Hesje v. Law Society of Saskatchewan, 2015 SKCA 2

JudgeOttenbreit, Caldwell and Herauf, JJ.A.
CourtCourt of Appeal (Saskatchewan)
Case DateOctober 29, 2014
JurisdictionSaskatchewan
Citations2015 SKCA 2;(2015), 451 Sask.R. 205 (CA)

Hesje v. Sask. Law Soc. (2015), 451 Sask.R. 205 (CA);

    628 W.A.C. 205

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JA.011

Joel Arvid Hesje, Q.C. (appellant) v. The Law Society of Saskatchewan (respondent)

(CACV2507; 2015 SKCA 2)

Indexed As: Hesje v. Law Society of Saskatchewan

Saskatchewan Court of Appeal

Ottenbreit, Caldwell and Herauf, JJ.A.

January 8, 2015.

Summary:

In March 2006, Vellacott sued G.L. for defamation. Hesje, a lawyer, accepted G.L. as a pro bono client. The parties participated in unsuccessful mediation in March 2007. The proceedings were then inactive until August 2011, when Vellacott moved for summary judgment. Hesje asked a junior lawyer (Froese) to handle the motion. Froese was unable to contact G.L. Vellacott succeeded in obtaining summary judgment. G.L. filed a complaint against Hesje with the Law Society of Saskatchewan. A Hearing Committee of the Law Society found Hesje guilty of conduct unbecoming of a lawyer for failing to serve G.L. in a conscientious, diligent and efficient manner by failing to keep G.L. reasonably informed of the litigation against him. Hesje appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Administrative Law - Topic 614

The hearing and decision - Disclosure by the tribunal - Particulars of complaint - A Hearing Committee of the Law Society of Saskatchewan found Hesje guilty of conduct unbecoming of a lawyer for failing to serve a client (G.L.) in a conscientious, diligent and efficient manner by failing to keep G.L. reasonably informed of the litigation against him - Hesje appealed, arguing that the Hearing Committee failed to provide sufficient particulars of the complaint against him - He submitted that the particulars left him uncertain whether he failed to serve G.L. by virtue of (a) his failure to contact G.L. notwithstanding his attempts to do so; (b) his failure to take steps that a typical lawyer ought to have taken to attempt to contact his client; or (c) some other circumstance, consideration or component - The Saskatchewan Court of Appeal dismissed the appeal - Hesje knew the case against him well before the hearing began - In a letter to the Hearing Committee, Hesje explained why he had not contacted G.L. for several years, and stated that he was satisfied his firm's efforts to contact G.L. constituted due diligence - He also received extensive disclosure - Hesje was clearly alive to the case being made against him - See paragraphs 44 to 56.

Administrative Law - Topic 2444

Natural justice - Procedure - Notice - Contents and sufficiency of notice - [See Administrative Law - Topic 614 ].

Barristers and Solicitors - Topic 1544

Relationship with client - Duty to client - Extent or limits of duty - [See second Barristers and Solicitors - Topic 5205 ].

Barristers and Solicitors - Topic 1554

Relationship with client - Duty to client - General - Duty to inform or advise client - [See second Barristers and Solicitors - Topic 5205 ].

Barristers and Solicitors - Topic 5205

Discipline - Offences - Conduct unbecoming a lawyer - In March 2006, Vellacott sued G.L. for defamation - Hesje, a lawyer, agreed to represent G.L. - The parties participated in unsuccessful mediation in March 2007 - The proceedings were then inactive until August 2011, when Vellacott moved for summary judgment - Hesje asked a junior lawyer (Froese) to handle the motion - Froese was unable to contact G.L. - Vellacott succeeded in obtaining summary judgment - G.L. filed a complaint against Hesje with the Law Society of Saskatchewan - A Hearing Committee found Hesje guilty of conduct unbecoming of a lawyer for failing to serve G.L. in a conscientious, diligent and efficient manner by failing to keep G.L. reasonably informed of the litigation against him - Hesje appealed, arguing that his conduct could not amount to conduct unbecoming because his failure to contact G.L. was an isolated incident, made honestly and in good faith - The Saskatchewan Court of Appeal dismissed the appeal - A negligent act could meet the definition of "conduct unbecoming" - Moral turpitude was not a necessary element - See paragraphs 57 to 65.

