Part 9 – Professional Responsibility

9.1 Interpretation

9.1.1  In this Part:

  • Chair of the Hearing Committee” includes the Chair of the Hearing Committee and any member of the Hearing Committee designated by the Chair of the Hearing Committee to act as Chair;
  • incapacity” means the member’s lack of capacity as defined in Section 2 of the Act;
  • member of a firm” means a practising lawyer who is a partner, counsel, associate or employee of a firm;
  • member of the Society” includes a law firm;
  • pre-hearing conference” means a proceeding involving the parties and conducted by the hearing panel, held following service of a charge and notice of hearing on the member;
  • proceedings management meeting” means a meeting involving the parties and conducted by the Chair of the Hearing Committee;
  • professional responsibility process” includes the processes established by Sections 33 to 55 of the Act and Part 9 of the Regulations;
  • ungovernability” includes a repeated failure to abide by the Act, the Regulations, Professional Standards or the Code of Professional Conduct that indicates an inability or unwillingness to be governed.

Objects of the Professional Responsibility Process

9.1.2  The objects of the professional responsibility process are to protect the public and preserve the integrity of the legal profession, by:

  • promoting competent and ethical practice of law by members of the Society;
  • addressing complaints of professional misconduct, conduct unbecoming, professional incompetence or incapacity;
  • providing for the protection of clients’ interests through the appointment of receivers and custodians in appropriate circumstances; and
  • providing relief to individual clients of members of the Society and promoting the rehabilitation of members.

9.1.2.1  In this Part, when the Executive Director or a Committee exercises discretion in the public interest, the objects of the professional responsibility process should be considered.

Conduct Unbecoming, Professional Incompetence and Professional Misconduct

9.1.3  When considering complaints or charges, the Complaints Investigation Committee and a hearing panel may determine that conduct constitutes:

  1. conduct unbecoming, if it involves conduct in a member’s personal or private capacity that tends to bring discredit upon the legal profession, including one (1) or more of the following:
    1. committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or competence as a member of the Society,
    2. taking improper advantage of the youth, inexperience, lack of education, lack of sophistication, or ill health of any person,
    3. engaging in conduct involving dishonesty;
  2. professional incompetence, if the lawyer fails to apply relevant knowledge, skills and attributes in a manner appropriate to matters undertaken on behalf of a client, and within the reasonable parameters of the lawyer’s experience and the nature and terms of the lawyer’s engagement;
  3. professional misconduct if it involves conduct in a lawyer’s professional capacity that tends to bring discredit upon the legal profession, including one (1) or more of the following:
    1. violating or attempting to violate one (1) of the provisions in the Code of Professional Conduct or a requirement of the Act or these Regulations,
    2. knowingly assisting or inducing another lawyer to violate or attempt to violate the provisions in the Code of Professional Conduct or a requirement of the Act or these Regulations,
    3. misappropriating or otherwise dealing dishonestly with a client’s or a third party’s money or property,
    4. knowingly assisting a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law,
    5. demonstrating a pattern of failing to abide by advice, counsels or cautions provided by the Society or Complaints Investigation Committee,
    6. demonstrating ungovernability.

COMPLAINTS AND INVESTIGATIONS

9.2 Complaints

9.2.1  The conduct, practice, capacity or professional competence of a member of the Society may become the subject of an investigation:

  • upon receipt of a written complaint from any person;
  • upon receipt of information by the Society that, in the opinion of the Executive Director, establishes reasonable grounds for the opening of a complaint;
  • on the direction of the Complaints Investigation Committee pursuant to subregulation 9.5.5;
  • upon self-referral by the member; or
  • when a member has been the subject of discipline in a foreign jurisdiction.

Summary Dismissal

9.2.2  A summary dismissal by the Executive Director may be appropriate in circumstances that include, but are not limited to, the following:

  1. the complaint falls outside the Society’s jurisdiction;
  2. the complaint is premature;
  3. the complaint alleges a technical breach of the Act, the Rules or the Code of Professional Conduct but has no substantive consequence or is of insufficient regulatory concern;
  4. the complaint is med for a collateral or improper purpose, including:
    1. for the purpose of harassing a member of the Society,
    2. for providing relief which is more appropriately available through civil litigation,
    3. by a party adverse in interest to a client of the member complained of, for the purpose of harassing such client or the member, or
    4. as a form of discovery or for the gathering of information in another proceeding;
  5. the complaint lacks substance or a factual basis;
  6. there has been significant delay in bringing the complaint forward; or
  7. it is otherwise in the public interest to do so.

No Summary Dismissal

9.2.3  If a complaint is not dismissed pursuant to subregulation 9.2.2, the Executive Director must:

  • attempt to resolve the complaint;
  • consider referral to the Fitness to Practise Committee pursuant to Regulation 9.3; or
  • commence an investigation.

Cooperation Required

9.2.4  If the Executive Director commences an investigation pursuant to subregulation 9.2.3(c),a member of the Society must fully cooperate with the Society in the investigation by:

  1. unless otherwise directed, providing a full and substantial response which must:
    1. address all matters in the complaint, unless otherwise directed by the Executive Director,
    2. provide copies of all relevant file materials the member relies upon,
    3. answer any additional questions raised by the Executive Director, and
    4. provide any additional information and materials required by the Executive Director;
  2. adhering to time limits during the investigation; and
  3. responding to all requests from the Society during the investigation.

