Histed v. Man. Law Soc.,

• Jurisdiction: Manitoba
• Judge: Steel, Hamilton and Joyal, JJ.A.
• Neutral Citation: 2007 MBCA 150
• Citation: 2007 MBCA 150,(2007), 225 Man.R.(2d) 74 (CA),287 DLR (4th) 577,[2008] 2 WWR 189,[2007] MJ No 460 (QL),165 CRR (2d) 137,225 Man R (2d) 74,49 CPC (6th) 257,225 ManR(2d) 74,[2007] M.J. No 460 (QL),(2007), 225 ManR(2d) 74 (CA),287 D.L.R. (4th) 577,225 Man.R.(2d) 74
• Date: 12 April 2007
• Court: Court of Appeal (Manitoba)

Histed v. Man. Law Soc. (2007), 225 Man.R.(2d) 74 (CA);

      419 W.A.C. 74

MLB headnote and full text

Temp. Cite: [2007] Man.R.(2d) TBEd. DE.052

Robert Ian Histed (applicant/appellant) v. The Law Society of Manitoba (respondent)

(AI 06-30-06547)

Robert Ian Histed (appellant) v. The Law Society of Manitoba (respondent)

(AI 06-30-06548; 2007 MBCA 150)

Indexed As: Histed v. Law Society of Manitoba

Manitoba Court of Appeal

Steel, Hamilton and Joyal, JJ.A.

December 17, 2007.

Summary:

The Discipline Committee of the Law Society of Manitoba determined that a lawyer breached the Code of Professional Conduct by sending a letter to opposing counsel that called a potential case management judge a "bigot". The lawyer applied for an order prohibiting the Law Society from proceeding to sentencing. A motions judge denied the application. The matter proceeded to sentencing and a fine was imposed. The lawyer filed two appeals, the first regarding the Law Society's finding that he breached the Code of Professional Conduct, arguing that the letter was stated to be on a "Strictly Confidential and Without Prejudice" basis and therefore should not have been received in evidence by the panel. To do so, he argued, was a violation of the Privacy Act or, alternatively, a violation of the principle of settlement privilege. Further, he argued that the opinion expressed in his letter was protected by the Charter, and therefore the Code and/or the panel's decision violated his right to freedom of expression. Secondly, the lawyer appealed the decision of the motions judge, arguing that the judge erred when he dismissed his application for a prohibition order. He alleged that the judge failed to consider Charter values, as well as other relevant factors, and failed to provide adequate reasons for his decision.

The Manitoba Court of Appeal dismissed both appeals.

Barristers and Solicitors - Topic 5106

Discipline - General - Professional misconduct defined - [See Civil Rights - Topic 1855 , Practice - Topic 4580 and Torts - Topic 5586 ].

Barristers and Solicitors - Topic 5245

Discipline - Procedure - Evidence and proof - [See Practice - Topic 4580 and Torts - Topic 5586 ].

Barristers and Solicitors - Topic 5254

Discipline - Defences - Privileged communications - [See Practice - Topic 4580 and Torts - Topic 5586 ].

Barristers and Solicitors - Topic 5582

Discipline - Appeals and judicial review - Standard of review - The Discipline Committee of the Law Society of Manitoba found that a lawyer, who was involved in residential school litigation, breached the Code of Professional Conduct by sending a letter to opposing counsel that commented unfavourably on a judge who was being considered as case management judge - The lawyer applied for an order prohibiting the Law Society from proceeding to sentencing - A motions judge denied the application - The matter proceeded to sentencing - The lawyer filed two appeals, the first regarding the Law Society's finding of professional misconduct, arguing that the letter was privileged and Charter protected and the second respecting the decision of the motions judge denying the prohibition order - The Manitoba Court of Appeal stated that it was not "...  necessary to review the pragmatic and functional test in detail in this decision. In this particular case, the question of the admissibility of the letter presents itself as a pure question of law. The application of the Charter to the facts before the panel is also a question of law that is not within the specific expertise of the panel. As such, both issues attract a standard of correctness. On the other hand, the panel's findings on the facts as to whether Histed's conduct contravened the provisions of the Code and thereby constituted professional misconduct are factual findings within the specific expertise of the panel and therefore attract a standard of reasonableness simpliciter ..." - See paragraph 15.

