nan Editor's Note: Corrigendum released February 25, 1998. Original judgment has been corrected with text of corrigendum appended. Q.B. A.D. 1997 No. 1781 J.C.S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: ERNEST A.J. HAWRISH and THE LAW SOCIETY OF SASKATCHEWAN, THE BENCHERS, THE COMMITTEES AND THE OFFICERS OF THE LAW SOCIETY OF SASKATCHEWAN RESPONDENTS E.A.J. Hawrish on his own behalf A.T. Snell, Q.C. for the respondents JUDGMENT HRABINSKY J. November 10, 1997 The applicant applies for an order that the respondents be prohibited from any further proceedings or actions in relation to the formal complaint against him, dated December 15, 1988, as amended, alleging that he is guilty of conduct unbecoming barrister and solicitor. The application is made pursuant to The Legal Profession Act, 1990, S.S. 1990-91, c. L-10.1 on the following ground: That the Discipline Committee of the Law Society of Saskatchewan does not have jurisdiction to proceed with any further proceedings against the Applicant on the said complaint by virtue of the fact that the decision of the Hearing Committee, dated July 2, 1997, and upon which the Disciplinary Committee proposes to act, was not provided to the chairperson of the Discipline Committee within 45 days after the hearing of the said complaint, as required by Section 53(1) of The Legal Profession Act, 1990. FACTS In 1988, the applicant, member who was then in good standing with the Law Society of Saskatchewan, was charged with several counts of theft and fraud pursuant to the Criminal Code. The Law Society Investigation Committee report recommended that hearing be held to inquire into substantially the same circumstances as those contained in the criminal charges. On December 15, 1988 the Law Society of Saskatchewan appointed Hearing Committee to hear formal complaint against the applicant. At the first meeting of the Hearing Committee on May 1, 1989, the applicant challenged the jurisdiction of the Hearing Committee to proceed on the basis that he had not been treated fairly by the investigation process and therefore, the Hearing Committee had no jurisdiction. This application was dismissed on May 31, 1989. During the years 1988-1991 inclusive, the applicant was paid-up practising member of the Law Society of Saskatchewan. In 1992 on his undertaking to refrain from the practice of law, the applicant was granted an inactive membership in the Law Society of Saskatchewan. Commencing January 1, 1993 the applicant did not pay an inactive membership fee. The applicant then applied to the Court of Queen's Bench for stay of the Law Society disciplinary proceedings on the ground that those proceedings should be stayed until the criminal matter was complete. The stay was granted August 29, 1989, but was lifted by justice of the Saskatchewan Court of Appeal in January of 1990, to allow counsel for the Investigation Committee to examine witness who was terminally ill. As the criminal matter proceeded through the courts, the Hearing Committee met intermittently, often by telephone conference calls, and the matter was adjourned from time to time, firstly because the court had imposed stay and latterly because the criminal matters were still before the court. The applicant was convicted of one count of theft and two counts of fraud on September 6, 1991. On October 10, 1991, he was sentenced to 18 months imprisonment and was ordered to pay compensation to the victims of his crimes. The applicant appealed the conviction. The appeal was dismissed by the Saskatchewan Court of Appeal on October 14, 1993. The applicant then sought leave to appeal further to the Supreme Court of Canada. The appeal was dismissed by the Supreme Court ofCanada on March 21, 1995 and the Hearing Committeeset August 8, 1995 as the date for a hearing. transcript of the meeting of the Hearing Committee on August and 9, 1995 discloses that the applicant challenged the jurisdiction of the Hearing Committee to proceed with the matter. The Hearing Committee found that it had jurisdiction and proceeded with the hearing. The applicant absented himself from the hearing following the Hearing Committee's decision to proceed. On August 9, 1995 the Hearing Committee unanimously found beyond reasonable doubt that each of the complaints numbered 11, 12 and 13, were well founded and that because the Law Society of Saskatchewan presented no evidence on counts to 10 inclusive, these complaints were dismissed as being unfounded. The transcript of the proceedings discloses that the chairman of the Hearing Committee stated, ". the