2020 MBCA 48, 2020 MBCA 48

Citation: Jhanji v The Law Society of Manitoba, Date: 20200512 2020 MBCA 48 Dockets: AI19-30-09320; AI19-30-09348 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Holly C. Beard Madam Justice Diana M. Cameron BETWEEN : vibhu raj Jhanji ) V. R. Jhanji ) on his own behalf (Applicant) Appellant ) ) R. H.

Kravetsky ) for the Respondent - and - ) ) Appeal heard: The law society of manitoba ) February 3, 2020 ) (Respondent) Respondent ) Judgment delivered: ) May 12, 2020 On appeal from 2019 MBQB 90 and 2019 MBCA 113 RESTRICTION ON PUBLICATION: The sealing order made on February 4, 2019, remains in effect with respect to the documents under seal, including any information related to solicitor-client communications and documentation.

The names of any clients of the applicant or any other members of The Law Society of Manitoba raised in these proceedings, or any information that could lead to the identification of those clients, shall not be published without further order of the Court to that effect. HAMILTON JA [ 1 ] The complaints investigation committee (the CIC) of The Law Society of Manitoba (the Law Society) suspended the applicant from the practice of law pending the completion of disciplinary proceedings on three charges of incompetence (the interim suspension).

A Court of Queen’s Bench judge (the reviewing judge) dismissed the applicant’s appeal of the interim suspension. The applicant appeals the dismissal by the reviewing judge. [ 2 ] I would dismiss the appeal. The applicant has not demonstrated any basis to intervene in the discretionary decision of the CIC to interim suspend him. [ 3 ] At the commencement of the appeal hearing, the panel heard and dismissed another appeal (the chambers appeal) by the applicant. A judge of this Court (the chambers judge) had dismissed the applicant’s motion to disqualify counsel for the Law Society for conflict of interest.

The panel’s reasons for dismissing the chambers appeal are set out later in these reasons. Background [ 4 ] The applicant practised law in India for 20 years before receiving his call to the bar in Manitoba in May 2015. At the time of the interim suspension on December 12, 2018, he was practising law from his home as a sole practitioner.

[ 5 ] In April 2018, the Law Society received communications about the applicant from two courts. First, after contacting the Law Society with concerns about the applicant’s conduct during a hearing on three appeals, the Chief Justice of the Court of Appeal forwarded to the Law Society copies of the facta filed by the applicant. Second, a trial judge of the Court of Queen’s Bench (Family Division) forwarded to the Law Society her written decision that commented unfavourably on the applicant’s conduct during a trial.

These communications were not formal complaints, but information for the Law Society to consider and take whatever action it deemed appropriate. [ 6 ] In July 2018, after investigating this information, the Law Society referred the two matters to the CIC, which then ordered a review of the applicant’s practice (the practice review). [ 7 ] While the practice review was pending, the Law Society received, and investigated, two complaints; one from Manitoba Prosecution Service with respect to a criminal matter and the other from opposing counsel in a civil litigation matter. [ 8 ] The complaint from Manitoba Prosecution Service concerned the applicant’s decision to present submissions at a sentencing hearing contrary to a disposition agreement with Crown counsel. [ 9 ] The complaint in the civil litigation matter concerned the applicant’s pleadings, which the opposing counsel described as “incomprehensible”. [ 10 ] The Law Society provided the applicant with the substance of the information received from the courts and copies of the two complaints.

He responded to the information and the complaints and participated in the practice review. The Practice Review [ 11 ] In September 2018, two representatives of the Law Society (the reviewers) met the applicant at his apartment, reviewed his files and looked into his office systems. They provided their report to the applicant for his review and comment. [ 12 ] The reviewers described a total absence of office systems and concluded that the clients were not being adequately represented.

They identified “significant gaps in [the applicant’s] knowledge of the applicable law” and “[h]is inability to draft cogent pleadings” and noted that the applicant “would take positions that were non-sensical”.

