Pearlman v. Manitoba Law Society Judicial Committee, (1991) 130 N.R. 121 (SCC)

• Judge: Stevenson and Iacobucci, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 07, 1991
• Jurisdiction: Canada (Federal)
• Citations: (1991), 130 N.R. 121 (SCC);130 NR 121;84 DLR (4th) 105;75 Man R (2d) 81;6 WAC 81;[1991] 2 SCR 869;JE 91-1507;1991 CanLII 26 (SCC);2 Admin LR (2d) 185;[1991] 6 WWR 289;[1991] SCJ No 66 (QL);29 ACWS (3d) 406;6 CRR (2d) 259

Pearlman v. Man. Law Soc. Jud. Com. (1991), 130 N.R. 121 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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David Morley Pearlman (appellant) v. The Manitoba Law Society Judicial Committee (respondent) and The Attorney General for Ontario, The Attorney General of Quebec, The Attorney General of British Columbia and The Attorney General for Saskatchewan (intervenors)

(21671)

Indexed As: Pearlman v. Manitoba Law Society Judicial Committee

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé,

Sopinka, Gonthier, Cory, McLachlin,

Stevenson and Iacobucci, JJ.

September 26, 1991.

Summar y:

The Manitoba Law Society commenced disciplinary proceedings against a lawyer for conduct unbecoming a solicitor. The lawyer applied to prohibit the Society from pro­ceeding, alleging delay and lack of jurisdic­tion.

The Manitoba Court of Queen's Bench, in a decision reported in [1988] 3 W.W.R. 277; 51 Man.R.(2d) 151; 49 D.L.R.(4th) 42, dismissed the lawyer's application. The lawyer appealed.

The Manitoba Court of Appeal, O'Sullivan, J.A., dissenting, in a decision reported in [1990] 1 W.W.R. 178; 59 Man.R.(2d) 255; 62 D.L.R.(4th) 681; 48 C.R.R. 342, dis­missed the appeal. The lawyer appealed.

The Supreme Court of Canada dismissed the appeal.

Barristers and Solicitors - Topic 5106

Discipline - Professional misconduct defined - The Supreme Court of Canada affirmed that the Benchers of the Manitoba Law Society had jurisdiction and were in the best position to determine issues of misconduct and incompetence - The court affirmed the proper test as being "whether the allegations, if proved, are reasonably open to the interpretation of professional misconduct. If so, ... the Benchers have jurisdiction to proceed" - See paragraph 25.

Barristers and Solicitors - Topic 5182

Discipline - Disciplinary powers - Juris­diction of disciplinary body - A lawyer who owned several houses in Winnipeg was ordered by the City to make repairs - The lawyer wrote a number of letters to a city building inspector threatening both civil and criminal action - He also warned the inspector to stay off his property - In a related court action the solicitor was ordered to pay $1,500 in costs to the building inspector, but refused to do so - The Supreme Court of Canada affirmed that the Law Society had jurisdiction to determine whether the solicitor's actions constituted conduct unbecoming a solicitor - See paragraph 25.

Barristers and Solicitors - Topic 5253

Discipline - Defences - Delay - In 1987 the Manitoba Law Society proceeded with charges of unbecoming conduct against a solicitor respecting conduct between 1977 and 1979 - The Supreme Court of Canada affirmed that there was no laches or un­reasonable delay, where the Society was unaware of the conduct until late 1986 - The court affirmed that s. 11(b) of the Charter (right to be tried within a reason­able time) was inapplicable, since the section did not apply to private matters, did not protect against precharge delay and these circumstances did not involve true penal consequences - See paragraph 24.

Barristers and Solicitors - Topic 5501

Discipline - Costs - General - The Mani­toba Law Society commenced disciplinary proceedings against a lawyer for conduct unbecoming a solicitor - The Society claimed the right to levy costs of the pro­ceedings against him under s. 52(4) of the Law Society Act, if found guilty - The solicitor argued that the proceedings were contrary to s. 7 of the Charter because the Society had a pecuniary interest in finding him guilty and could suffer a pecuniary loss if it found him innocent - The Supreme Court of Canada affirmed that there was no violation of the principles of fundamental justice - See paragraphs 47 to 55.

Civil Rights - Topic 8305.1

Canadian Charter of Rights and Freedoms - Application - Section 11 - [See Barris­ters and Solicitors - Topic 5253 ].

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - [See Barristers and So­licitors - Topic 5501 ].

