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Ungovernable News: Hunter v. Southam has withstood the test of time! Search and Seizure in the Regulatory Context! The problem with "reasonable belief"! All about "fishing expeditions"

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 Ungovernable News: Hunter v. Southam has withstood the test of time! Search and Seizure in the Regulatory Context! The problem with "reasonable belief"! All about "fishing expeditions" 

 What is the standard for a regulatory search and seizure? We all know what it is in the criminal context as a police officer has to swear an affidavit under oath and present it to the justice of the peace. The justice of the 

Background

Subsections 10(1) and 10(3) of the Combines Investigation Act provide:

10. (1) Subject to subsection (3), in any inquiry under this Act the Director [of Investigation and Research of the Combines Investigation Branch] or any representative authorized by him may enter any premises on which the Director believes there may be evidence relevant to the matters being inquired into and may examine any thing on the premises and may copy or take away for further examination or copying any book, paper, record of other document that in the opinion of the Director or his authorized representative, as the case may be, may afford such evidence.

(3) Before exercising the power conferred by subsection (1), the Director or his representative shall produce a certificate from a member of the [Restrictive Trade Practices] Commission, which may be granted on the ex parte application of the Director, authorizing the exercise of such power.

On April 13, 1982, in the course of an inquiry under the Act, the appellant Lawson A.W. Hunter, Director of Investigation and Research of the Combines Investigation Branch, authorized the

[Page 149]

other appellants, Messrs. Milton, Murphy, McAlpine and Marroco, all Combines Investigation officers, to exercise his authority under s. 10 of the Act to enter and examine documents and other things at the business premises of the Edmonton Journal, a division of the respondent corporation, Southam Inc.

On April 16, 1982, in fulfilment of the requirement in s. 10(3) of the Act, Dr. Frank Roseman, a member of the Restrictive Trade Practices Commission, (the “R.T.P.C.”) certified his authorization of this exercise of the Director’s powers.

On April 19, 1982 the officers presented their certified authorization at the premises of the Edmonton Journal. The English version of this certificate reads as follows:

In the matter of the Combines Investigation Act and section 33 and section 34(1)(c) thereof

and

in the matter of an Inquiry relating to the Production, Distribution and Supply of Newspapers and Related Products in Edmonton

TO:

M.J. Milton

M.L. Murphy

J.A. McAlpine

A.P. Marrocco

being my representatives under section 10 of the Combines Investigation Act

You are hereby authorized to enter upon the premises hereinafter mentioned, on which I believe there may be evidence relevant to this inquiry, and examine anything thereon and copy or take away for copying any book, paper, record or other document that in your opinion may afford such evidence.

The premises referred to herein are those occupied by or on behalf of

Southam Inc.
10006-101 Street
Edmonton, Alberta

[Page 150]

and elsewhere in Canada

This authorization is not valid after May 31, 1982.

Dated in Hull, in the Province of Quebec this 13th day of April 1982.

Lawson A.W. Hunter

Director of Investigation and Research

Combines Investigation Act

I hereby certify that the above exercise of powers is authorized pursuant to Section 10 of the Combines Investigation Act.

Dated in Ottawa, in the Province of Ontario, this 16th day of April, 1982.

Frank Roseman, Member,

 

Applying this approach, Prowse J.A. concluded—correctly in Southam Inc.’s submission—that, absent exceptional circumstances, the provisions of s. 443 of the Criminal Code, which extends to investigations of Criminal Code offences the procedural safeguards the common law required for entries and searches for stolen goods, constitute the minimal prerequisites for reasonable searches and seizures in connection with the investigation of any criminal offence, including possible violations of the Combines Investigation Act. Prowse J.A. summarized these procedural safeguards in the following propositions:

(a) the power to authorize a search and seizure is given to an impartial and independent person (at common law a justice) who is bound to act judicially in discharging that function,

(b) that evidence must satisfy the justice that the person seeking the authority has reasonable ground to suspect that an offence had been committed,

(c) that evidence must satisfy the justice that the person seeking the authority has reasonable grounds to believe, at common law, that stolen property may be on the premises or, under s. 443(1)(b), that something will afford evidence of an offence may be recovered, and

(d) there must be evidence on oath before him.

WHAT ABOUT SHE? 

HOW SEXIST! 

The problem is with the stipulation of a reasonable belief that evidence may be uncovered in the search. Here again it is useful, in my view, to adopt a purposive approach. The purpose of an objective criterion for granting prior authorization to conduct a search or seizure is to provide a consistent standard for identifying the point at which the interests of the state in such intrusions come to prevail over the interests of the individual in resisting them. To associate it with an applicant’s reasonable belief that relevant evidence may be uncovered by the search, would be to define the proper standard as the possibility of finding evidence. This is a very low standard which would validate intrusion on the basis of suspicion, and authorize fishing expeditions of considerable latitude. It would tip the balance strongly in favour of the state and limit the right of the individual to resist, to only the most egregious intrusions. I do not believe that this is a proper standard for securing the right to be free from unreasonable search and seizure

 READING IN V. READING DOWN

D) Reading In and Reading Down

The appellants submit that even if subss. 10(1) and 10(3) do not specify a standard consistent with s. 8 for authorizing entry, search and seizure, they should not be struck down as inconsistent with the Charterbut rather that the appropriate standard should be read into these provisions. An analogy is drawn to the case of McKay v. The Queen, 1965 CanLII 3 (SCC)[1965] S.C.R. 798, in which this Court held that a local ordinance regulating the use of property by prohibiting the erection of unauthorized signs, though apparently without limits, could not have been intended unconstitutionally to encroach on federal competence over elections, and should therefore be “read down” so as not to apply to election signs. In the present case, the overt inconsistency with s. 8 manifested by the lack of a neutral and detached arbiter renders the appellants’ submissions on reading in appropriate standards for issuing a warrant purely academic. Even if this were not the case, however, I would be disin-

[Page 169]

clined to give effect to these submissions. While the courts are guardians of the Constitution and of individuals’ rights under it, it is the legislature’s responsibility to enact legislation that embodies appropriate safeguards to comply with the Constitution’s requirements. It should not fall to the courts to fill in the details that will render legislative lacunae constitutional. Without appropriate safeguards legislation authorizing search and seizure is inconsistent with s. 8 of the CharterAs I have said, any law inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. I would hold subss. 10(1) and 10(3) of the Combines Investigation Act to be inconsistent with the Charter and of no force and effect, as much for their failure to specify an appropriate standard for the issuance of warrants as for their designation of an improper arbiter to issue them.

Here is the search warrant process:

Information for search warrant
  •  (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place

    • (a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed,

    • (b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,

    • (c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, or

    • (c.1) any offence-related property,

    may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

    • (d) to search the building, receptacle or place for any such thing and to seize it, and

    • (e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1.

Here is the telewarrant process:

Telewarrants
  •  (1) Where a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make application for a warrant in accordance with section 256 or 487, the peace officer may submit an information on oath by telephone or other means of telecommunication to a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter.

  • Marginal note:Information submitted by telephone

    (2) An information submitted by telephone or other means of telecommunication, other than a means of telecommunication that produces a writing, shall be on oath and shall be recorded verbatim by the justice, who shall, as soon as practicable, cause to be filed, with the clerk of the court for the territorial division in which the warrant is intended for execution, the record or a transcription of it, certified by the justice as to time, date and contents.

 

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Ungovernable News: Are regulatory discipline proceedings civil, regulatory, quasi-criminal or just flat our criminal? All about the consequences! THE PROFESSIONAL DEATH PENALTY!

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 Ungovernable News: Are regulatory discipline proceedings civil, regulatory, quasi-criminal or just flat our criminal? All about the consequences! THE PROFESSIONAL DEATH PENALTY! 

 

These often seem like easy questions to answer but they are more nuanced than one would think! 

So you are not going to jail for not responding to another lawyer or are you? 

You breach an undertaking. Is your wife leaving you that night? 

You wear brown shoes to court so you are disbarred? 

These all seem a little extreme or are they? 

The Ontario Court of Appeal outlined the standard in regulatory discipline proceedings:

Analysis

[26] There is an abundance of judicial authority and academic commentary to the effect that professional discipline legislation should be strictly complied with and strictly construed by the courts. For example, see [page154] Gardner v. Law Society of British Columbia (1991), 1991 CanLII 1157 (BC CA)86 D.L.R. (4th) 334, 61 B.C.L.R. (2D) 219 (C.A.), C. (K.) v. College of Physical Therapists (Alberta) (1999), 1999 ABCA 253 (CanLII)72 Alta. L.R. (3d) 77[1999] 12 W.W.R. 339 (C.A.) at p. 88 Alta. L.R., Bechamp v. Manitoba Association of Registered Nurses (1994), 1994 CanLII 10973 (MB CA)115 D.L.R. (4th) 28770 W.A.C. 81 (Man. C.A.) at p. 288 D.L.R. and P. St. J. Langan, Maxwell on the Interpretation of Statutes, 12th ed. (London:
Sweet and Maxwell, 1969) at p. 245.

[27] The underlying policy of the approach of strict construction of professional discipline statutes is based on the theory that the consequences for a person who is subject to the discipline process of his or her professional body carry potentially grave consequences, including the loss of one's livelihood. The ultimate penalty of disbarment or erasure is often referred to as a professional death penalty. Given such consequences, the accused is entitled to have his or her professional regulator strictly adhere to the express provisions of its legislative mandate. Indeed, more than one case has referred to professional discipline proceedings as quasi criminal in nature. See Piller v. Association of Ontario Land Surveyors, 2002 CanLII 44996 (ON CA)[2002] O.J. No. 2343 (QL)160 O.A.C. 333 (C.A.) per Cronk J.A. (concurring) at para. 59; Boodoosingh v. College of Physicians and Surgeons of Ontario (1990), 73 O.R. (2d) 47839 O.A.C. 51 (Div. Ct.) at pp. 479-80 O.R. (Div. Ct.), affirmed (1993), 1993 CanLII 8655 (ON CA)12 O.R. (3d) 707n, leave to appeal to S.C.C. refused (1993), 15 O.R. (3d) xvi, 164 N.R. 402n; Re Matheson and College of Nurses of Ontario (1979), 1980 CanLII 1614 (ON CA)27 O.R. (2d) 632107 D.L.R. (3d) 430 (Div. Ct.) at pp. 633-34 O.R., p. 432 D.L.R. and Re Stoangi and Law Society of Upper Canada (1978), 1978 CanLII 1381 (ON SC)22 O.R. (2d) 27493 D.L.R. (3d) 204 (H.C.J.) at p. 277 O.R., p. 207 D.L.R.

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Ungovernable News: Peter Girges and 12 West facing massive lawsuit involving a rape in the CLUB!

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 Ungovernable News: Peter Girges and 12 West facing massive lawsuit involving a rape in the CLUB!  

 The 27-year-old woman is claiming $18 million in general damages, loss of income and loss of earning capacity, future loss of earning capacity, and cost of future care.

The victim claims that on October 23, 2015 Twelve West staff found her in an immobile state on a couch.

They allegedly picked her up and place her on the kitchen floor instead of calling for an ambulance, the complaint states.

The woman alleges that the popular Granville Street nightclub did not lock the alleyway door to the nightclub, which allowed her assailant to gain entry to the kitchen and brutally rape her.

Twelve West allegedly tampered with and destroyed evidence, according to the lawsuit.

“Twelve West did not provide the Surveillance of the kitchen and back alley door to the Vancouver police department officers during their investigation,” the woman claims in the suit. “5 cameras are present in and around the area where the plaintiff was sexually assaulted and raped, the cameras have recorded the plaintiff being sexually assaulted and raped but none of the recordings were handed to the officers of VPD.”

Medical records show the assailant left deep imprints in the victim’s breast implants and she suffered a serious infection in her vaginal area that lasted for months following the sexual assault, the Statement of Claim alleges.

The victim claims that she is seeking justice for what has happened to her, and wants to make sure no other suffers the same fate.

WAS R KELLY PERFORMING THAT NIGHT: 

FORM 1 (RULE 3-1

No.

In the Supreme Court of British Columbia

Between

 

Yoshnika Shah and

Plaintiff(s)

Twelve West Night Club- Granville street, Tajinder Sangha

Defendant(s)

NOTICE OF CIVIL CLAIM

This action has been started by the plaintiff(s) for the relief set out in Part 2 below.

If you intend to respond to this action, you or your lawyer must

  • file a response to civil claim in Form 2 in the above-named registry of this court within the time for response to civi' claim described below, and
  • serve a copy of the filed response to civil claim on the plaintiff.

If you intend to make a counterclaim, you or your lawyer must

  • file a response to civil claim in Form 2 and a counterclaim in Form 3 in the above-named registry of this court within the time for response to civil claim described below, and
  • serve a copy of the filed response to civil claim and counterclaim on the plaintiff and on any new parties named in the counterclaim.

JUDGMENT MAY BE PRONOUNCED AGAINST YOU IF YOU FAIL to file the response to civil claim within the time for response to civil claim described below.

Time for response to civil claim

A response to civil claim must be filed and served on the plaintiff(s),

  • if you were served with the notice of civil claim anywhere in Canada, within 21 days after that service,
  • if you were served with the notice of civil claim anywhere in the United States of America, within 35 days after that service,
  • if you were served with the notice of civil claim anywhere else, within 49 days after that service, or (d) if the time for response to civil claim has been set by order of the court, within that time.

CLAIM OF THE PLAINTIFF(S)

Part l : STATEMENT OF FACTS

[Using numbered paragraphs, set out a concise statement of the material facts giving rise to the plaintiff's(s') claim.]

1 A) Defendants Negligence, No proþer care, left the Plaintiff unattended in her immobile state in the Kitchen of the night club, the consequence being Plaintiff was sexually assaulted and raped on the night of October 23rd, 2015. The Plaintiff reported to doctors and•VPD about the finger indents on her Breast Implants which was a result of the sexual assault and rape on the night of October 23rd, 2015. Plaintiff also reported to VPD and Doctors about her getting a severe infection in her private area which lasted for months; is also a result of the sexual assault and rape inside the nightclub. Medical reports will be provided as evidence when asked. Plaintiffs parents were contacted- result- a blackmail call; from a phone number which I can provide when required.              

  1. Lady manager of Twelve west night club on the night of October 23rd, 201 5 stated to the Officers of VPD and the Plaintiff that the Plaintiff was found in an immobile state on the couch diagonally opposite the end of the bar (starts right after coat check), due to which the Plaintiff was picked up and put in the kitchen. Plaintiff would like to know why did the officers ofVPD not question the lady manager about calling 91 1/ Ambulance as it is the protocol for all night clubs to do so in such situations: This question would have helped the officers prove that the defendant was an accomplice to the crime.

Plaintiff would also like to know why did the Ambulance leave the plaintiff in the night club itself, instead of taking her to the hospital?

  1. Plaintiff would like to bring attention to a very important security issue of Twelve west night club, their Back alley door is always open for anyone to •enter and exit freely. Why is the night club checking IDs at the front?

 The Plaintiff has video's of evidence (2017)- entering and exiting from the back door of the night club. This point is brought up here because on the night of October 23rd, 2015 the Plaintiff was kept in the Kitchen passed out in an immobile state, the back alley door was left open for the culprit to enter and exit freely, sexually assault, rape the victim/ Plaintiff.

Another reason why plaintiff believes that the night club is an accomplice to the crime taken place on the night of October 23rd, 2105.

  1. Plaintiff would like to know the where abouts of Tajinder Sangha on the night of October 23rd, 2015 as he sexually assaulted and raped the plaintiff in the kitchen of the club, the lady night club manager walked into this act.
  2. Defendant- Twelve west- did not provide the Surveillance of the kitchen and back alley door to the Vancouver police department officers during their investigation (Scale C). 5 cameras are present in and around the area where the plaintiff was sexually assaulted and raped, the cameras have recorded the plaintiff being sexually assaulted and raped but none of the recordings were handed to the officers of VPD.

Hence, it is firmly believed that Twelve west night club tampered and destroyed the evidence.

As per "The Law of Evidence" book, chapter 9 pg. 381- Twelve night club has been "Self defeating" and are "Accomplice to the crime taken place inside the night club on the night of October 23rd, 2015. Plaintiff claims that the Surveillance would have brought admin of justice, but due to tampering of surveillanceEvidence 'Twelve west night club" is liable for all damages Plaintiff hàs faced since the night of October 23rd, 2015.

[If any party sues or is sued in a representative capacity, identify the party and describe the representative capacity.]

