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REGULATION OF PROFESSION - Disciplinary procedure - Appeals

Wednesday, May 17, 2017 @ 8:39 AM  

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Appeal by a solicitor, Vlug, and cross-appeal by the Law Society, from a decision by the Law Society Review Board. A Law Society hearing panel found that the appellant committed 11 counts of professional misconduct or incompetent performance. The counts related to untrue representations in his clients' evidence, untrue statements before the courts, and discourteous and unfounded statements regarding opposing counsel. The Review Board affirmed the hearing panel's decision in respect of seven of the counts. Vlug appealed and the Law Society cross-appealed to the Court of Appeal. At issue was the Board's internal standard of review.

HELD: Appeal and cross-appeal allowed. As found in the Court's companion Harding decision, it was not for the Court to dictate the internal standard of review for the Law Society Review Board. It was nonetheless apparent that the standard had been inconsistently articulated and applied in various decisions. The recent Court of Appeal jurisprudence in Mohan and Kay recognized and confirmed the continuing validity of the Hordal and Berge qualified correctness standard of review. The correctness standard applied unless the hearing involved viva voce testimony, in which case the hearing panel's findings of fact were entitled to deference. Here, the Review Board misinterpreted Mohan and Kay, and in doing so, erred in law in concluding it was bound to apply a reasonableness standard of review. The misinterpretation affected the entirety of the Review Board's decision. The matter was accordingly remitted for a fresh review.

Vlug v. Law Society of British Columbia, [2017] B.C.J. No. 817, British Columbia Court of Appeal, P.A. Kirkpatrick, S.D. Frankel and D.C. Harris JJ.A., May 2, 2017. Digest No. TLD-May152017005