Merchant v. Law Society of Saskatchewan, (2014) 438 Sask.R. 110 (CA)

• Judge: Richards, C.J.S., Lane and Ottenbreit, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 21, 2013
• Jurisdiction: Saskatchewan
• Citations: (2014), 438 Sask.R. 110 (CA);2014 SKCA 56

Merchant v. Sask. Law Soc. (2014), 438 Sask.R. 110 (CA);

    608 W.A.C. 110

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. MY.032

Evatt Francis Anthony Merchant, Q.C. (appellant) v. Law Society of Saskatchewan (respondent)

(CACV2278; 2014 SKCA 56)

Indexed As: Merchant v. Law Society of Saskatchewan

Saskatchewan Court of Appeal

Richards, C.J.S., Lane and Ottenbreit, JJ.A.

May 8, 2014.

Summary:

A Law Society of Saskatchewan Hearing Committee determined that Merchant was guilty of conduct unbecoming a lawyer in respect of a two count amended formal complaint. The Discipline Committee of the Law Society suspended Merchant for three months for each count to be served concurrently and ordered him to pay costs of $28,869.30. Merchant appealed the decisions of the Hearing Committee and the Discipline Committee.

The Saskatchewan Court of Appeal dismissed the appeal.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decision - Sufficiency of - A Law Society of Saskatchewan Hearing Committee ("HC") determined that Merchant was guilty of conduct unbecoming a lawyer in respect of a two count amended complaint that he did: (i) breach a Court Order of Mr. Justice Smith (the "Smith order") that required his firm to pay certain settlement proceeds due to his client, M.H., into court pending determination of a related family property issue; and (ii) counsel and/or assist his client, M.H., to act in defiance of the Smith order - Merchant appealed - He argued the HC's finding that he was the directing mind and will of the breach of the Smith order was unsupported by its reasons - The Saskatchewan Court of Appeal stated that "This argument appears to be based on the illogic that, because Mr. Merchant sought advice from Mr. Neill [a firm lawyer] and Mr. Outerbridge [the office manager], he cannot have been the directing mind. Contrary to Mr. Merchant's arguments to the effect that the HC ignored the fact Mr. Neill and Mr. Outerbridge had input into the decision, the HC was clearly aware of what transpired in this regard because it commented both had given Mr. Merchant their blessing for the strategy regarding the situation" - There was overwhelming evidence Merchant was the directing mind and will behind how events transpired and it was reflected in the HC's decision - See paragraphs 53 to 54.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decision - Sufficiency of - A Law Society of Saskatchewan Hearing Committee ("HC") determined that Merchant was guilty of conduct unbecoming a lawyer - Merchant appealed - One issue was whether the decision of the HC was unreasonable because it failed to provide sufficient reasons to support its finding of conduct unbecoming - The Saskatchewan Court of Appeal held that the reasons of the HC, read as a whole, demonstrated how the HC came to its decision and supported the reasonableness of its conclusions - See paragraphs 43 to 58.

Administrative Law - Topic 558

The hearing and decision - Decisions of the tribunal - Signing of - A Law Society of Saskatchewan Hearing Committee ("HC") determined that Merchant was guilty of conduct unbecoming a lawyer - Merchant appealed - He argued that unsigned reasons of the HC were of no force and effect and secondly that a quorum was not maintained throughout its deliberations - As he framed it, the absence of the personal signatures of each committee member on the decision raised the issue of whether each participated in the deliberations - The Saskatchewan Court of Appeal stated that "nothing in the Legal Profession Act or the Rules of the Law Society of Saskatchewan requires HC or DC [Discipline Committee] decisions to be reduced to writing or to be signed by each of the Benchers participating in the decision or at all. ... The HC decision was provided to the parties using the committee member's names in quotation marks on the separate signature lines in place of handwritten signatures. ... the names in quotation marks are sufficient as signatures in the absence of a handwritten signature to validate the decision. The form and content of the decision as a whole leave no doubt that the HC members have endorsed its contents and that it is a decision of the whole committee" - See paragraphs 113 to 117.