Part 2: RELIEF SOUGHT

[Using numbered paragraphs, set out the reliefsought and indicate against which defendant(s) that reliefis  sought. Relief may be sought in the alternative.]

1 A) Plaintiff claims justice for what has happened with her, and wants to make sure this doesn't happen to any other woman. Plaintiff feels it is her duty to report this to the court and seeks justice from the little hope stîe has left of life.

B)Claim for all physical, mental, psychological damages Plaintiff has been facing till date since the night of October 23rd, 2015. Plaintiff iS still undergoing therapy and heavy pharmaceutical anti depressants.

General Damages

Loss of Income and loss of earning capacity to trial

Future loss of earning capacity

Cost of future care

        Total Claim                                                                                                                  1 8, 1 50,000

Part 3: LEGAL BASIS

[Using numbered paragraphs, set out a concise summary of the legal bases on which the plaintiff(s) intend(s) to rely in support of the relief sought and specify any rule or other enactment relied on. The legal bases for the relief sought may be set out in the alternative.]

1 A) Self defeating, tampering of evidence -Twelve west night club

  1. Accomplice to crime by not reporting the crime to the VPD officers, and tampering of the evidence-

Twelve west

  1. Protocol not followed by night club- Call Ambulance/ 91 1 when a person is found in an immobile state that the Plaintiff was found in.
  2. Negligence on part of the night club, plaintiff being left unattended, consequence - Plaintiff was sexually assaulted and raped.
  3. Plaintiffs Iphone was hacked and looked into, tracking software was installed in her cell phone. - Resulting to receiving stalking calls, texts and illicit sexual texts from Defendant- Tajinder Sangha
  4. Plaintiff was heavily drugged to an extent that she was immobile, unable to stand nor talk. - Why wasnt the Ambulance called? If yes, why was the Plaintiff left at the night club? - Protocol not followed by night
  5. D) Back alley door of the night club is always open for anyone to enter and exit, if this safe? Consequence, Plaintiff was raped by the culprit who entered from the back alley door.
  6. F) All medical reports of plaintiff proving non consensual sexual activity, physical, physiological damages will be handed to court when requested.

[Set out the street address of the address for service. One or both of a fax number and an e-mail address may be given as additional addresses for service.]

Place of

Date:

Yoshnika Shah

Rule 7-1 (1) of the Supreme Court Civil Rules states:

(1) Unless alt parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period,

            (a) prepare a list of documents in Form 22 that lists

  • all documents that are or have been in the party's p'ossession or control and that could, if available, be used by any party at trial to prove or disprove a material fact, and
  • all other documents to which the party intends to refer at trial, and

                 (b) serve the list on all parties of record.

APPENDIX

[The following information is provided for data collection purposes only and is of no legal effect.] Part l : CONCISE SUMMARY OF NATURE OF CLAIM:

1 )Plaintiff seeks Justice for what has happened with her on October 23rd, 2015 and onwards till date.

2)Plaintiff seeks compensation for all the Physical, Emotional, Self esteem, Security and safety, Psychological, Belongingness, Psychiatric and Financial damages she is still facing till date.

Part 2: THIS CLAIM ARISES FROM THE FOLLOWING:

 [Select an item below for the case type that best describes this case.] a matter not listed here

Part 3.. THIS CLAIM INVOLVES:

[Check all items below that apply to this case]

conflict of laws

Part 4:

[If an enactment is being relied on, specify. Do not list more than 3 enactments.]

Select:

OR Type:

Select:

OR Type:

Select:

OR Type:

 

 

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Ungovernable News: Workplace arguments getting ugly!

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 Ungovernable News: Workplace arguments getting ugly!

Sometimes tensions can run high in an employment relationship. Employers and employees alike can say things they may not particularly mean in the heat of the moment. The case of Sweeting v. Mok, 2017 ONCA 203 (CanLII) is a caution for employers, saying something you may not mean in an argument with an employee could result in the court supporting the position that they’ve been terminated.

Facts

The Plaintiff was a nurse in a small medical practice owned by the Defendant doctor., Due to an administrative employee leaving the workplace, the Plaintiff ended up taking on a significant number of administrative tasks in addition to her regular duties as a nurse.

Considering the increase in the Plaintiff’s workload, tensions ran high in the office. Eventually a disagreement between the Plaintiff and the Defendant occurred regarding medical files being converted to an electronic format. Having to convert all of the files over meant a drastic increase in work for the Plaintiff. When the Plaintiff and the Defendant had a heated conversation regarding the workload, the Defendant, who the court found to have been angry throughout the exchange told the Plaintiff, “Go! Get out! I am so sick of coming into this office every day and seeing your ugly face.”

The Arguments

The Plaintiff took the position that the above quoted words meant that the Defendant was terminating her employment. She argued that, as a result of the small workplace, the situation could only be viewed as a termination considering the harshness and finality of the words the Defendant used.

The Defendant argued that the Plaintiff was not, in fact, terminated. The Defendant denied stating the words above and testified that he had been referring to “ugliness in the office” instead. The Defendant told the court that he actually said, “Let’s get out of here and go home.”

The Decision

The Trial Court found that a reasonable person working in close proximity, in a professional environment would have undoubtedly interpreted the words used as a statement of termination. The Trial Court stated that the fact that the Defendant personally insulted the Plaintiff and used the words “get out”, a situation was created wherein a reasonable observer would perceive the exchange as an intention to terminate the employee.

Furthermore, as the Defendant failed to rectify or clarify the situation after it had occurred, the Trial Court found that this was further evidence that the intention of the Defendant was to terminate the Plaintiff.

In the alternative, the Trial Court determined that the situation could be viewed as a constructive dismissal wherein notice for termination would be awarded in any event.

The Appeal

The Court of Appeal upheld the trial decision.

Take Away

It is important to keep things professional and, as much as possible, in writing with respect to the employer and employee relationship. While conflict and confrontations can arise, be mindful of your words because they can have far reaching affects on the employment relationship.

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Ungovernable News: The Amended Petition of Kevin A. McLean v. LSBC! Talk about an "exhaustive analysis". LSBC must be exhausted from that type of review. Should a disbarred lawyer be able to conduct a CLE?

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 Ungovernable News: The Amended Petition of Kevin A. McLean v. LSBC! Talk about an "exhaustive analysis". LSBC must be exhausted from that type of review. Should a disbarred lawyer be able to conduct a CLE? 

 

     

Form 66 (Rule 16-1 (2) )

 

No. S-175785

Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

 

Kevin Mclean   

 

PETITIONER 

AND:

 

Law society of British Columbia

 

RESPONDENT

 

AMENDED PETITION TO THE COURT

AMENDED PURSUANT TO RULE 16-1 (19)

ORIGINAL PETITION FILED ON JUNE 20, 2017

 

A matter under the Judicial Review Procedure Act, R.S.B.C. 1996, C. 241

 

Pursuant to the Reasons for Judgment of The Honourable Mr. Justice Grauer indexed as 2017 BCSC 987

 

 

ON NOTICE TO:          LAW SOCIETY OF BRITISH COLUMBIA (the “Respondent”)

 

AND TO: MINISTER OF JUSTICE

1001 Douglas Street, Victoria, BC V8W 2C5

Attention: Ms. Sarah Bevan

 

AND TO: Attorney GENERAL AT c/o Deputy Attorney General

P.O. Box 9290 Stn. Prov. Govt, Victoria, B.C., V8W 9J7.

 

AND TO: Attorney General of Canada

900-840 Howe Street, Vancouver, BC, V6Z 2S9

 

This proceeding is brought for the relief set out in Part 1 below, by

 [X] the person named as petitioner in the style of proceedings above

If you intend to respond to this petition, you or your lawyer must

(a) file a response to petition in Form 67 in the above-named registry of this court within the time for response to petition described below, and

(b) serve on the petitioner(s)

(i) 2 copies of the filed response to petition, and

(ii) 2 copies of each filed affidavit on which you intend to rely at the hearing.

Orders, including orders granting the relief claimed, may be made against you, without any further notice to you, if you fail to file the response to petition within the time for response.

Time for response to petition

A response to petition must be filed and served on the petitioner(s),

(a) if you were served with the petition anywhere in Canada, within 21 days after that service,

(b) if you were served with the petition anywhere in the United States of America, within 35 days after that service,

(c) if you were served with the petition anywhere else, within 49 days after that service, or

(d) if the time for response has been set by order of the court, within that time.

 

1.       The address of the registry is:                      Law Courts

                                                                           800 Smithe Street

                                                                           Vancouver, British Columbia V6Z 2E1

2. The ADDRESS FOR SERVICE of the          

    Petitioner is:                                                   34521-1268 Marine Drive, North Vancouver, BC

 

  Fax number address for service                       N/A

     (if any) of the Petitioner:                                                      

 

  Email address for service                                

     (if any) of the Petitioner:                            N/A

 

3.       The name and office address of the             As above.

Petitioner Representative is:

The Petitioner adopts the definitions from the filed court documents in Action S-1410056 and Action S-173987, and Court of Appeal Proceeding CA 43059

 

CLAIM OF THE PETITIONER

Part 1: ORDERS SOUGHT:

 

  1. The Petitioner claims against the Respondent as follows:
    1. An Order in certiorari quashing the decision of the administrative decision maker, Philip Riddell (the “ADM”) dated May 27, 2014 (the “Limitless Seizure Order”) granted pursuant to a legally privileged application of the ADM’s solicitor, Mark Bussanich that entitled the Respondent to search the following places in perpetuity but not limited to:
  1. The principal residence of the Petitioner;
  2. The Petitioner himself for any records;
  • The private office at Office No. 10 at 1800-999 West Hasting Street, Vancouver, BC, V6C 2W2;

And seize the following, but not limited to:

  1. Any and all computer hard drives that the Petitioner had used;

 

  1. The personal cell phone of the Petitioner;

 

  1. Any and all objects of the Petitioner;

 

  • Privileged records of the Petitioner;

 

  • Personal records of the Petitioner;

 

  1. Records not related to the practice of law of the Petitioner; and

 

  1. Records not related to the trust accounting.
    1. An order in mandamus requiring the copies of records seized from the Limitless Seizure Order be returned to the petitioner and/or destroyed by the Respondent;
    2. A declaration that the Limitless Seizure Order is ultra vires the powers of the Respondent, or otherwise unlawful;
    3. A declaration that the Respondent has breached the Petitioners Charter Rights;
    4. A declaration that the Limitless Seizure Order is inconsistent with the Charter;
    5. A declaration that Impugned Rules are inconsistent with the Charter;
    6. An injunction restraining the Law Society of British Columbia from using the Limitless Seizure Order, or any failure of the Petitioner to comply, against him;
    7. An Order that the Limitless Seizure Order is Void;
    8. A Declaration that the Limitless Seizure Order is incorrect;
  1. Alternatively, a Declaration that the Limitless Seizure Order is unreasonable;
    1. The Respondent identify any parties to whom copies of the thing and records seized have been given;
    2. The Respondent over which they have control and with whom the things and records seized have been shared or to whom copies have been given, immediately destroy all notes, copies of notes and electronic storage data to the extent they record information taken from the things seized;
    3. The Respondent, over which they have control and with whom the things and records seized have been shared or to whom copies have been given, provide full particulars in relation to that shared information;
    4. A Declaration that the Respondent breached the Plaintiff’s natural justice rights;
    5. A Declaration that the ADM was biased;
  1. Alternatively, a declaration that there was a reasonable apprehension of bias;
    1. A declaration that the ADM lost his independence as a result of the applicant, Mark Bussanich, giving him legal advice as his client and an admitted solicitor-client relationship;
    2. A declaration that the ADM was not impartial and/or lost the appearance of impartiality by reason of Mark Bussanich’s giving privileged legal advice to the ADM;
    3. Leave permitting the Petitioner to cross-examine Erin Milz and Mark Bussanich in relation on the information to obtain filed in support of the Limitless Seizure Order;
    4. Leave permitting the Petitioner to cross-examine David McCartney in relation to his investigations of the Petitioner arising out of the Limitless Seizure Order;
    5. An Order directing that the trial set for January 8, 2017 proceed for damages for the Action S-1410056 and S-173987;
    6. Any other relief that this Honourable Court deems fair and just; and
    7. Costs in favour of the Petitioner.;
    8. Leave permitting the Petitioner to cross-examine Felicia Ciolfitto in relation to his investigations of the Petitioner arising out of the Limitless Seizure Order; and
    9. Declaration that the LSBC committed the tort of detinue; and
    10. A declaration that the LSBC breached the Privacy Act, RSBC 1996, C. 373

Part 2: FACTUAL BASIS

 

  1. The Petitioner is a former practicing member of the Respondent. The facts are not in dispute. The Petitioner has served an Amended Notice of Constitutional Question upon the affected parties.

 

  1. From April 22 to May 5, 2014, the LSBC completed a compliance audit. As a result of the follow-up compliance audit in April 2014, Erin Milz allegedly identified many deficiencies and concerns in the plaintiff’s trust accounting and recommended that the Law Society’s Professional Conduct Department conduct a further investigation of the plaintiff’s practice. However, the issues in trust accounting related to Kevin A. McLean Law Corporation as the Petitioner did not have a trust account. Erin Milz did not provide any evidence under oath in this regard and did not make any recommendations regarding the Plaintiff’s personal life or non-trust accounting activities. The issues that arose were of such a time limited nature as they could have only been over a three-month period and solely related to “trust accounting” of Kevin A. McLean Law Corporation (not the Petitioner).

 

  1. On May 23, 2014, Bussanich seeks Limitless Seizure Order based on the Erin Milz referral. Based on the results of the compliance audit, Bussanich sought an order from the Chair of the Discipline Committee, authorizing an investigation of the plaintiff’s books, records and accounts, pursuant to R. 4-43 of the Law Society Rules. The Rule 4-43 order was granted on May 27, 2014. Mark Bussanich applied for the Limitless Seizure Order with a “Privileged and Confidential Opinion” with Deborah Armour and Howie Caldwell. Mark Bussanich applied “ex parte” and without evidence under oath. Bussanich did not present the Plaintiff’s position the matter. This was wrongful and intentional conduct by Bussanich.

 

  1. On May 23, 2014, the material facts of the privileged legal opinion/application (the “Privileged Legal Opinion”) provided by Bussanich to Riddell are as follows:

 

“Opinion To the Chair of the Discipline Committee”

 

Privileged and Confidential”

 

“During a still on-going compliance audit, because it appears he is not maintaining records…”

 

“The Law Society is also requesting that the Order authorize a forensic copy of electronic records as they might contain:

 

Email correspondence not contained in the paper files provided; and

 

Other client file information and accounting information stored electronically.

 

  1. By way of document, Bussanich admitted that he did not have any proof or knowledge that the Plaintiff was not maintaining accounting records but rather it “appeared”. Bussanich provided his Privileged Legal Opinion to his client, Riddell, seeking an order for a forensic copy of “electronic records” generally because it “might contain” other information. The matter only involved “trust accounting” as deposed by Milz yet Bussanich then provides irrelevant member history.

 

  1. Bussanich did not swear any affidavit in support of his privileged opinion to Riddell but provided his “Privileged Legal Opinion” that contained hearsay, conjecture, speculation, mistruths, and irrelevancies while dictating to the ADM.

 

  1. On May 27, 2014, Bussanich emailed Riddell that he was remised in failing to provide Riddell the Attachment to the Rule 4-43 Order. Riddell had already signed the Rule 4-43 Order before reviewing the Attachment. This was the first Rule 4-43 Order that Riddell had signed as Chair of the Discipline Committee and as client of Mark Bussanich wherein he received the Privileged Legal Opinion. Milz never swore that she had reasonable and probable grounds to believe that the Plaintiff had committed any violation but rather he provided the Privileged Legal Opinion to Riddell that is appeared and a forensic copy should be authorized.

 

  1. On May 27, 2014, Mark Bussanich sends “standard attachment” order for Phillip Riddell (the “ADM”) to sign. The ADM does not make any changes to the Limitless Seizure Order and acts under dictation of Bussanich, who is his solicitor.

 

  1. This Petition for judicial review has been necessitated by Reasons for Judgment of Mr. Justice Grauer of 2017 BCSC 987:

 

[114]     Two claims remain standing: Mr. McLean’s claim against Mr. Dirk for damages for battery and assault, and his claim against the Law Society challenging the lawfulness of the investigation order, and claiming damages for unreasonable search and seizure and breach of privacy rights.

