Facts:
S was a lawyer licensed by the Law Society of Ontario (“LSO”). After S was convicted of possession of child pornography, the LSO sought to revoke his license on the basis that his actions were unbecoming of a licensee.
The registrar appointed a panel of the Law Society Discipline Tribunal to hear the matter. Under the LSO’s regulations, a hearing panel must include a layperson, unless one of three specific scenario arises. In this case, the panel was made up of three LSO licensees — in other words, without a layperson — and the registrar did not advise the parties of this fact, nor did he provide any explanation for their decision. None of the parties raised an objection to the panel in the hearing.
The hearing panel suspended S’s licence to practice for nine months.
The LSO appealed the panel’s decision to the Law Society Appeal Division. On appeal, for the first time, the LSO argued that the hearing panel was not properly constituted and therefore the panel did not have jurisdiction. The Appeal Division panel dismissed the appeal, on the basis that the LSO had failed to make a timely objection to the composition of the hearing panel. The Appeal Division panel also opined that there was no reversible error in the Vice-Chair or Chair exercising their discretion to compose a panel without a lay adjudicator. The LSO appealed to the Divisional Court.
Decision:
Appeal allowed (per Nishikawa and Newton JJ; Stewart J, dissenting).
The issue of the Discipline Tribunal hearing panel’s jurisdiction to hear the application, despite the lack of a lay adjudicator on the panel, is a question of law or procedural fairness. As a result, the correctness standard applies.
A majority of the Divisional Court panel found that the Appeal Panel erred in law by finding that the composition of the hearing panel did not give rise to a lack of jurisdiction, and in failing to remit the matter to a properly constituted panel. The presence of members of the public on discipline panels plays an important role in furthering public confidence in the administration of justice. Lay adjudicators legitimize the tribunal’s decisions in the eyes of the public. Particularly in cases like these involving child pornography, the presence of a lay adjudicator on the panel was essential to ensure that the hearing panel included a public interest perspective regarding the profession to maintain confidence in the administration of justice. Without an impartial lay adjudicator, the public could potentially perceive the hearing panel as lacking the necessary degree of impartiality or independence. The public might otherwise be concerned that licensees could order inappropriate or more lenient penalties against other members of their profession.
Although the chair had the power to appoint a panel without a lay member, that power was limited to only three circumstances and there was no indication in the evidentiary record that the chair had made the decision to appoint this panel for any one of those three reasons. Moreover, the chair must advise the parties, in some manner, of the reason for departing from the rule that a panel must include a lay adjudicator. The burden of ensuring a panel is properly constituted is on the chair. They do not need to render a written decision or provide extensive reasons, but they do need to point to the subsection of the regulation on which they are relying to exercise their discretion either in advance, or on the record in the hearing.
With respect to the fact that LSO only raised the issue for the first time on appeal before the Appeal Division, this was appropriate because it was an issue of law, the evidentiary record was sufficient, and there was no evidence that the LSO’s decision to raise it on appeal was tactical.
In dissent, Justice Stewart would have dismissed the appeal for substantially the same reasons as the Appeal Division.
Commentary:
The majority’s decision in this case is a useful, and indeed dramatic, reminder to regulators of their obligations to ensure panels are properly appointed in accordance with the terms of their legislation. In particular, where legislation provides discretion to depart from a presumptive set of panel composition criteria, there is an obligation — however minimal in content — on the one who exercises that discretion to explain the basis for departing from the presumptive criteria and advise the parties that it has occurred.
The majority’s decision also places a lower burden on appellants to raise new issues than the dissent would have done — and a somewhat lower burden than one might typically see, at least in applications for judicial review. In making the decision to hear a new issue on appeal, the majority relied on the pre-Vavilov case of Byrnes v. Law Society of Upper Canada, where the Divisional Court suggests that an appellate court may entertain new issues on appeal if three conditions are met: (i) there is a sufficient evidentiary record to resolve the issue; (ii) the failure to raise the issue at the hearing was not due to a tactical decision; and (iii) the refusal to raise the new issue on appeal would result in a miscarriage of justice.1 While the result is perhaps not surprising here given that the case turned on essentially a jurisdictional issue, it is noteworthy that the Court’s discussion fails to consider the benefits of having the administrative decision-makers charged with hearing the case determine these issues at first instance, or the need to respect the legislative intent of having those decision-makers take the first crack at this issue. That may reflect the fact that this case was a statutory appeal, rather than an application for judicial review, although other panels of the Divisional Court have given these factors significant consideration post-Vavilov, even in the context of a statutory appeal.2
- 2015 ONSC 2939, at para 35. ↩︎
- See, for example, Planet Energy (Ontario) Corp v Ontario Energy Board, 2020 ONSC 598 at paras 16-26. ↩︎