DeMaria v. Law Society of Saskatchewan, (2015) 465 Sask.R. 290 (CA)

• Judge: Ottenbreit, Caldwell and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 25, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 465 Sask.R. 290 (CA);2015 SKCA 106

DeMaria v. Sask. Law Soc. (2015), 465 Sask.R. 290 (CA);

    649 W.A.C. 290

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. OC.016

Daniel DeMaria (appellant/applicant) v. The Law Society of Saskatchewan (respondent/respondent)

(CACV2425; 2015 SKCA 106)

Indexed As: DeMaria v. Law Society of Saskatchewan

Saskatchewan Court of Appeal

Ottenbreit, Caldwell and Ryan-Froslie, JJ.A.

October 9, 2015.

Summary:

The Law Society of Saskatchewan rejected DeMaria's application for admission on the basis that he had not satisfied the Admissions and Education Committee of his good character. The Benchers upheld the decision. DeMaria applied for judicial review.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2013), 420 Sask.R. 230, dismissed the application. DeMaria appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Editor's Note: For a related decision, see (2012), 407 Sask.R. 139.

Administrative Law - Topic 543

The hearing and decision - Decisions of the tribunal - Form and content of decisions - The Law Society of Saskatchewan rejected DeMaria's application for admission on the basis that he had not satisfied the Admissions and Education Committee of his good character - The Benchers upheld the decision - Schwann, J., dismissed DeMaria's application for judicial review, rejecting DeMaria's argument that the committee's decision was a nullity because it had been "doctored", through the Law Society's legal counsel, before its release - The corrective reformatting undertaken by the Law Society had not rendered the decision a nullity - In any event, any deficiency was cured by the subsequent review proceedings - There was no manifest unfairness to DeMaria's rights - DeMaria appealed - The Saskatchewan Court of Appeal dismissed the appeal - The evidence as a whole supported Schwann, J.'s finding - See paragraphs 17 to 19.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The Law Society of Saskatchewan rejected DeMaria's application for admission on the basis that he had not satisfied the Admissions and Education Committee of his good character - The Benchers upheld the decision - Schwann, J., dismissed DeMaria's application for judicial review, rejecting DeMaria's argument that the fairness of the hearing before the committee was compromised by a reasonable apprehension of bias arising from an email from the chair of the committee to counsel for the Law Society - The email forwarded the committee's decision and the chair's signature as attachments - At the end of the email, the chair made an inquiry about golf - It was important to remember that the email's purpose was to convey the committee's final decision - An informed person who was familiar with this decision-making process would not conclude that the decision had been influenced by the chair's inquiry about golf - DeMaria appealed - The Saskatchewan Court of Appeal dismissed the appeal - The golf inquiry was an imprudent and out-of-place addition to the email, but it was insufficient to supplant the strong presumption that the chair had acted fairly and impartially in reaching the decision - The evidence did not support a reasonable apprehension of bias - See paragraphs 40 to 45.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The Law Society of Saskatchewan rejected DeMaria's application for admission on the basis that he had not satisfied the Admissions and Education Committee of his good character - The Benchers upheld the decision - Schwann, J., dismissed DeMaria's application for judicial review, rejecting DeMaria's argument that the fairness of the Benchers' review hearing was compromised by a reasonable apprehension of bias - Two examples of fraternization between counsel for the Law Society and the Benchers (having breakfast with the Benchers and remaining in the hearing room after DeMaria had left) did not give rise to a reasonable apprehension of bias - Further, having counsel for the Law Society as a Facebook friend fell far short of meeting the threshold - DeMaria appealed - The Saskatchewan Court of Appeal dismissed the appeal - When considered realistically and practically in the institutional context of the matter, the evidence did not give rise to a reasonable apprehension of bias on the Benchers' part - The Law Society admissions hearing process was not ideal and its execution here had shortcomings, but the circumstances did not amount to a reasonable apprehension of bias - See paragraphs 46 to 51.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Law Society of Saskatchewan rejected DeMaria's application for admission on the basis that he had not satisfied the Admissions and Education Committee of his good character - The Benchers upheld the decision - Schwann, J., dismissed DeMaria's application for judicial review - DeMaria appealed - At issue was whether Schwann, J., had chosen and applied the correct standard of review regarding the Law Society's determinations of credibility and findings of fact - The Saskatchewan Court of Appeal dismissed the appeal - Findings of fact and assessments of credibility were reviewable on a standard of palpable and overriding error - Schwann, J., correctly concluded that the Law Society's findings were amply supported by the evidence before it and that, therefore, the findings could not be said to be unreasonable - See paragraphs 10 and 11.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Law Society of Saskatchewan rejected DeMaria's application for admission on the basis that he had not satisfied the Admissions and Education Committee of his good character - The Benchers upheld the decision - Schwann, J., dismissed DeMaria's application for judicial review - DeMaria appealed - At issue was whether Schwann, J., had correctly chosen and applied the standard of correctness in her review of the Law Society's decision to consider good character - The Saskatchewan Court of Appeal dismissed the appeal - As the committee was called on to interpret its own home statute and rules, the correct standard of review was reasonableness - Both Schwann, J., and the Benchers had erred in applying a correctness standard - However, that error had no bearing on the appeal as the application of a more deferential standard would not produce the result sought by DeMaria - The committee's conclusion that it could take into account evidence of DeMaria's character was reasonable - Schwann, J.'s conclusion confirming that there was no reason for the Benchers to interfere with the committee's decision was correct - See paragraphs 12 to 16.