They also noted that the applicant was under financial stress and he expressed that he was depressed. [ 13 ] The reviewers’ recommendations included that the applicant: 1. significantly change his approach to managing client files and billing in order to lessen his financial stress; 2. consider changing the focus of his practice to something less adversarial and more likely to bring in a clientele with the ability to pay; 3. seek help for his depression; 4. be required to acquire and apply a set of Canadian English language precedents; and 5. be required to practice under supervision until he shows significant improvement. [ 14 ] The applicant did not accept the reviewers’ findings or their recommendations.

October 31, 2018 CIC Meeting [ 15 ] On October 31, 2018, the CIC considered the results of the investigations, the practice review report, the applicant’s responses and the materials that he provided. The CIC did not invite the applicant to appear at this meeting. [ 16 ] The CIC authorised three charges of incompetence arising from the investigations. It considered, and rejected, imposing

remedial conditions, noting that the applicant was not receptive to remedial conditions being imposed. The CIC also concluded that it was necessary to consider interim measures for the protection of the public, pending the hearing of the charges. It directed that the applicant appear at their next meeting on December 12, 2018, so that he could be heard on that question.

December 12, 2018 CIC Meeting [ 17 ] Prior to the December 12th meeting, the Law Society provided the applicant with extensive disclosure of the materials considered by the CIC, as well as the Law Society’s disclosure list in relation to the pending discipline proceedings on the charges. [ 18 ] After the Law Society and the applicant made submissions, the CIC deliberated and then ordered the interim suspension “for the protection of the public”. See

section 68(

c) of The Legal Professions Act , CCSM c L107 (the Act ): Committee may suspend or impose conditions 68 The complaints investigation committee may do one or more of the following: . . . (

c) if the committee considers it necessary for the protection of the public, and after directing that a charge be laid, (

i) impose restrictions on the member’s practice of law or suspend him or her from practising law pending completion of the investigation and any disciplinary proceeding that may follow . . .. [ 19 ] In its written reasons, the CIC reviewed the specific concerns and complaints leading up to the investigations and noted that the practice review report “confirmed that there were serious concerns regarding [the applicant’s] competence to practise and his ability to run an effective practice.” [ 20 ] The CIC identified the sole issue to be “whether protection of the public warranted imposing restrictions upon [the applicant’s] right to practice law, suspending his licence or such other measures permitted by the Act and its rules.” [ 21 ] The CIC concluded that: The matters that led to the complaints were so wide ranging that it did not appear, from the evidence before the Committee, there was any area in which this member could practice safely.

The oral hearing before the Committee did nothing to alleviate the competence concerns. The Committee considered whether a restriction less than suspension may have sufficed to protect the public. However, the Committee was not able to identify any area of competence such that restricting his area of practice would assist in protecting the public. Given the nature of the competence concerns it was determined that requiring this member to practice under supervision of another lawyer would not be a practical option.

Decision of the Reviewing Judge [ 22 ] The applicant appealed the interim suspension to the Court of Queen’s Bench. See section 75(1) of the Act : Appeal of interim suspension 75(1) A member whose right to practise law in Manitoba is suspended under

section 68 may appeal the suspension to a judge of the Court of Queen's Bench.

[23] The reviewing judge dismissed the applicant’s appeal. [24] He found that the Law Society’s investigations followed the Act and the Law Society’s rules and that the applicant wasgiven “a full opportunity to respond to the allegations and he did so” (at para 9). He concluded that there was no procedural unfairness,as alleged by the applicant, and that the CIC had no other option but to impose the interim suspension.

He wrote (at para 20): In my opinion, the CIC properly considered and assessed the evidence in arriving at its decision that there was no other option short of aninterim suspension which would not jeopardize the public. . . . The Chambers Appeal [25] Mr. Kravetsky, a lawyer at the Law Society, assumed conduct of the discipline proceedings after the imposition of theinterim suspension. [26] The applicant filed a motion in this Court to disqualify Mr. Kravestsky for conflict of interest.