Administrative Law - Topic 562

The hearing and decision - Decisions of the tribunal - Time for - Effect of failure to decide within prescribed period - A Law Society of Saskatchewan Hearing Committee ("HC") determined that Merchant was guilty of conduct unbecoming a lawyer - Merchant appealed - He argued the HC lost jurisdiction as a result of not providing its decision to the Chairperson of the Discipline Committee within 45 days, as required by s. 53(1) of the Legal Profession Act - The Saskatchewan Court of Appeal stated that "The decision of the HC was rendered 24 days after the expiry of the statutory period deadline. Given the prior delay in this matter, an additional 24 days is minuscule. Mr. Merchant does not argue there is any substantive prejudice caused by the delay. The fact the statutory provision is directory, coupled with the lack of demonstrable prejudice suffered by Mr. Merchant and the fact he consented to the delay, makes it inappropriate to set aside the decision because of a failure to comply with the time lines specified in the Act" - See paragraphs 108 to 112.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - [See Administrative Law - Topic 2096 ].

Administrative Law - Topic 2096

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Waiver - A Law Society of Saskatchewan Hearing Committee ("HC") determined that Merchant was guilty of conduct unbecoming a lawyer in respect of two counts - Merchant appealed - One issue was whether the HC's decision was unreasonable because it considered and determined counts 1 and 2 concurrently with counts 3 to 8 of the complaint regarding the complaints of T.M. - Merchant argued the two sets of counts should not have been heard by the same HC and this, along with certain aspects of the HC's adjudication and determination, raised a reasonable apprehension of bias - The Saskatchewan Court of Appeal rejected the argument - Based on the fact the two matters were unrelated and dealt with different facts and types of conduct, there was nothing improper with the same HC adjudicating both matters - Further, Merchant made no objection and no application to sever the allegations - The issue of bias resulting from the same HC handling the matters was never raised before the HC - There was an implied waiver by Merchant of any right to have the counts severed and heard by different HCs - See paragraphs 98 to 107.

Administrative Law - Topic 8925

Boards and tribunals - Powers - Quorum requirements - [See Administrative Law - Topic 558 ].

Administrative Law - Topic 8925

Boards and tribunals - Powers - Quorum requirements - A Law Society of Saskatchewan Hearing Committee determined that Merchant was guilty of conduct unbecoming a lawyer - The Discipline Committee ("DC") suspended Merchant for three months and ordered him to pay costs - Merchant appealed - He argued that s. 6(7) of the Legal Profession Act required there be 21 benchers present for a DC meeting and that, because there were only 12 members present on this matter, the decision was a nullity - The Saskatchewan Court of Appeal stated that "Section 6 does not speak to the issue of how many benchers are required for a quorum. The quorum for a meeting of benchers is set by Rule 92(3), which states it is ten members. Twelve benchers were present. There was a quorum in this case" - See paragraphs 155 to 156.

Barristers and Solicitors - Topic 1544

Relationship with client - Duty to client - Extent or limits of duty - [See Barristers and Solicitors - Topic 1552 ].

Barristers and Solicitors - Topic 1552

Relationship with client - Duty to client - General - Duty to follow client's instructions - A Law Society of Saskatchewan Hearing Committee ("HC") determined that Merchant was guilty of conduct unbecoming a lawyer in respect of a two count amended complaint that he did: (i) breach a Court Order of Mr. Justice Smith (the "Smith order") that required his firm to pay certain settlement proceeds due to his client, M.H., into court pending determination of a related family property issue; and (ii) counsel and/or assist his client, M.H., to act in defiance of the Smith order - Merchant appealed - Merchant argued that he acted in accordance with the Code of Professional Conduct and his common law duty of loyalty to M.H. and the HC unreasonably dismissed this argument - He argued that if his firm ("MLG") had paid M.H.'s settlement proceeds into court it would have violated its duty to "serve no master other than its client" and it would have been acting contrary to their client's instructions - The Saskatchewan Court of Appeal held that this argument was faulty in two respects - First, the Smith order did not create a conflict of legal obligations between MLG and its client - The Smith order aligned the legal obligations of MLG to pay the money into court with those of M.H. - Second, if a client asked a lawyer to breach a court order, the lawyer should withdraw from serving that client - See paragraphs 82 to 88.

