Harris v. Nova Scotia Barristers' Society et al., (2004) 228 N.S.R.(2d) 153 (CA)

• Judge: Roscoe, Chipman and Hamilton, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 29, 2004
• Jurisdiction: Nova Scotia
• Citations: (2004), 228 N.S.R.(2d) 153 (CA);2004 NSCA 143

Harris v. Barristers Soc. (2004), 228 N.S.R.(2d) 153 (CA);

 723 A.P.R. 153

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. DE.028

Corina T. Harris (appellant) v. The Nova Scotia Barristers' Society (respondent) and Attorney General of Nova Scotia (respondent)

(CA 212411; 2004 NSCA 143)

Indexed As: Harris v. Nova Scotia Barristers' Society et al.

Nova Scotia Court of Appeal

Roscoe, Chipman and Hamilton, JJ.A.

December 2, 2004.

Summary:

The Nova Scotia Barristers' Society (Society) filed a complaint against a lawyer (Harris), alleging failures in 1997 and 1998 to comply with trust account regulations, and a continued disregard from 1993 to 1998 of those regulations. Harris applied for the intervention of the Court of Appeal.

The Nova Scotia Court of Appeal, per Oland, J.A., in a decision reported at 209 N.S.R.(2d) 387; 656 A.P.R. 387, dismissed the application. A panel of the Society's Discipline Committee found Harris guilty of professional misconduct and reprimanded her. Harris applied for the intervention of the Court of Appeal.

The Nova Scotia Court of Appeal refused to interfere with the panel's decision.

Administrative Law - Topic 548

The hearing and decision - Decisions of the tribunal - Reasons for decisions - When not required - An Investigative Subcommittee of the Nova Scotia Barristers' Society (Society) recommended that a formal complaint be made against a lawyer (Harris) - The Society filed a formal complaint against Harris - A panel of the Society's Discipline Committee found Harris guilty of professional misconduct and reprimanded her - Harris applied for the intervention of the Court of Appeal - She submitted, inter alia, that there was a breach of natural justice - The Nova Scotia Court of Appeal refused to interfere with the panel's decision - The court held that the Investigative Subcommittee had no obligation to give reasons why it recommended that a formal complaint be made - The Barristers and Solicitors Act and Regulations did not require that a report be given by the Investigative Subcommittee - See paragraph 135.

Administrative Law - Topic 612

The hearing and decision - Disclosure by tribunal - Of investigative results or notes - An Investigative Subcommittee of the Nova Scotia Barristers' Society (Society) recommended that a formal complaint be made against Harris - The Society filed a formal complaint against Harris - A panel of the Society's Discipline Committee found Harris guilty of professional misconduct - Harris applied for the intervention of the Court of Appeal - The Nova Scotia Court of Appeal rejected Harris' allegation that the Society had not made proper disclosure to her - The material Harris sought was irrelevant to the charges against her and to her reasonably possible defences - Alternatively, the court was not satisfied that the material should be ordered disclosed at this stage and admitted as evidence - All the material related to the investigation stage of the Society's bifurcated discipline process - It was immaterial at the adjudicative stage before the panel - See paragraphs 70 to 98.

Barristers and Solicitors - Topic 5106

Discipline - General - Professional misconduct defined - An adjudicative hearing panel of the Discipline Committee of the Nova Scotia Barristers' Society found Harris guilty of professional misconduct for (1) failing to prepare monthly trust reconciliations, maintain adequate books of original entry, maintain a chronological file of copies of billings and file a required Form 20 on time contrary to the Society's trust account regulations and (2) demonstrating "a continued reckless disregard" of the Society's trust account regulations - The panel reprimanded Harris for professional misconduct - There was no suggestion that she had misappropriated money from her trust account - The Nova Scotia Court of Appeal refused to interfere with the panel's finding - See paragraphs 139 to 161.

Barristers and Solicitors - Topic 5233

Discipline - Procedure - Complaint referral procedure - [See Administrative Law - Topic 548 ].

Barristers and Solicitors - Topic 5234

Discipline - Procedure - Investigation of complaint - Application of rules of natural justice - [See Administrative Law - Topic 548 ].