In the same motion, hesought the admission of fresh evidence. [27] The chambers judge referred the fresh evidence motion to the panel hearing the appeal and dismissed the motion todisqualify Mr. Kravestsky. The applicant appealed. [28] At the beginning of the appeal hearing, the panel heard, and dismissed, the chambers appeal, with brief reasons to follow,which I now provide. [29] Mr. Kravetsky and the applicant have had discussions, communications, meetings and other dealings pertaining to thecharges and the conduct of the discipline hearing.

These included settlement discussions about how the charges might be resolved (thesettlement discussions). [30] The applicant’s submissions were mostly incomprehensible. He is clearly distraught about the interim suspension and theproceedings against him. He expresses anger about how Mr. Kravestsky has prosecuted the charges. While he asserts conflict ofinterest, he does so only with general allegations of bias against him as a foreign-trained lawyer, systemic discrimination and breaches ofthe Law Society’s professional code of conduct.

At best, the allegations are without merit. [31] The applicant failed to identify any conduct, let alone a conflict of interest, by Mr. Kravetsky that warranted this Court’sattention. The panel agrees with the chambers judge that, “there was a complete lack of evidence and legal rationale to justify” an orderdisqualifying Mr. Kravestsky (at para 5). [32] As for the fresh evidence motion, with the consent of the parties, the panel reviewed the material the applicant sought tohave admitted as fresh evidence prior to the appeal hearing. The material included email correspondence with Mr.

Kravestsky about thesettlement discussions, submissions of the applicant to the discipline committee, a letter to the Ombudsman of Manitoba and a letter fromthe Premier’s office responding to the applicant. [33] The panel did not admit any of this material into evidence. The applicant did not address any of the applicable criteria forthe admission of fresh evidence (see Palmer v The Queen, (SCC), [1980] 1 SCR 759).

More fundamentally, the materialwas either not evidence (submissions by the applicant), not admissible (the settlement discussions) or simply not relevant to any issue tobe decided with respect to the applicant’s motion to disqualify Mr. Kravetsky, or any other issue before us with respect to the appeal. Positions of the Parties on the Appeal [34] The applicant’s notice of appeal contains 28 grounds of appeal.

The essence of his positon is that the interim suspensionwas unlawful and unjust and that the Law Society and the CIC breached their duties of procedural fairness. [35] The Law Society’s position is that the appeal has no merit because the reviewing judge made no palpable and overridingerror of fact or any error of law. In addition, the Law Society says that the interim suspension was an exercise of discretion entitled todeference and the finding by the reviewing judge that there was no breach of the duty of procedural fairness is entitled to deference. Analysis Standard of Review

[36] Except for grounds related to questions of procedural fairness, the appeal to this Court is a second-level appeal from astatutory appeal of a decision from an administrative tribunal.

See section 75(3) of the Act: Further appeal 75(3) If the appeal is denied, the member may appeal the decision of the Court of Queen's Bench to The Court of Appeal . . .. [37] In the administrative law context, a second-level appeal raises a two-part question of law: 1. whether the reviewing judge correctly identified the applicable standard of review, and, if so; 2. whether the reviewing judge applied that standard properly. (See Dr.

Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19 at para 43; and Pollock et al v Human RightsCommission (Manitoba) et al, 2019 MBCA 110 at paras 40-42). [38] To answer whether a reviewing judge applied the appropriate standard of review correctly, the appellate court must step“into the shoes” of the reviewing judge and consider the decision of the administrative tribunal (Prairie Acid Rain Coalition v Canada(Minister of Fisheries and Oceans), 2006 FCA 31 at para 14, leave to appeal to SCC refused, 31370 (20 July 2006)). [39] The grounds of appeal related to procedural fairness on the part of the Law Society and the CIC were first raised beforethe reviewing judge, so this is a first-level appeal regarding those grounds.

Deference is owed to a reviewing judge’s first-instancefindings of fact, and mixed fact and law, pursuant to the standard of palpable and overriding error.

The Applicable Standard [40] Until recently, the applicable standard of review for a decision from an administrative tribunal like the CIC, wasreasonableness, as explained in Dunsmuir v New Brunswick, 2008 SCC 9, and subsequent jurisprudence (see, for example, Doolan v LawSociety of Manitoba, 2016 MBCA 57). [41] The Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65(Vavilov), is now the leading case on this subject. Vavilov was released after the reviewing judge’s decision and the filing of facta in theappeal.