Barristers and Solicitors - Topic 5205

Discipline - Offences - Conduct unbecoming a lawyer - A Law Society of Saskatchewan Hearing Committee determined that Merchant was guilty of conduct unbecoming a lawyer in respect of a two count amended complaint that he did: (i) breach a Court Order of Mr. Justice Smith (the "Smith order") that required his firm to pay certain settlement proceeds due to his client, M.H., into court pending determination of a related family property issue; and (ii) counsel and/or assist his client, M.H., to act in defiance of the Smith order - Merchant appealed - He argued that the offences as worded in the complaint required mens rea and this element had not been established - The Saskatchewan Court of Appeal held that the charges were not cast as mens rea offences - The Law Society properly framed each count as a strict liability offence - Nothing in the Legal Profession Act or the Code of Professional Conduct imparted any type of mental requirement into the offence - The charges merely said "did" (breach) and "did" (counsel and/or assist) - The word "did" alone did not impart any mens rea into the charge - It was reasonable the offences were strict liability offences - See paragraphs 59 to 72.

Barristers and Solicitors - Topic 5205

Discipline - Offences - Conduct unbecoming a lawyer - A Law Society of Saskatchewan Hearing Committee ("HC") determined that Merchant was guilty of conduct unbecoming a lawyer in respect of a two count amended complaint that he did: (i) breach a Court Order of Mr. Justice Smith (the "Smith order") that required his firm to pay certain settlement proceeds due to his client, M.H., into court pending determination of a related family property issue; and (ii) counsel and/or assist his client, M.H., to act in defiance of the Smith order - Merchant appealed - In relation to count 1, Merchant argued that he had a reasonable belief he was not breaching the Smith order - The Saskatchewan Court of Appeal stated that "This is not a case of mistaken facts but of a mistaken subjective conclusion about whether the offence was being committed. What Mr. Merchant subjectively believed about the commission of the offence is not at issue. The argument fails on that basis alone. However, in any event, the evidence shows Mr. Merchant did not have an objectively reasonable belief he was not breaching the Smith order nor did he take reasonable steps to avoid the breach of the Smith order. ... While the HC did not explicitly reference what Mr. Merchant could have reasonably believed, it is implicit in their judgment he could not have reasonably believed he was not breaching the Smith order. Based on the evidence and its line of reasoning, this appears to be a reasonable conclusion by the HC" - See paragraphs 73 to 79.

Barristers and Solicitors - Topic 5205

Discipline - Offences - Conduct unbecoming a lawyer - A Law Society of Saskatchewan Hearing Committee ("HC") determined that Merchant was guilty of conduct unbecoming a lawyer in respect of a two count formal complaint that he did: (i) breach a Court Order of Mr. Justice Smith (the "Smith order") that required his firm to pay certain settlement proceeds due to his client, M.H., into court pending determination of a related family property issue; and (ii) counsel and/or assist his client, M.H., to act in defiance of the Smith order - Merchant appealed - With respect to count 2, Merchant argued he exercised due diligence and took all reasonable steps to avoid commission of the prohibited act - The Saskatchewan Court of Appeal rejected this ground of appeal - The court stated that "The evidence before the HC disclosed that M.H. was counselled he had an obligation to pay, while at the same time a scheme was put in place and executed which assisted M.H. to flout his obligations to do so. With respect to count 2, the Committee clearly found that '[t]he Member directed that the settlement cheque be issued contrary to the Release; he held the settlement cheques in his drawer for six weeks and he concocted a scheme to side step the Smith order. Obviously the Member believed M.H. had breached the Smith order as he advised him that he could go to jail if he kept talking.' This is a finding by the HC that Mr. Merchant took active steps to assist M.H. to defy the Smith order" - See paragraphs 80 to 81.