Member to Receive Complaint

9.2.5  The Executive Director must forward a copy of the complaint to the member unless otherwise directed by the Complaints Investigation Committee.

Complaint Against a Law Firm

9.2.6  Where the complaint is against a law firm, the Executive Director must communicate with the member of the firm designated pursuant to subregulation 4.7.1, and the obligations of a member under this Part apply to that person.

Failure to Cooperate

9.2.7  If at any stage of the investigative process a member fails to cooperate with the Executive Director, such failure may be reported to the Complaints Investigation Committee, which may provide further directions as necessary.

Options for Investigation

9.2.8  At any stage of the investigation, the Executive Director may:

  • send a letter of advice to the member reminding the member of their obligations under the Act, the Regulations, Professional Standards, or the Code of Professional Conduct;
  • conduct further investigation as deemed appropriate;
  • refer the matter to the Complaints Investigation Committee for direction;
  • in accordance with Regulation 9.3, consider referral of the matter to the Fitness to Practise Committee;
  • provide the member’s response to the complainant and offer the complainant an opportunity to submit additional information;
  • obtain additional information, orally or in writing, from the member, the complainant or any other person;
  • interview the member, the complainant or any other person on oath or affirmation;
  • obtain outside assistance to further the investigation;
  • review the member’s trust account records;
  • if the Complaints Investigation Committee so directs, conduct a practice review pursuant to Regulation 9.7;
  • conduct an audit pursuant to Regulation 10.7; or
  • such other steps as the Executive Director determines are required for a thorough investigation.

Dismissal

9.2.9  At any stage of the investigation, the Executive Director may dismiss the complaint for any of the reasons enumerated in subregulation 9.2.2(a) through (g).

Complaint Against President, Complaints Investigation Committee member or Executive Director

9.2.10  If the member of the Society referred to in subregulation 9.2.1 is the President, a member of the Complaints Investigation Committee or the Executive Director, the Executive Director must refer the matter to the Chair of the Hearing Committee.

Appointment of Special Investigator

9.2.11  On receipt of a referral under subregulation 9.2.10, the Chair of the Hearing Committee must appoint a special investigator, a practicing lawyer who is not currently a member of the Complaints Investigation Committee, to investigate the matter in accordance with this Regulation.

Not a Committee Member

9.2.12  The special investigator must not be a member of the Complaints Investigation Committee or the Hearing Committee.

Chair Unavailable

9.2.13  If the Chair of the Hearing Committee is not available, a Vice-Chair of the Hearing Committee or other member of the Hearing Committee designated by the Chair will assume the Chair’s responsibility under this Regulation.

Power of Special Investigator

9.2.14  When investigating the matter, the special investigator has all the powers and authorities of the Executive Director, under Regulation 9.2.

Dismissal by Special Investigator

9.2.15  If the special investigator dismisses the complaint, the person who appointed the special investigator and those required to receive notice under Regulation 9.2 must be notified of the dismissal.

Review of Dismissal

9.2.16  A dismissal of a complaint by the special investigator is subject to review under Regulation 9.4.

Referral to Complaints Investigation Committee

9.2.17  If as a result of an investigation, the special investigator determines that the matter should be referred to the Complaints Investigation Committee pursuant to subregulation 9.2.8(c), before doing so, the special investigator must advise the person who appointed the special investigator.

Appointment of Special Complaints Investigation Committee

9.2.18  On receipt of a notice from the special investigator pursuant to subregulation 9.2.17, the person who appointed the special investigator will take the necessary steps to have not more than 5 person:

  • who do not currently serve on the Complaints Investigation Committee; and
  • who will be collectively known as the Special Complaints Investigation Committee;

appointed to the Complaints Investigation Committee for the duration of this investigation.

Public Representative

9.2.19  At least one of the persons appointed to the Special Complaints Investigation Committee must be a person who is not a member of the Society.

Authority of Committee

9.2.20  The members of the Special Complaints Investigation Committee have all the powers of the Complaints Investigation Committee.

9.3 Fitness to Practise Committee

Fitness to Practise – Referral by the Executive Director

9.3.1 Notwithstanding any other provision of these Regulations, if:

  • a complaint raises concerns about a member’s capacity;
  • a person, in the absence of a complaint, raises concerns about a member’s capacity to the Society; or
  • a member self-reports incapacity to the Society;

the Executive Director may, where the Executive Director determines that it is in the public interest to do so and the member consents, refer the matter to the Fitness to Practise Committee.

9.3.2  If the Executive Director does not refer a matter to the Fitness to Practise Committee under 9.3.1, the Executive Director:

  • must, in the case of a complaint received pursuant to subregulation 9.3.1(a), process the matter as a complaint pursuant to the Act and the Regulations; or
  • may, in the case of information received pursuant to subregulation 9.3.1(b) or (c), process the matter as a complaint pursuant to the Act and the Regulations.

Fitness to Practise – Referral by the Complaints Investigation Committee

9.3.3  If a matter before the Complaints Investigation Committee raises concerns about a member’s capacity, the Complaints Investigation Committee may, where the Complaints Investigation Committee determines that it is in the public interest to do so and the member consents, refer the matter to the Fitness to Practise Committee.

