The Court of Appeal upheld the Law Society Hearing Committee’s imposition of a six month suspension and $40,000 fine on the basis that the penalty was not unreasonable in light of the appellant’s history of 16 findings of misconduct in the preceding 20 years.
Administrative law – Decisions reviewed – Law societies – Judicial review – Appeals – Standard of review – Reasonableness – Barristers and solicitors – Professional misconduct or conduct unbecoming
Law Society of Saskatchewan v. Peet,  S.J. No. 203, 2019 SKCA 49, Saskatchewan Court of Appeal, June 4, 2019, R.K. Ottenbreit, P.A. Whitmore and R. Leurer JJ.A.
Mr. Peet appealed a Law Society disciplinary penalty decision. Mr. Peet had 16 findings of misconduct in the prior 20 years. The proceeding before the Law Society involved Mr. Peet’s failure to file reporting forms and respond to a Law Society auditor’s inquiries. The matter was referred to the Complaints Counsel. Mr. Peet pled guilty to one count of conduct unbecoming of a lawyer before the Law Society’s Hearing Committee (the “Committee”). He acknowledged his error but maintained he delayed his response due to the requirements of an ongoing litigation file.
The Committee directed that, because of Mr. Peet’s lengthy disciplinary history and consistent downplaying of the seriousness of his conduct, Mr. Peet was suspended for six months, fined $40,000, and was required to pay costs of $1,865. Mr. Peet appealed on the basis that the penalty was excessive and resulted from a failure to adhere to the principle of progressive discipline, and/or a failure to consider mitigating factors.
The Saskatchewan Court of Appeal dismissed Mr. Peet’s appeal. First, with respect to mitigation, the Court held that the decision reflected the view that the guilty plea could not serve to materially mitigate the gravity of the appellant’s ongoing and offending conduct. The decision to not accord the plea weight, or to regard the appellant’s non-compliance as minor, was not unreasonable.
Second, no error arose from the Committee’s application of the principle of progressive discipline. It was open to the Committee to consider a prior penalty that was imposed after the conduct that gave rise to the current charge in the context of formulating the appropriate sanction. In the circumstances of his history of multiple infractions, Mr. Peet could not say that he had not had ample opportunity to learn from his past conduct or to endeavour to reform himself.
Finally, the penalty was not unreasonable and was supported by clear reasons. The Committee rejected Mr. Peet’s argument that the offence was minor. The Committee viewed Mr. Peet’s infractions, in the context of his record, as very serious. The Committee clearly expressed why it imposed what must be considered a very severe penalty and expressed that a subsequent infraction may attract disbarment. The Court observed that the penalty is not directly comparable to other penalties because the circumstances in this case were worse than any available comparators. Therefore, the penalty was not unreasonable.
Mr. Peet also argued that, because the Committee was not made up of benchers and practising lawyers, they have less expertise in the area of the legal profession and their decision should be more closely reviewed. The Court dismissed this submission on the basis that the complaint against Mr. Peet did not require the professional expertise of a lawyer, as it involved a member’s relationship with and responsibility to be responsive to the profession’s governing body. Further, the submission that there might be a different standard of review depending on the composition of a tribunal runs contrary to the decision in Dunsmuir which confirms there is no room for a standard that will “float along a spectrum” (Law Society of New Brunswick v. Ryan, 2003 SCC 20 at para. 44).
This case was digested by JoAnne G. Barnum, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact JoAnne G. Barnum at firstname.lastname@example.org.