Sep 28, 2020

Occasionally practitioners argue that they have been singled out for regulatory action in ways that other members who have engaged in similar conduct are not. In order to make such an argument, the practitioner would need to demonstrate details about how other members were treated. Often these other cases are not in the public domain. So the practitioner seeks disclosure of the other cases in order to make the selective prosecution argument. The Law Society of British Columbia v. McLean, 2017 BCCA 388 was one such case.

The allegation was that Mr. McLean had not paid his accounts to court reporters and had not communicated transparently with them about the payment of those accounts. Mr. McLean sought disclosure of “all complaints it [the regulator] had received since its inception regarding late payment of debts, and particulars related to those complaints”. The regulator (and the disciplinary tribunal) refused the request on the basis that it would involve the disclosure of confidential information, that the request was overly broad and unworkable and that the information would not assist Mr. McLean in his defence on the merits. The Court upheld the refusal, particularly because of its broad nature.

This is not to say that a request for access to other regulatory files of a similar nature will always be refused. However, an overly broad request made on a speculative basis is likely to experience a similar fate.