Fitness to Practise Committee Authority

9.3.4  The Fitness to Practise Committee, upon receipt of a referral from the Executive Director or the Complaints Investigation Committee, may, with the member’s consent, do one or both of the following:

  • require the member to submit to a medical assessment;
  • enter into an interim agreement respecting conditions or restrictions on a member’s practising certificate or undertakings with regard to a member’s practice.

9.3.5  If the member does not comply with any of the requirements under subregulation 9.3.4, the Fitness to Practise Committee must refer the matter back to the Executive Director to be dealt with according to subregulations 9.2.1 through 9.2.9.

9.3.6  Where, following a review of a medical assessment and other relevant information, the Fitness to Practise Committee has reasonable concerns about a member’s capacity, the Committee may enter into a remedial agreement with a member where:

  • it is in the public interest to do so; and
  • the member consents.

9.3.7  If the review set out in subregulation 9.3.6 does not raise reasonable concerns about a member’s capacity, the Committee must refer the matter back to the Executive Director to be dealt with according to subregulations 9.2.1 through 9.2.9. 

9.3.8  A remedial agreement may include some or all of the following provisions:

  • the member submits to such further medical assessments as the Fitness to Practise Committee deems appropriate;
  • the member undertakes and completes any applicable course of treatment designed to address any issues concerning the member’s capacity at the member’s own expense unless the Committee determines otherwise;
  • the member authorizes the Fitness to Practise Committee to receive reports from the medical assessments or treatment referred to in clauses (a) and (b);
  • the member agrees to accept practise restrictions or conditions on the member’s practising certificate or a withdrawal from practise pending completion of the terms and conditions in the remedial agreement;
  • such other provisions as the member and the Fitness to Practise Committee may agree.

9.3.9  Pursuant to section 40(2C) of the Act, the Fitness to Practise Committee may direct the Executive Director to provide a summary of the remedial agreement to the complainant, any other affected individuals, other regulatory bodies in a foreign jurisdiction and any past, present or intended law firms of the member.

9.3.10  The Fitness to Practise Committee may amend an interim agreement or a remedial agreement, with the member’s consent.

9.3.11  If the member does not consent to the amendment of the interim agreement or remedial agreement, the Fitness to Practise Committee must refer the matter back to the Executive Director to be dealt with according to subregulation 9.2.1 through 9.2.9.

9.3.12  If, at any time during the course of the remedial agreement or interim agreement referred to in subregulations 9.3.4 or 9.3.6, or where the remedial agreement or interim agreement has been amended pursuant to subregulation 9.3.10, the Fitness to Practise Committee determines that the member has not met the terms and conditions of the remedial or other agreement, the Fitness to Practise Committee may refer the matter to the Executive Director or Complaints Investigation Committee, as appropriate. 

9.3.13  Section 14(1)(c) of the Act and subregulation 4.14.1 apply to any condition or restriction or both imposed on a member’s practising certificate by the Fitness to Practise Committee.

9.3.14  The Fitness to Practise Committee in existence at any time retains jurisdiction over a member who is subject to ongoing terms and conditions of a remedial agreement or an interim agreement to monitor the member’s compliance.

9.3.15  When a remedial agreement has been completed, the Executive Director must give notice to the complainant.

9.3.16  No information received by or proceedings of the Fitness to Practise Committee will be disclosed, except in accordance with Section 40 of the Act.

9.3.17  If a matter is referred back to the Executive Director or the Complaints Investigation Committee, all material in the possession of the Fitness to Practise Committee must be provided to the Executive Director or Complaints Investigation Committee, as applicable.

9.3.18  If the Fitness to Practise Committee refers a matter back to the Executive Director or Complaints Investigation Committee, the Fitness to Practise Committee must prepare written reasons which must be provided to the member, the Executive Director and, if applicable, the Complaints Investigation Committee.

9.4 Review of Dismissal By Complaints Review Committee

9.4.1  A complaint dismissed pursuant to subregulations 9.2.2 or 9.2.9 must be reviewed by the Complaints Review Committee if, within thirty (30) days of notification of the dismissal being forwarded to the complainant, the complainant submits a Request for Review to the Chair of the Complaints Review Committee.

Extension of Time

9.4.2  The Chair of the Complaints Review Committee may, where there are reasonable grounds to do so, extend the time for requesting a review under subregulation 9.4.1.

Notice

9.4.3  The Chair of the Complaints Review Committee must advise the member and Executive Director in writing when a Request for Review is received.

Scope of Review

9.4.4  The Complaints Review Committee must review all files, records and documents obtained or produced by the Executive Director in the course of investigation of the complaint, including files and information that are subject to solicitor-client privilege and the Complaints Review Committee must not disclose any privileged information, except as permitted under the Act.

Review by Committee

9.4.5  The procedure applicable to the review of a complaint received by the Complaints Review Committee will be determined by the Committee.

Confidentiality

9.4.6  The Complaints Review Committee will keep all requests for review confidential in accordance with Section 40 of the Act.

9.4.7  Following a review of the matter, the Committee must:

  • render a written decision which confirms the dismissal of the complaint; or
  • return the complaint to the Executive Director to investigate in accordance with the Committee’s decision.

