Supreme Court

McKinnon v Law Society of the NWT, 2022 NWTSC 14

 

Date:  2022 07 13

Docket:  S-1-CV-2021 000251

 

 

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

In The Matter of the Legal Professional Act, Sections 22, 23 and 24,

And In The Matter of a Decision of the Law Society of the

Northwest Territories dated September 3, 2021

 

ADAM MCKINNON

Applicant

-and-

 

LAW SOCIETY OF THE NORTHWEST TERRITORIES

 

Respondent

 

RULING ON APPLICATION FOR JUDICIAL REVIEW

 

Introduction

 

[1]     This Application for judicial review arises out of a family law proceeding in which the Applicant, Adam McKinnon (“the Applicant”), alleged improper conduct on the part of legal counsel for his former partner, Michelle Lavoie (“Ms. Lavoie”), and counsel assigned by the Office of the Children’s Lawyer (“OCL”).

[2]     Specifically, the Applicant seeks judicial review of the September 3, 2021, decision (the “Decision”) of the Chair of the Discipline Committee of the Law Society of the Northwest Territories (the “Law Society”) to dismiss his complaints against opposing counsel, Keelen Simpson (“Ms. Simpson”), and OCL counsel, Ken Kinnear (“Mr. Kinnear”).

 

 

 

The Complaint against Ms. Simpson

 

[3]     The Applicant alleged in his May 21, 2021, complaint[1] against Ms. Simpson that she:

a.             Failed to communicate;

b.            Gave bad legal advice;

c.             Made mistakes that caused Mr. McKinnon to lose money;

d.            Provided inadequate representation;

e.             Provided inadequate/wrong advice;

f.              Misused the Court system;

g.            Failed to serve him;

h.            Deceived the Court, and

i.              Caused damage to a family and then walked away.[2]

 

[4]     To reiterate, Ms. Simpson was not the Applicant’s lawyer.

 

[5]     Between April 2, 2019, and July 23, 2020, Ms. Simpson represented Ms. Lavoie in a matter involving the custody, access and child support of the child, Kohlton Edward McKinnon (“Kohlton”).[3] 

 

[6]     During a court appearance on August 8, 2019, the Applicant requested overnight access with Kohlton.[4] 

 

[7]     In response to the Applicant’s request for overnight access, Ms. Lavoie swore an Affidavit dated August 12, 2019 (the “Lavoie Affidavit”).[5] 

 

[8]     Ms. Simpson asked her assistant to serve the Applicant with the Lavoie Affidavit by email.[6] 

[9]     On August 14, 2019, Ms. Simpson’s assistant swore and filed an Affidavit of Service indicating that she had served the Lavoie Affidavit on the Applicant by email.^[7] 

[10]   Thereafter, Ms. Simpson stated that the Affidavit of Service did not indicate that the Applicant received the email.^[8]  

 

[11]   The Applicant contended that the email went into his junk email folder, and that he was not aware of the Lavoie Affidavit until September 6, 2019.^[9]  

 

[12]   On August 15, 2019, the Applicant and Ms. Simpson appeared in court, where an order was issued with respect to overnight access.^[10]  

 

[13]   Following their August 15, 2019, court appearance, Ms. Simpson provided the Applicant with a hard copy of the Lavoie Affidavit, along with hard copies of other documents previously filed and provided to the Applicant by email.^[11] 

 

[14]   During the Applicant’s and Ms. Simpson’s court appearance on September 11, 2019, the Applicant did not raise the issue of the service of the Lavoie Affidavit.^[12]

 

[15]   During the Applicant’s and Ms. Simpson’s court appearance on September 20, 2019, Ms. Simpson advised the Court regarding service of the Lavoie Affidavit and received a direction from the presiding Justice that a confirmation of receipt should accompany any further service by email on the Applicant.^[13] 

 

The Complaint against Mr. Kinnear

 

[16]   The Applicant alleged in his June 2, 2021, complaint against Mr. Kinnear[14] that he:

a.                  Failed to complete work;

b.                 Provided inadequate representation;

