Judicial reviews of decisions that matters go to discipline hearing

In theory, any administrative decision may be analyzed for reasonableness. For example, a professional may assert that a regulatory authority’s decision to issue a citation is unreasonable, e.g., because it considered irrelevant matters (as asserted, for example, in Default v. B.C. College of Teachers, 2002 BCSC 618). But an “administrative” decision is not open to review by a court simply because it might be unreasonable; the decision must also be one that actually impacts the professional’s rights. Whether an impact can arise from any non-disciplinary disposition by an inquiry committee that merely carries out a screening function is open to dispute. In recent years, the Supreme Court of BC has already declined to review non-disciplinary complaint dispositions by inquiry committees (e.g., that provisionally criticize conduct but otherwise take no action): Ridsdale v. Anderson, 2016 BCSC 942 and Maroofi v. College of Physicians and Surgeons of British Columbia, 2018 BCSC 1558. The Supreme Court has now explicitly extended lack of amenability for judicial review to decisions by regulatory authorities to issue citations: see Dhillon v. The Law Society of British Columbia, 2021 BCSC 806.

In the Dhillon case, after a member of the Law Society came under investigation, the member decided to retire, and voluntarily resigned his membership. The Law Society accepted his resignation. But after completing its investigation, the Law Society decided to issue a citation against him. The member challenged the validity of the Rules that allowed the Law Society to publish a citation against a former member; challenged the Law Society’s jurisdiction over him; and asked that the court to quash the citation based on procedural unfairness.

The Legal Profession Act (the “LPA”) defines a “lawyer” to include a former member of the Law Society for purposes of several parts of the LPA, including Part 4 (which deals with discipline), and Part 5 (which deals with hearings). Law Society Rule 4-20 also authorizes the ED to publicly disclose a citation.

The Court rejected the member’s challenges. First, The Law Society’s power to make rules under LPA s. 11 allowed it to make rules binding former lawyers. The court interpreted the rule-making power in accordance with s. 41 of the Interpretation Act, which provides that an enactment providing for a power to make “regulations” (including rules made under a statutory power) “must be construed as empowering… for the purpose of carrying out the enactment according to its intent, to (a) make regulations as are considered necessary and advisable, are ancillary to it [i.e., the enactment], and are not inconsistent with it [i.e., the enactment]. The Court accepted the Law Society’s publication rules as related to the purpose of carrying out the intention of the LPA, [38] and as necessary and advisable, ancillary to, and not inconsistent with the LPA. [39]

Second, the Court found that, based in part on the definition of “lawyer” under LPA s. 1, the Law Society maintained jurisdiction over Mr. Dhillon.

Third, the Court declined to quash the citation, despite Mr. Dhillon asserting a lack of reasons, and his not being provided with submissions by the Law Society’s “staff counsel”. The Court agreed that the issuance of a citation is simply not subject to judicial review as it did not find facts or decide legal rights:

[74] To the extent that the function impugned by Mr. Dhillon is merely the exercise of, for example, a “discretionary administrative winnowing function that did not decide any legal rights, duties or liabilities”, I agree that it would not be amenable to judicial review: Harrison v. Law Society of British Columbia, 2015 BCSC 211 at para. 51, aff’d 2015 BCCA 258, leave to appeal ref’d [2015] S.C.C.A No. 340; Pierce v. Law Society of British Columbia (1993), 103 D.L.R. (4th) 233 (B.C.S.C.).

[75] The citation directed a hearing panel of the Law Society to conduct a hearing into Mr. Dhillon’s conduct or competence while he was a member of the Law Society. It is clear that the issuance of the citation did not decide legal rights, make any binding findings of fact, or impose discipline that was dependent on findings of fact. In light of that, I find that the issuance of the citation is not amenable to judicial reviewMaroofi v. College of Physicians and Surgeons of B.C., 2017 BCSC 1558 at paras. 66–70.

We would add, however, for colleges under the Health Professions Act, that inquiry committees must still fulfil the fairness requirement under HPA s. 33(5), by requesting that a respondent provide any information regarding a matter that the inquiry committee should consider, before directing a citation under HPA s. 33(6)(d).

Dhillon v. The Law Society of British Columbia, 2021 BCSC 806

Lisa C. Fong, Q.C. and Michael Ng