[115]     As I indicated in dismissing Mr. McLean’s application for summary judgment, his challenge to the lawfulness of the making and execution of the investigation order must be decided under the Judicial Review Procedure Act through a petition for judicial review.  Until that has taken place, or until further order of the court, this action is stayed.

 

  1. His Lordship Mr. Justice Grauer provides a succinct summary in this regard:

 

[66]         The first question is whether the Law Society exceeded its statutory jurisdiction when it granted the investigation order; in other words, was the order ultra vires the Law Society?  If so, it must be set aside.

 

[67]         The second question is whether, assuming that it had jurisdiction to grant the order, the Law Society nevertheless acted improperly in the manner in which it granted the order, giving rise to procedural unfairness, so that the order must be set aside and, presumably, remitted to the Chair of the Discipline Committee.  On this aspect, Mr. McLean relies upon: the failure of Mr. Riddell to give reasons for his decision to grant the order; the absence of information under oath to support the decision; the fact that the order was granted without notice to Mr. McLean; the absence of procedural safeguards (such as would, for instance, be available in an application for an Anton Pillar order, to which Mr. McLean likens the investigation order); and the conflict of interest that arises from what Mr. McLean terms a solicitor-client relationship that existed between Mr. Bussanich and Mr. Riddell.

[68]         If either of those two questions were resolved in favour of Mr. McLean, then it would follow that the steps taken by the Law Society in carrying out the order were unlawful.  The question of consent becomes immaterial.

 

  1. The Petitioner’s claim for damages in other Actions remain extant.

 

  1. As pleaded by the LSBC, it subjectively feels that the “…the LSBC chose to conduct its investigation under the Law Society Rules through the Rule 4-43 order as a fair, effective, and economical alternative to a court application under s. 37 of the Legal Profession Act or otherwise.”

 

  1. There are two slight misstatements by His Lordship in that it was not the Petitioner that “likened” it to an Anton Pillar Order but the Respondent. The Respondent explicitly pleaded it and the Madam Justice Fenlon found that the Law Society adopted the PD 31 Model Order when seeking such relief under s. 37 of the Legal Profession Act. In terms of the solicitor-client relationship, the Petitioner did not “term” as such but the ADM gave evidence under oath that such a solicitor-client relationship existed between he and Mark Bussanich. Further, the ADM refused to allow the Plaintiff to inspect certain documents as they claimed that the communication, documents and records between Mark Bussanich and the ADM were protected under solicitor-client privilege. To be clear, the Petitioner did not “liken” or “term” anything in that way but those are the Respondent’s pleadings, terms and documents.

 

  1. The genesis of the Rule 4-43 is as follows “Report of the Mirror Imaging Working Group: Forensic Copying of the Computer Records by the Law Society” (the “LSBC Forensic Copy Paper”) which is dated October 14, 2009 that was provided for the Benchers. It is important as it relates to the issue of vires, Charter and background for this Honourable Court in understanding the seizure that a member is being required to cooperate with:

 

There are no words of limitation contained in Rule 4-43;

The investigators present the 4-43 order and covering letter to the lawyer. This information establishes that the lawyer must allow copying of records at the point of request, including making a forensic copy. The lawyer is provided a document setting out the process for how forensic copies are dealt with. The lawyer is encouraged to instruct counsel;

 

As stated on page three, part two, paragraph two of the LSBC Forensic Copy Paper, “The act of making a forensic copy of a hard drive takes a snapshot of all of the information on the hard drive at a point in time.

 

Some of the information captured in the forensic copy will be critical to the Law Society investigation, but other information will not.

 

Of the latter, some of the information will be personal information for which the lawyer or a third party expects a degree of protection.”

 

Further, at paragraph five, “The core issue the Working Group considered was how the Law Society can carry its outs investigative function to protect the public interest pursuant to s. 3 of the Legal Profession Act, while respecting a reasonable expectation of privacy a member under investigation has in personal information stored on digital records.”

 

Further, on page four, part three, section a, of the LSBC Forensic Copy Paper, “While these cases are informative, most of them deal with disputes between civil litigants or between the state and the accused in a criminal matter; they do not deal with the authority of a regulatory body to copy and access records of its members.”

 

LSBC Forensic Copy Paper at page five, paragraph one, sentences two and three, “Rule 4-43 requires the lawyer to immediately permit the copying of all records. There are no words of limitation contained in Rule 4-43.”

 

Further, at paragraph three, sentence two, “Reading the rule in its ordinary meaning and context and with regard to its purpose in the Act and Rules led the majority of the Working Group to conclude that a 4-43 order contemplates the ability to copy all records in order to examine a wide variety of matters for which lawyers are subject to regulation.”

           

At page six, “Copying the record and letting the lawyer get on with his or her practice is less disruptive, and allows the lawyer under investigation to continue meeting the needs of his or her clients while the investigation is ongoing. The majority of the Working Group favoured the Benchers being able to modify the 4-43 process to make it clear forensic copying is permitted, and to establish a process to resolve disputes regarding access to information on the copied record.

 

Sections 11 and 36 of the Legal Profession Act provide the Benchers with sufficient rule-making authority to deal with digital records. The majority view was that when the threshold has been met for a 4-43 order to issue, it is critical to preserve the records at the point of request in order to protect the public. The majority recognized that this would likely involve copying personal information in circumstances where computer records are copied, but felt that spoke to the need for process safeguards to prevent improper access and use of such information, rather than speaking to the lack of authority to copy records necessary to prove a discipline violation has occurred.

 

At page seven, “Mr. Walker’s preference was for the culling to occur before copying. Mr. Walker contended that Rule 4-43 allows for the copying of a limited category of records, but not the copying of records outside that category. Mr. Walker recognized the horns of the dilemma, however, and that a lawyer should not be able to prevent the Law Society from copying the sort of records he felt was contemplated by Rule 4-43. To resolve this dilemma, Mr. Walker favours an application to the court to authorize forensic copying and to establish the terms of accessing the record.

 

At page seven, “Lawyers know their records may be subject to inspection by the Society, and cannot frustrate the authority of the Society to investigate their records by a mere assertion that their computer contains personal information.

 

 “The Working Group concluded that a lawyer makes a choice to use a computer for both business and personal purposes, and that choice cannot prevent the Society from copying the records it requires to discharge its statutory duty.” (Note: The Respondent admits that it seizes both personal and privileged records)

 

“The Working Group believes, however, that there is a distinction between copying a record and access to the record, and that a process is necessary to ensure the Society is not improperly accessing information over which a lawyer rightly asserts a privacy interest.” (Note: The Supreme Court of Canada does not make such a distinction. A copy is a seizure (see: R. v. Law)).

 

The Working Group believes this represents the middle ground between the Society accessing everything and accessing nothing. At page eight, “Forensic copying makes a bit-stream image of a hard drive, resulting in a perfect copy of the record.” “The Working Group considered that, failing being able to arrive at an agreement with the lawyer as to the scope of access to the record, using an independent supervising solicitor would provide a mechanism where the Law Society could indicate to the lawyer under investigation, and to his or her counsel, the search parameters the Society intended to use (which in most cases will include all practice records), and any objections could be worked out between counsel and through the independent supervising solicitor. The Society would then be provided copies of the information it was permitted to access, while not accessing that information the independent solicitor deems inappropriate.”

 

At page 12, section F, “It is important to note that the decision to make a forensic copy is an investigative decision, and not the basis on which a 4-43 order should be granted or refused.” (Note: the law does not distinguish between an ‘investigative decision’ and order but rather a forced production of documents is a seizure in British Columbia).

 

At page 12 of the LSBC Forensic Copy Paper: 

 

The purpose for providing the issuing Bencher a copy of the process is to allow the Bencher to better understand the safeguards in the investigative process, not to affect whether or not a 4-43 order should issue. When staff apply for a 4-43 order they should indicate forensic copying is likely to occur, and the issuing Bencher should acknowledge in the order that forensic copying may occur.

 

The investigators present the 4-43 order and covering letter to the lawyer. This information establishes that the lawyer must allow copying of records at the point of request, including making a forensic copy. The lawyer is provided a document setting out the process for how forensic copies are dealt with.

 

If the lawyer refuses to comply with the 4-43 order:

  1. The lawyer is informed of his or her obligation to preserve records;
  2. Staff determine whether to apply to court pursuant to s. 37 of the Act for an order to seize records.

 

At page 15, “The process suggested by Mr. Walker differs from that of the majority in the following respect. Mr. Walker believes the process should be resolved through an application to the Court pursuant to s. 37 of the Act, but where the judge makes determinations regarding copying records and the scope of access, rather than seizure. Mr. Walker’s preference would be for the Act and Rules Subcommittee to determine whether s. 37 needs to be modified to accommodate this approach. Mr. Walker believes, due to the privacy rights implicated by the copying of digital records, the court is the better body to authorize the copying of such records and the terms of access. During its discussion of this approach, the majority of the Working Group expressed concern that abdicating to the court an authority they believe lies with the Benchers could have a negative impact on the independence and self-governance of the profession.

 

 

  1. The Petitioner agrees with Mr. Walker, QC’s approach.

 

  1. The ADM made the following admissions in his examination for discovery which was filed in the Supreme Court of Canada and is now a public court document:

 

 

Page 27

 

2 A The 4-43 materials in support of the application.

3 105 Q Okay. Now, when you say the 4-43 application,

4 you're referring to what Mark Bussanich has

5 provided you, correct?

6 A I'm referring to the opinions or the supporting

7 materials in the two binders. I believe I received

8 an electronic version on the Friday, the 23rd, and

9 a paper version on the 26th with all the

10 attachments. That's the bundle of materials I'm

11 referring to.

 

(the “Admission: LSBC Application”)

 

 

Page 30

 

18 129 Q Now, Mr. Riddell, just because I've never seen it,

19 there are no reasons that supplement your order

20 that you've listed or produced in documents,

21 correct?

22 A No.

23 130 Q Was there a transcript of the hearing that led to

24 this Rule 4-43 order?

25 A No.

 

(the “Admission: No Reasons”)

           

Page 31

 

1 131 Q It was all done via either e-mail or delivery to

2 your office and/or e-mail, correct?

3 A It was done based upon the materials delivered to

4 my office.

5 132 Q Via courier?

6 A Via courier and also via e-mail.

7 133 Q In arriving at the order, you didn't attend the Law

8 Society and discuss in person with Mark Bussanich,

9 correct?

10 A I did not attend the Law Society.

11 134 Q Okay. He did not attend your office?

12 A He did not attend my office.

13 135 Q You did not receive any affidavit evidence in

14 support of this Rule 4-43 application, correct?

15 A I received the materials I've described before.

16 136 Q Okay. But there was no -- there was no sworn

17 evidence, correct, I'll get you --

18 A I received those materials I described before, and

19 nothing was under oath.

20 137 Q Okay. Nothing was under oath. Thank you for that.

 

                        (the “Admission: No Evidence”)

 

     Page     43

 

1 189 Q And in that capacity, when he's giving you a legal

2 opinion, it's legal advice, correct?

3 A In the capacity of being in the discipline

4 committee --

5 190 Q M-hm?

6 A -- I am taking legal advice, as are all of the

7 members of the committee.

8 191 Q And in that capacity, he is the solicitor and you

9 are the client, correct?

10 A I believe that's a fair characterization

                                   

                        (the “Admission: Solicitor-Client Relationship”)

 

    Page 56

 

8 268 Q Just so I have your evidence correct, after

9 receiving these documents, or this document, this

10 opinion, privileged and confidential, you don't

11 seek any clarification from Mark Bussanich before

12 signing the order, correct?

13 A I don't seek -- I don't have a communication with

14 Mr. Bussanich with regard to the contents of the

15 materials sent to me because it is my obligation

16 under 4-43 to determine, and the language used in

17 4-43, it is set out here, is if I reasonably

18 believe that a lawyer or former lawyer may have

19 committed a discipline violation. That is the test

20 I apply, reasonably believe, and that is the test

21 which was applied. If the materials do not meet

22 that test, the order is not signed; if the

23 materials meet the test, the order is signed.

24 269 Q Have you ever received an application for a Rule

25 4-43 order that you've rejected?

A I don't believe that I have.

                           

                                        (the “Admission: Discipline Proceeding”)

 

    Page         76

 

1 367 Q -- correct? So you would agree with me that there

2 is a section under the Legal Profession Act,

3 Section 47, that allows a member to apply for a

4 review on the record, correct? You're aware of

5 that section?

6 A Of a hearing panel decision, yes.

7 368 Q M-hm. But you're not a hearing panel?

8 A No, I'm not. I believe I would be subject to the

9 Judicial Review Procedure Act, though.

 

                (the “Admission: JRPA Applicable”)

 

 

Page 78/79:

 

8 383 Q You, in your capacity as chair of the discipline

9 committee, do not direct in any way that the member

10 is given a copy of the underlying opinion of Mark

11 Bussanich that is privileged and confidential,

12 correct?

13 A No.

14 384 Q So the member doesn't receive the underlying

15 materials of Mark Bussanich in this case?

16 A Not that I'm aware of.

17 385 Q And not the documents of Ms. Eva Milz, correct?

18 A At what stage?

19 386 Q Prior to receiving the order.

20 A Oh.

21 387 Q Or contemporaneous with the order.

22 A No.

23 388 Q So the member, when they are presented with your

24 order, only receive a copy of this order and the

25 attachment to the order, correct?

 

1 A I believe you showed us Ms. Crosbie's letter --

2 389 Q Sure.

3 A -- that had some other things with it.

4 390 Q Sure. M-hm. Now, in your capacity as a decision

5 maker under the Administrative Tribunals Act, you

6 do not direct that any supporting documentation is

7 presented to the member prior to their receipt of

8 this order, correct?

9 A No.

 

                 

(the “Admission: No Underlying Materials”)

               

 

Page 80

1 395 Q Fair enough. And you'd agree with me this is

2 done -- obviously you said ex parte?

3 A Yes.

 

                                        (the “Admission: Ex parte”)

 

 

LSBC Rules

 

  1. The following are defined as the Impugned Rules with the exception of Rule 3-5(3) (as there is no challenge to its constitutionality in the requirement to deliver the complaint to the member yet the Petitioner did not receive a copy of the complaint)

 

Rule 4-43 requires that the lawyer immediately produce and permit the copying of all files, vouchers, accounts, books and any other evidence regardless of the form in which they are kept;

 

Rule 3-5

(3) The Executive Director must deliver to the lawyer who is the subject of a complaint a copy of the complaint or, if that is not practicable, a summary of it.

 

6) A lawyer must cooperate fully in an investigation under this Division by all available means including, but not limited to, responding fully and substantively, in the form specified by the Executive Director (a) to the complaint, and (b) to all requests made by the Executive Director in the course of an investigation.

 

(6.1) When conducting an investigation of a complaint, the Executive Director may

(a) require production of files, documents and other records for examination or copying,

(b) require a lawyer to (i) attend an interview, (ii) answer questions and provide information relating to matters under investigation, or (iii) cause an employee or agent of the lawyer to answer questions and provide information relating to the investigation,

(c) enter the business premises of a lawyer (i) during business hours, or (ii) at another time by agreement with the lawyer.

 

10) A lawyer who is required to produce files, documents and other records, provide information or attend an interview under this Rule must comply with the requirement (a) even if the information or files, documents and other records are privileged or confidential, and (b) as soon as practicable and, in any event, by the time and date set by the Executive Director.

 

3-5.01 (1) Subject to subrules (2) and (3), a lawyer who is required under Rule 4-43 [Investigation of books and accounts] to produce and permit the copying of files, documents and other records, provide information or attend an interview and answer questions and who fails or refuses to do so is suspended until he or she has complied with the requirement to the satisfaction of the Executive Director.

           

 

  1. The LSBC has adopted a model or template form (Dollar Tile at par 20, per Madam Justice Fenlon) order called “Model Order PD 31”. The Respondent does not use this Model Order PD 31 in the Limitless Seizure Order

 

Respondent’s Admissions

 

  1. The Respondent admits that consent is required for a search and seizure pursuant to the Limitless Seizure Order (see: Respondent’s Application Response, page 5, paragraph 17, sentence 2). The Respondent did not give the member a copy of any complaint (see: XFD of ADM; and Affidavit Material of Kevin A. McLean).

 

  1. On June 3, 2014, Mark Bussanich, David McCartney, Wendy Ho, and Andrea Chan were in regular contact via phone, text message, Blackberry messenger, and e-mail. McCartney began prying, without consent, into the personal affairs of the Plaintiff.