Hearing Committee will report, in accordance with the Act, its findings to the Benchers." By notice of appeal dated August 24, 1995 the applicant appealed the decision of the Hearing Committee made on August 9, 1995 to the Court of Appeal pursuant to s. 56(1) of The Legal Profession Act, 1990, S.S. 1990-91, c. L-10.1. The applicant applied to the Saskatchewan Court of Appeal challenging the jurisdiction of the Hearing Committee on the basis that he was no longer member of the Law Society. This application was dismissed by the Saskatchewan Court of Appeal on November 18, 1996. On August 25, 1995, the applicant sent facsimile to the Law Society of Saskatchewan requesting that he be heard if any further actions, procedures or sanctions be taken against him. He also requested that he be provided with reasonable notice of any proposed actions. The applicant received no response to his facsimile. He never received copy of the Hearing Committee's report which is dated July 2, 1997 until July 28, 1997. The report of the Hearing Committee is addressed to "The Chairperson of the Discipline Committee". The applicant then sought leave to appeal to the Supreme Court of Canada. Leave was denied on May 22, 1997. The respondents concede that no action was taken with respect to the sentencing of the applicant between August 9, 1995 and May 30, 1997. The respondents say that they were advised that it would be inappropriate for them to proceed in the face of challenge to its jurisdiction. The Hearing Committee provided its report to the chairperson of the Discipline Committee on July 4, 1997. The notice of sentencing dated July 21, 1997 was issued by the chair of the Discipline Committee and was sent to the applicant by registered mail notifying the applicant that sentencing on the matters referred to in the report of the Hearing Committee would be held on Thursday, September 18, 1997. During the period of almost two years since the date of the hearing before the Hearing Committee the applicant has been working at establishing an international consulting business and for this purpose has begun the process of studying for Ph.D. in International Business. (1) Did the Hearing Committee breach s. 53 of The Legal Profession Act, 1990 by providing its report more than 45 days after the hearing? (2) If the answer to the first question is in the affirmative, do the respondents have jurisdiction to proceed further against the applicant? THE LAW The pertinent provisions of The Legal Profession Act, 1990 are: 53(1) hearing committee shall provide its decision to the chairperson of the discipline committee in accordance with the rules, not later than 45 days after the hearing. (5) The chairperson of the hearing committee shall send copy of the committee's decision to the member whose conduct was the subject of the hearing. 56(1) Where complaint against member is determined by the hearing committee to be well founded, the member may appeal the decision of the hearing committee or penalty assessed or requirement imposed by the hearing committee or the discipline committee resulting from the decision to the Court of Appeal within 30 days after the day of the decision or the assessment of penalty or imposition of requirement, whichever is later, by: (a) filing notice of appeal with the registrar of the Court of Appeal; and (b) serving the secretary-treasurer with copy of the notice of appeal. (3) Subject to subsection (4), the commencement of an appeal to the Court of Appeal does not stay the effect of penalty assessed or requirement imposed by the hearing committee or the discipline (4) An appellant, on five days' notice to the secretary-treasurer, may apply to the Court of Appeal for stay of proceedings pending the disposition of the appeal. (emphasis added) Rule 450(10) of Rules of the Law Society of Saskatchewan reads: 450(10) The hearing committee shall, not later than 45 days after completion of the hearing, deliver to the Chairperson of the Discipline Committee written statement of: (a) its findings as to the facts in issue, (b) its decision as to whether each allegation in the formal complaint is well-founded, and (c) the penalty assessed or requirements imposed, if it acts under section 53(3) of the Act. (emphasis added) Section 27(3) of The Interpretation Act, 1995, S.S. 1995, c. I-11.2 provides: 27(3) In the English version of an Act: (a) "shall" shall be interpreted as imperative; and (b) "may" shall be interpreted as permissive and empowering. Counsel for the respondents argues that if this court finds that the Hearing Committee was