 

c.                  Provided inadequate/wrong advice;

d.                  Misused the Court system; and

e.                  Spoke to a case not yet in his purview.[15]

[17]   Again, at all material times, Mr. Kinnear was acting on behalf of the OCL for the Northwest Territories.^[16] 

 

[18]   By email dated August 8, 2019, and in reply to an inquiry, Mr. Kinnear advised the Applicant and Ms. Lavoie that the OCL could assist with representing Kohlton.^[17] 

 

[19]   By email dated August 14, 2019, the Applicant withdrew his request to appoint the OCL to represent Kohlton.^[18] 

 

[20]   By email dated September 16, 2019, the Applicant again sought appointment of the OCL to represent Kohlton.^[19]  

 

[21]   By email dated October 21, 2019, the Applicant withdrew his request to appoint the OCL as Kohlton’s lawyer.^[20]  

 

[22]   On December 3, 2020, the Applicant brought a motion seeking appointment of the OCL before Shaner J.^[21]  

 

[23]   Shaner J. suggested that Mr. Kinnear hold a teleconference with the Applicant and Ms. Lavoie to discuss the appointment of the OCL as Kohlton’s lawyer and to potentially reach an agreement on how the Applicant and Ms. Lavoie wished to proceed.^[22]  

 

[24]   On December 17, 2020, the Applicant, Ms. Lavoie, and Mr. Kinnear appeared again before Shaner J. on the Applicant’s motion seeking the appointment of the OCL.^[23]  

 

[25]   During the appearance, Mr. Kinnear advised Shaner J. that:

 

a.      The Applicant had withdrawn his request to have the OCL appointed, and that this was the second time that he had withdrawn his request to have the OCL appointed;

 

b.     The matter between the Applicant and Ms. Lavoie was one of high conflict; and

 

c.      The OCL wished to remain neutral and therefore would not take a position on whether it would be in Kohlton’s best interests to have separate legal counsel appointed.[24]

 

[26]   Shaner J. dismissed the Applicant’s motion and designated him as a vexatious litigant.^[25]  

 

Investigation of the Complaints

 

[27]   On June 7, 2021, the Chair of the Discipline Committee, Glen Rutland (“Mr. Rutland”), appointed W. Donald Goodfellow, Q.C. (the “Investigator”) to investigate the Applicant’s complaints.^[26]  

 

[28]   By letters dated June 9, 2021, Mr. Rutland provided Ms. Simpson and Mr. Kinnear with copies of the Applicant’s complaints and requested their respective responses within 14 days.^[27]  

 

[29]   By email dated June 10, 2021, Mr. Kinnear provided his response to the Executive Director of the Law Society, Glenn Tait (“Mr. Tait”).^[28]  

 

[30]   By email dated June 17, 2021, Ms. Simpson provided her response to the Investigator.^[29]  

 

[31]   By letter dated June 28, 2021, the Investigator provided Ms. Simpson’s and Mr. Kinnear’s responses to the Applicant and provided the Applicant an opportunity to respond by July 15, 2021.^[30] 

 

[32]   By email dated July 14, 2021, to Mr. Tait and the Investigator, the Applicant replied to Mr. Kinnear’s response.^[31]  

 

[33]   By email dated July 15, 2021, the Applicant advised the Investigator that he would require until Monday, July 19, 2021, to submit his response to Ms. Simpson’s material.^[32] 

 

[34]   By email dated July 19, 2021, to Mr. Tait and the Investigator, the Applicant replied to Ms. Simpson’s response.^[33]

 

[35]   By emails dated July 22 and 23, 2021, the Applicant provided additional information to the Investigator regarding Ms. Simpson’s alleged misconduct.^[34] 

 

[36]   By letter dated August 18, 2021, the Investigator sent his report to Mr. Rutland.^[35]

 

[37]   By email dated August 20, 2021, Mr. Tait sent the Investigator’s draft report to a lay member of the Discipline Committee, Dennis Marchiori (“Mr. Marchiori”) to review.^[36]  

 

[38]   Thereafter, Mr. Rutland wrote to the Applicant by letter dated September 3, 2021, advising that:

 

a.      The Investigator found no reasonable prospect of conviction in relation to any of the allegations against Ms. Simpson or Mr. Kinnear;

 

b.     The Investigator’s report was reviewed by a lay member of the Discipline Committee, who agreed with the conclusions reach by the Investigator;

c.      The Chair accepted the report and conclusions of the Investigator; and

 

d.     As a result, there would be no further action taken with respect to the complaints.[37]

 

[39]   The information considered by the Investigator in reaching his conclusion that there was no reasonable prospect of conviction is set out in his report dated August 31, 2021.^[38] 

[40]   By email dated September 6, 2021, the Applicant provided to Mr. Tait a multiple page response to the Investigator’s Report.^[39]  

 

[41]   By email dated September 10, 2021, the Applicant provided a nine-page addendum to his response to the Law Society.^[40] 

 

[42]   By email dated September 14, 2021, the Applicant wrote to Mr. Tait alleging that there was a conflict of interest in Paul Andrew reviewing the Investigator’s report as a lay member.^[41]  

 

[43]   To recall, the public member of the Discipline Committee who reviewed the Investigator’s report was Mr. Marchiori.^[42] 

 

[44]   By email dated October 4, 2021, the Applicant filed and served the Law Society with an Originating Notice of Appeal with respect to the decision of Mr. Rutland, along with an affidavit sworn by him on October 4, 2021.^[43]  

 

[45]   On December 17, 2021, the Applicant and counsel for the Law Society appeared before me at a pre-hearing conference in advance of this judicial review.

 

[46]   I ordered, inter alia, that the Applicant was entitled to file and serve a Supplemental Certified Record by January 18, 2022.

 

[47]   On January 18, 2022, the Applicant filed and served counsel for the Law Society with the Supplemental Certified Record.

 

[48]   There is no quarrel that the Supplemental Certified Record contained 23 pages of records that were not put before the Investigator as they were created after the decision to dismiss the complaints that are the subject of this judicial review.

 

[49]   Further, the Applicant filed written submissions on March 1, 2022 (titled “Trial Brief of the Applicant”) in which he made assertions that were not consistent with the Certified Record or the Supplemental Certified Record.

 

[50]   At paragraph 9 of his “Trial Brief”, the Applicant states that the Law Society was provided with the Clerk’s notes, the transcripts of the Court appearances on August 8 and 15, 2019 and the affidavits of Ms. Lavoie and Ms. Simpson’s legal assistant, which is not supported by the Certified Record or the Supplemental Certified Record. 

 

[51]   The written submissions filed by the Applicant on December 16, 2021 (titled “Factum of the Applicant”) focus on alleged errors in judgment of the Law Society in dismissing the complaints against Ms. Simpson and Mr. Kinnear, which implies that the Applicant assumes he has standing to seek judicial review on the merits of the decision of the Law Society to dismiss the complaints.

 

Issues

 

[52]   The issues to be determined on this Application for judicial review are:

 

a.      Whether the Applicant should be allowed to rely on his affidavit dated October 4, 2021, or any portion of it?

 

b.     Whether the Applicant has standing to seek judicial review in the circumstances?

 

c.      What is the standard of review for the issue(s) on which the Applicant has standing?

 

d.     Was the Law Society process conducted in an unfair manner?

 

e.      Has the Applicant demonstrated entitlement for the relief sought?

 

 

 

 

 

 

Analysis and Conclusions

 

Admissibility of the October 4, 2021, affidavit

 

[53]   Affidavit evidence is generally not admissible in an application for judicial review.