Barristers and Solicitors - Topic 5205

Discipline - Offences - Conduct unbecoming a lawyer - A Law Society of Saskatchewan Hearing Committee ("HC") determined that Merchant was guilty of conduct unbecoming a lawyer in respect of a two count amended complaint that he did: (i) breach a Court Order of Mr. Justice Smith (the "Smith order") that required his firm to pay certain settlement proceeds due to his client, M.H., into court pending determination of a related family property issue; and (ii) counsel and/or assist his client, M.H., to act in defiance of the Smith order - Merchant appealed - One issue was whether the HC erred by determining that circumventing and breaching a court order were synonymous - The Saskatchewan Court of Appeal stated that this argument relied on nothing more than semantics and was devoid of merit - The conclusion the order was breached was reasonable no matter how the scheme was described - See paragraph 89.

Barristers and Solicitors - Topic 5205

Discipline - Offences - Conduct unbecoming a lawyer - A Law Society of Saskatchewan Hearing Committee ("HC") determined that Merchant was guilty of conduct unbecoming a lawyer in respect of a two count amended complaint that he did: (i) breach a Court Order of Mr. Justice Smith (the "Smith order") that required his firm to pay certain settlement proceeds due to his client, M.H., into court pending determination of a related family property issue; and (ii) counsel and/or assist his client, M.H., to act in defiance of the Smith order - The Discipline Committee ("DC") suspended Merchant for three months for each count to be served concurrently and ordered him to pay costs of $28,869.30 - Merchant appealed - One issue was whether the HC's decision was unreasonable because it offended the Kienapple principle - The Saskatchewan Court of Appeal dismissed this ground of appeal - This issue was not dealt with explicitly in the HC's decision - However, in its reasons, the HC determined count 1 and count 2 had different essential elements - To that extent the HC must have determined implicitly that Kienapple did not apply - That was a reasonable approach - The Kienapple principle was not offended - On a practical basis, the Kienapple issue was addressed by the DC - The DC heard submissions from Merchant's counsel on this issue - Merchant received concurrent sentences for the convictions - See paragraphs 90 to 94.

Barristers and Solicitors - Topic 5253

Discipline - Defences - Delay - A Law Society of Saskatchewan Hearing Committee ("HC") determined that Merchant was guilty of conduct unbecoming a lawyer in respect of a two count amended complaint - Merchant appealed - One issue was whether the HC's decision was unreasonable because it failed to quash the counts because of delay - The Saskatchewan Court of Appeal stated that "Mr. Merchant alleges there was an inexplicable 81 month delay from the complaint to the hearing. The HC had before it substantial evidence on the chronology of the investigation and the causes of the delay. ... The HC concluded in all the circumstances there were no proven substantial prejudice to Mr. Merchant's defence and the cause of the delay was not solely, or in the main, due to the Law Society. Given the facts before it, this was a reasonable conclusion and it was reasonable not to stay the proceedings" - See paragraphs 95 to 97.

Barristers and Solicitors - Topic 5255

Discipline - Defences - Bias - [See Administrative Law - Topic 2096 ].

Barristers and Solicitors - Topic 5283

Discipline - Punishments - General - Considerations - A Law Society of Saskatchewan Hearing Committee determined that Merchant, a lawyer, was guilty of conduct unbecoming a lawyer in respect of a two count amended complaint that he did: (i) breach a Court Order of Mr. Justice Smith (the "Smith order") that required his firm to pay certain settlement proceeds due to his client, M.H., into court pending determination of a related family property issue; and (ii) counsel and/or assist his client, M.H., to act in defiance of the Smith order - The Discipline Committee ("DC") suspended Merchant for three months for each count to be served concurrently and ordered him to pay costs of $28,869.30 - Merchant appealed, arguing that the sentence imposed by the DC was outside of the range of sentences for similar offences and was unreasonable - The Saskatchewan Court of Appeal stated that "because of certain aggravating factors, the DC expanded the sentencing range beyond what might typically be expected. These factors were Mr. Merchant acted to breach the Smith order in a calculated manner as mentioned earlier, the breach had the potential to irreversibly and unfairly dispose of money held for the benefit of someone claiming arrears of child support and that Mr. Merchant chose to let his client remain in harm's way in two contempt applications instead of revealing the true nature of the transactions that had occurred. ... It was open to the DC, based on these factors, to determine such conduct justified a higher sentence than two months. This is reasonable given the seriousness of the offences and the circumstances of the case" - See paragraphs 118 to 136.