Decision of the Committee

9.4.8  In making a decision under subregulation 9.4.7, the Complaints Review Committee must determine whether, based on the evidence before the Executive Director, the decision to dismiss was reasonable.

9.4.9  If the Complaints Review Committee determines that the Executive Director’s decision was not reasonble, then it may direct that the complaint be returned to the Executive Director.

Reasons

9.4.10  The Complaints Review Committee must provide written reasons to the complainant, the lawyer and the Executive Director.

9.4.11  A decision made under subregulation 9.4.7 is final.

9.4.12  If a direction is made pursuant to subregulation 9.4.7(b), the Executive Director must follow the direction and must provide a written report to the Complaints Investigation Committee.

9.5 Referral to Complaints Investigation Committee

9.5.1  At any time after a complaint is received, the Complaints Investigation Committee may:

  1. require
    1. the member, or
    2. any member of a law firm
    to attend before it for purposes of assisting with the investigation or for any other purpose consistent with the objects of the professional responsibility process;
  2. require information to be provided by any person on the record and under oath or affirmation, to the Committee or to the Executive Director;
  3. order
    1. the member, or
    2. any member of the firm
    to appear before the Committee or the Executive Director for the purpose of providing further information under oath or affirmation;
  4. provide direction with regard to the investigation;
  5. assume responsibility for the investigation, in which event a member of the Committee appointed by the Committee or such other person appointed by the Executive Director will act as an investigator; or
  6. exercise any of the powers conferred upon it by Sections 36, 37, and 38 of the Act;
  7. direct that an investigation be held in abeyance in accordance with an applicable policy;
  8. refer a matter to the Fitness to Practise Committee if it determines that it is in the public interest to do so.

Committee Determines Process

9.5.2  Notwithstanding anything contained in this Regulation, and where the objects of the professional responsibility process require, the investigation of a complaint by the Executive Director and the Complaints Investigation Committee may be conducted in such manner as the Committee determines.

9.5.3  The Committee may conduct its meetings in person, by telephone or by electronic communications including email and videoconference, as determined by the Chair of the Complaints Investigation Committee.

Notice

9.5.4  The Committee may exercise its powers under Section 37 without notice to the practising lawyer when it is in the public interest to do so.

Consideration of Complaints by Complaints Investigation Committee

9.5.5  Upon receipt of a report pursuant to subregulation 9.2.8(c), the Complaints Investigation Committee may do one or more of the following:

  1. attempt to resolve the complaint if, in its opinion the complaint may be satisfactorily resolved, consistent with Section 33 of the Act, and failure to resolve the complaint will result in the complaint being further dealt with in accordance with this subregulation;
  2. direct further investigation;
  3. dismiss the complaint;
  4. counsel, caution, or counsel and caution the member;
  5. determine that the evidence that can reasonably be believed presents a likelihood of a finding of professional misconduct, conduct unbecoming, professional incompetence or incapacity and, with the consent of the member,
    1. direct that the member be required to take such courses and undergo such examinations as the Committee may direct,
    2. impose a reprimand,
    3. impose practice restrictions or conditions on the member’s practising certificate;
  6. hold disposition of the complaint in abeyance until the member has complied with any conditions deemed advisable by the Committee;
  7. determine that the evidence that can reasonably be believed presents a likelihood of a finding of professional misconduct, conduct unbecoming, professional incompetence, incapacity, or more than one of them and direct the Executive Director to lay one or more charges against the member; or
  8. take such other appropriate action as is deemed advisable.

Committee to Give Reasons

9.5.6  The Committee must provide the member and, unless it directs otherwise, the complainant with reasons for any disposition pursuant to subregulation 9.5.5 (c), (d), (e), or (f).

Decision to Dismiss is Final

9.5.7  A decision to dismiss a complaint by the Complaints Investigation Committee pursuant to subregulation 9.5.5(c) is final and is not subject to review pursuant to Regulation 9.4.

Minutes of Meeting

9.5.8  The Executive Director must ensure that minutes of meetings are taken recording the names of those present, the text of any resolution adopted and such other matters as the Committee deems appropriate, and will ensure that such minutes are approved by the Committee.

Evidence

9.5.9  In a proceeding under Section 37,  the Committee may receive and accept such evidence and information on oath, affidavit or otherwise as the Commitee in its discretion sees fit, whether admissible in a court of law or not.

Failure to Appear

9.5.10  If the practising lawyer fails to appear at a proceeding pursuant to Section 37 or for the resumption of an adjourned proceeding after notice thereof, the Committee may proceed in the lawyer’s absence.

Adjournment

9.5.11  The Committee may from time to time adjourn a proceeding under Section 37 and give notice thereof to the parties.

9.5.12  Despite Section 40(1) of the Act and subject to any order of the Committee, the Executive Director must:

  • provide the membership with any anonymized summary of any disposition pursuant to subregulation 9.5.5(d); and
  • provide the public with notice of any disposition under subregulation 9.5.5(e) or Section 37(1)(a) or (b).

Notification of Suspension

9.5.13  Despite Section 40(1) of the Act, when a practising lawyer has been suspended pursuant to Section 37(1)(a), the Executive Director must:

  • notify all prothonotaries, court administrators and registrars and other public offices that may be affected by the suspension; and
  • publish notice of the suspension which advises that the lawyer has been suspended and is not entitled to practice.