 

  1. On June 3, 2014, At 11:24 a.m., McCartney sent the following e-mail to Bussanich titled, “one important fact”:

 

“I just spoke to the receptionist Laura Paulson. She advised that Mr. McLean came in with King she said to McLean ‘these people from the Law Society and they are here to see you.’ McLean walked past saying, ‘Well I do not want to see them.”

 

(“Email #2: LSBC Acknowledges McLean Does Not Consent”)

 

  1. On June 3, 2014, at 2:29 p.m., David McCartney sent an email (only material excerpts included) to Bussanich regarding the Plaintiff’s agent who was sent on the Plaintiff’s instruction and authority:

 

“Interestingly that he left so quickly this morning that he left his house and office keys”  

 

 

                              (“Email #3: LSBC Seizure: House, Office and Bank Information”)

 

 

  1. On June 3, 2014, At 3:58 p.m., McCartney sends another email to Bussanich relating to his inability to break into McLean’s computer with is titled, “Computer Codes and Passwords”:

 

“According to both McLean’s practice supervisor and Office manager, they have no codes or passwords for any of McLean’s computers or electronic devices. McLean merely rents his offices and Paulson and Cop reception handles his mail. McLean’s computers are stand alone and he is not hooked into the Paulson and Co system. There is no lock on McLean’s door. DJM”

 

                              (“Email #4: McCartney Illegally Seeks Passwords/Codes”)

 

  1. June 3, 2014, the Plaintiff attempts to obtain his keys through authorized third party and Andrea Chan yells at the Petitioner’s assistant, “Nothing leaves this office” (“Constructive Seizure”). The search was undertaken and continued without the Petitioner present.

 

  1. On June 3, 2014 at 9:53 p.m., the Petitioner seeks the particular and Reasons for the Limitless Seizure Order.

 

  1. On June 4, 2014, the LSBC served the Petitioner with an internal complaint regarding his failure to comply with the Limitless Seizure Order and did not reply to his question regarding the bases for the Limitless Seizure Order.

 

  1. On June 10, 2014: The Petitioner seeks the particulars and reasons for the Limitless Seizure Order. Mark Bussanich failed to respond to the request for particulars and Reasons in contravention of his professional obligations and obligations in the Limitless Seizure Order Mark Bussanich’s failure to respond was intentional and wrongful.

 

  1. The Petitioner has withdrawn any consent that was given and sought the return of the copies of the seized. October 7, 2015, Mr. Geoff Gomery wrote as follows in response to that request:

 

You request ‘the return of the documents that you seized you without my consent’. The Law Society is not in possession of the original documents obtained from you. It is in possession of copies. There is an issue in this litigation as to whether the Law Society obtained those copies with your consent. The copies are relevant to the action that you have commenced and to the ongoing regulatory proceedings to which you are a party. Even if those matters all come to an end, the copies remain relevant to any future attempt that you may make, as a disbarred lawyer, to apply for readmission to the Law Society. The Law Society is not going to return or destroy the copies while the action is underway. What will be done with them afterwards will depend at least in part on the outcome of the action.

 

Part 3: LEGAL BASIS

 

Inherent Jurisdiction of the Supreme Court

 

  1. The Petitioner relies on the Inherent Jurisdiction of the British Columbia Supreme Court.

 

British Columbia Supreme Court Civil Rules, includes amendments up to B.C. Reg. 3/2016, July 1, 2016

 

  1. The Petitioner Relies on the British Columbia Supreme Court Civil Rules with particular reference to 1, 3, 6, 7, 10, 14, and 22.

 

Judicial Review Procedure Act, R.S.B.C. 1996, C. 241 (the “JRPA”)

 

  1. The Petitioner sets out the grounds for judicial review below of the Limitless Seizure Order (see s. 14 of the JRPA and Saanich Inlet Preservation Society v. Cowichan Valley (Regional District), [1983] B.C.J. No. 873).

 

  1. Certiroari is defined in Robertson's Civil Proceedings against the Crown, 
    1908, at p. 127, as

 

"the ordinary process by which the High 
Court brings up for examination the acts of bodies of inferior 
jurisdiction", and in Holmested & Langton's Ontario Judicature 
Act, 5th ed. 1940, at p. 1496, it is described as a remedy 
whereby the Sovereign orders that the record of an inferior 
tribunal be transmitted into a Court where he is sitting in 
order that he may cause to be done that which of right and 
according to the law ought to be done.

 

Law and Equity Act, R.S.B.C 1996, C. 253

 

  1. The Petitioner relies on s. 44 of the British Columbia Law and Equity Act.

 

Adjudicatve proceeding: “Privileged” Application SEEKING A Limtiless Seizure Order

 

Issue: Did the ADM grant an order in relation to an application?

 

  1. The LSBC has pleaded that the ADM is protected under s. 56 of the ATA, which relates to application in relation to decision. In addition, the ADM admits that he made an order in relation to an application. Only after Mr. Justice Bowden ordered the LSBC and LSBC list and produce documents, the LSBC finally produced the underlying application materials which showed that the application was “PRIVILEGED AND CONFIDENITAL” from Mark Bussanich, counsel, to the ADM in his client capacity. There was no “record of proceeding” provided to the member upon execution of the Limitless Seizure Order. This is the apparent “fair alternative” to a court application under s. 37 of the LPA.

 

  1. The LSBC Forensic Seizure Paper states as follows:

 

The 4-43 process is in some ways similar to an Anton Piller order, in that it proceeds ex parte and carries with it an element of surprise.

 

Rule 4-43 differs from the Anton Piller order in several important respects, including that it is an investigative step of a public authority whereas the Anton Piller order is an extraordinary process available to private litigants who stand in a qualitatively different relationship to each other than a lawyer does with the Law Society. Rule 4-43 does not require a strong prima facie case to be met for the order to issue, whereas an Anton Piller order does.

 

  1. Although there may be some differences between private litigants against one another, and a regulator versus a member, it is unequivocal that the Respondent has explicitly adopted the PD 31 Model Form 31 for this type of limitless record seizure.

 

SEARCH AND SEIZURE LAW IN ADM INISTRATIVE QUASI CRIMINAL CONTEXT

 

Issue: What constitutes a search and seizure in BC in this context? At law, is it a still a search and seizure if the member does not consent?

 

  1. In our province, the demand itself constitutes a search and seizure in administrative inquiries and quasi-criminal criminal proceedings (see: British Columbia (Securities Commission) v. Branch, 1990 CanLII 996 (B.C.S.C.); Bishop v. College of Physicians and Surgeons of British Columbia(1985), 1985 CanLII 569 (B.C.S.C.); aff’d at Court of Appeal. At law, it is a still a search and seizure search notwithstanding the member’s refusal (see: Bishop v. College of Physicians and Surgeons of British Columbia (1985), 1985 CanLII 569 (B.C.S.C.); aff’d at Court of Appeal).

 

  1. The Supreme Court of Canada in Branch further distinguished between business and personal records. In our province, Gardner did the same. The Respondent has attempted to argue that Gardner is no longer applicable but the amendments to the legislation did not suddenly entitle the Respondent to then access personal and privileged records. As stated by the BC Court of Appeal in Gardner, 1991 CanLII 1157 (B.C.C.A.):

 

It is the unauthorized search and seizure of documents and records, comprising not only Mr. Gardner's practice but his business and personal affairs also that is offensive.

 

  1. Search: a prying into a hidden places for that which is concealed; probing or exploration for something that is concealed or hidden from searcher (see: Black Law’s Dictionary, Fifth Edition).

 

  1. Copying: exact of substantial or reproduction of the original, using the original as a model as distinguished from an independent production of same thing, and a “copy” is that which comes so near to original as to give every person seeing it the idea created by original and must be such that ordinary observation would cause it to be recognized as having been taken from the work of another (see: Black Law’s Dictionary, Fifth Edition).

 

  1. Photocopying constitutes seizure (see: v. Law, 2002 SCC 10). Therefore, the forensic copy of the entirety of one’s CPU’s and personal cell phone is a seizure. It is irrelevant whether it is held in some undisclosed location and apparently not viewed until some later date. It is an unlimited or limitless seizure that is taken from the member and the Petitioner says that is an unreasonable search and seizure. The mere fact that a member is given a chance to challenge the LSBC viewing the entirety of the contents in the CPU (whether they be personal, privileged, or irrelevant) does not take away from the fact that a seizure has taken place.

 

  1. Madam Justice Gerow was troubled by the seizure of the entirety of the computer (see: Certified transcript of proceeding on May 29, 2017). The LSBC response related to the acts after the seizure but that does not absolve the Respondent of the seizure.

 

  1. Further, the Respondent submitted that the issue with this Petitioner is that he “slips out” the back door and the LSBC cannot discharge its duty due to the elusiveness of the Petitioner. It is known by the legal community that the Petitioner is the holder of the record for CBA 5km race with a time of 15 minutes and regularly trained in the stairs of 999 West Hastings Street, Vancouver, BC. Madam Justice Gerow rightly corrected the Respondent in that the Respondent could have applied to court for such an Order. The Respondent refused to do so in the face of a lack of cooperation.

 

  1. The meaning of seizure is fairly straightforward. In v. Dyment (1988), the Court defined it simply as the "taking of a thing from a person by a public authority without that person's consent." This meaning has been narrowed to cover property taken in furtherance of administration or criminal investigation (Quebec (Attorney General) v. Laroche, [2002]). As noted by The Honourable Mr. Justice Grauer the issue of consent is immaterial if the Limitless Seizure Order Proceeding is unlawful and the Limitless Seizure Order is quashed, voided, voidable, unlawful, set aside, incorrect and/or unreasonable, ultra vires or unconstitutional.

 

  1. If a person to whom a demand for production under s. 45(1)(b) was directed refuses to produce the documents, on the ground, for example, that they are not and may not be relevant to the question of whether the Act is being complied with (which is the ground asserted in this case), the Director cannot then seize the documents (see: Bichel).

 

  1. E.D. (West. 3rd), vol. 11A, suggests this, p. 50-46:

An actual seizure is not necessary in order to create a distress. It is sufficient if the landlord or his agent takes effectual measures to prevent the removal of the goods from the premises on the ground of rent being in arrears. The landlord or his agent may make a constructive seizure by declaring that the goods shall not be removed from the demised premises until the rent is paid.

  1. In this case at bar, Andrea Chan declared that “nothing leaves this office” as such the Respondent constructively seized everything in the office on June 3, 2014. She also unilaterally determined how many cheques could leave the office to the Petitioner. She had no right to do so and, in so doing, breached the Petitioner’s Charter Further, she and David McCartney deliberately seized the keys (not records) so the Petitioner could not access his vehicle and home.

 

 

EX PARTE PROCEEDINGS

 

Issue: Did Mark Bussanich breach the common law requirements upon an applicant in ex parte proceedings?

 

  1. The requirement that an applicant for a search warrant make full and frank disclosure was addressed inLemare Lake Logging Ltd. v. British Columbia (Minister of Forests and Range), 2009 BCSC 909, where Mr. Justice Grauer stated at para. 38:

The Courts have consistently made it clear that a party involved in an ex parte process such as applying for a writ of search and seizure has a duty to make full and frank disclosure of material facts. See, for instance, R. v. Araujo2000 SCC 65 (CanLII), [2000] 2 S.C.R. 992 and R. v. Ling2009 BCCA 70 (CanLII). The scaling and merchandising process that had been explained to Mr. Smallacombe could in my view hardly have been more material to the issue of whether there was a reasonable probability that the seized timber would constitute evidence in support of the allegation of fraud against XY. That duty of disclosure was accordingly breached in this case.

  1. Mark Bussanich did not make full and frank disclosure as he failed to inform the ADM that the temporal period was minimal and the LSBC was in receipt of monthly trust reconciliations since the reinstatement. Mark Bussanich failed to explain both sides of the story and any possible defences for the member which is required under the common law (see:  J. v. S.D., 2014 BCSC 2277).

 

  1. The principle in Kane is important that unless expressly or by necessary implication, the regulatory may not hold ex parte The Petitioner says that is ground is sufficient alone to set aside the Limitless Seizure Order.

 

 

DUTY OF ADM TO GIVE REASONS IN THE ADMINISTRATIVE ANTON PILLER CONTEXT

 

Issue: Was the ADM required to give reasons for the Limitless Seizure Order?

 

Petitioner’s Position

 

  1. The Petitioner’s position is that some form of Reasons were required at the time of granting the Limitless Seizure Order and should have been served on the member at the time of execution of the Limitless Seizure Order. The Petitioner respectfully submits that the law is overwhelming in favour of the duty to issue Reasons in the context of a search and seizure order granted in secrecy by a counsel acting for the administrative decision maker with such immediate penal consequences for a member.

 

Respondent’s Position

 

  1. The Respondent’s position is twofold:
    1. Justices of the peace often do not issue Reasons for a search warrant in the criminal context; and
    2. Reasons are for the court to assess the decision that was made.  

 

  1. The Respondent’s position on criminal search warrants is misguided as the analysis happens within the statute of the Legal Profession Act and not the Criminal Code. The Respondent’s position is also inconsistent with its previous position that this a civil process between the Petitioner and the Respondent. The Respondent appears to “cherry pick” certain positions when analyzing the matter in the correct context is not of benefit to it.

 

  1. It is true that Reasons do help the court assess the decision, which is the Petitioner agrees and mentions infra, but that is a simulacrum of a proper legal analysis.

 

When and Why Are Reasons Required by Administrative Tribunals

 

  1. A fair procedure is said to be the handmaiden of justice. Accordingly, procedural limits are placed on administrative bodies by statute and the common law. On such matters, as well, the courts have the final say. The need for such procedural safeguards is obvious. Nobody should have his or her rights, interests or privileges adversely dealt with by an unjust process. R.E.M. emphasizes that where reasons are legally required, their sufficiency must be assessed functionally. In the context of administrative law, reasons must be sufficient to fulfill the purposes required of them, particularly to let the individual whose rights, privileges or interests are affected know why the decision was made and to permit effective judicial review. The basis of the decision must be explained and this explanation must be logically linked to the decision made. This does not require that the tribunal refer to every piece of evidence or set out every finding or conclusion in the process of arriving at the decision. To paraphrase for the administrative law context what the court says in R.E.M., at para. 24, the "path" taken by the tribunal to reach its decision must be clear from the reasons read in the context of the proceeding, but it is not necessary that the tribunal describe every landmark along the way.

 

  1. The recent decisions show that the law has swung away from focusing only on the outcome of the decision, to require that the administrative decision-maker articulate its reasoning process in a way that demonstrates that it has addressed the central issues in a logical way. In particular, in Whyte v. BC (superintendent of Motor Vehicles), 2013 BCCA 454, the BC Court of Appeal held that reasons are not adequate if the decision-maker does not address and resolve a conflict in the evidence relating to a central issue. The current judicial tendency towards requiring more explicit reasons is undeniable, particularly in professional discipline situations where significant individual interest are at stake. However, putting words down on paper is not the goal—what is required is a clear and logical reasoning process. If the supervising court has been prevented from assessing this because too little information has been provided, the reasons are inadequate: see,g.Canadian Association of Broadcasters, supra at paragraph 11. In this case, there is less than too little; there are no Reasons. 

 

  1. Supreme Court of Canada requires a written (not oral) explanation for the decision when the decision is of importance to the career (see: Baker v. Canada, 1999 CanLII 699 (S.C.C.). In this proceeding at bar, there was not even an oral explanation from the

 

  1. The greater the protection from judicial review, the more the need for Reasons (see: MacDonald v. Demont, 2001 NSCA 61). In the case at bar, it is the ultimate protection from judicial review as it is impossible to review an order without Reasons or even make requests, vary or discharge as there is no process for that within the Limitless Seizure Order Further, there is no appeal within the statue of the LPA.

 

  1. A decision at issue significantly impacts member’s interest in becoming or maintain their livelihood and it is subject to judicial review. These factors indicate that procedural fairness would require the Appeal Committee to provide some reasons for its decision: seeFigueras, at para. 62; Daneshvar v. Canada (National Dental Examining Board) (2002), 43 Admin. L.R. (3d) 256 (Div. Ct.), at para. 11-12, 16-17; Lerew v. St. Lawrence College of Applied Arts & Technology (2005), 2005 CanLII 11798 at para. 15-16; and Megens v. Ontario Racing Commission (2003), 2003 CanLII 26509 (ON SCDC) at para. 13, 15-17.