The parties filed supplemental facta to address Vavilov. Both argued that Vavilov did not change their position with respect tothe outcome of the appeal. [42] While the presumptive standard of review for a tribunal’s decision remains reasonableness, there are several exceptions. One exception is when the appeal (or review) arises from a statutory right of appeal, as is the case here (see

section 75 of the Act). Inthat circumstance, the appellate standard of review set out in Housen v Nikolaisen, 2002 SCC 33, (see para 37 Vavilov) applies. Therefore, the standard of correctness applies to questions of law (such as statutory

interpretation) and the deferential standard ofpalpable and overriding error applies to questions of fact and mixed fact and law, where the question of law is not readily extricable. [43] Furthermore, a discretionary decision is entitled to deference unless there is an error in principle or the decision is soclearly wrong as to amount to an injustice.

See, for example, Elsom v Elsom, (SCC), [1989] 1 SCR 1367 at 1375;Homestead Properties (Canada) Ltd v Sekhri et al, 2007 MBCA 61 at para 13; The North West Company LP v Nuttall et al, 2020 MBCA11 at para 3. [44] Because the reviewing judge’s decision preceded Vavilov, the appeal is best resolved by this Court stepping into theshoes of the reviewing judge and applying the appellate standard of review to the CIC’s decision. The reviewing judge’s reasons remainimportant and helpful to that analysis.

Application of the Appellate Standard of Review [45] Even though the reviewing judge had “a great deal of difficulty in following [the applicant’s] arguments”, as did I, hehelpfully identified the following issues (at para 14): 1. Did the CIC err in determining that suspension, rather than some other measure was required for the protection of the public?

2. Did the Society improperly proceed with one of the three investigations it conducted into the applicant’s conduct without a formal complaint, or without a complaint of incompetence from one of his clients? 3. Was the fact that the investigators and the CIC took into account the reasons of judges in their proceedings or decision, an error of law? 4. Did the CIC reach an incorrect conclusion when it considered the effect of the evidence in respect of four different matters? . . . 5. Did the CIC act for an improper purpose or was it biased in these proceedings? 6. Was the Society’s investigator biased? 7.

Did the CIC fail to observe procedural fairness? [ 46 ] Those issues arose during the appeal hearing in the context of the applicant’s overarching arguments that the interim suspension was unlawful and that the Law Society and the CIC breached the duty of procedural fairness.

Was the Interim Suspension Unlawful? [ 47 ] The applicant argues that the interim suspension was unlawful because the information forwarded by the courts to the Law Society do not constitute “formal complaints” and that the two complaints from Manitoba Prosecution Service and the opposing civil litigator were “victimless” because his clients did not complain to the Law Society. These arguments are without foundation.

They are contrary to the authority provided to the Law Society under the Act , as I will explain. [ 48 ] The Law Society is not restricted to investigating only when there is a formal complaint from a client. As noted by the reviewing judge,

section 66 (

a) of the Act requires the Law Society, and the CIC, to receive and respond to “other information” concerning the conduct or competence of a member.

Section 66 states: Complaints investigations 66 The benchers must establish a complaints investigation committee and processes for (

a) receiving and responding to complaints or other information concerning the conduct or competence of members; and (

b) investigating a member’s conduct, competence or practice. [emphasis added] See also r 5-61 of The Law Society of Manitoba Rules that allows the chief executive officer to “treat as a complaint information that comes to the attention of the society”. [ 49 ] The applicant says that the CIC had an obligation to assist him through remedial measures rather than impose an interim suspension, particularly given that he was a foreign-trained lawyer.