Notification of Conditions or Restrictions

9.5.14  When conditions or restrictions have been imposed on a practising lawyer pursuant to Section 37(1)(a), the Executive Director:

  • must notify all prothonotaries, court administrators and registrars and other public offices that may be affected by the conditions or restrictions; and
  • may publish notice of the conditions or restrictions on the practice of the lawyer.

9.5.15  In the absence of a request for a meeting by the lawyer pursuant to Section 37(4), the Committee may reconvene on the receipt of information that could result in the variation or termination of a decision made pursuant to Section 37(1)(a).

Continuing Jurisdiction of Committee

9.5.16  The Complaints Investigation Committee retains jurisdiction over a complaint until the commencement of a hearing, or the Fitness to Practise Committee otherwise resolves the matter, and nothing in this subregulation affects any order made pursuant to subsection 37(1) of the Act.

Extension of Term

9.5.17  At the discretion of the Executive Director, members of the Complaints Investigation Committee whose terms have expired may remain members of the Committee until conclusion of ongoing complaint matters in which those members of the Committee have been involved, or the members’ participation is no longer required.

9.6 Lawyer Conduct in another Jurisdiction

9.6.1  If there is an allegation of professional misconduct, conduct unbecoming, professional incompetence or incapacity against a member of the Society while practising temporarily in another Canadian jurisdiction, the Society will:

  • consult with the governing body concerned respecting the manner in which investigations and disciplinary proceedings will be conducted; and
  • subject to subregulation 9.6.2, assume responsibility for the conduct of the investigations and disciplinary proceedings.

Other Governing Body to Assume Responsibility

9.6.2  The Society may agree to allow the other governing body concerned to assume responsibility for the conduct of investigations and disciplinary proceedings under subregulation 9.6.1, including expenses of the proceeding.

Primary Considerations

9.6.3  In deciding whether to agree under subregulation 9.6.2, the primary considerations will be the public interest, convenience and cost.

Request of Investigating Governing Body

9.6.4  To the extent that it is reasonable in the circumstances, the Executive Director must do the following on the request of a governing body that is investigating the conduct of a member of the Society or a visiting lawyer who has provided legal services:

  • provide all relevant information and documentation respecting the lawyer or visiting lawyer as is reasonable in the circumstances; and
  • cooperate fully in the investigation, any charge and a hearing.

Application of 9.6.4

9.6.5 Subregulation 9.6.4 applies when the Society agrees with a governing body under subregulation 9.6.2.

9.7 Review of Practice

9.7.1  Where the Complaints Investigation Committee has reasonable and probable grounds to believe that a member of the Society is practising law in a manner contrary to the public interest, the Committee may direct the Executive Director to appoint a reviewer to conduct a review of all or a portion of the member’s practice.

Cooperation with Reviewer

9.7.2  The member, and the member’s employees or associates, shall answer any inquiries and produce for the reviewer all records, files or other information which the reviewer requires for the purpose of the investigation.

Place of Review

9.7.3  Where practicable, the review shall be made in the office of the member or wherever client files or records are located.

Photocopies

9.7.4  The reviewer may direct the member to produce any record, file or other information for the purpose of allowing the reviewer to take it away, make copies and return it within a reasonable time.

Report of Reviewer

9.7.5  The reviewer shall report the results of the review to the Complaints Investigation Committee.

Failure to Comply

9.7.6  If the member, or the member’s employees or associates, have, in any way, failed to comply with the reviewer’s requests for records, files or other information, or have otherwise impeded the review, the reviewer shall report the circumstances to the Complaints Investigation Committee.

Review Incomplete

9.7.7  If the reviewer has been unable to make or complete the review he or she shall state the reasons therefor.

Use of Reviewer’s Report

9.7.8  The reviewer’s report may be made the basis of a complaint against a member and may be used in evidence.

Reasonable Requirements

9.7.9  After providing a member of the Society with an opportunity to be heard, and where it is in the public interest to do so, the Complaints Investigation Committee may direct the member to comply with any reasonable requirements specified by the Committee as a result of its consideration of the review.

Substantial Risk

9.7.10  Where a review conducted pursuant to this subregulation identifies:

  • inadequacies in the member’s practice; or
  • conduct that poses a substantial risk that the member will face disciplinary action in the future,

the Complaints Investigation Committee may provide assistance to the member in order to remedy those inadequacies.

Costs of a Practice Review

9.7.11  The Complaints Investigation Committee may, by resolution, order that a member pay to the Society all or a portion of the reasonable costs of the audit, review, examination, medical or other assessment ordered or allowed under Section 36(2)(g) and (h), and may set and extend the date for payment.

CONDUCT OF HEARINGS

9.8 Charges Laid

9.8.1  When the Executive Director is instructed to lay a charge, the charge must be:

  • prepared and served upon the member together with the notice of referral to hearing;
  • communicated appropriately to the person or persons who complained to the Society; and
  • provided to the Chair of the Hearing Committee.

9.8.2  Despite any notice or timing requirements in Regulations 9.8 through 9.11, the parties may agree to shorten such notice or timing requirements.

