Sep 28, 2020

Considering a Prior Decision that is Under Review

Law Society of British Columbia v. Perrick, 2018 BCCA 169 (CanLII)

In Law Society of British Columbia v. Perrick, 2018 BCCA 169,, a lawyer was facing two discipline hearings for conduct that occurred at roughly the same time. The first hearing resulted in a finding with a fine, but no suspension, primarily because of the lawyer’s “clean” record. While that decision was under review, the second hearing was held and also resulted in a finding. However, this time the prior finding was considered and the second case resulted in a suspension. The lawyer appealed on the basis that the tribunal should not have considered the prior finding while it was still under review. The Court disagreed. It held that the prior finding was “final” and could be considered unless and until it was reversed. If the prior finding was reversed on review, the lawyer could then appeal the second decision on that basis.

While this decision reassures discipline tribunals that it can consider the past record of the practitioner as it stands on the date of the hearing, it does place the regulator at some risk should a prior finding be set aside.