 

  1. In Gray v. Ontario (Director, Disability Support Program) (2002), 212 D.L.R. (4th) 353 at 364 (Ont. C.A.), the court found that the obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors.
  1. Reasons are required so the member of a society or association can determine if and how to judicially review. The courts have widely held that “Reasons for an Order or Judgment” in the administrative law context must provide an assurance to the parties that their submissions have been considered, enable the reviewing court to conduct a meaningful review, and be transparent so that regulatees can receive guidance: (see: Vancouver International Airport Authority v. Public Service Alliance of Canada, 2010 FCA 158). In the case at bar, this Limitless Seizure Order absent any Reasons does none of the above. It is an independent and sole reason why the Limitless Seizure Order should be set aside and/or quashed.

 

  1. Enhanced procedural protections “will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted”:Bakersupra, at para. 24, per L’Heureux-Dubé J. No further requests can be made of this Limitless Seizure Order which is determinative of the issue of whether the member will have his CPU, personal cell phone and records in his home seized. If she does not consent, she is suspended indefinitely and perhaps permanently as it is in the full discretion of the Respondent if full cooperation has occurred.

 

  1. There is also case law that suggests that “unusual circumstances” leads to Reasons being required. There is also an abundance of case law that this type of immediate penalty like suspension requires Reasons to be issued. There is no appeal procedure in the statute, determinative of the further requests cannot be submitted, and it is unusually Draconian with no evidence, no notice, no transcript, no hearing and done between a solicitor and client (see: Lerew v. St. Lawrence College of Applied Arts & Technology(2005), 2005 CanLII 11798). To label this Limitless Seizure Order Proceeding as “unusual” would be putting it mildly.

 

Content of Reasons

 

  1. It is not sufficient for the tribunal to simply summarize the positions of the party (ies) and baldly state its conclusions.  Reasons are required; not merely conclusions:Megens v. Ontario Racing Commission, 2003 CanLII 26509 (O.N.S.C.).

 

  1. As was stated by the Ontario Court of Appeal inGray v. Ontario (Disability Support Program, Director) 2002 CanLII 7805 (O.N.C.A.): “The reasons must address the major points in issue.  The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors.” This ADM has no reasoning process and the process is entirely opaque along with the member not having any understanding of how the order was obtained.

 

  1. It is trite that the concept of Reasons and a “decision” are separate concept. Reasons as opposed to decisions will only be adequate in law if “they show why or how or upon what evidence the delegate reached his conclusion” (David Phillip Jones & Anne S. de Villars,Principles of Administrative Law (Scarborough: Carswell 1985), at p. 234).  This duty is not discharged, they say, by simply reciting the evidence presented and providing a conclusion without further analysis or explanation.  Reasons must show insight into the “reflective process used in reaching the decision”.

 

  1. In providing reasons for a decision, a decision-maker must explain both what is being decided and why it is being decided (Law Society of Upper Canada v. Neinstein(2010), 2010 ONCA 193 (CanLII) (C.A.)). The obligation to give reasons -- to explain why it has reached the decision it has -- is part of the duty of procedural fairness.

 

  1. Administrative decision-makers should strive to follow best practices so that the public gets the service it deserves, including providing exemplary reasons of high standard: for an example of one authority’s helpful view of best practices, see Ombudsman Saskatchewan,Practice Essentials for Administrative Tribunals (2009).

 

  1. They must be understandable, sufficiently detailed, and provide a logical basis for the decision. The reasons should at the very least indicate which test was used and why that test was or was not met (seeCanada (Minister of Citizenship and Immigration) v Behbahani, 2007 FC 795 (CanLII), [2007] FCJ no 1039 at paras 3-4)

 

Issue: In our province, are Reasons required when granting or refusing this type of Draconian Order?

 

  1. Yes, in all cases in our province, Reasons for this type of Draconian order are provided by our justices of the Supreme Court of British Columbia; your current brothers and sisters on the Bench (see: Schluter-Systems KG v. Dollar Tile Distributors Ltd., 2013 BCSC 2508; Regal Ideas Inc. v. Haus Innovations Inc., 2016 BCSC 1883; and Piece v. Mercer Gold Corporation et al, [Unreported] under Docket No. S-116400). This is highly relevant as the LSBC explicitly pleads that the Rule 4-43 Order proceeding or Limitless Seizure Order Proceeding is a “FAIR AND ECONOMICAL ALTERNATIVE” to a court application under s. 37 of the LPA.

 

  1. Further, it is not simply a court application under s. 37 but it is trite that a party must file a NOCC or Petition prior to filing a Notice of Application as one needs a file number. It is trite that applications can only occur under Actions so the LSBC would be required under s. 37 to file a Notice of Civil Claim against the member. This would mean that it is a two party dispute like the regulatory process in this scenario that is adversarial and adjudicative.

 

  1. This Honourable Court will note that the Reasons are comprehensive, detailed and attuned to the evidence and facts despite those hearings being ex-parte, without notice and/or “in camera”. The application process entailed by the LSBC is wildly unfair and different than a court application under s. 37 of the LPA. The opaque, unusual and secretive administrative process of hearing the application and rendering a decision is entirely different procedurally and substantively than a Supreme Court Justice. Further, the entered order of The Honourable Mr. Justice Dley in Jivrag shows that one of the major terms of an order is that that person being served with the Draconian order contemporaneously receive the underlying materials such as evidence, initiating documents, and application materials (see: Piece v. Mercer Gold Corporation et al, [Unreported] under Docket No. S-116400). Again, that is a term under the PD Model Order 31 which the LSBC explicitly adopts in court process but does not in the Limitless Seizure Order Proceeding. This is a full answer to any questioning the distinction between a two party civil dispute, and a regulatory versus a member dispute.

 

  1. The reasons these cases are of import is the following statement by The Honourable Madam Justice Fenlon:

 

[21]        Although Anton Piller orders are a useful tool, the Court must be mindful that they are exceptional orders and highly intrusive. The terms of such an order must be carefully spelled out and limited to what the circumstances show to be necessary. The Supreme Court of Canada decision in Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36 (CanLII), [2006] 2 S.C.R. 189, sets this out at paras. 30 through 32.

[22]        This Court and the Law Society have adopted a model order containing the safeguards identified by the Supreme Court of Canada in Murray Demolition and in other cases.

Did this ADM have a Duty to Issue Reasons for the Limitless Seizure Order?

 

  1. There are a variety of considerations that militate in favour of the Reasons being issued, generally and specifically to this case cat bar:
    1. Significant importance to the member: The decision is one of significant importance to one’s career (see: Baker);
      1. The decision is of the utmost importance is that the penalty for failing to comply is an immediate loss of livelihood and potential permanently losing one’s livelihood (see: LSBC Rule 3-5.01);
      2. The Limitless Seizure Order which is far worse than a simple fine or professional misconduct as it is the most intrusive order for seizure coupled with an immediate suspension if a member does not comply; and
  • The member is given two choices:
    1. Consent to the forensic search and seizure of personal and privileged information which could contain sexual material between a member and one’s spouse and legal advice from one’s counsel in another matter; or
    2. Not cooperated and lose one’s career indefinitely.
  1. Privilege is the unfettered right of a client and the LSBC entrenches on the right through such a seizure.
  1. Level of protection of tribunal from judicial review: the greater the protection from judicial review, the more the need for Reasons (see: MacDonald v. Demont, 2001 NSCA 61);
    1. This Limitless Seizure Order is the greatest protection from judicial review as the member does not receive a record of the proceeding or any Reasons for said order with no ability to discharge or vary said order;
  2. Administrative decision makers admits decision is subject to judicial review: although not referenced in any current jurisprudence, this can be another factor for the court to consider. When a tribunal admits in some form that their decision is subject to judicial review, then written Reasons should be issued for the person so affected by such a decision;
    1. As noted supra, the ADM admits that his Limitless Seizure Order is subject to judicial review;
  3. The Decision is subject to judicial review: a decision that is subject to judicial review militates in favour of an administrative decision maker issuing Reasons;
    1. As admitted by the ADM, his granting of the Limitless Seizure Order is subject to judicial review but not a “review” or “appeal” under s. 47 or s. 48 of the LPA respectively;
  4. Substance of Order understood: At least in a minimal way, the substance of the decision must be understood, along with why the administrative decision-maker ruled in the way that it did (see: Vancouver International Airport Authority, 2010 FCA 158 at paragraph 16);
    1. The substance of the decision cannot be understood when the member receives a cover note and a one-page order with only two grave choices;
  5. Participatory rights for the member: The parties must be able to decide whether or not to invoke their rights to have the decision reviewed by a supervising court. This is an aspect of procedural fairness in administrative law. If the bases underlying the decision are withheld, a party cannot assess whether the bases give rise to a ground for review (see: Vancouver International Airport Authority, 2010 FCA 158 at paragraph 16);
    1. The member sought the bases for the Limitless Seizure Order and the LSBC, specifically Mark Bussanich, deliberately withheld the bases;
  6. Supervisory role of the Courts: There must be enough information about the decision and its bases so that the supervising court can assess, meaningfully, whether the decision-maker met minimum standards of legality (see: Vancouver International Airport Authority, 2010 FCA 158 at paragraph 16). This role of supervising courts is an important aspect of the rule of law and must be respected:Crevier v. Attorney General of Quebec, 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220; Dunsmuirsupra at paragraphs 27 to 31;
    1. There is no ability for this Honourable Court to meaningfully assess whether the ADM met the minimum standards of legality;
  7. No Appeal procedure in the statute: “will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted” (see: Baker);
    1. The Petitioner respectfully submits that this Honourable Court should require enhanced procedural protections for this case and others with written Reasons and a two-hour period (or more) to consult independent counsel that is not held against the member;
  8. Finality of the Decision: the more final the decision, the more the need for Reasons;
    1. This is the penultimate decision with internal right of review or appeal under legislation,
  9. How closely the nature of the tribunal process resembles the judicial process: it is pleaded that it is a fair alternative the court process so it is clearly the alternative administrative adjudicative process of s. 37;
    1. This plea and admission by the LSBC makes the Limitless Seizure Proceeding an adjudicative process where the ADM hears and decides an application, albeit privileged, and grants an Order;
  10. Unusual Circumstances: unusual circumstances surrounding the granting of a decision requiring the issuing of Reasons (see: Lerew v. St. Lawrence College of Applied Arts and Technology, 2005 CanLII 11798;
    1. These are the most unusual and unconventional circumstances leading up to the granting of the Limitless Seizure Order;
  11. Member centric v. polycentric decisions: individual centric militate in favour of Reasons where polycentric ones do not); no requirement to give reasons when making "public policy decision", in this case the closing of a school (see: Syndicatdes employés de la function publique de l'Ontario et al. v. Collège des Grands Lacs et al. (2005), 200 O.A.C. 101 (Div. Ct.);
    1. This is an exclusively member centric decision focused on the Petitioner and Kevin A. McLean Law Corporation;
  12. Draconian orders require Reasons (see: Dollar Tile, Mercer, et al, supra);
    1. This is the apparent fair alternative to the model order that the LSBC explicitly adopts under s. 37 of the LPA so fairness would indicate that Reasons of the administrative decision makers should mirror that of the courts;
  13. Transparency require Reasons: though, is not just limited to observers who have a specific interest in the decision. The broader public also has an interest in transparency: in this case, the LSBC is a public institution of government and part of our democratic governance structure.
    1. This is the opaque and secretive process leading up to the granting of the Limitless Seizure Order and the execution therefrom is inconsistent with our democratic structure.

 

 

NO Review on the Record RIGHTS: Section 47 of the LPA

 

Issue: Is the member able to seek a “Review on the Record” of the Limitless Seizure under s. 47 of the LPA?

 

  1. No, the ADM is not a panel so that is impossible for the member to do so. The “single member panel” is thing of the previous decades and century. The member has no “legislative review record” rights as it relates to section 47 of the Legal Profession Act.

 

NO Appeal RIGHTS: Section 48 of the LPA

 

Issue: Is the member able to “Appeal” the Limitless Seizure under s. 48 of the LPA? 

 

  1. No, the ADM is not a Review Board under s. 48 of the LPA so that is impossible. The member has no “legislative appellate rights” under section 48 of the Legal Profession Act. Enhanced procedural protections “will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted”:Bakersupra, at para. 24, per L’Heureux-Dubé J. As noted supra, when there is no appeal “within the statute”, enhanced procedural protections are required. 

 

 

Inability for Member to Judicially Review the Limtiless Seizure Order

 

Issue: Is the member able to make a reasonably informed decision about judicially reviewing the Limitless Seizure Order

 

  1. No, when there are no reasons when they are required, there is nothing to review (see: Newfoundland and Labrador Nurses’ Union Newfoundland and Labrador (Treasury Board), 2011 SCC 62). Further, there is no ability to make further requests of the ADM. In the absence of a true analysis of the evidence, the appeal process is frustrated and that the duty to give reasons cannot be met simply by listing the evidence considered (see: Boyle v. New Brunswick (Workplace Health, Safety and Compensation Commission), 1996 CanLII 4829 (N.B.C.A.). This is not a case of inadequate reasons but there are none at all.

 

Inability for Court to conduct Judicial Review

 

Issue: Is the Court able to judicially review when the one-page order which is absent Reasons?

 

  1. Without the benefit of the ADM’s reasoning about how it employed its expertise to interpret its home statute, it is impossible to determine whether its decision was reasonable (see: Macdonald v. Mineral Springs Hospital, 2008 ABCA 273). When there are no reasons where they are required, there is nothing to review (see: Newfoundland and Labrador Nurses’ Union Newfoundland and Labrador (Treasury Board), 2011 SCC 62).

 

  1. The Petitioner has prepared a chart in this regard for ease of reference for this Honourable Court:

 

 

Challenge or Clarify Order

Customary Authority

Limitless Seizure Order

Directions

Provision in order

Impossible: the LSO does not provide for any ability to the member to do so. Further, there is not even a standard form to engage or location for such a hearing in order to do so.

Vary

Provision in order

Impossible: the LSO does not provide for any ability to the member to do so. Further, there is not even a standard form to engage or location for such a hearing in order to do so.

Discharge 

Provision in order

Impossible: the LSO does not provide for any ability to ability apply to discharge it. Further, there is not even a standard form to engage or location for such a hearing in order to do so.

Review

Section 47 of the LPA

Impossible: the ADM  is not a “panel” so the member has no ability to apply for a “Review on the Record”

Appeal to Court of appeal

Section 48 of the LPA

Impossible: the ADM  is not a “review board”

Judicial Review to British Columbia Supreme Court

Judicial Review Procedure Act

Impossible:

1.       There are no Reasons so there is nothing to review.

2.       The member also does not receive any of the underlying materials, application, notice of hearing, transcript et al so it is not possible to know what occurred up to and to the email exchanges under the power of dictation.

3.       It is impossible for a member to even consider whether to judicial review and impossible for a court.

4.       It is impossible to determine how the ADM exercised any alleged expertise.

 

 

STANDARD OF REVIEW: Correctness (NO DEFERENCE TO DECISION)

 

Issue: What is the appropriate and applicable standard of review in the context of these questions?  

 

  1. It is well established that questions of procedural fairness or natural justice are subject to the correctness standard: Ellis-Don Ltd. v.Ontario (Labour Relations Board), 2001 SCC 4, para 65.

 

  1. Toronto (Metropolitan Police Services Board v. Young,[1] [1997] O.J. No. 1076 (Div. Ct.) at para. 17 that it is a “jurisdictional issue as to whether there exists a reasonable apprehension of bias on the part of the decision-maker. Any error in respect of this is therefore a reviewable error of law”

 

  1. However, where it is alleged that a tribunal fails to give a party natural justice, the court does not engage in an assessment of the standard of review but evaluates whether the rules of procedural fairness have been satisfied (see: Megens v. Ontario Racing Commission, 2003 CanLII 26509). Evaluating whether procedural fairness, or the duty of fairness, has been adhered to by a tribunal requires an assessment of the procedures and safeguards required in a particular situation (see: generally,Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (S.C.C.) and Bakersupra.).