Notice of Referral to Hearing

9.8.3  Subject to subregulation 9.8.7, after the charge and notice of referral to hearing have been served on the member, the Executive Director must provide the notice of referral to hearing no later than 15 days after service of the charges upon the member by publishing a notice on the Society’s website that:

  • specifies the member’s name; and
  • outlines the nature of the charges.

Application to Committee

9.8.4  The member may make application to the Complaints Investigation Committee to vary the content of the notice of referral to hearing.

9.8.5  Such application must be made in writing and received by the Executive Director within 14 days of service of the charge and the notice of referral to hearing on the member.

9.8.6  The Executive Director will wait until the Committee makes a determination on the member’s application to vary prior to publishing the notice of referral to hearing.

9.8.7  The Committee may make a decision regarding the content of the notice of referral to hearing.

Committee to Give Reasons

9.8.8  The Committee must provide reasons for its decision regarding the member’s application to vary.

Notice of Participation

9.8.9  A notice of participation must be filed by the member within 15 days after the day the member has been served with the charge and the notice of referral to hearing.

9.8.10  A notice of participation must be dated and signed by the member or the member’s counsel and include the following:

  • a statement giving notice of the member’s participation in the hearing; and
  • any procedural issues that the member intends to raise.

9.9 Proceedings Management Meeting

9.9.1  Within 30 days after the charge and the notice of referral to hearing have been served on the member, the Chair of the Hearing Committee must convene a proceedings management meeting.

9.9.2  The Chair of the Hearing Committee, after consulting with the parties on their availability, must provide written notice to the parties of the time and date of any proceedings management meeting.

9.9.3  At any proceedings management meeting, the Chair of the Hearing Committee may assist the parties to reach agreement regarding procedural matters to facilitate the expeditious hearing of the charge in accordance with the Act and Regulations, including:

  • identification of issues in the proceeding;
  • consideration of any restorative approaches or alternative dispute mechanisms that could be utilized;
  • identification of witnesses in the proceeding;
  • discussion of deadlines for filing of expert and other reports;
  • addressing issues with respect to disclosure;
  • potential for agreed statements of fact with respect to contested and uncontested components of a charge;
  • discussion of the number of days the parties anticipate requiring for the proceeding; and
  • any further appearances at additional proceedings management meetings, if necessary, the timing and content of which will be as directed by the Chair of the Hearing Committee;

and may adjourn the proceedings management meeting at the Chair’s own direction, or on receipt of a request from either party to the proceeding.

Authority of Hearing Committee Chair

9.9.4  The Chair of the Hearing Committee will select the hearing panel, including appointing the Chair of the hearing panel.

9.9.5  Where the parties have been unable to reach agreement on any issues arising during a proceedings management meeting, the Chair of the Hearing Committee will refer those issues to the hearing panel.

9.9.6  If the member fails to participate in any proceedings management meeting after receiving notice thereof, the Chair of the Hearing Committee may proceed with the meeting in the member’s absence.

Conduct of Proceedings Management Meeting

9.9.7  A proceedings management meeting may be conducted in person, in writing, by telephone or by electronic communications including videoconference, as determined by the Chair of the Hearing Committee.

9.9.8  Within 15 days of the conclusion of a proceedings management meeting, the Chair of the Hearing Committee must issue minutes of the meeting that set out the areas of agreement and areas, if any, to be referred to the hearing panel and must provide the minutes to the parties.

9.9.9  The Chair of the Hearing Committee will provide a copy of any minutes prepared pursuant to subregulation 9.9.8 to the hearing panel at the conclusion of the proceedings management process.

9.9.10  The Chair of the Hearing Committee may conduct further proceedings management meetings on the Chair’s own direction, or on receipt of a request for further directions from either party to the proceeding.

9.9.11  A proceedings management meeting may be held anytime until the commencement of one of the following:

  • a pre-hearing conference, pursuant to subregulation 9.11.1; or
  • a hearing to consider a proposed settlement agreement.

9.9.12  Despite any notice or timing requirements in this Regulation, the Chair of the Hearing Committee, in the Chair’s discretion, may shorten or extend any notice or timing requirements.

9.10 Notice of Hearing

9.10.1  As soon as practicable following the setting of dates for hearing, the Executive Director must prepare and serve the member with the notice of hearing.

9.10.2  After the notice of hearing has been served on the member, the Executive Director must provide notice of the hearing to the public at least 15 days prior to the date of the hearing.

9.11 Pre-Hearing Conference

9.11.1 Subject to subregulation 9.11.3, a pre-hearing conference must be conducted by the hearing panel no later than 30 days after the last proceedings management meeting or at such time as requested by either party and as determined by the chair of the hearing panel.

9.11.2  A pre-hearing conference may be conducted before the hearing panel chair alone at the discretion of the panel chair.

9.11.3  The requirement to conduct a pre-hearing conference may be waived with the agreement of the parties.

Notice of Conference

9.11.4  The hearing panel chair, after consulting with the parties on their availability, must provide written notice to the parties of the time and date of the pre-hearing conference.

9.11.5  The notice in subregulation 9.11.4 must confirm that the hearing panel may proceed in the absence of the member if the member or the member’s counsel does not attend the conference.

Authority of Hearing Panel

9.11.6  The hearing panel or chair must set a date for the hearing to commence that is not sooner than 30 days from the date of the pre-hearing conference.