Barristers and Solicitors - Topic 5283

Discipline - Punishments - General - Considerations - A Law Society of Saskatchewan Hearing Committee determined that Merchant was guilty of conduct unbecoming a lawyer in respect of a two count amended complaint that he did: (i) breach a Court Order of Mr. Justice Smith (the "Smith order") that required his firm to pay certain settlement proceeds due to his client, M.H., into court pending determination of a related family property issue; and (ii) counsel and/or assist his client, M.H., to act in defiance of the Smith order - The Discipline Committee ("DC") suspended Merchant for three months and ordered him to pay costs of $28,869.30 - Merchant appealed - He argued the DC acted unreasonably by considering his post-offence conviction for breaching a court order - First, he argued that the DC unreasonably considered it to be a prior conviction - Second, he argued that the DC unreasonably considered it in respect of his character - The Saskatchewan Court of Appeal stated that "Respecting the first point, the DC did not actually treat it as a prior conviction and took pains to explain that the conviction occurred after the conduct, which formed the subject matter of this case. ... On the second point, the DC determined the 2009 conviction should be given some weight and be treated as an indication of the offender's character based on R. v. Johnston ... This is not an unreasonable approach, especially in the context of discipline of lawyers where character plays a significant role" - See paragraphs 137 to 140.

Barristers and Solicitors - Topic 5283

Discipline - Punishments - General - Considerations - A Law Society of Saskatchewan Hearing Committee determined that Merchant was guilty of conduct unbecoming a lawyer in respect of a two count amended complaint that he did: (i) breach a Court Order of Mr. Justice Smith (the "Smith order") that required his firm to pay certain settlement proceeds due to his client, M.H., into court pending determination of a related family property issue; and (ii) counsel and/or assist his client, M.H., to act in defiance of the Smith order - The Discipline Committee ("DC") suspended Merchant for three months and ordered him to pay costs of $28,869.30 - Merchant appealed, arguing that the sentence imposed by the DC was unreasonable - Merchant argued that a factor that was improperly considered as aggravating was the potential to unfairly dispose of money to be held for the benefit of someone claiming child support (V.W.) - The Saskatchewan Court of Appeal stated that "The DC was right to consider this factor. The risk and potential consequences created by Mr. Merchant's actions must be assessed at the date the event occurred, not at the time of the hearing. Mr. Merchant argues from a position of hindsight that, because the harm was actually less than it potentially could have been, the risk to which V.W. had been put is not aggravating. This argument clearly holds no water" - See paragraph 145.

Barristers and Solicitors - Topic 5283

Discipline - Punishments - General - Considerations - A Law Society of Saskatchewan Hearing Committee determined that Merchant was guilty of conduct unbecoming a lawyer in respect of a two count amended complaint that he did: (i) breach a Court Order of Mr. Justice Smith (the "Smith order") that required his firm to pay certain settlement proceeds due to his client, M.H., into court pending determination of a related family property issue; and (ii) counsel and/or assist his client, M.H., to act in defiance of the Smith order - The Discipline Committee ("DC") suspended Merchant for three months and ordered him to pay costs of $28,869.30 - Merchant appealed, arguing that the DC failed to properly consider mitigating and aggravating factors - Merchant challenged the determination that he allowed his client to be in harm's way on two contempt applications rather than reveal the true nature of the transactions - The Saskatchewan Court of Appeal stated that this was an appropriate and reasonable factor to be considered as aggravating - It did not matter that M.H. was ultimately found not in contempt of the Smith order - See paragraph 146.