 

  1. The court cannot give deference to the choice of a tribunal whether to give reasons as the court must ensure that the tribunal complies with its legal obligation (see: Clifford v. Ontario Municipal Employees Retirement System,2009 ONCA 670). When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question (see: Dunsmuir v. New Brunswick2008 SCC 9 at para. 50). Procedural fairness imposed a legal obligation on the Tribunal to give reasons for its decision. The standard of review of the obligation to give reasons is correctness. The sufficiency of reasons must be assessed functionally. In the context of administrative law, reasons must be sufficient to fulfill the purposes required of them, particularly to let the individual whose rights, privileges or interests are affected know why the decision was made and to permit effective judicial review. That is accomplished if the reasons, read in context, show why the tribunal acted as it did. The basis of the decision must be explained and that explanation must be logically linked to the decision made

 

  1. In Congregation, little deference is due to the Municipality’s decisions concerning the second and third applications for rezoning because there is no record to indicate that the Municipality has actually engaged its expertise in evaluating the applications. The Municipality did not fulfill its duty of procedural fairness in responding to the second and third rezoning applications brought by the Congregation because the Municipality gave no reasons for its denial. Similarly, there was no record of the Limitless Seizure proceeding provided to the member at the time of seizure so it is yet another reason why no deference is afforded. A semblance of it was provided to him but only after a court order was made due to the blatant breaching of the Supreme Court Civil Rules by the Respondent in Action S-1410056.

 

Effect of Tribunal Issuing Inadequate Reasons: Judicial Intervention in the Form of Quashing Decision

 

  1. In Neinstein, speaking for the majority, Justice Doherty was skeptical that complaints about the adequacy of reasons are often cloaks for attacking the merits of a decision56:

 

4 I am dubious about the merits of arguments claiming that reasons for judgment are

inadequate. Experience teaches that many of those arguments are, in reality, arguments

about the merits of the fact finding made in those reasons. By framing the argument in

terms of the adequacy of the reasons, rather than the correctness of the fact finding, an

appellant presumably hopes to avoid the stringent standard of review applicable to

findings of fact. Despite my scepticism about arguments that allege that reasons are

inadequate, I am satisfied that the appellant has demonstrated that the reasons given

by the Hearing Panel are so inadequate as to foreclose meaningful appellate review.

The inadequacy of the reasons constitutes an error in law requiring an order directing a new hearing.

 

  1. The Manitoba Court of Appeal also gave a lengthy analysis on the adequacy of reasons in Guttman v. Law Society of Manitoba when setting aside a decision:

 

68 In light of the absence of any apparent rationale for the rejection, however, I am

satisfied that the reasoning process followed by the Committee falls short of the

required standard. Thus, deference is not owed to the decision and intervention is permissible.

 

  1. In Walsh v. Council for Licensed Practical Nurses, the Court of Appeal of Newfoundland and Labrador held that the reasons given by the committee were inadequate because they did not identify a relevant provision in either the Standards of Practice or the Code of Ethics that had been breached. Moreover, no actual written Standards of Practice or Code of Ethics were entered into evidence. It was not sufficient for the committee to merely state that the Standards or Code had been breached without giving reference to a specific provision which would guide members in deciding whether or not an incident needed to be reported. In Burke v. Newfoundland and Labrador Assn. of Public and Private Employees, the Court of Appeal of Newfoundland and Labrador reiterated the importance that reasons must not merely state conclusions.

 

Effect of Tribunals’ Failure or Neglect to Issue Any Reasons: Quashing or Set Aside Decisions

 

  1. The Chief Justice commented that the municipality acted in an arbitrary manner and straddled the boundary separating good from bad faith in Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48 in failing to issue reasons.  In refusing to justify its decision to deny the second and third applications for zoning variances, the Municipality breached the duty of procedural fairness it owed to the Congregation — a duty heightened by the expectations established by the Municipality’s own conduct and the importance of the decision to the Congregation, impacting as it did on the right of the Congregation to practise the religion of its choice.  The Municipality acted in a manner that was arbitrary and straddled the boundary separating good from bad faith.  It followed that the second and third refusals do not comply with the law and must be set aside.

 

  1. The adequacy of disciplinary tribunal reasons was recently addressed by the Divisional Court inKalin v. Ontario College of Teachers (2005), 2005 CanLII 18286 (ON SCDC), 

[60] For a Tribunal such as this one, on issues of the importance involved here, the failure to provide meaningful reasons supporting its decision is itself a breach of the principles of natural justice that will warrant quashing the Tribunal’s decision: Baker, supra; Megens v. Ontario Racing Commission, supra.

  1. A breach of the rules of procedural justice is a sufficient ground, standing alone, to quash the decision (Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670 at para. 22).

 

  1. The Discipline Committee erred in law by failing to state any reasons for its costs award (see: Provincial Dental Board of Nova Scotia v. Dr. Clive Creager, 2005 NSCA 9).

 

  1. A costs award is about real money for a real person. There was not a hint of recognition of this reality in the Commission's costs reasons. The process followed by the Commission and its reasons were unfair to D (see: Donnini v. Ontario Securities Commission, 2005 CanLII 1622 (ONCA)). Similarly, the inability to continue livelihood is a real one for a member. A suspension is a real issue for a member as the consequences are permanent for one’s client base and reputation.

 

Issue: Even if deference were shown to the decision, which it would not be, what would be the result?

 

  1. The result would be the same as the Limitless Seizure Order would be set aside. The decision would still fail on the test under the standard of reasonableness as there are no lines of analysis (see: Tsimidis v. Certified General Accountants of Ontario, 2014 ONSC 4236; Dunsmuir). Therefore, with standard of review being correctness, this “order” by the ADM is incorrect and must be set aside. In the absence of reasons setting out what the Tribunal's decision-making process was, the Tribunal's decision cannot be said to be "justified" or "transparent" or "intelligible". It is incumbent on the Tribunal, particularly in a case of this nature, to articulate its reasons so that the parties will know the basis upon which the case was decided and the reviewing court can determine whether the decision is a "reasonable" one. The reasons in this case do not enable that process to be carried out. Accordingly, the decision is not a "reasonable one" and is also not in accordance with principles of natural justice and procedural fairness (see: Dunsmuir, supra).

 

  1. However, even on the most favourable process to the LSBC, the Limitless Seizure Order would still be unreasonable. Since there are no Reasons, there are no lines of analysis so the Limitless Seizure Order is set aside, quashed, void, invalidity, incorrect, unreasonable et al (any legal term is applicable regarding its inevitably being set aside). It is unsupportable by any line of reasoning. Without the benefit of the ADM’s reasoning about how it employed its expertise to interpret its home statute, it is impossible to determine whether its decision was reasonable (see: Macdonald v. Mineral Springs Hospital, 2008 ABCA 273).

 

  1. Reasonableness is concerned with "the existence of justification, transparency and intelligibility within the decision-making process . . . [and] with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law". Ultimately, it is unnecessary here to decide whether the principles inSheppard have perfect application to the reasons given by disciplinary tribunals. The reasoning in Neinstein is highly persuasive. That being said, on the most deferential approach that could possibly be taken on the existing jurisprudence to the adequacy of a disciplinary tribunal’s reasons, the reasons under consideration here cannot stand. If the decision is unreasonable, then it is necessarily incorrect. It follows that the Limitless Seizure Order is unlawful.

 

DUTY OF PROCEDURAL FAIRNESS, CONFLICT OF INTERST AND LACK OF INDEPENDENCE

 

Issue: Did the ADM breach the duty of procedural fairness?

 

  1. The SCC in Knight set the legal test out as follows:
  2. Administrative powers vs. legislative: administrative powers attract procedural fairness where legislative do not;
    1. As pleaded by the LSBC, this was an order granted by an administrative decision maker qualifiedly protected under s. 56 of the ATA;
  3. Final decisions attract procedural fairness;
    1. This was a final decision in this Limitless Seizure Proceeding where the member was not able to review on the record, appeal to the Court of Appeal. This is the penultimate final decision apparently subject to judicial review according to the ADM;
  • Exercises of power pursuant to statue attract procedural fairness;
    1. The LSBC has submitted that the ADM exercised his power under the statute;
  1. Orders and decisions affecting individual’s rights attract procedural fairness; and
    1. This Limitless Seizure Order affected the member’s Charter rights, rights to procedural fairness and natural justice rights.

 

  1. These criteria are met and procedural fairness is triggered. The only issue is how many various heads area of procedural fairness did the Respondent breach.

 

  1. In refusing to justify its decisions, the Municipality breached its duty of procedural fairness (see: Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48). The ADM refused to justify his decision. The Limitless Seizure Order lacks “fairness to the parties” and “justification, transparency and intelligibility”:Baker at para 43 and Dunsmuir.

 

  1. The ADM admitted under oath that his Limitless Seizure Order was subject to the JRPA. It is his belief that his decision would be subject to the JRPA militates strongly in favour that he was required to issue Reasons for his Limitless Seizure Order. Certainly if an ADM believes that his decision is subject to the JRPA, then he should not only order the Reasons but the underlying materials. If ADM’s believe they are subject to judicial review but then do not deliver Reasons for their decisions, their decision could never be challenged. In the context of Draconian remedies such limitless seizures, it would mean that persons would not be able to challenge any decisions so the only choices are to consent to the excessive search and seizure or lose their livelihood. This can hardly be seen as voluntary. The unique factor in this case is that the Petitioner needs to make a decision about whether to consent in literally seconds; the most time pressured scenario. If the Petitioner does not comply immediately and wished to consider a judicial review, he or she loves their livelihood. In the circumstances, Reasons should be required so the member can determine if she is going to file a Petition for judicial review and seek injunctive relief. However, even a member does that, he or she is still suspended. Further, there must be some time to consult counsel; the indication that one should seek counsel when investigators at one’s office when immediate cooperation is required is not sufficient and highly unfair.

 

  1. Further, the ongoing duty of procedural fairness should require that that the Petitioner be provided with materials that he so requested like when he sought the particulars, bases and reasons for the Limitless Seizure Order on June 3, and 10, 2014. The LSBC deliberately withheld the bases for the Limitless Seizure Order. The Petitioner respectfully submits that this Honourable Court should make an order as such that a regulatory body is required to provide the bases when are they are so requested by a member.

 

  1. The jurisprudence is clear that if fact finding and credibility are central issues, fairness requires those issues to be examined at an oral hearing even if the procedure before the administrative decision maker does not specifically require an oral haring (see: Khan v. University of Ottawa, 1997 CanLII 941 (O.N.C.A.). They failure to even hold an informal hearing with such a Draconian order renders the Limitless Seizure Order

 

Issue: Was the ADM not independent? Was the ADM not impartial?

 

  1. A central component of the duty of fairness requires tribunal members to discharge their adjudicative functions with independence and impartiality. The latter embraces concepts of biasand reasonable apprehension of bias (see: Judicial Review of Administrative Action in Canadasupra, p. 11-1) This principle is grounded in the need to ensure that statutory decisions makers base their decisions on the evidence adduced and applicable law, and are not subject to improper influences, considerations or predispositions. The decision-maker must not only be neutral, but must be seen to be neutral (see: Demaria v Law Society of Saskatchewan, 2013 SKQB 178). Independence and impartiality both derive from the rule against bias but they are not the same.  Independence refers to a status or a relationship to others, here the solicitor-client relationship between Mark Bussanich-Philip Riddell while impartiality refers to the ADM’s state of mind. A solicitor-client relationship is the quintessential dependent relationship. Further, it is a case of advice being given that is partial and beneficial to that client.

 

  1. In Golden Valley Golf Course Ltd. v. British Columbia, 2001 BCCA 392 at paragraphs 43 and 44:

 

The Court found, however, that the lawyer was disqualified because of the fact that "unknown to the appellant, the confidential and mutually beneficial relationship of solicitor and client existed at all relevant times" between him and the Ministry.

The question is only whether a reasonable apprehension of bias arises.  The law draws a strict line in favour of procedural fairness even where the decision is one of an administrative tribunal as opposed to a court of law.

  1. This is a full answer to the Respondent’s position that this is not a “court proceeding”. Procedural fairness cannot exist if an adjudicator is biased and the decision must be set aside. It is clear that when the rules of procedural fairness are infringed, a new hearing is generally thought to be required without regard to whether the impugned decision is right or wrong; the original order is void (see: Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities),1992 CanLII 84 (S.C.C.).

 

  1. Pearlman v. Manitoba Law Society Judicial Committee1991 CanLII 26 (SCC), [1991] 2 S.C.R. 869, where Iacobucci J. for the Court recalled and approved the following formulation advanced in  Boniface Residents' Association Inc. v. Winnipeg (City) 1990 CanLII 31 (SCC), [1990] 3 S.C.R. 1170:

Would a reasonably well-informed person consider that the interest might have an influence on the exercise of the official's public duty? If that duty is to hear and decide, the test is expressed in terms of a reasonable apprehension of bias

 

  1. The same test applies to administrative bodies as it is the duty of administrative boards, and in particular those which are adjudicative in nature, to provide procedural fairness, an essential ingredient of which is that the board be free of a reasonable apprehension of bias. The most recent articulation of this concept is found inNewfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities) (1992), 1992 CanLII 84 (SCC) where Cory J. stated the following at pp. 297-299:

 Although the duty of fairness applies to all administrative bodies, the extent of that duty will depend upon the nature and the function of the particular tribunal: see Martineau v. Matsqui Institution (Disciplinary Board) (1979)….The duty to act fairly includes the duty to provide procedural fairness to the parties. That simply cannot exist if an adjudicator is biased. It is, of course, impossible to determine the precise state of mind of an adjudicator who has made an administrative board decision. As a result, the courts have taken the position that an unbiased appearance is, in itself, an essential component of procedural fairness. To ensure fairness the conduct of members of administrative tribunals has been measured against a standard of reasonable apprehension of bias. The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator.

It can be seen that there is a great diversity of administrative boards. Those that are primarily adjudicative in their functions will be expected to comply with the standard applicable to courts. That is to say that the conduct of the members of the Board should be such that there could be no reasonable apprehension of bias with regard to their decision.

  1. The Applicant, Mark Bussanich for the LSBC, provided legal advice in the form a “PRIVILEGED AND CONFIDENTIAL LEGAL OPINION” to his client, the ADM, and did not point any defences available to the member (opposing party). It is trite that the only type of privilege that applies is solicitor-client privilege in this situation as noted in the Respondent’s List of Documents in the underlying Action. Therefore, this is the obscenest conflict of interest which is entirely unlawful and requires the Limitless Seizure Order to be set aside.

 

  1. The distinguishing factor in this case is that the application itself is “privileged” and there was an existing “solicitor-client” relationship at the time of application and granting of the Limitless Seizure Order. This type of relationship is the antithesis of independence.

 

  1. He was not counsel before the Chair of the Discipline Committee; rather he was counsel to the Chair of the Discipline Committee. This is the antithesis of independence and impartiality. The ADM was biased. This is counter to any appearance of neutrality. This raises a reasonable apprehension of bias. In the circumstances, this Honourable Court is required to declare that the Limitless Seizure Order is void without regard to whether it is right or wrong.

 

 

principles of Natural Justice

 

Issue: Were the Petitioner’s natural justice rights breached? When they are breached, what is the Honourable Court required to do?

 

  1. Cartwright J recognizes that in some cases, administrative tribunals, when they act in a quasi-judicial capacity, they have to abide by principles of natural justice (see: Roncarelli v. Duplessis). A quasi-judicial tribunal must act honestly, impartially and in accordance with the essence of justice. It is settled law that these requirements, fundamental to courts, apply also to administrative tribunals, the more so as they move along the spectrum from primarily executive functions toward judicial functions:Bell Canada v. Canadian Telephone Employees Association, 2003 SCC 36 at paras. 21-2.  

 

  1. The right to a fair hearing is an “independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have.” (at p. 661) The court does not speculate as to how things may have unfolded if the decision-maker had complied with its duty of procedural fairness:Clayre v. Association of Professional Engineers, Geologists and Geophysicists of Alberta, [2005] A.J. No. 118 at para. 11 (C.A.), citing Newfoundland Telephone Company v. Newfoundland (Board of Commissioners of Public Utilities) (1992), 1992 CanLII 84 (SCC), 4 Admin L.R. (2d) 121 (S.C.C.); and Wong v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia, [2005] B.C.J. No. 2219. Le Dain J. for the Court in the landmark case of Cardinal v. Director of Kent Institutionsupra, at 660-1 explained:

 

“... Certainly a failure to afford a fair hearing, which is the very essence of the duty to act fairly, can never of itself be regarded as not of ‘sufficient substance’ unless it be because of its perceived effect on the result or, in other words, the actual prejudice caused by it. If this be a correct view of the implications of the approach of the majority of the British Columbia Court of Appeal to the issue of procedural fairness in this case, I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision.