Civil Rights - Topic 1855

Freedom of speech or expression - Limitations on - Regulation of professionals - The Discipline Committee of the Law Society of Manitoba found that a lawyer (Histed) breached the Code of Professional Conduct by sending a letter to opposing counsel calling a potential case management judge a "bigot" - The lawyer appealed, alleging that the decision of the panel, s. 43(b) of the Legal Profession Act and chapters 1, 9, 13, 15 and 19 of the Code of Professional Conduct violated of his right to freedom of expression (Charter, s. 2(b)) - The Manitoba Court of Appeal dismissed the appeal - The court held that the panel correctly dealt with the impact of the Charter on rules enacted by the Law Society to properly govern its members in the public interest - The provisions of the Code constituted a balanced approach to dealing with pressing and substantial objectives; namely, the need to regulate the conduct of the profession so as to protect the public and the need to maintain respect for the administration of justice - The panel gave due consideration to the importance of freedom of expression - At the conclusion of its balanced consideration, the panel properly concluded that even if in regulating Histed's conduct as a member of the Law Society, it was restricting his right to express himself (by calling a judge a "bigot" in a letter to opposing counsel), such a restriction was a reasonable limit under s. 1 of the Charter - See paragraphs 27 to 112.

Civil Rights - Topic 8320.8

Canadian Charter of Rights and Freedoms - General - Application - Law societies - The Manitoba Court of Appeal stated that "section 32 of the Charter limits its application to the 'government' and its actions. The Law Society's mandate under the [Legal Profession] Act is part of a regulatory scheme established by the Manitoba legislature to govern the affairs and activities of the legal profession. The Charter applies to the exercise of statutory authority regardless of whether the actor is part of the government or is controlled by the government ..." - See paragraph 43.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 1855 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The Discipline Committee of the Law Society of Manitoba found that a lawyer breached the Code of Professional Conduct by sending a letter to opposing counsel calling a potential case management judge a "bigot" - The lawyer appealed, arguing that the panel's decision, s. 43(b) of the Legal Profession Act and chapters 1, 9, 13, 15 and 19 of the Code of Professional Conduct violated his right to freedom of expression (Charter, s. 2(b)) - The Law Society conceded that his right to freedom of speech was violated, but argued that the violation was justified under s. 1 of the Charter - The lawyer argued that the provisions of the Code contained only vague statements of principle, admonitions and advice which failed the "prescribed by law" requirement of s. 1 and thus did not constitute limits (e.g., there was no express prohibition against criticism of the judiciary) - The Manitoba Court of Appeal rejected the lawyer's argument and dismissed the appeal - See paragraphs 48 to 57.

Constitutional Law - Topic 7841

Fundamental freedoms - Freedom of speech - General - The Discipline Committee of the Law Society of Manitoba found that a lawyer (Histed) breached the Code of Professional Conduct by sending a letter to opposing counsel that commented unfavourably on a judge who was being considered as case management judge - The lawyer appealed, raising a division of powers (constitutional) issue - He argued that any necessary regulation of free political speech fell within federal, not provincial, jurisdiction - While acknowledging that the regulation of the professions was a matter within provincial competence, he argued that such regulatory authority should not be understood to extend to the regulation of the free political speech of members of the professions - The Manitoba Court of Appeal stated that "assuming for the moment that referring to a judge as a bigot in correspondence between counsel is 'political' (as categorized by Histed in his factum), the argument was still without merit" - If he had a remedy, it resided in the Charter, not in the division of powers - See paragraphs 39 to 42.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - The Discipline Committee of the Law Society of Manitoba found that a lawyer, who was involved in residential school litigation, breached the Code of Professional Conduct by sending a letter to opposing counsel that commented unfavourably on a judge who was being considered as case management judge - The lawyer applied for an order prohibiting the Law Society from proceeding to sentencing - A motions judge denied the application, indicating that a multiplicity of proceedings should be avoided and that there was an adequate alternative remedy available - The matter proceeded to sentencing - The lawyer appealed the decision of the motions judge refusing the prohibition order - He alleged that the judge failed to consider Charter values, as well as other relevant factors, and failed to provide adequate reasons for his decision - The Manitoba Court of Appeal held that the matter was moot and was not the type of issue that the court would exercise its discretion to hear notwithstanding the fact that it was moot - The appeal from the motion judge's decision was therefore dismissed - See paragraphs 16 to 26.

Evidence - Topic 3626

Documentary evidence - Private documents - Letters written without prejudice - Settlement negotiations - [See Practice - Topic 4580 ].

Evidence - Topic 4166

Witnesses - Privilege - Communications - Offers of settlement or settlement negotiations - [See Practice - Topic 4580 ].

