Benchers Must Reconsider Lawyer’s Disbarment: The Law Society of British Columbia v Zoraik
In The Law Society of British Columbia v Zoraik, 2015 BCCA 137 [Zoraik], the British Columbia Court of Appeal (“BCCA”) held that Benchers of the Law Society of British Columbia (“LSBC”) failed to consider the Appellant’s Charter argument and whether it could refer a matter back to its Discipline Committee. As such, the BCCA referred the issue of whether Malcolm Zoraik is to be disbarred back to the Benchers. This decision is a further exemplification of the ability of administrative tribunals to deal with Charter questions post R v Conway,  1 SCR 765 [Conway].
In June of 2010, Mr. Zoraik was convicted of an indictable offence (public mischief and fabrication of evidence). Disciplinary proceedings were also started against the Appellant at the same time. In 2012, Mr. Zoraik had the opportunity to provide submissions to the Discipline Committee of the LSBC, and he requested a penalty of voluntary suspension and immediate reinstatement.
The Committee chose to order a “summary suspension or disbarment,” which is allowed under section 36(h) of the Legal Profession Act, SBC 1998, c 9, and Law Society Rule 4-40. Subsection 3 of this rule reads: “Without following the procedure provided for in the Act or these Rules, the Benchers may summarily suspend or disbar a lawyer or former lawyer on proof that the lawyer or former lawyer has been convicted of an offence.”
As the Discipline Committee decided to invoke Rule 4-40, written and oral submissions were made to the Benchers on January 25, 2013. On May 30, 2013, the Benchers released their decision, and the Appellant was disbarred.
In the Benchers’ decision, they noted that the “choice that the Committee made [to use Rule 4-40] is highly unusual,” and the Court of Appeal noted that in the past 25 years the rule had only been invoked once (Zoraik, para 10). The Appellant argued before the Benchers that the rule to summarily disallow him from practising law violated the principles of fundamental justice and thus his rights under section 7 of the Charter. In short, the Benchers held that as Mr. Zoraik was not asking for a Charter remedy, but was instead asking the Benchers to refer the matter back to the Discipline Committee, they did not have to deal with the Charter issue. Further, they held that they did not have the jurisdiction to send the matter back to the Discipline Committee.
A five-member panel of the Court of Appeal held that the Benchers failed to properly address whether the Charter was engaged and whether the matter should have been referred to the Discipline Committee.
In the BCCA’s view, the Benchers did not deal with the Charter issue substantively. To begin with, the Court of Appeal noted “considerable confusion” at the hearing regarding Mr. Zoraik’s position. In short, there seemed to be an issue with the Benchers’ authority vis-à-vis the Charter. The Court of Appeal cited Conway for the authority that a tribunal that can hear questions of law, can evaluate whether a Charter breach has occurred, and can grant Charter remedies.
While the Benchers had the authority to hear the question, in the BCCA’s view, they failed to properly do so. The Court of Appeal further held that they could not determine whether a Charter infringement occurred for lack of a sufficient record. In its view, “the record lacks the type of evidence that is crucial to such an inquiry, such as information relating to the policy and purpose of the rule or the legislation that authorizes it” (Zoraik, para 27). The Benchers were obligated to entertain the Appellant’s argument that they should not exercise their jurisdiction to disbar him because proceeding to do so would infringe his Charter rights.
Remitting to the Discipline Committee
The Appellant took issue with the Benchers’ holding that they did not have the jurisdiction to send the matter back to the Benchers. However, the Law Society argued that the Benchers did not refer the matter back as the “Appellant was not seeking to tender any additional evidence” (Zoraik, para 29).
As stated by the BCCA, “the proper question is whether the Benchers have the authority to decline to proceed summarily and to refer the matter back to the Discipline Committee to consider the Appellant’s Charter position” (Zoraik, para 32). In the Court of Appeal’s view, the Benchers failed to consider this question. The BCCA pointed to the Benchers’ statement that, “if we did decide that we can and should refer the matter back to the Discipline Committee to issue a citation, he did not intend to tender any new evidence at the ensuing hearing on the citation” (Zoraik, para 33 [emphasis in the original]).
As a result, the Court of Appeal sent the matter back to the Benchers.
The Court of Appeal chastised the Benchers for not properly dealing with the substance of the Charter issue and whether to send the matter back to the Discipline Committee. This case highlights the complexity of an administrative tribunal’s authority to engage with Charter issues and remedies even post-Conway. As is exemplified by excerpts of the submissions of counsel before the Benchers, the fact that Mr. Zoraik was not asking for a Charter remedy caused some misunderstandings. In my view, there is also a notable absence of a discussion of administrative tribunals’ obligations to exercise their discretion in accordance with Charter values as per Doré v Barreau du Québec,  1 SCR 395.