 

  1. The merging of the various functions of investigation, decision to hold an inquiry and adjudication by the participation of the three panel members in all phases raised a reasonable apprehension of bias resulting in a loss of jurisdiction (see: Gardner v. Ontario Civilian Commission on Police Services, 2004 CanLII 2540). Bennett v. British Columbia (Securities Commission) (1992), 1992 CanLII 1527 (B.C. C.A.), “we wish to add one further observation and that is as to the target of a bias allegation.  Bias is an attitude in mind unique to an individual.  An allegation of bias must be directed against a particular individual alleged, because of the circumstances, to be unable to bring an impartial mind to bear.”

 

  1. The granting of a Limitless Seizure Order by informal email between a solicitor-client with no transcript, no evidence under oath, and no minutes is the definition of an “unfair hearing”. To further deny the Petitioner member, the LSBC refused to provide him with any of the underlying materials when serving him such an order despite a request for the same. The obscene unfairness of the Limitless Seizure Order Proceeding can be demonstrated by comparative chart analysis in relation to the fairness of the Limitless Seizure Order Proceeding versus a court application under section 37 of the Legal Profession Act.

 

  1. He was not counsel before the Chair of the Discipline Committee; rather he was counsel to the Chair of the Discipline Committee. This is the antithesis of independence and impartiality. The ADM was biased. This is counter to any appearance of neutrality. This raises a reasonable apprehension of bias. In the circumstances, this Honourable Court is required to declare that the Limitless Seizure Order is void without regard to whether it is right or wrong.

 

What Procedural Protections should members of regulators be afforded in similar circumstances?

 

  1. Since the test in Knight has been met, this Honourable Court must determine what procedural protections are afforded to members of the LSBC and other members in other societies in analogous situations. The Petitioner says that when a regulator pleads that this is a fair alternative to the court process, then the administrative process should mirror that process with respect to those procedural safeguards below:

 

Analysis

Court Application under s. 37 of the LPA

Application for LSO under Rule 4-43 of LSBC Rules

Conclusion

Initiating document and required documents

Notice of Civil Claim, then Notice of Application with supporting

No initiating documents, then a  “Privileged and Confidential “Opinion”

The Limitless Seizure Order proceeding operates in secrecy where the administrative decision maker is a client of the applicant.

Evidence under Oath

Yes

No

Section 37 of the LPA requires evidence under oath for seizure of “other records”

Hearing

Yes

No

The absence of any informal or formal hearing avoids the “checks and balances”

Location

Supreme Court

Anywhere the decision maker feels

The absence of a location makes it further unfair to the member

Transcript

Yes

No

The absence of a transcript makes it further difficult to determine for the member or regulate to determine how the decision was reached

Under Power of Dictation

No

Yes

The ADM  is not acting as an independent arbiter of the application but rather as a client of his lawyer

Solicitor-client relationship between applicant and decision maker

No

Yes

The ADM is not acting as an independent arbiter of the application but rather as a client of his lawyer. This is a ground that requires that a justice of the Supreme Court set aside the order. 

PD 31 Model Order Adopted by LSBC followed

Yes

No

The LSBC adopts a Model Order for court applications but uses a one pager for regulatory proceedings. It is a sign of subverting the court process at the detriment of the member.

Limits on Order

Yes

None (There are no words of limitation)

The Limitless Seizure Order served on the member under the penalty of loss of livelihood.

Reasons

Yes (see: jurisprudence)

No

There are none and there is nothing to review. 

Ex parte

Determined by judge

Always

Mark Bosnich fails in those requirements in full, frank and fastidious disclosure. This all against the backdrop of him being a senior lawyer. His mentioning of driving offences has absolutely nothing to do with trust accounting. It is indicator of malice.

Without notice

Determined by judge: could be with regular notice or shorter notice

Always

The member has no opportunity to defend himself or herself against the most penal and intrusive orders.

Affidavit material

Yes

Never

These are further breaches of the common law and their duties of procedural fairness.

Independent Supervising Solicitor

Always

No

These are further breaches of the common law and their duties of procedural fairness.

Officer of the Court attends for seizure

Always

No lawyers but accountants and investigators

These are further breaches of the common law and their duties of procedural fairness.

Underlying materials

Always (NOCC, NOA, Affidavits)

Never as admitted by the ADM  in discovery

These are further breaches of the common law and their duties of procedural fairness. It makes it impossible for the member to determine whether to consent. Further, it makes it impossible for the court to engage in any type of review. It removes the courts from the process. It is by design and intent.

ISS safeguarding solicitor-client privilege

YES

No

These are further breaches of the common law and their duties of procedural fairness.

Two hour period to consult counsel

Yes

No

These are further breaches of the common law and their duties of procedural fairness. The member cannot conceivably seek proper legal advice in this area without underlying materials, Reasons, et al without a two-hour period to do so.

The requirements for a voluntary consent: (i) the individual must be advised of his right to refuse or withdraw his consent at any time; (ii) the individual must be made aware of the consequences of his consent to the search; and (iii) the individual must be informed of his right to counsel in order to have explained to him the consequences of his consent to the search: Borden at 162.

Two hour period to consult to gather privileged document

Yes

No

These are further breaches of the common law and their duties of procedural fairness.

List making requirement

Yes

No

These are further breaches of the common law and their duties of procedural fairness.

Independent consultant holding of documents

Yes

Consultant may or may not be independent

These are further breaches of the common law and their duties of procedural fairness.

Evidence only use for the purposes of that action or investigation

Yes

No, as Mr. Gomery stated that they can used for future purposes which are not relevant at the time of execution of the Limitless Seizure Order.

These are further breaches of the common law and their duties of procedural fairness.

Right to vary or discharge it

Yes

No

This makes it a final order where Knight requires certain procedural rights afforded to the member.

Apply for posting of security

Yes

No

This is another example of further unfairness and the economics.

Ability to have it reviewed or appealed

Yes, one has that right.

No

Section 47 allows a right of review of a “panel”. The ADM in this case is not a Panel.

Section 48 allows an “appeal” of a Review Board. The ADM is not a “review board”.

Ability to seek directions

Yes

No

This a further act by the LSBC of oppressing the member so there is no ability but consent or lose one’s career.

Judicial Review

N/A

No

The ADM  admits that his Limitless Seizure

Search without consent

 

No

Despite not having consent, the LSBC investigators commenced a search.

Seizure without consent

 

No

Despite not having consent, the LSBC investigators seized objects and documents.

 

Prohibition against Inconsistent Pleas  

 

  1. In Halagen v. Reiffel (25 November 1997) Vancouver C940538 (B.C.S.C.) [“Reiffel”], Satanove J. said about the decision in Vanmills “In my own less eloquent words, neither pleadings nor any other of the court processes are a game to be played according to what appears to be a strategic advantage at the time. The court expects a party to take a position which is consistent with its evidence and to maintain that position in its dealings with the court. In other words, saying something to one judge and saying the opposite of another will not be countenanced.”

 

  1. Therefore, the position that the Respondent has taken that the Limitless Seizure Order Proceeding is a “fair alternative” to a court application under s. 37 of the Legal Profession Act is its position. This Honourable Court’s role is determining how fair the Limitless Seizure Proceeding is to a court application under s. 37 of the LPA that seeks such relief. That is the context in which procedural fairness, natural justice, independence, impartiality, independence, bias, lawfulness, vires and constitutional rights are analyzed.

 

Injunctive Relief

 

  1. The Petitioner relies on the test in RJR MacDonald for an interim injunction restraining the LSBC from using the Limitless Seizure Order. David McCartney and other investigators have been surveilling the Petitioner and reporting him to various members of law enforcement regarding an alleged “fraud investigation” which the Respondent pleads he was involved in relation to the Limitless Seizure Order. The Petitioner says the allegation is without merit but the balance of convenience tips in the Petitioner’s favour to have the assurance that the Respondent is no longer using such an order post practice of law.

 

Disjunctive Grounds to Set Aside/Quash or Void the Limitless Seizure Order

 

  1. The Petitioner has submitted a litany of cases where quashing or setting aside of various decisions were found in our province. Further cases of note are as follows: Teachers Act Commissioner, 2013 BCSC 1699; Longstaff v. British Columbia (Superintendent of Motor Vehicles), 2013 BCSC 1594; and Quinco Financial Inc. v. British Columbia, 2013 BCSC 1549.

 

  1. The disjunctive and independent grounds to quash the Limitless Seizure Order are as follows:

 

  1. Mark Bussanich fails to make full, frank disclosure and present both sides of the argument to his client ADM (see: J. v. S.D.;);
  2. Limitless Seizure Order absent Reasons (see: Baker; Vancouver International Airport Authority; Regal Ideas et al);
  3. ADM’s losing jurisdiction by failing to issue written reasons (see: Boyle);
  4. ADM’s acting under the principle of dictation of his lawyer Mark Bussanich (see: Spackman and Roncarelli);
  5. Denial of a right to a fair hearing to the member (see: Cardinal);
  6. Ex Parte proceedings may only be conducted if there is a clear grant to do so (see: Kane)
  7. Conflicts of interests and lack of independence (see: Golden Valley)
  8. Breaches of procedural fairness (see: Knight; and Cardinal)
  9. Breaches of natural justice rights (see: Newfoundland Telephone Co.)
  10. Reasonable Apprehension of Bias (see: Newfoundland Telephone Co.)
  11. Failure to follow the Model Order PD 31 the LSBC and the JPRA (see: Dollar Tile and Model Order PD 31);
  12. The basis for the Limitless Seizure Order is predicated on false premises under the LSBC Forensic Copy Paper (see: Gardner, Bishop and Branch).
  13. Breach of LSBC Rules in failing to deliver the complaint (see: LSBC Rule 3-5 (3) at is then was); and
  14. Breach of LSBC Rules in proceeding with a search and seizure despite only recourse being suspension (see: LSBC Rule 3-5.01).

 

Vires

 

  1. Ultra vires: without authority or, literally, beyond powers. A decision which is beyond the powers or authority of the person or organization which took it. Regulations too may be ultra vires the statute they are made under. The opposite is intra vires, within lawful authority. The consequence of a finding of ultra vires is invalidity of the acts taken pursuant to the very ultra vires orders and regulations.

 

  1. It is trite law that an administrative tribunal, such as the Discipline Committee, is without inherent powers. SeeAttorney General of Canada v. Inuit Tapirisat of Canada et al., 1980 CanLII 21 (SCC), [1980] 2 S.C.R. 735, at p. 752

"Misuse of discretionary power" and "exceeding the purposes of the act" are two ways of phrasing tests which allow courts to scrutinize by-laws. Another way of phrasing the issue is found in Amalgamated Society of Railway Servants v. Osborne, [1910] A.C. 87 (H.L.), quoted in Shaw v. Real Estate Board of Greater Vancouver (1974), 48 D.L.R. (3d) 404, 17 C.P.R. (2d) 45, [1974] 5 W.W.R. 193 (B.C.S.C.), where Lord Macnaghten said, at p. 97:

"... if a controversy arises as to whether a particular rule is ultra vires, the question must be, 'Does the rule merely provide a method of conducting business, or is it a rule making the society a thing different from that which is specified in the Act and meant by the Act?'

 

  1. The Supreme Court of Canada in v. Greenbaum, 1993 CanLII 166 (SCC), [1993] 1 S.C.R. 674, 100 D.L.R. (4th) 183, Iacobucci J., for the court, stated at p. 687:

 

Courts must be vigilant, however, in ensuring that municipalities do not impinge upon the civil or common law rights of citizens in passing ultra vires by‑laws.

  1. This not just an exceeding the purposes of the Legal Profession Act but circumventing the requirements under s. 37 by using words like “other records” verbatim to empower the Executive Director with a limitless scope of compelling a seizure of not just “books, records, and accounts” but taking that perfect forensic copy of all of the member’s personal, privileged and confidential documents; specifically, “other records”. This is perhaps just another way of saying that courts will not inquire into the reasonableness of by-laws made within the jurisdiction of the society or association. While the concept of what is meant by "jurisdiction" is sometimes nebulous, there are some cases where excesses of jurisdiction are obvious. This is one of those cases with such a seizure. The LSBC has attempted to argue that Gardner is no longer applicable. The Respondent has argued that the Interpretation Act has a very expansive definition of “record”. However, the Interpretation Act was identical then and now.

Ancillary powers

INTERPRETATION ACT, [RSBC 1979] CHAPTER 206

 

(29) (7) Where in an enactment power is given to a person to inspect or to require the production of records, the power includes power to make copies or extracts of the records.

Expressions defined

 

"record" includes books, documents, maps, drawings, photographs, letters, vouchers, papers and any other thing on which information is recorded or stored by any means whether graphic, electronic, mechanical or otherwise;

 

INTERPRETATION ACT, [RSBC 1996] CHAPTER 238

Ancillary powers

 

29 (7) If in an enactment power is given to a person to inspect or to require the production of records, the power includes the power to make copies or extracts of the records.

 

Expressions defined

 

"record" includes books, documents, maps, drawings, photographs, letters, vouchers, papers and any other thing on which information is recorded or stored by any means whether graphic, electronic, mechanical or otherwise;

  1. The position of the LSBC cannot be that a change in legislation meant that it could seize personal and privileged documents or the member is suspended indefinitely.

 

Analysis

1987 Act, s. 41(b)

1998 Act, s. 36(b)

Conclusion

Applicant

Discipline Committee: LSBC

LSBC

Same

Process

Investigation

Investigation

Same

Member Issue

Conduct or competence

Conduct or competence

Same

Authority

Order production

Authorization: investigation

Old Act: more power to LSBC and more intrusive of the member

Documents

Files or Other Records

books, records & accounts

Old Act: more power to LSBC

Scope

Lawyer’s Practice

Lawyer’s practice

Same

Notice

Yes

Yes

Same

Evidence

None

Reasonable Belief

Old Act gave LSBC more power and less rights to the member; New Act: more requirements to grant order

Location

Lawyer’s office

Lawyer’s office

Same

Entry of office without consent

No

No

Same

Remedy for member refusal

Suspension

Suspension

Same

Order

Discipline Committee has unilateral power to authorize and order (no reasonable belief required)

Chair of Discipline Committee can only grant the Order upon reasonable belief

Old Act: more power to LSBC and less rights to member; New Act: more requirements to obtain order

 

 

 

Analysis

1987 Act, s. 40

1998 Act, s. 37

Conclusion

Applicant

Discipline Committee

LSBC

Same

Process

Search and Seizure

Search and Seizure

Same

Member Issue

Contravened Act or misconduct

Contravened Act or misconduct

Same

Authority

Application and court order

Application and court order

Same

Documents

the files or other records of or relating to a lawyer

the files or other records of or relating to a lawyer

Same

Scope

Limitless

Limitless

Same

Notice

Ex-parte or court ordered notice

Ex-parte or court ordered notice

Same

Evidence

Reasonable Grounds on affidavit evidence

Seizure will produce relevant evidence

Reasonable Grounds on affidavit evidence

Seizure will produce relevant evidence

Same

Entry of office without consent

Yes

Yes

Same

Remedy for member refusal

Contempt of court but seizure could occur in any event

Contempt of court but seizure could occur in any event

Same

 

 

  1. The Supreme Court of Canada Branch recognized the distinction between personal and business at paragraph 62:

As our final point, we note the distinction between business records and personal papers.  We are of the view that in order to determine the relative privacy rights that attach, the type of document at issue is important. Documents produced in the course of a business which is regulated have a lesser privacy right attaching to them than do documents that are, strictly speaking, personal.  Again, the words of La Forest J. in Thomson Newspapers, at pp. 517-18, are helpful:

 

                  While such records are not devoid of any privacy interest, it is fair to say that they raise much weaker privacy concerns than personal papers. The ultimate justification for a constitutional guarantee of the right to privacy is our belief, consistent with so many of our legal and political traditions, that it is for the individual to determine the manner in which he or she will order his or her private life.

 

Charter

 

  1. The Charter states at s. 8:

Search or seizure

Section 8: Everyone has the right to be secure against unreasonable search or seizure.

 

  1. The certified transcript of the hearing of March 30, 2015 is of import to this hearing of the Petition:

 

  1. GOMERY: To the notion that the lawyer could examine,

could authorize the production but couldn't copy

is not a sensible reading of the statutory intent,

in my respectful submission, that taking copies is

simply an ordinary and natural part of an

examination. In fact, the examining of books,

records and accounts in this day and age, the

alternative would be that what the statute is

authorizing is that the investigators may go in,

they may look, they may require him to show, but

they may not actually take a photocopy. They may

not actually make a record of what they're being

shown. In my submission that is not a sensible

reading of the statute.

