Sabrina Gillespie
The BC Court of Appeal has confirmed that members of the public generally cannot seek judicial review when the Law Society decides not to investigate a complaint against a lawyer.
In Choi v. The Law Society of British Columbia, 2026 BCCA 293, the Court dismissed an appeal from an order striking a petition for judicial review. The decision reinforces that not every decision made by a statutory body is subject to judicial review.
Colleges under statutes like the BC’s Health Professions and Occupations Act should exercise caution before relying on this case. On one hand, the HPOA gives complainants a right of statutory review of investigation dispositions to the Health Professions Review Board. Since complainants acquire party status under that review process, they may have standing to apply for judicial review of Review Board decisions. On the other hand, the basic legal principle remains that a court may decline to grant relief to any applicant for judicial review if they cannot show that a decision impacts their “legal rights, powers, privileges, immunities, duties, liabilities, or eligibility to receive a benefit or licence”.
Complaint and Judicial Review
The appellant filed a complaint with the Law Society against a lawyer who had represented a person that he had sued in a civil litigation matter. On preliminary assessment, the Law Society advised the appellant that it intended to conclude the matter under Rule 3-5(3)(c) of the Law Society Rules because the complaint did not allege facts that, if proven, would constitute a discipline violation. It provided him with an opportunity to submit additional information, which the appellant subsequently provided. After considering those further submissions, the Law Society still proceeded with closing the complaint file and provided the appellant with written reasons for its decision.
The Law Society’s written decision also stated that the appellant had 30 days to request a review of its assessment by the Law Society’s Complainants’ Review Committee (“CRC”). However, an attached information sheet about the CRC stated to the contrary that it had no authority to review complaints closed under Rule 3-5(3). The appellant nonetheless filed a request for review by the CRC and was accordingly informed that the CRC had no jurisdiction to review the closure of his complaint matter.
The appellant then sought judicial review of the Law Society’s decision to close his complaint, arguing that it was procedurally unfair because it ignored failed to adequately consider his disability-related circumstances. He also alleged that the Law Society provided “contradictory guidance” regarding his right to seek review by the CRC.
The Law Society applied to strike the petition on the basis that it disclosed no reasonable claim. The chambers judge applied Banni v. Muir, 2022 BCSC 2043, which held that not every decision of the Law Society is subject to judicial review, and that a decision not to investigate a complaint fell into the category of non-reviewable decisions. He agreed that the decision to close a complaint file without investigation pursuant to Rule 3-5(3) was not reviewable under the Judicial Review Procedure Act (“JRPA”), struck the petition without leave to amend, and ordered $500 in costs payable to the Law Society.
Appeal
The appellant appealed the decision to strike his petition, alleging that the chambers judge erred in:
- finding that Banni was dispositive,
- not granting the appellant leave to amend, and
- ordering costs
The Court of Appeal confirmed that, to be reviewable, the impugned decision must be a “statutory power of decision” as defined by the JRPA; judicial review is not available for administrative decisions of the Law Society that do not engage a person’s legal rights, powers, privileges, immunities, duties, liabilities, or eligibility to receive a benefit or licence.
Reliance on Banni: The central issue in Banni was whether a decision to close a complaint under Rule 3-5(3) was a “statutory power of decision” and therefore subject to judicial review. The court in that matter held that it was not, and the chambers judge in this matter correctly relied on that decision as being dispositive of this same issue in this case.
Although the appellant argued that his case was different because it involved procedural fairness concerns and conflicting communications from the Law Society, those allegations did not change the fundamental nature of the decision under review. As the Court explained, before procedural fairness arguments can even be considered, the impugned decision must first be one that is legally reviewable. Here, it was not.
No opportunity to amend: The court reiterated that the issue with the petition was not one of drafting. The determination to strike was based solely on the nature of the Law Society’s decision, and without any assessment of the merits of the petition. The legal obstacle was that the underlying decision was not reviewable, which cannot not be cured by any amendments.
Costs: The appellant challenged the $500 costs award, arguing that insufficient weight had been given to his health, accommodation needs and caregiving obligations. The Court declined to interfere, noting that considerable deference is owed to the chambers judge’s decision to order nominal costs in this matter.
Takeaway
This decision provides several reminders about judicial review in British Columbia:
- Not every administrative decision is subject to judicial review. Before considering the merits of a petition, a court must first determine whether the impugned decision is within its jurisdiction to review at all
- Procedural fairness arguments cannot overcome a lack of jurisdiction. Even where a complainant believes that a process was confusing or unfair, they must first establish a right to judicial review under statute to advance further arguments on the merits.
- Complainants do not acquire legal rights in a regulatory process simply by making a complaint
The Court of Appeal’s decision strengthens existing authority confirming that preliminary complaint-screening decisions made by the Law Society are generally insulated from judicial review. Unless the Legislature changes the statutory framework, complainants whose files are closed at the intake stage will face significant jurisdictional barriers to obtaining court review.
Sabrina Gillespie