 |
| Sara Blake |
This saga concerns the continuing efforts by the law society to discipline lawyer Peter Abrametz for misuse of his trust account, including a fictitious payee and inappropriate use of clients, both of which were done for the purpose of circumventing the rules respecting trust account withdrawals. Without doubt this was misconduct, but there were no findings of misappropriation or fraud.
Abrametz appealed the hearing panel’s refusal to grant a stay of its proceeding, as well as its findings of conduct unbecoming and imposition of the penalties of disbarment plus costs. In round number-one, the Court of Appeal upheld the findings of conduct unbecoming but granted a stay finding abuse of process. The Supreme Court of Canada granted the law society’s appeal of the stay and remitted the appeal respecting penalties for decision of the Court of Appeal. See my blog of the Supreme Court decision.
The Court of Appeal correctly identifies the standard of review for a statutory appeal but dismisses the Supreme Court’s admonishment not to re-weigh the evidence. They begin by ruling correctly that the hearing panel’s discretion to order penalties and costs is a question of mixed fact and law; that the legal parameters of the discretion are reviewable on a correctness standard, but the exercise of discretion and findings of fact are subject to review for palpable and overriding error. And they quote the Supreme Court’s ruling that, “An error is palpable if it is plainly seen and if all the evidence need not be reconsidered in order to identify it, and is overriding if it has affected the result” and that “an error cannot be palpable if all of the evidence needs to be ‘reconsidered’ in order to identify it.” Despite this ruling of the Supreme Court, the Court of Appeal ruled that they needed to review all of the evidence and concluded that the hearing panel gave insufficient weight to mitigating factors.
On the question of mitigation, the Court of Appeal ruled that the hearing panel gave insufficient weight to Abrametz’s initial co-operation once the auditor was at his door and too much weight to his later refusal to cooperate. The court also ruled that the hearing panel gave insufficient weight to the six years that Abrametz spent practising under supervision even though he gave no evidence that his practice was negatively affected. Their ruling on this latter point had already been overturned by the Supreme Court because they “failed to set out a proper basis for interfering with the finding that Mr. Abrametz did not suffer significant prejudice from the conditions on his practice.” The Court of Appeal was not deterred. They reinstated their finding, ruling that it was relevant to the issue of mitigation.
In discussing mitigation, the Court of Appeal uses the term “sentencing,” rather than “penalties,” continuing to treat this professional discipline case as if it were a criminal prosecution, despite the reminder by the Supreme Court of the fundamental differences between criminal prosecutions and professional discipline proceedings.
The Court of Appeal ruled that the hearing panel was “obliged by the principles of sentencing to consider potentially mitigating factors” despite the statutory requirement that “the protection of the public and ethical and competent practice take priority over the interests of the member.” The court is critical of the hearing panel’s concern, which was that confidence in and respect for the law society by the public and its members, and thus its ability to regulate the profession, were at stake, and that an insufficient penalty would offend the public’s sense of justice, and that of the profession. In my view, given the statutory requirement, the court erred in ruling that, “This very strong language [of the hearing panel] reflects the failure to give any or sufficient weight to the mitigating factors that were also relevant.”
I do not suggest that mitigating factors are not relevant. The problem with this decision is that the court considers them relevant to “sentence” – i.e. to punishment of the offender. Rather, in my view, the more appropriate approach would be to consider them relevant to assessing the future risk to the public should this individual be permitted to continue to practice law. I gather that the hearing panel was not convinced that Abrametz’s co-operation with the auditor and the supervisor is indicative of his future behaviour absent an auditor and a supervisor. It is well known that some people behave when watched but don’t when they’re not watched. His repeated circumvention of trust accounting rules suggests he ought not to be permitted to practice unsupervised.
The court also addressed and dismissed Abametz’s complaint about the hearing panel’s refusal to grant an adjournment pending the outcome of a tax investigation. I note that this issue was not remitted to them. In obiter, the court persisted in applying the standard of review of correctness to this question of procedural fairness, despite acknowledging the Supreme Court’s ruling that, even on this type of issue, questions of fact receive significant deference by way of the palpable and overriding error standard. The Court of Appeal disagreed, ruling that this “must mean that something more than that the decision maker must correctly identify the legal test for procedural fairness.” In my view, the Court of Appeal came at the issue backwards, identifying the law before finding the facts. What the appellate standard means, in my view, is that the hearing panel must first make findings of fact on the Baker factors and that these findings may be reviewed only for palpable and overriding error (Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817). Then, the correctness standard is applied to determine whether those facts demonstrate that the proceeding was unfair to the person’s right to be heard.
I note that the referral back to the Court of Appeal was heard and decided by a panel of only two judges, relying on a statutory provision allowing the hearing panel to complete a case despite a loss of quorum after the appeal was heard. In this case, the third judge had retired two years after the first decision had been released. The statute is silent on this situation involving a case referred back to the Court of Appeal.
In conclusion, the Court of Appeal set aside the hearing panel’s penalty of disbarment and costs award and remitted these issues for reconsideration.
I doubt the law society will appeal. Provided the hearing panel gives due consideration to the mitigating factors identified by the court, it retains its discretion as to penalty and costs.
In my view, this decision of the Court of Appeal contains legal errors and ought not to be followed.
Sara Blake is the author of Administrative Law in Canada, 7th edition, LexisNexis Canada. Her practice is restricted to clients who exercise statutory and regulatory powers.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.