Barristers and Solicitors - Topic 5205

Discipline - Offences - Conduct unbecoming a lawyer - In March 2006, Vellacott sued G.L. for defamation - Hesje, a lawyer, agreed to represent G.L. - The parties participated in unsuccessful mediation in March 2007 - The proceedings were then inactive until August 2011, when Vellacott moved for summary judgment - Hesje asked a junior lawyer (Froese) to handle the motion - Froese was unable to contact G.L. - Vellacott succeeded in obtaining summary judgment - G.L. filed a complaint against Hesje with the Law Society of Saskatchewan - A Hearing Committee found Hesje guilty of conduct unbecoming of a lawyer for failing to serve G.L. in a conscientious, diligent and efficient manner by failing to keep G.L. reasonably informed of the litigation against him - Hesje appealed, arguing that the Hearing Committee erred by imposing perfection as the standard of conduct - The Saskatchewan Court of Appeal dismissed the appeal - The Hearing Committee recognized a flexible standard when it outlined that the sophistication of the client and the importance of the matter to the client had to be taken into account when a lawyer was determining whether the client had to be notified of a pending proceeding - When the client was unsophisticated and the matter was important, as in this case, the burden on the lawyer to contact the client was high - More than a series of failed phone calls was required - See paragraphs 66 to 69.

Barristers and Solicitors - Topic 5245

Discipline - Procedure - Evidence and proof - A Hearing Committee of the Law Society of Saskatchewan found Hesje guilty of conduct unbecoming of a lawyer for failing to serve a client (G.L.) in a conscientious, diligent and efficient manner by failing to keep G.L. reasonably informed of the litigation against him - Hesje appealed, arguing that the Hearing Committee lacked the proper evidentiary foundation to find that his conduct fell below a certain standard because no evidence was led by the Investigation Committee regarding what lawyers generally would expect of a competent lawyer in a like situation - The Saskatchewan Court of Appeal dismissed the appeal - No one was better qualified to say what constituted professional misconduct than a group of practising barristers - Therefore, there was no reason to insist upon evidence of what a competent lawyer would do in a like situation - See paragraphs 70 to 72.

Cases Noticed:

Merchant v. Law Society of Saskatchewan, [2014] 6 W.W.R. 643; 438 Sask.R. 110; 608 W.A.C. 110; 2014 SKCA 56, refd to. [para. 41].

Palmer, Re (1853), 7 N.B.R. 533 (S.C.), refd to. [para. 44].

Brendzan v. Law Society of Alberta (1997), 205 A.R. 278 (Q.B.), refd to. [para. 44].

Gilliss v. Barristers' Society of New Brunswick (1986), 68 N.B.R.(2d) 165; 175 A.P.R. 165 (C.A.), refd to. [para. 48].

Stevens v. Law Society of Upper Canada (1979), 55 O.R.(2d) 405 (Div. Ct.), refd to. [para. 50].

Merchant v. Law Society of Saskatchewan (2002), 223 Sask.R. 1; 277 W.A.C. 1; 213 D.L.R.(4th) 457; 2002 SKCA 60, refd to. [para. 58].

Segal v. Saskatchewan Law Society (1999), 189 Sask.R. 134; 216 W.A.C. 134 (C.A.), refd to. [para. 58].

Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; 130 N.R. 121; 75 Man.R.(2d) 81; 6 W.A.C. 81, refd to. [para. 58].

Merchant v. Law Society of Saskatchewan, [2009] 5 W.W.R. 478; 324 Sask.R. 108; 451 W.A.C. 108; 2009 SKCA 33, refd to. [para. 59].

Wilson v. Law Society of British Columbia (1986), 33 D.L.R.(4th) 572 (B.C.C.A.), refd to. [para. 71].

R. v. White (D.R.), [2011] 1 S.C.R. 433; 412 N.R. 305; 300 B.C.A.C. 165; 509 W.A.C. 165; 2011 SCC 13, refd to. [para. 85].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 97].

Authors and Works Noticed:

MacKenzie, Gavin, Lawyers & Ethics: Professional Responsibility and Discipline (1993) (2014 Looseleaf, release 2), p. 24-3 [para. 24].

