Sunday, December 6, 2015

Harris v. Law Society of Alberta [1936] 1 D.L.R. 401 (S.C.C): An Oft Forgotten Yet Binding Legal Authority in Administrative Law

   The law is clear, especially in respect of professional disciplinary statutes that:

"When a statute confers jurisdiction upon a tribunal of limited authority and statutory origin, the conditions and qualification annexed to the grant must be strictly complied with."

   The above noted quotation from the Supreme Court of Canada's 1936 pronouncement in Harris  v.  Law Society of Alberta remains binding legal authority for the proposition of law that an inferior tribunal must strictly comply with conditions and qualifications of the jurisdiction granted to it by statute otherwise it acts unlawfully and any decision it makes is a nullity in law.  In order for readers to appreciate the true meaning and power of this legal authority it is necessary to review the facts and circumstances within which the Supreme Court of Canada made this most significant pronouncement.
I will outline the key facts from the headnote below.

Basic Facts:

   Under the Alberta Legal Profession Act, R.S.A 1922 c 206, the benchers of the Law Society of Alberta were to appoint and maintain a "discipline committee", consisting of at least three members, who were to deal with complaints against any member of the Society, and might recommend that the benchers strike the name of the member off the rolls, and the benchers might order the same be done.  There were provisions for procedure before the discipline committee.  The member might appeal "from the decision of the committee and of the benchers" to the Appellate Division of the Supreme Court of Alberta, the appeal to be by notice to the benchers and "founded upon a copy of the proceedings before the said committee and the benchers, ethe evidence taken, the committee's report and the order made by the benchers thereon.

   The benchers had appointed R as chairman, and all the benchers as members, of the discipline committee.  On complaints lodged against plaintiff ( a member of the Law Society), R appointed three benchers as a special committee to examine into them, receive evidence, and report.  The held meetings, of which notice was given plaintiff, who had full opportunity to, and did, hear the evidence, cross-examine, and adduce evidence.  This special committee then reported to the convocation of benchers that they had found the complaints proven, the plaintiff had been guilty of improper professional conduct, and they recommended that his name be struck from the rolls of the Society.  This recommendation was received and adopted by the convocation on July 5, 1923; it was further recorded that plaintiff was found to have been guilty of improper professional conduct; and it was ordered that his name be, and it was, struck off the rolls.  Plaintiff did not appeal.  In 1924, 26, 27, and 1930, he applied for reinstatement.  He did not know until 1925 that the committee before which he had appeared was not the official discipline committee.  In 1928 he sued the Law Society of Alberta, alleging that his name had wrongly and without legal right been struck off the rolls, and praying for a declaration that he was still a member of the Society, entitled to practice, and claiming damages.

Held:  (1)  Plaintiff was entitled to have his name restored to the rolls.  The benchers' order striking it off was null and void.  Under the Act such order could be made only after investigation and recommendation by the discipline committee, which never took place.  The fact that the official discipline committee comprised all the benchers who eventually received and adopted the recommendation of the special committee, could not, even apart from the fact that those benchers adopting it had made no investigation of their own, overcome the statutory requirement of the acting by the discipline committee as a distinctive body. (Per Duff CJ: The discipline committee, in ascertaining the facts, may proceed through the agency of one or more of its members for the purpose of taking evidence and getting the facts. But in deciding upon their recommendation the discipline committee must, under the Act, give the member charged an opportunity of appearing before them and presenting his defence.  It might be that, had plaintiff been heard in his defence by the benchers in convocation, the report of the special committee, notwithstanding the form of the proceedings, might have been considered as adopted by the benchers, sitting as a discipline committee, after hearing plaintiff, as the Act requires; and that the proceedings might have been considered as conforming in substance to the statutory procedure.  The error of substance was in not giving plaintiff a hearing before the members comprising the discipline committee; and this defect sterilized the proceedings as regards legal consequences).

   It was not a case where plaintiff should have appealed under the Act, because (1) there was no recommendation of the discipline committee from which he could appeal, and (2) the benchers' order was a nullity.  Nor could plaintiff by his conduct be taken to have abandoned by waiver or consent his rightful objections to the validity of the proceedings and of the order; moreover, since the benchers' lack of power deprived the order of any effect, and the legislation in question must be looked at from the viewpoint of public interest, estoppel on the ground of acquiescence could not be invoked.

What Does This All Mean ?:

   In a nutshell - the failure to comply with the strict grant of jurisdiction by an inferior tribunal is a very serious matter which renders all steps thereafter a nullity at law.(see also - Carlin v. Registered Psychiatric Nurses' Assn of Alberta 1996 Canli 7282 (AB QB)  For example, where an administrative body is required to report to another body and a complainant on its decision and it fails to do so the legal legitimacy of all further proceedings are in  jeopardy for non-compliance with the statutory scheme granting them jurisdiction.  In addition, where a statute mandates that decision makers must be members of a body non compliance with this condition renders their decision a nullity as in Harris supra.  Further, where an administrative body's enabling legislation mandates that it adjudicate upon a "complaint" it can not adjudicate anything more than the "complaint".  An erroneously characterized prior history of misconduct and the rejection of the the subject's testimony within the proceedings would arguably exceed the "complaint" and hence the statutory grant of jurisdiction. (see for example - J.A. Chartier's dissent in Canadian Judicial Council's ruling in Girouard at para 263-65)  In practical terms this is precisely what happened in Hryciuk  v.  Ontario. Madame Justice McFarland entertained evidence beyond the "complaint" and removed Justice Hryciuk from office for matters which went beyond the ambit of the "complaint" against him.  Through the very able and effective counsel of Mr. Brian Greenspan the removal order against Justice Hryciuk was properly overturned by the Court of Appeal for Ontario.

   Our case law has been consistent in holding that the excess of jurisdiction by a judge or administrative actor is always a matter of public importance.

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