Summarizing Disciplinary DecisionsFaminoff v. The Law Society of British Columbia, 2017 BCCA 373 (CanLII)
As regulators summarize complaints and discipline decisions for publication, practitioners often dispute the synopsis. This issue arose in an earlier version of Bill 87 where the practitioner’s right to correct errors in such summaries was greatly reduced in the final version of the Bill. In Faminoff v. The Law Society of British Columbia, 2017 BCCA 373 the practitioner tried to do something about it. At his discipline hearing, he was found to have backdated documents in an attempt to mislead the regulator and received a two-month suspension. On an appeal of the sanction he tendered fresh evidence on the wording of the regulator’s published summary of the decision. The practitioner argued it was unbalanced. While technically accurate and while the entire decision was linked to the summary, the summary “did not state that his actions did not harm his clients or that he had not personally gained from his misconduct”. In fact, when requested, the regulator published an addendum to the summary stating this. The practitioner indicated that he was the subject of significant adverse internet comment. As a result, he argued, his suspension should be reduced because of what he had already suffered.
The Court upheld the appeal decision that the proffered fresh evidence would not have altered the order. In fact, the practitioner’s argument reflected a lack of appreciation of the seriousness of the finding made against him.
The Court also rejected the practitioner’s argument that the hearing panel had acted improperly by summarizing the practitioner’s prior history which included details of a matter that the regulator had chosen not to publish at the time.
This decision provides support for regulators wishing to be transparent in their processes by providing accessible and complete information to the public. However, practitioner complaints about the fairness of decision summaries are likely not going to go away.