Solicitor “Y” was found guilty of two charges of professional misconduct for failing to honour provisions in retainer agreements, in one instance a money-back guarantee and in another limiting fees to $2,500. He unsuccessfully applied for review of the decision of the Nova Scotia Barristers’ Society (“Society”) pursuant to s. 32(13) of the Barristers and Solicitors Act, R.S.N.S. 1989, c.30 (the “Act”).

Nova Scotia Barristers’ Society v. Solicitor “Y”, [2004] N.S.J. No. 260, Nova Scotia Court of Appeal, June 9, 2004, Glube C.J.N.S., Freeman and Fichaud JJ.A.

The Court considered the standard of review analysis laid out in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. The Act did not contain a privative clause, but the tribunal did have expertise with respect to determining what type of conduct constitutes professional misconduct. A standard of reasonableness simpliciter was proper for a court reviewing the ruling of a tribunal considering professional discipline of a solicitor.

The evidence before the Society regarding the complaints was reviewed, and their conclusions were upheld as reasonable. The Court was careful to point out that facts demonstrating that a client is overcharged by their solicitor may not always establish professional misconduct:

While I am in substantial agreement with the facts determined by the panel, the question of whether these facts support a finding of professional misconduct requires further consideration. As the panel was clearly aware, such a finding is not a simple matter of subtracting the total of one column of figures from another. In an underfunded case involving an uncertain cash flow, significant disbursements, and a great deal of time and effort some minor inadvertent error is not necessarily reprehensible. (para. 62)

The Court did find, however, that in this case Solicitor “Y” resorted to what a reasonable person would regard as bullying and underhanded behaviour, and this unprofessional behaviour made it clear that the finding of unprofessional conduct was reasonable.

Solicitor “Y” also contested publication of his name. The Court held that his reprimand would properly be put on the public record, but the Court also ordered that publication of the decision be stayed until September 8, 2004 to afford him the opportunity to apply for leave to appeal to the Supreme Court of Canada, and to seek a further order staying publication until his leave application could be heard.

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