Oct 27, 2020

Duty of Regulators to Assist Struggling Practitioners

Jhanji v The Law Society of Manitoba, 2020 MBCA 48 (CanLII)

In Jhanji v The Law Society of Manitoba, 2020 MBCA 48, http://canlii.ca/t/j7sqc, an internationally trained lawyer was the subject of multiple concerns. Both judges and colleagues had raised concerns about the practitioner’s competence, primarily in making incomprehensible written and oral submissions. The regulator conducted a practice review which found broad ranging concerns. It recommended a series of remedial steps including practising under the supervision of another lawyer. The practitioner declined to accept the remedial steps. The regulator then referred the concerns to discipline and imposed an interim order suspending the practitioner’s ability to practise. The regulator concluded that the concerns were so broad ranging and the practitioner’s unwillingness to pursue other measures left suspension as the only option that would protect the public.

The Court affirmed the decision. It found that the procedure followed was fair. The practitioner had no right to attend the meeting at which the allegations were referred to discipline. In addition, the regulator had provided disclosure and heard from the practitioner in person before ordering the suspension. The Court rejected the practitioner’s argument that the regulator had a duty to assist a struggling practitioner rather than order an interim suspension:

The applicant says that the CIC had an obligation to assist him through remedial measures rather than impose an interim suspension, particularly given that he was a foreign-trained lawyer. Again, this argument is without foundation and is contrary to the mandate of the Law Society to “uphold and protect the public interest in the delivery of legal services with competence, integrity and independence” and the authority provided to the Law Society under the Act to do so (the Act at section 3; see also sections 6671 of the Act).

The CIC correctly identified the legal issue before it: whether the interim suspension was necessary for the protection of the public, in accordance with section 68(c) of the Act.

The Court went on to discuss the standard of review for interim orders:

Having correctly identified the legal issue, the question became whether the interim suspension was necessary to protect the public in these circumstances. The applicant has not identified any palpable and overriding error of fact by the CIC in its analysis. The record demonstrates that the CIC reviewed the extensive information obtained during the investigations and the practice review. It considered whether some action, other than the interim suspension, was sufficient to protect the public and concluded that it was not. The CIC was entitled to make that finding on the record before it.

Whether or not to impose the interim suspension was a discretionary decision. The CIC did not err in law or make any palpable and overriding error of fact. Furthermore, based on the record, the interim suspension is not unjust. The CIC’s decision to interim suspend the applicant is entitled to deference.

While regulators often attempt to deal with concerns remedially, at the end of the day, they are regulators, not coaches.