in breach of s. 53 of The Legal Profession Act, 1990, by providing its decision to the chairperson of the Discipline Committee more than 45 days after the hearing, the s. 53 requirement is not mandatory but directory. find that the Hearing Committee was in breach of s. 53 since the hearing concluded on August 9, 1995 and the Hearing Committee did not provide the chairperson of the Discipline Committee with its decision until July 4, 1997. This is in contravention of the statute. In support of his submission that the s. 53 requirement is not mandatory but directory, counsel has referred to number of decisions including Teskey v. Law Society of British Columbia (1990), 1990 CanLII 8033 (BC SC), 71 D.L.R. (4th) 531. The Teskey decision is distinguishable in that the court dealt with rule which provided that "the Secretary shall promptly notify the respondent in writing of referral to the Benchers .". The court did not deal with statutory requirement, as is the case before me. This court has the jurisdiction to waive rules but does not have jurisdiction to waive statutory requirements. Accordingly, the Teskey decision is inapplicable to the matter before me. The powers of the respondents to regulate and discipline its members is conferred by statute and as such, am of the view that the exercise of such powers must be complied with strictly. In Maxwell on The Interpretation of Statutes, 12th ed. (Sweet Maxwell, London, 1969) at p. 245 the author states: Similarly, statutes dealing with jurisdiction and procedure are, if they relate to the infliction of penalties, strictly construed: compliance with procedural provisions will be stringently exacted from those proceeding against the person liable to be penalised, and if there is any ambiguity or doubt it will, as usual, be resolved in his favour. This is so, even though it may enable him to escape upon technicality. Applying s. 27(3) of The Interpretation Act, 1995, conclude that the word "shall" in s. 53(1) of The Legal Profession Act, 1990, must be interpreted as imperative. It is mandatory. It is not directory. Disciplinary proceedings expose member of the Law Society to punishments including suspension of the right to practice and disbarment. The nature of disciplinary proceedings can have devastating effect on the most valuable asset barrister and solicitor has his or her reputation. This reinforces my view that s. 53(1) must be strictly interpreted. The duty of the respondents is the protection of the rights not only of members of the public but also the members of the Law Society of Saskatchewan. am of the view that the purpose of s. 53(1) of The Legal Profession Act, 1990 is to provide the chairperson of the Discipline Committee with decision of the Hearing Committee within 45 days so that disciplinary matters against its members may be dealt with in timely manner. The process must be completed without undue delay and thus protect the member's interest. This is also implicit in s. 56 of the Act which provides that member may appeal the decision of the Hearing Committee and that the appeal process does not stay the effect of the decision of the Hearing Committee. Section 56(4) provides that an appellant may apply to the Court of Appeal for stay pending the decision of the appeal. Although stay of proceedings was ordered for the period from August 29, 1989 until January, 1990, it was incumbent upon the respondents to move without delay before the stay was granted and after it was lifted on the application of the respondents. This the respondents did not do to the detriment of the applicant's interests. find that the respondents have lost jurisdiction to take further proceedings against the applicant and so order. Leave is given to speak to costs. J. Q.B. A.D. 1997 No. 1781 J.C.S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: ERNEST A.J. HAWRISH and THE LAW SOCIETY OF SASKATCHEWAN, THE BENCHERS, THE COMMITTEES AND THE OFFICERS OF THE LAW SOCIETY OF SASKATCHEWAN RESPONDENTS E.A.J. Hawrish on his own behalf A.T. Snell, Q.C. for the respondents CORRECTION TO JUDGMENT DATED NOVEMBER 10, 1997 HRABINSKY J. February 25, 1998 The last two sentences in the thirdparagraph on p.3 of the judgment should be deletedand the following sentence added:The appeal was dismissed by the Supreme Court ofCanada on March 21, 1995 and the Hearing Committeeset August 8, 1995 as the date for a hearing.
HELD: The last two sentences were to be substituted by the appeal was dismissed by the SCC on March 21, 1995 and the Hearing Committee set August 8, 1995 as the date for a hearing.