 

[54]   Slatter J. of the Alberta Court of Queen’s Bench (as he then was) set out the basis for this exclusionary rule in Alberta Liquor Store Assn. v Alberta (Gaming and Liquor Commission), [2006] A.J. No 1597; 2006 ABQB 904 at paragraph 42:

 

As a general rule, however, evidence that was not before the tribunal and that relates to the merits of the decision is not permitted on judicial review.  The law is summarized in S. Blake, Administrative Law in Canada, (4th ed.), at pg. 198:

 

 

Only material that was considered by the tribunal in coming to its decision is relevant on judicial review.  It is not the role of the court to decide the matter anew.  The court simply conducts a review of the tribunal decision.  For this reason, the only evidence that is admissible before the court is the record that was before the tribunal.  Evidence that was not before the tribunal is not admissible without leave of the court.  If the issue to be decided on the application involves a question of law, or concerns the tribunal's statutory authority, the court will refuse leave to file additional evidence.  Evidence challenging the wisdom of the decision is not admissible.  The tribunal's findings of fact may not be challenged with evidence that was not put before the tribunal.  Fresh evidence, discovered since the tribunal made its decision, is not admissible on judicial review. ... [Emphasis added]

 

[55]   Slatter J. noted at para. 43 that in an application for judicial review, the role of the Court is to conduct a review based on the applicable standard of review and that new evidence relating to the merits of the decision is irrelevant:

 

Any tribunal or court can only work with the evidence before it, and a decision may well prove to be reasonable, even though it can arguably be shown to be factually flawed.  It follows that new evidence relating to the merits of the decision will seldom be admissible, as it is irrelevant to the issues before the court on judicial review.

 

 

[56]   Slatter J.  then pointed out, in para. 46, that “the applicants are not entitled to turn the judicial review application into a trial de novo on the merits of the issue before the tribunal”.

 

[57]   The Alberta Court of Queen’s Bench in another case ruled additional affidavits tendered by the applicant in a judicial review application to be inadmissible, with those rulings being upheld by the Alberta Court of Appeal (whose members also sit as members of the Court of Appeal for the Northwest Territories).

 

[58]   Specifically, in Tran v College of Physicians and Surgeons, 2017 ABQB 337; Alta. L.R. (6th) 310, at para. 27, the court said:

The Applicant’s Affidavit attempts to alter or supplement the record before the Committee, as it reiterates concerns she expressed to the Complaints Director and the Committee. The Affidavit also includes argument regarding the sufficiency of the Committee’s reasons. Both of these aspects of the Affidavit are improper, and I place no weight on this 'evidence'.

[59]   The rules of evidence apply to applications for judicial review and as such affidavits should not contain argument or lay opinion:  Sahaluk v Alberta (Transportation Safety Board), [2013] ABQB at paras. 35 and 36.

 

[60]   In my view, the October 4, 2021, affidavit is nothing more than the Applicant’s re-interpretation of the evidence in the Certified Record along with his lay opinion of the investigation into his complaints and the Investigator’s assessment of the evidence gathered during the investigation.

 

[61]   For these and other oral reasons provided at the outset of the appeal, the October 4, 2021, affidavit is inadmissible.

 

Standing

 

[62]   The Alberta Court of Appeal in Friends of the Old Man River Society v Association of Professional Engineers, Geologists and Geophysicists of Alberta, [2001] ABCA 159 at para.41, considered the issue of standing of a complainant in the context of a complaint against engineers:

 

The Act makes it clear that the disciplinary process is a matter between the Association and the individual member whose conduct has been questioned. The Act is directed solely to the Association and its members; the rights, duties and responsibilities contained in the Act relate only to them. Under the investigative process contained in Part 5, a complainant is not made a party either to the investigation or the disciplinary process itself. The only parties are the Association and the member whose conduct is under investigation. Council’s decision to terminate the investigation of the Engineers could have no detrimental impact on either FOR or Opron. It did not affect their personal or economic rights or obligations. They have no more interest in the conduct of the Engineers than any other member of the public. There is no lis inter partes between FOR and Opron, on the one hand, and the Association or the Engineers, on the other. Judicial review is not available in these circumstances.

 

[63]   Old Man River, supra, was cited with approval by this Court in Del Valle v Law Society, [2017] NWTJ No. 29; 2017 NWTSC 29, at para. 31, where it held that a person who has submitted a complaint to the Law Society of the Northwest Territories has the right to procedural fairness on judicial review, but not a right to “appeal” by seeking judicial review of the merits of the investigation and decision to dismiss.