Barristers and Solicitors - Topic 5283

Discipline - Punishments - General - Considerations - A Law Society of Saskatchewan Hearing Committee determined that Merchant was guilty of conduct unbecoming a lawyer in respect of a two count amended complaint that he did: (i) breach a Court Order of Mr. Justice Smith (the Smith order) that required his firm to pay certain settlement proceeds due to his client, M.H., into court pending determination of a related family property issue; and (ii) counsel and/or assist his client, M.H., to act in defiance of the Smith order - The Discipline Committee ("DC") suspended Merchant for three months and ordered him to pay costs of $28,869.30 - Merchant appealed, arguing that the sentence imposed by the DC was unreasonable - He submitted the DC failed to properly consider mitigating and aggravating factors - The Saskatchewan Court of Appeal dismissed the appeal - The DC properly considered all mitigating and aggravating factors - Deference had to be given to the DC's determination as to the weight to be put on those factors - The sentence imposed was justifiable and fit - It was reasonable - See paragraphs 134 to 150.

Barristers and Solicitors - Topic 5384

Discipline - Suspension - For breaches of rules of conduct - [See first Barristers and Solicitors - Topic 5283 ].

Barristers and Solicitors - Topic 5501

Discipline - Costs - General - A Law Society of Saskatchewan Hearing Committee determined that Merchant was guilty of conduct unbecoming a lawyer - The Discipline Committee ("DC") suspended Merchant for three months and ordered him to pay costs of $28,869.30 - Merchant appealed - He argued that the DC failed to give reasons why it ordered costs of $28,869.30 payable by Merchant - The Saskatchewan Court of Appeal stated that "Merchant's counsel's arguments before the DC implicitly assumed there would be costs ordered if his client was convicted. One may infer, in the absence of any particular complaint about the detail by Mr. Merchant, that the only decision for the DC was whether to award the amount claimed or some lesser amount based on his arguments. In this context, the lack of explanation for ordering costs is reasonable. However, in order to ensure fairness to Mr. Merchant on the facts of this case, costs should be dealt with in the same manner as in Merchant (2009). Accordingly, in the exercise of our discretion under s. 56(5) of the [Legal Profession] Act, to make any order the court considers appropriate, the costs of the Law Society shall be assessed for reasonableness before an assessment officer which, in this case, shall be the Local Registrar of Court of Queen's Bench in Regina" - See paragraphs 151 to 154.

Cases Noticed:

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. 30].

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. 38].

McLean v. Law Society of Saskatchewan (2012), 385 Sask.R. 182; 536 W.A.C. 182; 347 D.L.R.(4th) 414; 2012 SKCA 7, leave to appeal refused (2012), 440 N.R. 386 (S.C.C.), refd to. [para. 38].

Oledzki v. Law Society of Saskatchewan (2010), 362 Sask.R. 86; 500 W.A.C. 86; 2010 SKCA 120, refd to. [para. 38].

Rault v. Law Society of Saskatchewan, [2010] 1 W.W.R. 678; 331 Sask.R. 160; 460 W.A.C. 160; 2009 SKCA 81, refd to. [para. 38].

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. 38].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 39].

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; 2003 SCC 20, refd to. [para. 40].

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. 43].

Mellor v. Workers' Compensation Board (Sask.), [2012] 6 W.W.R. 669; 385 Sask.R. 210; 536 W.A.C. 210; 2012 SKCA 10, refd to. [para. 47].

Law Society of Upper Canada v. Neinstein (2010), 259 O.A.C. 313; 317 D.L.R.(4th) 419; 2010 ONCA 193, dist. [para. 48].

La Souveraine, Compagnie d'assurance générale v. Autorité de marché financiers (2013), 451 N.R. 113; 2013 SCC 63, refd to. [para. 64].

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. 65].

Laperrière v. MacLeod et al. (2010), 362 F.T.R. 189; 2010 FC 97, refd to. [para. 66].

R. v. Neil (D.L.), [2002] 3 S.C.R. 631; 294 N.R. 201; 317 A.R. 73; 284 W.A.C. 73; 2002 SCC 70, refd to. [para. 83].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 90].

R. v. Barnes, [1991] 1 S.C.R. 449; 121 N.R. 267, refd to. [para. 90].

K.C. v. College of Physical Therapists (Alta.), [1999] 12 W.W.R. 339; 244 A.R. 28; 209 W.A.C. 28; 1999 ABCA 253, refd to. [para. 90].

