Can a Party Ferret Out Dissenters?Aylward v. The Law Society of Newfoundland and Labrador, 2017 CanLII 75143 (NL SCTD)
Can a party insist that individual panel members tell the party that they agree with the panel’s decision? That issue arose in Aylward v. Law Society of Newfoundland, 2017 NLCA 67. The complainant was disappointed that no action was taken on his complaint. The decision was not signed by the panel members. The complainant sought an order that the public member on the panel confirm directly to him that the public member participated in and fully supported the decision of the panel. The Court rejected the request and stated:
There is nothing either in the legislation or [sic] provided to this Court to indicate that the decision of the committee must be unanimous or, alternatively, that the lay bencher must be part of the majority. In the absence of a provision stating otherwise, it may be inferred that a majority of members on the committee could determine the disposition. Further, there is no reason to require the lay bencher to be part of the majority if the decision is not unanimous.
The decision confirms that panels act through majority decisions (unless the governing legislation says otherwise). While it may be fairer for dissenting panel members to indicate their dissent, in this context, at least, they are not required to do so.