Sep 28, 2020

Most regulators have some staff members who are also registered members of the profession. Occasionally misconduct complaints are made against these staff members even though the conduct occurred in the course of their regulatory duties. Frequently those complaints are made in retaliation for action taken by the regulator against the complainant / practitioner. These retaliatory complaints can amount to an abuse of process. Regulators have to then decide how seriously and thoroughly to take those complaints.

In Aylward v Law Society of Newfoundland and Labrador, 2018 NLCA 20, http://canlii.ca/t/hrh67, the regulator had to deal with this very issue. The Executive Director and the Legal Director of the regulator were the subject of a counter-complaint by Mr. Aylward. Mr. Aylward had himself been the subject of a complaint that resulted in a caution. Mr. Aylward complained that the regulatory staff had, among other things, concealed and fabricated evidence that related to the previous complaint against him. The regulator took Mr. Aylward’s complaint seriously. The investigation and screening committee conducted a thorough investigation and retained an external lawyer to investigate key aspects of the complaint. The investigation and screening committee determined there were insufficient grounds to take action against the regulatory staff.

Mr. Aylward appealed, arguing that there was an appearance of bias on the part of the external investigator (who had done some previous work for the regulator and may have wanted to receive additional assignments). Mr. Aylward was also concerned that some of the witnesses he identified were not interviewed. The Court of Appeal adopted the reasons of the lower court. The lower court (at: http://canlii.ca/t/hn8wn) found there was no reasonable apprehension of bias in the circumstances and that there was little likelihood that the witnesses who were not interviewed would provide additional useful information. On this point the lower Court said:

Once a complaint is laid the CAC [i.e., the investigating and screening committee] is the body that decided how to proceed and what procedures are to be followed. The CAC is given a very wide discretion as to how the investigation is to be carried out, if witnesses are to be called or whether only a written record will suffice. There is a reason for this and the reason is that these complaints authorization committees are set up to deal with issues that could involve minor misconduct or things as serious as the misappropriation of the public’s money or any range of professional misconduct toward the public or a fellow solicitor. As such, the process is meant to be flexible, allowing the Committee to investigate as thoroughly as it deems necessary depending on the nature of the complaint.

While there may be some cases in which treating such a complaint is viewed as an abuse of process, in many cases it may be prudent for the regulator to process the complaint even though it is far-fetched.