Barristers and Solicitors - Topic 5237

Discipline - Procedure - Right of complainant to be heard - A panel of the Discipline Committee of the Nova Scotia Barristers' Society found Harris guilty of professional misconduct and reprimanded her - Harris had left the hearing before it was completed - Harris applied for the intervention of the Court of Appeal - She argued, inter alia, that there was a breach of natural justice - The Nova Scotia Court of Appeal disagreed - The court held that it was not appropriate for Harris to voluntarily leave the hearing and then complain that the picture painted of her before the panel was one sided - She had the opportunity to present her side of the case to the panel and chose not to - See paragraph 128.

Barristers and Solicitors - Topic 5245

Discipline - Procedure - Evidence and proof - [See Administrative Law - Topic 612 ].

Barristers and Solicitors - Topic 5582

Discipline - Appeals and judicial review - Standard of review - A panel of the Discipline Committee of the Nova Scotia Barristers' Society found Harris guilty of professional misconduct and reprimanded her - Harris appealed - The Society argued that professional misconduct was whatever the panel said it was - The Nova Scotia Court of Appeal disagreed - The court would defer to the panel's finding only so long as its decision was reasonable - The standard of review with respect to Harris' argument that the panel erred in law in finding that her actions constituted professional misconduct was reasonableness simpliciter - See paragraph 153.

Cases Noticed:

Pavey v. Nova Scotia Barristers' Society (2001), 198 N.S.R.(2d) 381; 621 A.P.R. 381 (C.A.), refd to. [para. 5].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 80].

R. v. Taillefer (B.), [2003] 3 S.C.R. 307; 313 N.R 1; 2003 SCC 70, refd to. [para. 80].

R. v. Duguay - see R. v. Taillefer (B.).

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 80].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, appld. [para. 105].

Thies v. Thies (1992), 110 N.S.R.(2d) 177; 299 A.P.R. 177 (C.A.), folld. [para. 106].

Northern Telecom Ltd. v. Communications Workers of Canada and Canada Labour Relations Board, [1980] 1 S.C.R. 115; 28 N.R. 107, refd to. [para. 118].

Pierce v. Law Society of British Columbia (2002), 168 B.C.A.C. 94; 275 W.A.C. 94; 2002 BCCA 251, refd to. [para. 120].

Kane v. University of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214, refd to. [para. 120].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 124].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 124].

Finch v. Association of Professional Engineers and Geoscientists (B.C.) (1996), 73 B.C.A.C. 295; 120 W.A.C. 295; 18 B.C.L.R.(3d) 361 (C.A.), refd to. [para. 126].

Broda v. Law Society of Alberta (1993), 138 A.R. 68; 7 Alta. L.R.(3d) 305 (Q.B.), dist. [para. 135].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, dist. [para. 138].

Solicitor Y v. Nova Scotia Barristers' Society (2004), 225 N.S.R.(2d) 239; 713 A.P.R. 239 (C.A.), refd to. [para. 139].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 139].

Nova Scotia Barristers' Society v. Elman, [1993] L.S.D.D. No. 175, refd to. [para. 152].

Nova Scotia Barristers' Society v. Rideout (1994), 7 The Discipline Digest 2, refd to. [para. 152].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, refd to. [para. 153].

Pearlman v. Manitoba Law Society Judicial Committee (1988), 51 Man.R.(2d) 151 (Q.B.), affd. (1990), 59 Man.R.(2d) 255 (C.A.), affd. [1991] 2 S.C.R. 869; 130 N.R. 121; 75 Man.R.(2d) 81; 6 W.A.C. 81, refd to. [para. 156].

Dunne v. Law Society of Newfoundland (2000), 191 Nfld. & P.E.I.R. 129; 577 A.P.R. 129 (Nfld. T.D.), refd to. [para. 158].

Authors and Works Noticed:

Blake, Sara, Administrative Law in Canada (2nd Ed. 1997), p. 113 [para. 151].

Counsel:

Corina T. Harris, self-represented appellant;

Alan J. Stern, Q.C., for the respondent, Nova Scotia Barristers' Society;

Edward A. Gores, for the Attorney General.

This appeal was heard on September 29, 2004, by Roscoe, Chipman and Hamilton, JJ.A., of the Nova Scotia Court of Appeal. Hamilton, J.A., delivered the following decision for the court on December 2, 2004.