Counsel:

Michael W. Milani, Q.C., and Kelly A. Waddell, for the appellant;

Karen M.T. Prisciak, Q.C., for the respondent.

This appeal was heard on October 29, 2014, before Ottenbreit, Caldwell and Herauf, JJ.A., of the Saskatchewan Court of Appeal. Herauf, J.A., delivered the following judgment for the court on January 8, 2015.

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4 practice notes
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    • Canada
    • Court of Appeal (Alberta)
    • 6 d5 Fevereiro d5 2015
    ...2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 33]. Hesje v. Law Society of Saskatchewan (2015), 451 Sask.R. 205; 628 W.A.C. 205; 2015 SKCA 2, refd to. [para. Abouabdallah v. College of Dental Surgeons (Sask.) (2011), 385 Sask.R. 15; 536 W.A.C. 15; 341 D.L.R.(4th) 284; 2011 SKCA 99......
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    ...restraints faced by the Commission were legitimate influences on the Commission’s decision. See also Hesje v. Law Society of Saskatchewan, 2015 SKCA 2 at paras. 44–56 (disciplinary proceedings against a lawyer); Ho v. Alberta Association of Architects, 2015 ABCA 68 at para. 37 (disciplinary......
  • R v Fox,
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    • Court of Queen's Bench of Saskatchewan (Canada)
    • 25 d2 Outubro d2 2022
    ...asked her to pass the information along to Drew about being arrested. Fox relies on the decision of Hesje v Law Society of Saskatchewan, 2015 SKCA 2, 451 Sask R 205, and specifically, paras. 42-43, that reviews the lawyer’s duty to keep a client reasonably informed as being one of th......
  • Riccioni v. Law Society of Alberta, 2015 ABCA 62
    • Canada
    • Court of Appeal (Alberta)
    • 5 d4 Fevereiro d4 2015
    ...was reasonable - See paragraphs 28 to 34. Cases Noticed: Hesje v. Law Society of Saskatchewan (2015), 451 Sask.R. 205; 628 W.A.C. 205; 2015 SKCA 2, refd to. [para. S.M. Renouf, Q.C., for the appellant; N.V. Maggisano, for the respondent. This appeal was heard on February 5, 2015, by Côté, C......
4 cases
  • Ho v. Alberta Association of Architects, (2015) 599 A.R. 122
    • Canada
    • Court of Appeal (Alberta)
    • 6 d5 Fevereiro d5 2015
    ...2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 33]. Hesje v. Law Society of Saskatchewan (2015), 451 Sask.R. 205; 628 W.A.C. 205; 2015 SKCA 2, refd to. [para. Abouabdallah v. College of Dental Surgeons (Sask.) (2011), 385 Sask.R. 15; 536 W.A.C. 15; 341 D.L.R.(4th) 284; 2011 SKCA 99......
  • Bains v. Khalsa Diwan Society of Abbotsford,
    • Canada
    • Court of Appeal (British Columbia)
    • 19 d1 Abril d1 2021
    ...restraints faced by the Commission were legitimate influences on the Commission’s decision. See also Hesje v. Law Society of Saskatchewan, 2015 SKCA 2 at paras. 44–56 (disciplinary proceedings against a lawyer); Ho v. Alberta Association of Architects, 2015 ABCA 68 at para. 37 (disciplinary......
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    • Court of Queen's Bench of Saskatchewan (Canada)
    • 25 d2 Outubro d2 2022
    ...asked her to pass the information along to Drew about being arrested. Fox relies on the decision of Hesje v Law Society of Saskatchewan, 2015 SKCA 2, 451 Sask R 205, and specifically, paras. 42-43, that reviews the lawyer’s duty to keep a client reasonably informed as being one of th......
  • Riccioni v. Law Society of Alberta, 2015 ABCA 62
    • Canada
    • Court of Appeal (Alberta)
    • 5 d4 Fevereiro d4 2015
    ...was reasonable - See paragraphs 28 to 34. Cases Noticed: Hesje v. Law Society of Saskatchewan (2015), 451 Sask.R. 205; 628 W.A.C. 205; 2015 SKCA 2, refd to. [para. S.M. Renouf, Q.C., for the appellant; N.V. Maggisano, for the respondent. This appeal was heard on February 5, 2015, by Côté, C......

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