Blencoe v. Human Rights Commission (B.C.), [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 96].

Wachtler v. College of Physicians and Surgeons (Alta.), [2009] 8 W.W.R. 657; 448 A.R. 317; 447 W.A.C. 317; 2009 ABCA 130, refd to. [para. 96].

Arthur v. Minister of Employment and Immigration, [1993] 1 F.C. 94; 147 N.R. 288; 98 D.L.R.(4th) 254; 18 Imm. L.R.(2d) 22 (F.C.A.), refd to. [para. 100].

Benitez v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 107; 290 F.T.R. 161; 2006 FC 461, refd to. [para. 101].

Brand v. College of Physicians and Surgeons (Sask.) (1990), 86 Sask.R. 18; 72 D.L.R.(4th) 446 (C.A.), refd to. [para. 102].

Hawrish v. Law Society of Saskatchewan et al. (1998), 168 Sask.R. 184; 173 W.A.C. 184; 161 D.L.R.(4th) 760 (C.A.), refd to. [para. 110].

M & D Farm Ltd. et al. v. Manitoba Agricultural Credit Corp., [1999] 2 S.C.R. 961; 245 N.R. 165; 138 Man.R.(2d) 161; 202 W.A.C. 161, refd to. [para. 111].

B.W. v. Child and Family Services of Winnipeg (2009), 245 Man.R.(2d) 186; 466 W.A.C. 186; 315 D.L.R.(4th) 323; 2009 MBCA 95, refd to. [para. 111].

Blattgerste et al. v. Heringa et al., [2008] 11 W.W.R. 47; 254 B.C.A.C. 292; 426 W.A.C. 292; 2008 BCCA 186, refd to. [para. 113].

Law Society of Upper Canada v. Sussman, [1995] L.S.D.D. No. 17, refd to. [para. 124].

Law Society of Alberta v. Nielson, [1994] L.S.D.D. No. 215, refd to. [para. 125].

Law Society of British Columbia v. Saini, [2006] L.S.D.D. No. 160, refd to. [para. 125].

Law Society of British Columbia v. Scholz, [2008] L.S.D.D. No. 26, refd to. [para. 125].

Law Society of Alberta v. MacSween, [2004] L.S.D.D. No. 61, refd to. [para. 125].

Law Society of British Columbia v. Barron, [1997] L.S.D.D. No. 141, refd to. [para. 125].

Law Society of British Columbia v. Kirkhope, 2012 LSBC 5, refd to. [para. 127].

Law Society of Manitoba v. Bjornson, [1996] L.S.D.D. No. 258, refd to. [para. 127].

Doré v. Barreau du Québec, [2012] 1 S.C.R. 395; 428 N.R. 146; 2012 SCC 12, refd to. [para. 127].

Law Society of Upper Canada v. Argiris, [1996] L.S.D.D. No. 88, refd to. [para. 127].

Law Society of Saskatchewan v. Kirkham, [1999] L.S.D.D. No. 19, refd to. [para. 132].

R. v. Johnston, [1989] B.C.J. No. 1542 (C.A), refd to. [para. 139].

Statutes Noticed:

Legal Profession Act, S.S. 1990-91, c. L-10.1, sect. 6(7) [para. 155]; sect. 10(c), sect. 10(o) [para. 60]; sect. 53(1) [para. 108]; sect. 53(3)(a)(v)(B) [para. 152]; sect. 56(1), sect. 56(5) [para. 37].

Rules of the Law Society of Saskatchewan, rule 92(3) [para. 156].

Authors and Works Noticed:

MacKenzie, Gavin, Lawyers & Ethics: Professional Responsibility and Discipline (2011) (Looseleaf), p. 26-43 [para. 121].

Counsel:

Gord Kuski, Q.C., and Holli Kuski, for the appellant;

Timothy Huber, for the respondent.

This appeal was heard on June 21, 2013, before Richards, C.J.S., Lane and Ottenbreit, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Ottenbreit, J.A., on May 8, 2014.