 

[64]   The limited standing of an individual seeking judicial review of a dismissed complaint made to a professional regulatory body was confirmed by the Alberta Court of Appeal in Tran, supra, at para. 5.

 

[65]   In my view, there is no juridical basis for the Applicant to appeal by seeking judicial review of the merits of the investigation and the Law Society’s decision to dismiss his complaints against Ms. Simpson and Mr. Kinnear.  Rather, the Applicant’s limited standing pertains to challenging the fairness of the process afforded him in investigating and dismissing his complaints.

 

Standard of Review

 

[66]   The Applicant argues that the Supreme Court of Canada decision in Canada (Minister of Citizenship and Immigration) v Vavilov, [2019] SCJ No. 65 applies and as such the standard of review to apply is reasonableness.

 

[67]   The Respondent contends that the Applicant’s argument fails; however, to address the directions of the Court at para. 77 of Vavilov, where it said:

 

Where a particular administrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirements that the duty imposes are determined with reference to all of the circumstances: Baker, at para. 21. In Baker, this Court set out a non-exhaustive list of factors that inform the content of the duty of procedural fairness in a particular case, one aspect of which is whether written reasons are required. Those factors include: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself: Baker, at paras. 23-27; see also Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650, at para. 5.

 

[68]   The Alberta Court of Appeal held that the level of procedural fairness owed to a person who makes a complaint is at the low end of the spectrum of fairness:  Tran, supra, at paras. 6 and 9.

 

[69]   Accordingly, the Respondent argues that the review to be undertaken by this Court is to be limited to whether or not the process afforded the Applicant was procedurally fair given the circumstances of a complaint against members of the Law Society of the Northwest Territories under the Legal Profession Act.  I agree.

 

[70]   The Certified Record discloses that the Applicant was served with notice of the investigation.  Further, he was afforded an opportunity to participate in the investigation process, including the opportunity to respond to the information provided by the investigated members to the Investigator.

 

[71]   In M.H. v College of Physicians and Surgeons of Alberta, [2006] No. 668; ABQB 395, at para. 45, the Alberta Court of Queen’s Bench dealt with a complainant that was dismissed by the Discipline Chair and upheld by the Council of the College of Physicians and Surgeons of Alberta.  In that decision, Coutu J. said:

 

In conclusion, the duty of fairness owed to M.H. was at the lower end of the spectrum.  In my view, the College took the complaint seriously and took appropriate steps to investigate.  The Council extended to M.H. a full opportunity to participate in the process, extending to her an opportunity to make submissions that does not appear to be strictly required under the statute.  In my view, the Council has more than met the duty of fairness.[44]

 

[72]   Contrary to the Applicant’s assertion that the Investigator did not consider “the entire complaint or all allegations”, in my view, the Investigator reviewed the Applicant’s extensive materials in addition to the lawyers’ responses, namely:

 

a.      The Applicant’s complaints against Ms. Simpson and Mr. Kinnear;

 

b.     The record of proceedings in the family law matter between Ms. Lavoie and the Applicant;

 

c.      The Applicant’s motions in that matter; and

 

 

d.     The Applicant’s responses to Ms. Simpson’s and Mr. Kinnear’s materials.

 

[73]   In the circumstances, I fail to see how the Investigator did not consider the Applicant’s complaints and allegations fully or that the Investigator did not have an open mind.  In my view, the Investigator took the complaints seriously and took appropriate steps to investigate. 

 

[74]   In Tran, supra, the court said:

…the record in this case demonstrates that the Applicant’s complaint was taken seriously and was subject to a proper investigation. The Committee was not required to refer the matter to a full hearing, notwithstanding a conflict between the Applicant’s statement and other evidence (the physician’s response and hospital records). The Committee was entitled to consider the information before it and determine that there was 'insufficient or no evidence of unprofessional conduct'.[45]

 

[75]   Similarly in this case, under section 24.4(2) of the Legal Profession Act, the Law Society was not required to refer the Applicant’s complaint to a full hearing despite conflicting evidence between the Applicant and Ms. Simpson.^[46]

 

[76]   The Applicant asserts further that Ms. Simpson committed perjury.  There is no merit in this argument.  Ms. Simpson has never been convicted of perjury nor has there been any finding by a court that the Lavoie Affidavit was rejected or found to contain false statements.

 

[77]   In my view, the Investigator was entitled to consider this and other information before him and determine that there was not a reasonable prospect of conviction of Ms. Simpson or Mr. Kinnear should the disciplinary matter proceed to a Sole Inquirer or Committee of Inquiry.

 

[78]   Moreover, the Law Society was entitled to rely on the Investigator’s considerations and conclusions in dismissing the Applicant’s complaint.

 

 

[79]   Additionally, the Respondent submits that the Investigator was not required to interview Ms. Simpson and Mr. Kinnear in order to fulfil the duty of fairness.  I agree.

 

[80]   In Aylward v Law Society of Newfoundland and Labrador, [2013] N.J. No. 404; 2013 NLCA 68, the complainant held an expectation that the investigated member would be required to appear before the disciplinary tribunal for questioning, because there were credibility issues that could only be resolved through an in-person interview or hearing.[47]

 

[81]   The Newfoundland and Labrador Court of Appeal concluded, at para. 45, that:

As L’Heureux-Dubé J. noted in Baker at paragraph 26, the doctrine of legitimate expectations is based upon the principle that “‘circumstances’ affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights”.  Here, the Appellant did not point to any promises, policies or regular practices of the Law Society in conducting such hearings. Further to this, he did not point to any substantive promises which might accord him additional procedural rights. There was, therefore, no legitimate expectation that there would be any procedure beyond what was afforded in this case.[48]

 

[82]   Based on the Certified Record and the Supplemental Certified Record, the Applicant’s expectation that the Investigator would conduct an interview of Ms. Simpson or Mr. Kinnear was not legitimate as there was no established policy of the Law Society in conducting an investigation that mandated an interview, and no substantive promises were made to the Applicant about the Law Society’s procedure in investigating his complaint.

 

[83]   While an investigator may choose to interview individuals in the course of an investigation, I have not been directed to any requirement under the Legal Profession Act for an investigator to conduct an interview of any person in the course of an investigation of a complaint.

 

 

[84]   In my view, the Applicant has not shown any basis for his expectations that Ms. Simpson or Mr. Kinnear would be interviewed.

 

[85]   In the result, the Certified Record clearly demonstrates that the Applicant was afforded all of the fairness that he could have reasonably expected or was entitled to under the law.

[86]   For all of these reasons, the Application for judicial review is dismissed for having failed to demonstrate that the Applicant was not afforded procedural fairness in the investigation and dismissal of his complaints against Ms. Simpson and Mr. Kinnear.

         

[87]   Parenthetically, what became clear during oral argument is that the Applicant’s chief complaints relate to the orders made in the family law proceeding, namely the order finding him to be a vexatious litigant. It was pointed out to him that he had a remedy: appeal the order.  The Applicant conceded that he did not appeal the order because he “didn’t have enough evidence” and he “did not want to waste [his] appeal opportunity”.  Notably, he agreed to using this proceeding in an attempt to gather evidence to launch his appeal to overturn the vexatious litigant finding.  For obvious reasons, the Applicant’s litigation strategy was ill conceived and improper.  

 

[88]   If the parties are unable to agree on costs, written submissions may be directed to my attention within 30 days.  Cost submissions shall be limited to no more than 10 pages, double spaced, 12-point font or larger, one side of the page.       

 

 

 

                                                                                      Justice B.W. Abrams

                                                                                      J.S.C.

Dated in Yellowknife, NT this

13^th day of July, 2022

 

Counsel for the Applicant:        Self-Represented

Counsel for the Respondent:     Craig D. Boyer    

 

 

S-1-CV-2021-000251

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:   ADAM MCKINNON   Applicant -and-     LAW SOCIETY OF THE NORTHWEST TERRITORIES Respondent

RULING ON APPLICATION FOR JUDICIAL REVIEW OF THE HONOURABLE JUSTICE  B.W. ABRAMS