 2013 NSSC 165, 330 N.S.R. (2d) 345 at para. 16, citing Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817 at paras. 21-28).

The ultimate objective of this analysis is to ensure that "administrativedecisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and socialcontext, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered bythe decision-maker" (Baker, paragraph 22). … 35 In context, it is clear that the role of the Committee is to screen allegations to determine if any sanctions or further proceedings

are appropriate. As noted by Hood J. in Patient X: [33] ... Where a committee is performing a screening role, as it was in this case, extensive procedural rights could impede theefficiency of the process ... It is meant to be a simple, expeditious process to investigate complaints and screen out those where itconcludes there is not sufficient evidence to warrant referral to a full hearing. [34] There is no oral hearing required to dismiss a complaint; thus neither direct nor cross-examination of the physician is evencontemplated in the legislation.

To read in such procedural rights would essentially convert the investigation stage into an additionalhearing stage. That is impractical and undermines the entire structure of the complaints process that the legislature intended.

Overall,therefore, this factor points to a lower level of procedural fairness. [79] Later at paragraphs 39 to 45 it determined the CAC’s role is investigative or inquisitorial, as opposed to adjudicative, basedupon the statutory framework under the Act. [80] Specifically, it is charged with generating information in order that it may determine whether there are reasonable grounds tobelieve a member has engaged in conduct that may be deserving of sanction. In other words, its primary function is to perform ascreening role so that further action may be taken if necessary.

As such, the doctrine of legitimate expectations, as noted in Baker atparagraph 26, applies. [81] This doctrine is based upon the principle that ‘circumstances’ affecting procedural fairness take into account the promises orregular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representationsas to procedure, or to backtrack on substantive promises without according significant procedural rights. Analysis [82] In Aylward, the Court of Appeal confirmed the CAC is a screening body that does not engage in fact finding.

A failure tointerview or refer allegations to an adjudicative hearing are questions of procedural fairness as opposed to substantive questions. As anissue of procedural fairness, the doctrine of legitimate expectations applies with the appellate standard being correctness as it is aquestion of law. [83] As noted by Justice L'Heureux-Dubé in Knight v.

Indian Head School Division No. 19, (SCC), [1990] 1S.C.R. 653, the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case.The ultimate objective of this analysis is to ensure that “administrative decisions are made using a fair and open procedure, appropriateto the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to putforward their views and evidence fully and have them considered by the decision-maker” (Baker, at para. 22). [84] Gulliver’s counsel points to the wording used in section 42(9) of the Act as affording her additional procedural rights such asthe right to have herself and her father interviewed.

While I agree that such a procedure is available to the CAC, it is also available to thefitness to practice committee and an adjudication tribunal. Further, the wording uses the word “may” which is deemed to be permissiveunder section 11(2) of the

Interpretation Act, R.S.N.L. 1990, c. I-19. [85] A member of a self-regulated profession is owed a duty of fairness to varying degrees at different stages in the investigativeand discipline process. A complainant is not a party to the discipline process, not subject to potential sanctions, and is not entitled toparticipate in the same manner as the subject of the complaint. Axiomatically, the duty owed to a regulated member is categoricallydifferent from that owed to a complainant.

Despite this clear distinction, the Court takes the view that a limited duty of fairness is owedto a complainant at the investigation stage (see Toutsaint v. Saskatchewan Registered Nurses Assn. (Investigation Committee), 2023SKCA 11, at para. 22). [86] Given this entitlement, I must apply the Baker framework to the specific context of this case. A very good

summary of thesefive factors was set out in paragraph 28 of the reasons in Toutsaint: (

a) The nature of the decision and the process used to make it. The more the process provides for a decision resembling judicialdecision-making, the more likely it is that procedural protections closer to the trial model will be required; (

b) The nature of the statutory scheme and the terms of the statute under which the body operates. Greater procedural protections arerequired when no appeal procedure is provided in the statute or when the decision will finally determine the issue; (

c) The importance of the decision to the individual affected. The greater the impact on the lives of those it affects, the morestringent the procedural protections; (

d) The legitimate expectations for procedural fairness of the person challenging the decision, which is often informed by any policythe public body has in place respecting processes for decision-making; and