Practice - Topic 4580

Discovery - What documents must be produced - Privileged documents - Documents prepared for purpose of settlement - The Discipline Committee of the Law Society of Manitoba found that a lawyer breached the Code of Professional Conduct by sending a letter to opposing counsel that commented unfavourably on a judge who was being considered as case management judge - The lawyer appealed, arguing that the letter was written on a "Strictly Confidential and Without Prejudice" basis and therefore should not have been disclosed to the Law Society by the recipient (i.e., to admit the letter into evidence violated the principle of settlement privilege) - The Manitoba Court of Appeal dismissed the appeal - The Discipline Committee correctly decided that the concept of settlement privilege did not apply - Here the communication was not an attempt to effect a settlement and therefore settlement privilege did not attach to the letter, the purpose of which was procedural only - The court stated that even if settlement privilege applied, on these facts, the public interest in the effective regulation of lawyers by an independent bar required that the governing body have access to the letter - See paragraphs 31 to 38.

Practice - Topic 8858

Appeals - Bar or loss of right of appeal - Moot issues - [See Courts - Topic 2286 ].

Torts - Topic 5586

Invasion of privacy - Defences - Waiver of privacy interest - The Discipline Committee of the Law Society of Manitoba found that a lawyer (Histed) breached the Code of Professional Conduct by sending a letter to opposing counsel that commented unfavourably on a judge who was being considered as case management judge - The lawyer appealed, arguing that the letter was written on a "Strictly Confidential and Without Prejudice" basis and therefore should not have been received in evidence by the panel - To do so, he argued, was a violation of the Privacy Act - The Manitoba Court of Appeal dismissed the appeal, holding that the panel properly determined that the Privacy Act did not apply - The letter was authored, signed and distributed by Histed to counsel for the Attorney General and copied to counsel for two co-defendants in the litigation - One of the recipients, who was in possession of the letter with Histed's consent, objected to its content, and the letter was forwarded first to senior counsel within the department and then to the Law Society - Given that the recipient was in possession of the letter with Histed's consent, it did not come within the parameters of the Privacy Act - There was no violation of Histed's privacy rights, or those of his clients, that would render the letter inadmissible under s. 7 of the Privacy Act - See paragraphs 27 to 30.

Cases Noticed:

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 17].

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; 2002 SCC 26, refd to. [para. 18].

Mondesir v. Manitoba Association of Optometrists (1998), 129 Man.R.(2d) 96; 180 W.A.C. 96 (C.A.), leave to appeal refused (1999), 236 N.R. 393; 138 Man.R.(2d) 108; 202 W.A.C. 108 (S.C.C.), refd to. [para. 19].

Adelaar v. Law Society of British Columbia, [2000] B.C.T.C. 646; 2000 BCSC 329, refd to. [para. 20].

Hung v. Gardiner et al., [2002] B.C.T.C. 1234; 45 Admin. L.R.(3d) 243; 2002 BCSC 1234, affd. (2003), 184 B.C.A.C. 4; 302 W.A.C. 4; 1 Admin. L.R.(4th) 152; 2003 BCCA 257, refd to. [para. 30].

Meyers v. Dunphy (2007), 262 Nfld. & P.E.I.R. 173; 794 A.P.R. 173; 38 C.P.C.(6th) 265; 2007 NLCA 1, refd to. [para. 36].

Rush & Tompkins Ltd. v. Greater London Council, [1988] 3 All E.R. 737; 104 N.R. 392 (H.L.), refd to. [para. 36].

Robertson Stromberg, Re, [1995] 3 W.W.R. 601; 128 Sask.R. 107; 85 W.A.C. 107 (C.A.), refd to. [para. 37].

Skogstad v. Law Society of British Columbia, [2007] 9 W.W.R. 218; 244 B.C.A.C. 116; 403 W.AC. 116; 2007 BCCA 310, refd to. [para. 37].

R. v. Kopyto (1987), 24 O.A.C. 81; 39 C.C.C.(3d) 1 (C.A.), refd to. [para. 41].

Krieger et al. v. Law Society of Alberta, [2002] 3 S.C.R. 372; 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275: 2002 SCC 65, refd to. [para. 41].

Law Society of Manitoba v. Savino (1983), 23 Man.R.(2d) 293; 1 D.L.R.(4th) 285 (C.A.), refd to. [para. 43].

Klein and Dvorak v. Law Society of Upper Canada (1985), 8 O.A.C. 161; 50 O.R.(2d) 118 (Div. Ct.), refd to. [para. 43].

Royal College of Dental Surgeons (Ont.) v. Rocket and Price, [1990] 2 S.C.R. 232; 111 N.R. 161; 40 O.A.C. 241, refd to. [para. 43].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 43].

R. v. Butler and McCord, [1992] 1 S.C.R. 452; 134 N.R. 81; 78 Man.R.(2d) 1; 16 W.A.C. 1; 70 C.C.C.(3d) 129, refd to. [para. 45].

Attis v. Board of Education of District No. 15 et al., [1996] 1 S.C.R. 825; 195 N.R. 81; 171 N.B.R.(2d) 321; 437 A.P.R. 321, refd to. [para. 45].

Ross v. New Brunswick School District No. 15 - see Attis v. Board of Education of District No. 15 et al.

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91; 93 D.L.R.(4th) 36, refd to. [para. 49].

Law Society of Manitoba v. Histed, [2003] L.S.D.D. No. 31, refd to. [para. 56].

British Columbia Public School Employers' Association v. British Columbia Teachers' Federation (2005), 215 B.C.A.C. 128; 355 W.A.C. 128; 257 D.L.R.(4th) 385; 2005 BCCA 393, refd to. [para. 57].

Committee for the Commonwealth of Canada et al. v. Canada, [1991] 1 S.C.R. 139; 120 N.R. 241, refd to. [para. 57].

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. 65].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 67].

Sawyer, In Re (1959), 79 S. Ct. 1376 (U.S. Sup. Ct.), refd to. [para. 69].

Howell, In Re (1952), 89 A.2d 652 (N.J. Sup. Ct.), refd to. [para. 71].

R. v. Bryan (P.C.) et al., [2007] 1 S.C.R. 527; 359 N.R. 1; 237 B.C.A.C. 33; 392 W.A.C. 33; 2007 SCC 12, refd to. [para. 74].

British Columbia Government Employees' Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; 87 N.R. 241; 71 Nfld. & P.E.I.R. 93; 220 A.P.R. 93, refd to. [para. 78].

R. v. Jones, [1986] 2 S.C.R. 284; 69 N.R. 241; 73 A.R. 133; 31 D.L.R.(4th) 569; [1986] 6 W.W.R. 577; 47 Alta. L.R.(2d) 97, refd to. [para. 89].

Sauvé v. Canada (Chief Electoral Officer) et al., [2002] 3 S.C.R. 519; 294 N.R. 1; 2002 SCC 68, refd to. [para. 90].

Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827; 320 N.R. 49; 348 A.R. 201; 321 W.A.C. 201; 2004 SCC 33, refd to. [para. 98].

Kessiloff v. Law Society of Manitoba, [1983] 3 W.W.R. 190 (Man. C.A.), refd to. [para. 99].

Law Society of British Columbia v. Greene, [2003] LSBC 30, refd to. [para. 99].

Law Society of British Columbia v. Eisbrenner, [2003] LSBC 03, refd to. [para. 99].

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; 203 N.R. 169; 182 N.B.R.(2d) 81; 463 A.P.R. 81, refd to. [para. 101].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 102].

R. v. Lucas (J.D.) et al., [1998] 1 S.C.R. 439; 224 N.R. 161; 163 Sask.R. 161; 165 W.A.C. 161, refd to. [para. 103].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 2(b) [para. 44]; sect. 32 [para. 43].

Legal Profession Act, S.M. 2002, c. 44; C.C.S.M., c. L-107, sect. 43(b) [para. 44].

Privacy Act, R.S.M. 1987, c. P-125; C.C.S.M., c. P-125, sect. 7 [para. 27].

Authors and Works Noticed:

Cameron, Jamie, Back to Fundamentals: Multidisciplinary Partnerships and Freedom of Association Under Section 2(d) of the Charter (2000), 50 U.T.L.J. 261, p. 266 [para. 84].

Choudhry, Sujit, So What is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter's Section 1 (2006), 34 S.C.L.R.(2d) 501, generally [para. 86]; p. 530 [para. 88].

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Looseleaf Supp.), vol. 2, paras. 37.2(c) [para. 43]; 38.4 [para. 91].

Law Society of Manitoba, Code of Professional Conduct, c. 1, 9, 13, 15, 19 [para. 44].

Ontario, Attorney General, Report of the Professional Organizations Committee (1980), p. 26 [para. 65].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), para. 14.207 [para. 32].

Counsel:

R.I. Histed, on his own behalf;

C.K. Dangerfield, for the respondent.

These appeals were heard on April 12, 2007, before Steel, Hamilton and Joyal, JJ.A., of the Manitoba Court of Appeal. The following judgment of the court was delivered by Steel, J.A., on December 17, 2007.