Subject To Potential Discipline

The Alberta Law Society Hearing Panel dismissed an application by charged attorneys to discontinue disciplinary proceedings

John Carpay and Jay Cameron (Lawyers) are members of the Law Society of Alberta (LSA).  They were entitled under the National Mobility Agreement (NMA) to practice in Manitoba.  They became involved in litigation challenging the constitutionality of public health restrictions which Manitoba put in place to respond to the COVID-19 pandemic, Chief Justice Joyal presiding (Gateway Case).  Together, they executed a plan to hire a private investigator (PI) to attempt to capture images of Chief Justice Joyal breaching the COVID restrictions while Chief Justice Joyal’s decision was on reserve.  They were not entirely forthright with the Court when the plot was revealed.  Pursuant to the NMA, the LSA agreed that the Law Society of Manitoba (LSM) would assume conduct of the investigation and discipline proceedings.  During that hearing, it was agreed that the LSM did not have jurisdiction to suspend or disbar Alberta lawyers; the LSM ordered (among other things) that the Lawyers could never again practice law in Manitoba.

The Lawyers were also charged criminally, with attempting to intimidate a justice system participant and attempting to obstruct justice.  The criminal matter was resolved with the Lawyers entering into a civil peace bond directing that they cannot practice law anywhere in Canada for three years, and the Crown directing a stay of proceedings regarding the charges.

The LSA now seeks further sanction in Alberta regarding the conduct that occurred in Manitoba, despite the LSM having already disciplined the Lawyers regarding the same conduct.  The Lawyers apply to this Hearing Committee (Committee) for a resolution that these proceedings be discontinued, pursuant to section 62(2) of the Legal Profession Act (Act).  They argue that the LSA lost its authority to impose any further discipline because:  (a) a proper reading of the Rules of the LSA (Rules) and the NMA means that the LSA exhausted its jurisdiction when it agreed that the LSM would conduct the investigation and proceedings; (b) the LSA is estopped from attempting to impose further discipline; and (c) proceeding now amounts to “double discipline” and is an abuse of process.

The arguments failed

The idea of “double discipline” does not apply here.  The authorities provided, in the context of employment law, involve employers (mainly in collective bargaining environments) who discipline their employees with something like a suspension and then purport to add more discipline like termination, without the employee engaging in further bad behaviour after the first discipline.  The Lawyers draw the analogy by pointing out that that the LSA:  (a) told the complainant that it was not pursuing the matter in Alberta but that the LSM would address it (Cc’d to the Lawyers); (b) changed its mind and decided that it would wait for the LSM decision; and then (c) began this process after the Lawyers were banned from practicing law in Manitoba.

The Lawyers’ analogy fails.  First, because the Lawyers conceded during argument that they suffered no prejudice as a result of N.M.’s letter of August 4, 2021.  Second, because this Committee has found that the LSA and the LSM are different entities possessing different kinds of authority addressing different questions.  The scheme of the NMA necessarily implies the possibility of discipline in multiple jurisdictions.  And third, there is no duplication because the LSM could not address the important question that the LSA now seeks to address.

There is no evidence that the LSA’s actions imply an oblique or improper motive behind these proceedings.  We note that at the time N.M. wrote his letter, the LSA essentially had the complaint.  They could not have known details such as, for example, the Lawyers’ email correspondence regarding the hiring of the PI or the apparent motives for doing so, or that the Lawyers would ultimately admit that they engaged in conduct deserving of sanction.  Those details came later.

Conclusion

Adopting the Lawyers’ interpretation of the NMA and Rules would result in the untenable situation that the LSA is unable to remove from its rolls a lawyer who is unsuitable for practice.  That cannot be what the drafters of the NMA and Rules intended, or what the government expects when it affords lawyers the privilege of self regulation.  The Lawyers have failed to show that the common-law doctrines of estoppel, res judicata, functus officio, or abuse of process apply in this situation.

(Mike Frisch)