9.11.7  At the first pre-hearing conference, the hearing panel or chair may make orders and give directions on any matters relating to the hearing for which agreement may not have been reached at a proceedings management meeting, and on any other matters in accordance with the authority of the hearing panel under Section 42(2) of the Act.

9.11.8  At a pre-hearing conference, the hearing panel or chair may consider a proposed settlement agreement provided there has been compliance with the requirements for a notice of hearing in subregulation 9.10.1.

9.11.9  A pre-hearing conference may be held in public or private, as determined by the hearing panel or chair, after hearing from the parties.

Conduct of Pre-Hearing Conference

9.11.10  A pre-hearing conference may be conducted in person, in writing, by telephone or by electronic communications including videoconference, as determined by the hearing panel or chair.

9.11.11  Unless otherwise directed by the hearing panel or chair, the parties to the proceeding, or their counsel, must attend or participate in the pre-hearing conference.

9.11.12  At the conclusion of the pre-hearing conference, the hearing panel or chair must issue written orders and/or directions with regard to any or all of the matters referred to in subregulation 9.11.7 and must provide the written orders and/or directions to the parties.

Commencement of Hearing

9.11.13 The Hearing has commenced when the hearing panel begins to hear evidence in relation to the charges against the member.

9.12 Proposed Settlement Agreement

9.12.1  Subject to subregulations 9.12.2 and 9.12.3, after the charge is served on the member, the Executive Director and the member may, at any time prior to the commencement of the hearing, tender to the Complaints Investigation Committee a proposed settlement agreement that includes:

  • a statement of sufficient facts in relation to the complaint against the member to support the admitted charges and the proposed disposition;
  • an admission of guilt by the member to one or more of the charges; and
  • the member’s consent to a specified disposition, conditional upon the acceptance of the agreement by a hearing panel.

No Contest

9.12.2  After the charge is served on the member, and where the member and the Executive Director agree that disbarment is the appropriate sanction, the member and the Executive Director may submit to the Complaints Investigation Committee a settlement agreement in which the member does not contest the charge and does not admit guilt.

9.12.3  A settlement agreement submitted to the Committee under subregulation 9.12.2 will include:

  • a statement of facts alleged by the Society in relation to the complaint against the member sufficient to support the charge and proposed disposition; and
  • the member’s consent to disbarment and any other penalties;

and is conditional upon the acceptance of the agreement by a hearing panel.

Discretion of the Committee

9.12.4  The Complaints Investigation Committee may, in its discretion, recommend or refuse to recommend acceptance of the proposed settlement agreement by a hearing panel.

Refusal to Recommend by Committee

9.12.5  If the Complaints Investigation Committee refuses to recommend acceptance of the proposed settlement agreement, the hearing must proceed without reference to the proposed settlement agreement.

9.12.6  At any hearing to consider the recommendation of a settlement agreement, the hearing panel will impose a publication ban on all matters disclosed at the hearing pursuant to Section 44(3) of the Act, and this ban will remain in force until:

  • the hearing panel approves the settlement agreement subject to any ongoing publication ban that may have been ordered; or
  • the final disposition of the charges by a subsequent hearing panel subject to any ongoing or further publication bans that may be ordered.

9.12.7  Within 30 days of the hearing to consider the recommendation of the Complaints Investigation Committee, a hear panel must:

  • by resolution, approve a settlement agreement approved by the Complaints Investigation Committee; or
  • reject a settlement agreement approved by the Complaints Investigation Committee and proceed no further where the panel determines that the agreement is not in the public interest; and
  • provide written reasons for its decision.

9.12.8  A publication ban imposed pursuant to Section 44(3) of the Act will apply to the written reasons provided pursuant to subregulation 9.12.7(c).

Acceptance of Recommendation

9.12.9  Following acceptance of the recommendation of the Complaints Investigation Committee and receipt of the resolution made by the hearing panel pursuant to subregulation 9.12.7(a), the Executive Director may release the settlement agreement to the public.

9.12.10  Where the hearing panel has rejected a settlement agreement, the members of that panel must not participate as members of a subsequent hearing panel in the same matter.

Committee has Jurisdiction

9.12.11  Where the hearing panel rejects a settlement agreement, the Complaints Investigation Committee has jurisdiction over the matter until the commencement of the hearing by the new panel.

9.12.12  Nothing in this Regulation affects any order made pursuant to Section 37(1) of the Act.

New Hearing Panel

9.12.13  A new hearing panel must proceed without reference to the proposed settlement agreement rejected by the prior hearing panel.

9.13 Evidence

Witness

9.13.1  A witness appearing before a hearing panel may raise procedural issues, affecting his or her testimony, either through his or her counsel or through counsel for one of the parties.

Disclosure

9.13.2  The following evidence is not admissible at a hearing unless the opposing party has been given, at least 10 days before the hearing or such earlier time as determined by the hearing panel at the pre-hearing conference:

  • in the case of written or documentary evidence, an opportunity to examine the evidence;
  • in the case of evidence of an expert, a copy of the expert’s written report or if there is no written report, a written summary of the evidence; or
  • in the case of evidence of a witness, the identity of the witness.