(

e) The choices of procedure made by the body itself, particularly when the statute gives the decision-maker the ability to choose its own procedures, or when the body has expertise in determining what procedures are appropriate. The application of the Baker Factors to Gulliver (

a) The nature of the decision [ 87 ] The CAC is a screening body not an adjudicative body. As per the decision in Patient X , the imposition of extensive procedural rights could impede the efficiency of this type of process. This factor favours a lower level of procedural fairness for a complainant. (

b) The nature of the statutory scheme [ 88 ] The statutory structure of the CAC is designed to employ a simple and expeditious process to investigate complaints and screen out those where it concludes there is insufficient evidence to warrant referral to a full hearing. [ 89 ] To read in a mandatory requirement that the CAC must conduct interviews where the grounds of appeal allege that it made inferences of fact and engaged in credibility assessment would essentially mandate an additional investigation.

This would be impractical and undermine the entire structure of the complaints process that the legislature intended. Section 45(7) provides for a right of appeal from the CAC’s decision to dismiss an allegation. [ 90 ] In making this observation, I am not saying that there will never be an occasion where the CAC should exercise their discretion and conduct interviews of the complainant, the member or any material witness especially given that its decision is dispositive of an allegation. Overall, this would qualify as a neutral factor for a lower level of procedural fairness for a complainant. (

c) The significance of the interests [ 91 ] The objective of a professional discipline process is not the vindication of the complainant’s rights, but the regulation of the profession itself. The decision to dismiss the Allegation does not affect the right of a complainant to pursue civil proceedings. The Member and the public are the stakeholders but that is not to say there is no effect on Gulliver as the CAC’s decision is final and dispositive. This factor favours a lower level of procedural fairness for the complainant. (

d) The legitimate expectations of the person challenging the decision [ 92 ] The level of expectation regarding the duty of procedural fairness owed to the Member is much higher than to Gulliver. However, that does not mean there is no duty of fairness owed. As noted by the Court in Toutsaint the level of procedural fairness would be assessed at the lower end of the spectrum (see para. 39). [ 93 ] The wording of section 42(9) is permissive and does not afford Gulliver additional procedural rights such as the right to be interviewed. This factor favours a lower level of procedural fairness for a complainant. (

e) The previous procedural choices of the administrative decision-maker [ 94 ] Neither party provided direct evidence on this factor, although I note that in Alyward the Court held the failure to interview the Law Society member and the failure to refer the allegations to an adjudicative hearing did not amount to a denial of procedural fairness.

This factor favours a lower level of procedural fairness for a complainant. [ 95 ] Having previously determined that the CAC did not make a palpable and overriding error in dismissing Gulliver’s allegations based on the evidence contained in the record, I also conclude that the Baker factors afford her a low level of procedural fairness. There was no basis for a legitimate expectation that there would be any procedure beyond what was afforded. This would include any expectation that there was a right to be interviewed or that the Allegation would be referred to an adjudication panel.

Conclusion [ 96 ] The level of procedural fairness to be afforded to Gulliver under

section 45 of the Act is low. The CAC did not exceed its jurisdiction when it dismissed the Allegation pursuant to section 45(2). Gulliver has failed to establish the CAC committed an error of law. DISPOSITION [ 97 ] For the reasons above, the appeal is dismissed. Given the complexity of the issues before the Court combined with the mixed result, there will be no order as to costs.

_____________________________ Peter N. Browne Justice [1] In order to understand my Analysis

section below, I feel it is worthwhile at this point to set out the statutory wording of Section 21(4) of the Human Rights Code , R.S.N.L. 1990, c.H-14 (the “ Code ”) in existence at the time Spurrell and Coady were decided: