I take it back! In certain circumstances, an administrative body can correct a breach in procedural fairness by reopening the relevant decision

Administrative law – Decisions reviewed – Law Societies – Bias – Judicial review application – Premature – Procedural requirements and fairness – Evidence – Jurisdiction – Legislative compliance – Hearings – Notice – Hearing de novo – Barristers and solicitors – Professional misconduct – Disciplinary proceedings

Hemminger v. Law Society of British Columbia, [2022] B.C.J. No. 32, 2022 BCSC 30, British Columbia Supreme Court, January 11, 2022, L.A. Warren J.

The petitioner, Ms. Hemminger, is a lawyer licensed to practice in British Columbia.  She was issued a citation by the Law Society of British Columbia in May 2018 for professional misconduct and breach of the Law Society Rules.  The Law Society established a hearing panel to conduct proceedings in relation to the citation.

Ms. Hemminger applied for judicial review of three interim decisions made by the hearing panel, and asked for an order prohibiting the hearing panel from proceeding.

This application was brought during the first stage of two in the disciplinary process: the “Facts and Determination Stage,” during which the hearing panel set out to decide whether the allegations had been proven by the Law Society.  If the hearing panel were to decide the allegations had been proven, the matter would advance to the second stage, the “Disciplinary Action” stage, during which the hearing panel would decide on a sanction.  Ms. Hemminger applied for judicial review of three interim decisions made by the hearing panel, and asked for an order prohibiting the hearing panel from proceeding further.

Following the evidentiary phase of the Facts and Determination Stage, the hearing panel had set a schedule for submissions.  On January 13, 2021, the deadline for Ms. Hemminger’s submissions, her counsel delivered a notice of application seeking an extension, as well as leave to reopen the evidentiary phase to adduce evidence from an addictions specialist as well as two psychologists.  Counsel explained that this new evidence was precipitated by new diagnoses Ms. Hemminger had obtained during the evidentiary phase of the proceedings.

On January 20, 2021, the hearing panel administrator sent an e-mail to the parties advising the hearing panel had met, without notice to the parties, and had decided to deny Ms. Hemminger’s request to reopen the evidentiary phase of the proceedings, with reasons to follow.

Ms. Hemminger’s counsel responded the same day advising Ms. Hemminger would be seeking judicial review in respect of that decision.  Two days later, on January 22, 2021, the administrator contacted the parties and advised the hearing panel had reconsidered the January 20, 2021 decision.  It had decided it would instead hear Ms. Hemminger’s application de novo on January 25, 2021.  On January 25, 2021, Ms. Hemminger’s counsel wrote a further letter to the hearing panel again advising Ms. Hemminger would be seeking judicial review.  Neither Ms. Hemminger nor her counsel attended the January 25, 2021 hearing.  Upon receipt of counsel’s letter, the hearing panel adjourned to allow Ms. Hemminger time to pursue judicial review.

Ms. Hemminger claimed procedural unfairness arose during the events that began on January 20, 2021, including the hearing panel’s failure to give the parties notice of its January 20, 2021 hearing date; its decision not to allow her to make submissions on the Law Society’s letter opposing the introduction of new evidence; and its dismissal of her application to adduce new evidence without asking for the material she intended to rely on.  Ms. Hemminger further alleged a reasonable apprehension of bias had arisen, as the hearing panel’s dismissal of her application demonstrated stigmatization of those suffering from mental illness.  On that basis, Ms. Hemminger argued the hearing panel had lost jurisdiction over the citation.  She claimed that the procedural errors made by the hearing panel and the reasonable apprehension of bias were so significant that the reviewing court should intervene prior to a final determination being made.

The Court dismissed Ms. Hemminger’s application for judicial review as premature.  The Court held that, as a general rule, parties are required to exhaust all internal remedies and rights within the administrative process before seeking judicial review.  In exceptional circumstances, the Court will intervene before the administrative process has concluded, but the threshold for establishing such circumstances is high, and such intervention is rare.  Assertions of bias or loss of jurisdiction do not constitute an exceptional circumstance per se.  The following six factors are often considered in determining whether judicial review should proceed at an interim stage: hardship to the applicant, including an element of urgency; waste; delay; fragmentation; strength of the case; and statutory context.

In considering hardship to Ms. Hemminger, the Court found Ms. Hemminger was not unable to continue the proceedings due to her mental health, and that continuing the proceedings would not cause irreparable harm, as the decisions made in the Facts and Determination Stage would not be dispositive of her rights.

In considering waste and delay, the Court found the Facts and Determination Stage was almost complete, such that any wasted time and resources if the proceedings were to continue would not be significant.

In considering fragmentation, the Court found that determining the allegations of bias and procedural fairness would not resolve the issues with finality.  In considering the strength of the case, the Court found there was merit to Ms. Hemminger’s allegation of procedural unfairness, but that the hearing panel had corrected the breach by reconsidering its January 20, 2021 decision two days later and presenting Ms. Hemminger with an opportunity to make her case.  The Court held that an administrative body can correct a breach in procedural fairness by reopening a decision in that way.  Further, the allegations of bias were not so clear cut as to amount to exceptional circumstances that would justify mid-proceeding judicial intervention.

Lastly, the Court found the statutory context weighed against mid-proceeding judicial intervention in this case.  Hearing applications for judicial review at an interim stage of a discipline hearing leads to delay, which is contrary to the Law Society’s object and duty to uphold and protect the public interest in the administration of justice.  The Legal Profession Act, S.B.C. 1998, c. 9 also provides opportunities to appeal as of right at different stages in the disciplinary process.

This case was digested by Mollie A. Clark, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Mollie A. Clark at [email protected].

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