Again, this argument is without foundation and is contrary to the mandate of the Law Society to “uphold and protect the public interest in the delivery of legal services with competence, integrity and independence” and the authority provided to the Law Society under the Act to do so (the Act at

section 3 ; see also sections 66 - 71 of the Act ). [ 50 ] The CIC correctly identified the legal issue before it: whether the interim suspension was necessary for the protection of

the public, in accordance with

section 68 (

c) of the Act . [ 51 ] Having correctly identified the legal issue, the question became whether the interim suspension was necessary to protect the public in these circumstances. The applicant has not identified any palpable and overriding error of fact by the CIC in its analysis. The record demonstrates that the CIC reviewed the extensive information obtained during the investigations and the practice review. It considered whether some action, other than the interim suspension, was sufficient to protect the public and concluded that it was not.

The CIC was entitled to make that finding on the record before it. [ 52 ] Whether or not to impose the interim suspension was a discretionary decision. The CIC did not err in law or make any palpable and overriding error of fact. Furthermore, based on the record, the interim suspension is not unjust. The CIC’s decision to interim suspend the applicant is entitled to deference. Procedural Fairness [ 53 ] The issue of procedural fairness was an issue of first instance before the reviewing judge.

Therefore, as stated previously, the reviewing judge’s findings of fact in this regard are entitled to deference. [ 54 ] The applicant’s main argument is that he should have been invited to attend the October 31, 2018 meeting at which the CIC authorised the charges against him. The reviewing judge dismissed this argument . He understood that, at this stage, the proceedings were still investigatory and that there is a reduced duty of fairness at the investigatory stage of proceedings.

In conjunction with citing Chen v Law Society (Manitoba) , 2000 MBCA 26 ; and Kuny v College of Registered Nurses of Manitoba , 2017 MBCA 111 , he wrote (at paras 35-37): Clearly the full hearing provided to the applicant at the interim suspension hearing on December 12, 2018, met the requirements of procedural fairness. However, the fact that the applicant was not called upon to make submissions at the October 31, 2018 meeting, when members of the CIC considered whether charges were warranted, does not in the context of the entire proceeding violate procedural fairness.

The CIC does not at this stage adjudicate the complaints, but simply performs a type of screening role to determine whether the complaint should be subjected to a full hearing.

The role of the investigators and the CIC prior to and at the October 31, 2018 meeting, when the CIC met to consider whether charges were warranted, suggest a lower level of procedural fairness than that which would be required at a disciplinary hearing in front of the Disciplinary Committee of the Society, or even in front of the CIC, when considering the issue of an interim suspension following the recommendations of charges against a member . . .. . . .

The applicant here was advised of the nature of the allegations against him and was given the opportunity to respond to them in the course of his interaction with the investigators and officials of the Society prior to the October 31, 2018 meeting. He was able to respond to the allegations in a meaningful way prior to the CIC determining whether charges would be laid.

There is no additional requirement that he should also be permitted to attend the meeting where that determination was made. [ 55 ] As for the applicant’s allegations of bias and systemic discrimination, the reviewing judge appropriately dismissed those allegations summarily. [ 56 ] The reviewing judge identified and applied the correct legal principles to the facts before him. He made no error of law or any palpable and overriding error of fact. His conclusion that there was no breach of procedural fairness is not only entitled to deference, it was the correct finding.

I agree with the reviewing judge that “the applicant has been treated fairly throughout the process” (at para 31). Conclusion [ 57 ] The CIC dealt with the applicant fairly during the investigation leading up to the authorisation of charges, and after, as it considered whether interim measures were necessary to protect the public. The CIC considered whether measures, other than suspension, would protect the public. [ 58 ] The CIC made no error of law or palpable and overriding error of fact in reaching its decision to interim suspend the applicant.

The interim suspension was an exercise of discretion that is entitled to deference. It is not unjust. [ 59 ] Furthermore, the reviewing judge made no error of law or palpable and overriding error of fact in finding that the applicant was treated fairly throughout the process leading up to the interim suspension and in finding there was no breach of procedural fairness.

[ 60 ] I would dismiss the applicant’s appeal with costs and reasonable disbursements against the applicant based on Tariff B (as sought by the Law Society) plus costs in the amount of $350 and reasonable disbursements (under Tariff

D) for the fresh evidence motion. I would also order costs and reasonable disbursements against the applicant on the chambers appeal, again based on Tariff B and as sought by the Law Society. JA I agree: JA I agree: JA