Oct 27, 2020

A recurring issue is whether regulators should publish a disciplinary decision where the decision is under appeal. On the one hand, publication would protect the public in respect of concerns that have been established (subject to appeal) and would enhance the transparency of the process. On the other hand, publication would harm the reputation of the practitioner, especially if the appeal were to succeed.

In Shea v The Law Society of Newfoundland and Labrador, 2020 NLSC 91, http://canlii.ca/t/j8gsl, the relevant provision around publication gave discretion to the Court, but no criteria for the Court to apply in deciding whether the disciplinary decision should be published in a local newspaper. The Court made some surprising statements, including that discipline proceedings are not as inherently open to the public as courts, and that public protection was not an issue because the conduct was in respect of the practitioner’s employer and the suspension ordered had already been served.

The Court began with the proposition that publication in a local newspaper was presumptive under the legislation. However, it ultimately decided to stay publication of the decision pending appeal because:

  • it believed the practitioner would suffer irreparable harm if there was publication and the appeal succeeded,
  • publication in a newspaper was more likely to affect the practitioner’s reputation as compared to other forms of public access such as an open hearing or providing information in response to an inquiry,
  • the lack of publication did not mean that the outcome was secret; it was still available to those who searched for it, and
  • there did not seem to be an ongoing risk to the public and deterrence of the profession did not seem to be an issue in the circumstances.

Despite this, the proceedings before the Court, including the practitioner’s name, were not protected.

This decision appears to be based on the particular facts of the case.