Power to Allow Evidence

9.13.3  Despite subregulation 9.13.2, a hearing panel may, in its discretion, allow the introduction of evidence that would otherwise be inadmissible, or exclude evidence that would otherwise be admissible, and may make such directions that it considers necessary to ensure that a party is not prejudiced.

Failure to Appear

9.13.4  If a member fails to appear at a hearing or for the resumption of an adjourned hearing after notice thereof, the hearing panel may proceed with the hearing in the member’s absence.

9.13.5  The hearing panel may from time to time adjourn a hearing and give notice thereof to the member.

Amendment of Charge

9.13.6  The hearing panel may, at any time before or during a hearing, amend or alter any charge either to:

  1. correct an alleged defect in substance or form; or
  2. to make the charge conform to the evidence where
    1. there appears to be a variance between the evidence and the charge, or
    2. where the evidence discloses professional misconduct or conduct unbecoming, professional incompetence or incapacity that is not alleged in the charge.

9.14 Disposition of Charge

9.14.1  Upon completion of a hearing, the hearing panel must dispose of the charge as provided in Sections 45(4) or (5) of the Act.

Suspension for Non-Compliance

9.14.2  If the hearing panel makes an order for payment under Section 45(4)(e), (f) and (h), the member will be suspended for failing to comply with that order unless otherwise ordered by the hearing panel.

Notification of Member

9.14.3  When a member has been suspended under this Regulation, the Executive Director must:

  • notify the member of the suspension and the effective date; and
  • amend the records of the Society to reflect the suspension and the effective date.

Notification of Public Offices

9.14.4  When a practising lawyer has been suspended pursuant to subregulation 9.14.2, the Executive Director must notify all prothonotaries, court administrators and registrars and other public offices that may be affected by the suspension.

Notice of Suspension

9.14.5 When a practising lawyer has been suspended pursuant to subregulation 9.14.2, the Executive Director may cause a notice of the suspension to appear in a newspaper of general circulation in the Province, which advises that the lawyer has been suspended and is not entitled to practice.

Continuing Jurisdiction

9.14.6  Where a hearing panel finds a member of the Society guilty of professional misconduct, professional incompetence or conduct unbecoming, or makes a finding of incapacity, the hearing panel will retain jurisdiction to make any other order or take any other action the hearing panel determines to be appropriate in the circumstances including an order to retain jurisdiction to monitor the enforcement of its order.

9.14.7  Where the term of a member of the hearing panel has expired or the member is otherwise unavailable to exercise the jurisdiction set out in subregulation 9.14.6, the jurisdiction of the remaining member of the hearing panel will not be affected provided the hearing panel has quorum.

9.14.8  If the hearing panel no longer has quorum as a result of a member’s unavailability to continue to serve, the Chair of the Hearing Committee may appoint a successor member to monitor enforcement of the hearing panel’s order or to consider a request to rescind or vary an order made by the hearing panel.

Decision on Charge

9.14.9  Within 60 days of completion of the hearing of the evidence and receipt of submissions on the charge, the Chair of the hearing panel must provide to the parties and the Executive Director the panel’s written decision and its reasons for that decision.

Decision is Public

9.14.10  Upon receipt of the written decision, unless the hearing panel otherwise orders, the Executive Director must:

  • release the decision to the public; and
  • file a copy of the decision with the Prothonotary.

Hearing on Sanction

9.14.11  If the member is found guilty, within 60 days of release of its decision pursuant to subregulation 9.14.9, the hearing panel must resume the hearing in order to determine the appropriate sanction.

Decision on Sanction

9.14.12  Within 30 days of completion of the hearing pursuant to subregulations 9.14.11 or 9.15.3, the Chair of the hearing panel must provide to the parties and the Executive Director:

  • a written decision on the sanction;
  • the reasons for that decision; and
  • a resolution incorporating the sanction signed by the Chair on behalf of the hearing panel.

Exhibits

9.14.13  As soon as practicable after providing its final decision to the Executive Director, the Chair of the hearing panel must deliver to the Executive Director all the exhibits tendered at the hearing together with any other material that would constitute the record of the hearing.

Filing of Decision

9.14.14  Following receipt of the material prescribed by subregulation 9.14.12, the Executive Director must:

  • file the material with the Prothonotary; and
  • release the decision to the public.

9.15 Sanction in Foreign Jurisdiction

9.15.1  If a member is guilty of professional misconduct pursuant to Section 48 of the Act, the Executive Director must give effect in Nova Scotia to any sanction that may have been imposed by the other jurisdiction.

Proof of Guilt

9.15.2  A certified copy of a disciplinary decision of another disciplinary authority may be used by the Society to prove that fact in a proceeding under this Part.

Application to Chair

9.15.3  a member may apply in writing to the Chair of the Hearing Committee to have a hearing panel appointed to determine whether the imposition of the sanction referred to in subregulation 9.15.1 is appropriate.

9.15.4  The Chair of the Hearing Committee must appoint a hearing panel as soon as practicable following receipt of an application.

9.15.5  An application pursuant to subregulation 9.15.3 does not operate as a stay.

9.15.6  A hearing panel may issue any order that may be appropriate prior to making a decision on an application.

9.15.7  A hearing panel must provide reasons for its decision regarding the member’s application under this Regulation.