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - The Supreme Court of Canada stated that when deciding whether a law contravenes s. 7 of the Charter, one must examine the impugned legislation to ascertain whether it, viewed in a purposive manner, meets the fundamental precepts reflected in our system of justice - See paragraph 30.

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Principles of fundamen­tal justice - [See Barristers and Solici­tors - Topic 5501 ].

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Principles of fundamen­tal justice - The Supreme Court of Canada stated that the principles of fundamental justice reflect the fundamental tenets on which our legal system is based - Those tenets include, but are not limited to, the rules of natural justice and the duty to act fairly - Included in these fundamental principles is the concept of a procedurally fair hearing before an impartial decision-maker - See paragraphs 30 to 31.

Cases Notice d:

Bateman v. Association of Professional Engineers of Manitoba (1984), 28 Man.R.(2d) 264 (Q.B.), refd to. [para. 9].

R. v. Wigglesworth, [1987] 2 S.C.R. 541; 81 N.R. 161; 61 Sask.R. 105; 24 O.A.C. 321, refd to. [para. 14].

R. v. Kalanj; R. v. Pion, [1989] 1 S.C.R. 1594; 96 N.R. 191, refd to. [para. 14].

Law Society of Manitoba v. Savino (1983), 23 Man.R.(2d) 293; 1 D.L.R.(4th) 285 (C.A.), refd to. [para. 25].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 27].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 31].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1, refd to. [para. 33].

Old St. Boniface Residents Association Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R.(2d) 134, appld. [para. 34].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 36].

Syndicat des employés de production du Quebec et de l'Acadie v. Commission des droits de la personne et al., [1989] 2 S.C.R. 879; 100 N.R. 241, refd to. [para. 36].

Committee for Justice and Liberty Foun­dation et al. v. National Energy Board, [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 37].

Jabour v. Law Society of British Colum­bia, [1982] 2 S.C.R. 307; [1982] 5 W.W.R. 289; 43 N.R. 451, refd to. [para. 41].

McAllister v. New Brunswick Veterinary Association (1986), 71 N.B.R.(2d) 109; 182 A.P.R. 109, refd to. [para. 53].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [paras. 1, 15, 20, 22, 27-30, 36, 55]; sect. 11(b) [paras. 8, 14, 22, 24].

Law Society Act, R.S.M. 1987, c. L-100; C.C.S.M., c. L-100, sect. 6, sect. 7, sect. 8, sect. 9, sect. 10, sect. 11, sect. 12, sect. 13 [para. 43]; sect. 36, sect. 36(a), sect. 36(n), sect. 36(t) [para. 39]; sect. 36(o)(xi) [paras. 18, 21]; sect. 52(1) [para. 39]; sect. 52(4) [paras. 20-21, 29, 33, 47-48, 50-55].

Rules of the Law Society of Manitoba, rule 11(3), rule 11(5)(b) [para. 43]; rule 19(13), rule 22(13)(e) [para. 44].

Authors and Works Noticed:

de Smith, Judicial Review of Administra­tive Action (4th Ed. 1980), p. 248 [para. 32].

Evans, J.M., The Principles of Fundamen­tal Justice: The Constitution and the Common Law (1991), 29 Osgoode Hall L.J. 51, p. 55 [para. 30].

Ontario, Ministry of the Attorney General of, The Report of the Professional Or­ganizations Committee (1980), p. 25 [para. 40].

Counsel:

Sidney Green, Q.C., for the appellant;

Jannine LeMere, for the respondent;

Lori R. Sterling, for the Attorney General for Ontario;

Monique Rousseau, for the Attorney Gen­eral of Quebec;

Donna J. Miller, for the Attorney General of Manitoba;

George H. Copley, for the Attorney Gen­eral of British Columbia;

Graeme G. Mitchell, for the Attorney General of Saskatchewan.

Solicitors of Record:

Sidney Green, Winnipeg, Manitoba, for the appellant;

The Law Society of Manitoba, Winnipeg, Manitoba, for the respondent;

Lori R. Sterling, Toronto, Ontario, for the Attorney General for Ontario;

Monique Rousseau, Sainte-Foy, Quebec, for the Attorney General of Quebec;

The Department of Justice, Winnipeg, Manitoba, for the Attorney General of Manitoba;

The Ministry of the Attorney General of British Columbia, Victoria, B.C., for the Attorney General of British Columbia;

The Deputy Attorney General, Regina, Saskatchewan, for the Attorney General for Saskatchewan.

This appeal was heard before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci, JJ., of the Supreme Court of Canada on May 7, 1991. The decision of the Supreme Court was delivered in both official languages by Iacobucci, J., on September 26, 1991.