Administrative Law - Topic 8925

Boards and tribunals - Powers - Quorum requirements - The Law Society of Saskatchewan rejected DeMaria's application for admission on the basis that he had not satisfied the Admissions and Education Committee of his good character - The Benchers upheld the decision - Schwann, J., dismissed DeMaria's application for judicial review, rejecting DeMaria's argument that the Benchers lacked quorum and that, therefore, their decision was a nullity - Under rule 92(3) of the Law Society of Saskatchewan Rules quorum was 10 Benchers - DeMaria's hearing proceeded with the chair plus 10 Benchers for a total of 11 - Section 18(2)(b) of the Interpretation Act, under which quorum was "at least one-half of the number of members in office" of a board, did not apply here - Section 3(1) of the Interpretation Act stated that the Act applied "unless a contrary intention" appeared in the enactment in question - Rule 92(3) expressed a contrary intention - The Saskatchewan Court of Appeal dismissed DeMaria's appeal - See paragraph 21.

Barristers and Solicitors - Topic 347

Admission to practice or as student-at-law - Qualifications - Good character and reputation - [See second Administrative Law - Topic 3202 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 10].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 10].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 10].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 13].

Committee for Justice & Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 23].

Commission scolaire francophone du Yukon No. 23 v. Yukon (Procureure générale) (2015), 471 N.R. 206; 383 D.L.R.(4th) 579; 2015 SCC 25, refd to. [para. 24].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 25].

Consolidated-Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69 et al., [1990] 1 S.C.R. 282; 105 N.R. 161; 38 O.A.C. 321, refd to. [para. 30].

2747-3174 Québec Inc. v. Régie des permis d'alcool du Québec et autres, [1996] 3 S.C.R. 919; 205 N.R. 1, refd to. [para. 34].

Tremblay v. Commission des affaires sociales et autres, [1992] 1 S.C.R. 952; 136 N.R. 5; 47 Q.A.C. 169, refd to. [para. 37].

Newfoundland Telephone Co. Ltd. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, refd to. [para. 42].

Huerto v. College of Physicians and Surgeons (Sask.) (1996), 141 Sask.R. 3; 114 W.A.C. 3; 133 D.L.R.(4th) 100 (C.A.), refd to. [para. 43].

United Enterprises Ltd. v. Liquor and Gaming Licensing Commission (Sask.) et al., [1997] 3 W.W.R. 497; 150 Sask.R. 119 (Q.B.), dist. [para. 44].

Dolan et al. v. Moose Jaw (City) (2008), 314 Sask.R. 301; 435 W.A.C. 301; 2008 SKCA 170, refd to. [para. 52].

Lofstrom and Murphy, Re (1971), 22 D.L.R.(3d) 120 (Sask. C.A.), refd to. [para. 52].

Counsel:

Daniel DeMaria, for himself;

Fred C. Zinkhan, for the respondent.

This appeal was heard on June 25, 2015, by Ottenbreit, Caldwell and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. On October 9, 2015, Caldwell, J.A., delivered the following reasons for judgment for the court.