 

THE COURT: But I thought the issue here is whether or

not they are entitled under this section 36 to

make a rule which allows them to go in and search

and seize documents on the site with -- I mean,

this rule says that it's requiring a lawyer to

cooperate with an investigation or examination on

request. There's nothing in here which -- wait

just a moment.

 

  1. GOMERY: I understand.

 

THE COURT: Which on a plain reading -- and if you're

asking me to plainly read -- that allows a search

and seizure of material in --

 

  1. GOMERY: Yes.

 

THE COURT: -- without consent or on request,

presumably, and then you get your consent. But

that's what the argument is, is that -- not that

they -- I mean, if there was an investigation

where they had permitted you to come in and

permitted the investigation to go on, of course,

you know, it makes sense that you could copy the

documents in that context. What Mr. McLean is

actually complaining of is that the rule that

your client relied on, that took -- allowed them

to go further than that. It allowed them to go in

and search and seize without an order under

section 37, and that's the issue, is whether or

not that constitutionality of that rule is made

out.

 

  1. What Gardner said remains in that the power delegated under the LSBC Rules cannot be read to take away the requirement of the LPA to obtain court order when you are seizing things of a personal nature, and clearly, going beyond the scope of “trust accounting issues” with the Kevin A. McLean Law Corporation; not the Petitioner.

 

  1. Mactavish J. summarized those criteria as follows in Canada (Minister of Citizenship and Immigration) v. Jaballah, 2009 FC 33 (CanLII), 187 C.R.R. (2d) 103, at paragraph 76:

 

 

(i) there was a consent, express or implied;

(ii) the giver of the consent had the authority to give the consent in question;

(iii) the consent was voluntary … and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;

(iv) the giver of the consent was aware of the nature of the conduct to which he or she was being asked to consent;

(v) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and,

(vi) the giver of the consent was aware of the potential consequences of giving the consent. (Wills at para. 69)

 

  1. Where the test mentions “police” or “police conduct,” the words “school authority” or “conduct of school authority” may be substituted (see: Simon Gillies et al v. Toronto District School Board, 2015 ONSC 1038). The flaw in the LSBC’s argument regarding “analytical unsoundness” in its Application Response that the LSBC must meet the test for informed consent in the first place. Simply put, you are required to meet the test in seeking permission as opposed to begging for forgiveness after the breach. Further, once a seizure has taken place, the analysis is then focused on the unreasonableness of the seizure. When a record or object is taken without the prior consent of the member, it is an illegal seizure. When a search is conducted without the prior consent of the member, it is an illegal search.

 

  1. The cases of Cole (search of an employer-issued computer used for personal purposes), v. Blinch (1993), 31 B.C.A.C. 131 (search of a home where a neighbour had a key and a co-owner’s permission to let police in) and R. v. Edwards, [1999] CarswellOnt 3233 (ONSCJ) (search of an inner garage by building superintendent who’d “loaned” the accused her parking spot) stand for that proposition that a third party cannot waive the Charter rights of a Canadian citizen.

 

  1. When he would apply for reinstatement, they would attempt to use those documents against him. Again, the LSBC failed, neglected or omitted to inform him of any of these consequences. As such, the Plaintiff could not have given an informed consent. This is yet another ground by which the Limitless Seizure Order can be quashed.

 

  1. Computers and cell phones that are used for personal purposes, regardless of where they are found or to whom they belong, “contain the details of our financial, medical, and personal situations” (see: Morelli, at para. 105). This is particularly the case where, as here, the computer is used to browse the internet, store personal data, personal emails, information not related to law, and a cyber-storage system that has been uploaded onto the desktop without password protection (see: Morelli).  Internet-connected devices “reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet” (see: Morelli). This sort of private information falls at the very heart of the “biographical core” protected by 8 of the Charter. For example, if the thing searched or seized contains personal and private information, such as medical records, love letters or income tax returns (all of which have often been called “core biographical data”), that particular item might be afforded greater protection than, say, a criminal record check.  

 

  1. However, they both give the seizing party the power to seize documents. Whether it is called “investigative” or “examination”, the forced compliance upon a member of requiring a regulator to forensically copy a computer hard drive at an office and personal residence, and personal cell phone is a seizure. Whether there is a search of that computer in the undisclosed location by a “consultant” is a matter for discovery once the names of those individuals and persons are provided to the Petitioner.

 

  1. As stated in the LSBC Forensic Seizure Paper, “Forensic copying makes a bit-stream image of a hard drive, resulting in a perfect copy of the record.”

 

  1. Therefore, the variety of ways that this Honourable Court is entitled to find that the Petitioner’s Charter rights were breached;

       

  1. The search was not authorized by a statute;
  2. The seizure was not authorized by a statute;
  3. The search or seizure was presumptively unreasonable and the Impugned Rules violate sections 7, 8, 9, 10, and 13
    1. it is not reasonable on its face and the requirement is that the statute must be reasonable on its face;
  4. the Impugned Rules violates s. 7 as they affect a member’s liberty;
    1. they are vague; and
    2. they are overbroad.

 

  1. The Supreme Court of Canada in Dyment at paragraph 26:

 

It should be observed, however, that s. 8 of the Charter does not protect only against searches, or against seizures made in connection with searches. It protects against searches or seizures. As Errico Co. Ct. J. put it in Milton v. The Queen (1985), 16 C.R.R. 215, at p. 226: "The words are used disjunctively and although in instances it is a search and seizure that will be under scrutiny as was the situation in Southam, the Charter is worded so that a seizure simpliciter could offend against the section."

 

  1. In this case, this is, at the very least, a limitless seizure. Based on the foregoing, it is clearly an unreasonable seizure within the meaning of s. 8 of the Charter.

 

Respondent’s PositionS IN ITS FILED RESPONSE TO PETITION

 

Petitioner’s Reply to Response to Petition

 

  1. The Respondent’s position is predicated upon misstatement of facts, inconsistent positions, and misstatements of law. The Petitioner tracks the sequence of the Response to Petition and provides the below in reply.

 

Language used by creators of the Impugned Rules

 

  1. The Petitioner did not say that the seizure is limitless but rather the authors of LSBC Forensic Paper, creators of the Impugned Rules and the execution of the Limitless Seizure Order stated the following, inter alia, in relation the regulatory adjudicative process having the following characteristics:

 

  1. There are no words of limitation contained in Rule 4-43;
  2. As stated on page three, part two, paragraph two of the LSBC Forensic Copy Paper, “The act of making a forensic copy of a hard drive takes a snapshot of all of the information on the hard drive at a point in time; and
  3. Some of the information captured in the forensic copy will be critical to the Law Society investigation, but other information will not.

 

Respondent’s Bound by Pleading: Rule 4-43 Order as Fair and Economical Alternative to S. 37 of Legal Profession Act.

 

  1. As pleaded by the Respondent in the Amended Response to Civil Claim, “The LSBC chose to conduct its investigation under the Law Society Rules through the Rule 4-43 order as a fair, effective, and economical alternative to a court application under s. 37 of the Legal Profession Act or otherwise.” The Rule 4-43 Order is an apparent alternative to an adjudicative process; not an investigatory process. The Petitioner has never agreed or represented that it is a fair alternative to a court application under s. 37 of the Legal Profession Act but that is the Respondent’s pleading and it is bound by it. As a point of law, it is not entitled to now resile or change it position (see: Reiffel, supra). It is now for this Honourable Court to determine whether the Limitless Seizure Order Proceeding is a “fair alternative” to a court proceeding that proceeds under s. 37 of the Legal Profession Act.

 

Respondent Admits the Limitless Seizure Order highly distinguishable and more intrusive than the criminal search warrant process

 

  1. In an application filed by Respondent on February 3, 2015 under S-1410056:

 

The following points are not in dispute:

  • The Law Society is subject to the Charter by virtue of Charter, s 32;
  • the provision made under the Law Society Rules including Rule 4-43 for the investigation of member records is different than the provision made, under the Criminal Code, for the issuance of a search warrant.

The application of the Charter in the context of a well regulated activity, such as the practice of law, is different than it is in the criminal context. A reasonable regulatory scheme giving rise to civil consequences may be substantially more intrusive than would be justified in a criminal context.  

  1. 7 Engaged: Respondent continued attempts to execute the Limitless Seizure Order

 

  1. The LSBC pleaded that the Petitioner was engaged in transactions that in aid of fraud (see: Amended Response to Civil Claim in S-1410056, page 4, paragraph 10(a)). There were two investigators at the Respondent during the material times to this proceeding. On June 2, 2014, the Respondent restrained Lawrence Dirk from further investigating the Petitioner due to an allegation of criminal assault and battery and the Petitioner filing a police complaint in that regard. David McCartney remained the sole investigator of Petitioner thereafter and till present.

 

  1. The Petitioner steadfastly denies that he was engaged in any such transactions and says that the pleading is scandalous and false. However, on multiple occasions in the fall of 2016, the Respondent, through its investigative Branch with David McCartney leading the way, attempted to execute the Limitless Seizure Order by showing up at suspected places of residence and business of the Petitioner. The Respondent summoned and requested the police to attend at these suspected places of business and residence, and represented that they (the Respondent and the police) were investigating the Petitioner for fraud. The only investigation of the Petitioner for fraud is related to the Limitless Seizure Order Proceeding and the Respondent has now, by the very involvement of the police, affected the Petitioner’s section 7 Charter rights through the Limitless Seizure Order

 

  1. In  v. Borden1994 CanLII 63 (SCC)[1994] 3 S.C.R. 145, the Supreme Court found that a blood sample voluntarily provided by a suspect in connection with one suspected sexual assault nevertheless amounted to an unlawful seizure in violation of section 8of the Charter, where the sample was in fact used in connection with the investigation of a different sexual assault. In the case at bar, the Petitioner was never informed that any seizure of records would be used against him outside of the Respondent’s purview, and certainly not in relation to the Canadian Criminal Code and by police forces being able to investigate, arrest, detain and imprison the Petitioner as a result of Rule 4-43 Order or Limitless Seizure Order. The Petitioner was only aware that he would be immediately and indefinitely suspended from the practice of law if he did not comply with seizure of his personal cell phone and entry into his principal residence. It is common ground that this Draconian seizure order requires compliance from the member against the backdrop of a litany of threats.

 

 

Misstatements of Facts

 

  1. The Respondent makes the following remark in the Response to Petition:

 

The application in this case was preceded by requests and discussions with the  petitioner in the context of the compliance audit begun in the spring of 2013 and still not completed due to the petitioner's failure to provide information; the petitioner was naturally aware of all this;

  1. This is incorrect and may require discoveries if the Respondent holds this position. On January 29, 2014, it was the Respondent that reinstated the Petitioner in relation to any and all matters arising out of any audit. Such conduct would be in breach of their duty to protect the public under the Legal Profession Act. Surely, the Respondent is not suggesting that it reinstates members to practice that have not fully complied. On May 5, 2014, Eva Milz concluded her audit. She had left the business premises. Since there is a dispute in this evidence, the Petitioner seeks to examine Felicia Ciolfitto in that regard. The Petitioner was not “naturally aware” of this as the Petitioner. There is an evidentiary dispute between the parties that is important to resolve.

 

Character of the Order

 

  1. The Respondent makes reference to the “Character of the Order” but leaves out that the Petitioner and a law corporation of which another member practiced under were subject to the Limitless Seizure Order. The Respondent is misleading the Court that this is was so limited as it suggested. The Limitless Seizure Order also did not entitle any LSBC investigators to enter the Petitioner’s office without consent but they did so in any event and have remained unrepentant and unapologetic. The Limitless Seizure Order apparently empowered the Respondent to search and seize data from third parties (wherever located) and it did so.

 

Standard of Review

 

Respondent’s Position

 

  1. The Respondent cites the following cases relating that “all of the Petitioner’s arguments” relating to the LSBC and its decision-maker, Mr Riddell, are afforded “reasonable leeway”. The Respondent provides four cases in this regard:

 

Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61 at [Alberta Teachers’ Association]

Green v Law Society of Manitoba, 2017 SCC 20 at

Groia v Law Society of Upper Canada, 2016 ONCA 471 at [54][56], [64] - [66]

 

  1. In Alberta Teachers Association, the Alberta Teacher’s Association applied for judicial review of the adjudicator’s order.  In argument, it claimed for the first time that the Commissioner had lost jurisdiction due to his failure to extend the period for completion of the inquiry within 90 days of the complaint being received.

 

In some cases, it may be that the reviewing court cannot adequately show deference without first providing the decision maker the opportunity to give its own reasons for the decision.  It will generally be inappropriate to find that there is no reasonable basis for the tribunal’s decision without first giving the tribunal an opportunity to provide one. 

 

Reasons given by a tribunal in other decisions on the same issue can assist a reviewing court in determining whether a reasonable basis for an implied decision exists.

 

  1. The Petitioner on three separate occasions demanded the basis, particulars and reasons for the Limitless Seizure Order (see: emails from Petitioner to Mark Bussanich on June 3, June 3, and June 10, 2014 respectively). In February 2016, (approaching two years from the time of the decision), the ADM was not only given a chance to provide but he was examined in discovery on the very point and he confirmed, under oath, that no reasons ever existed, informal or formal, and none were listed and produced in document production. In the hearing before Mr. Justice Grauer on June 1, 2017 (more than three years from the time of the Limitless Seizure Order), counsel for the Respondent confirmed that there were no reasons (formal or informal; written or oral). Further, the ADM confirmed that giving no Reasons was consistent with his approach so there are no Reasons to compare. Aside from there being no Reasons in other cases on the same issue, there cannot be a “same issue” as each case is decided on its own merits under the Impugned Rules.

 

  1. The Respondent’s citing of Green is entirely misguided in relation to rules and challenging rules relating to practice requirements. The Petitioner is challenging the vires and constitutionality of the Impugned Rules which is not present in Green in the same fashion. A Notice of Constitutional Question was filed at the outset of the underlying claim. In relation to Groia, that is a 135 paragraph decision of a Hearing Panel and subsequent written decisions of Appeal panels. The case has no relevance to the standard of review on an issue of a case of this nature.

 

  1. The Respondent also relies on the appellate case between McLean and this Respondent where the Court of Appeal made some general comments about judicial review but did not have any of the documentary evidence or examination for discovery evidence before it as it was a review of the decision of Madam Justice Gerow that predated it. The Petitioner obtained orders in an application postdating the decision of Madam Justice Gerow in August 2015, which was opposed, for document and examination for discoveries and none of this was before the Court of Appeal. The appeal was decided on narrow grounds relating to the issue of a declaration and an injunction that the Petitioner obtained and the Court of Appeal found that he did not demonstrate enough of a real threat for such relief. The Petitioner is now seeking such relief, again, on the basis of a real threat that persists in 2016.

 

Controlling Authorities

 

  1. The court cannot give deference to the choice of a tribunal whether to give reasons as the court must ensure that the tribunal complies with its legal obligation (see: Clifford v. Ontario Municipal Employees Retirement System,2009 ONCA 670). When there is no apparent rationale for the decision, the reasoning process falls short of the required standard. Deference is not owed to the decision and intervention is permissible (see: Guttman v. Law Society of Manitoba, 2010 MBCA 66). On the duty to give reasons as a corollary of the duty of fairness, see W. Utilities v. Edm. (City)1978 CanLII 17 (SCC)[1979] 1 S.C.R. 684, 705-06, 23 N.R. 565, 7 Alta. L.R. (2d) 370, 385-86; Sanderson v. Crim. Inj. Rev. Bd.2010 ABCA 167 (CanLII)487 A.R. 244 (para. 11); Baker v. Min. of Cit. & Imm. 1999 CanLII 699 (SCC)[1999] 2 S.C.R. 817, 848, 243 N.R. 22, 174 D.L.R. (4th) 193 (para. 43); Law Socy. of U.C. v. Neinstein2010 ONCA 193 (CanLII)259 O.A.C. 3131 Admin. L.R. (5th) 1, 15-16 (paras. 60-62); Guttman v. Law. Socy. of Man.2010 MBCA 66 (CanLII)[2010] 8 W.W.R. 385, 397, 255 Man. R. (2d) 151 (para. 57). If a tribunal refuses or neglects to issues any reasons, deference is not showed.  As the ADM failed to provide reasons, be they formal or informal, written or oral, the deference doctrine does not come into play. As to the duty to provide reasons: see generally T.L.M. v. Department of Social Development (formerly the Minister of Family and Community Services), 2009 NBCA 8 (CanLII)341 N.B.R. (2d) 33Guttman v. Law Society of Manitoba, 2010 MBCA 66(CanLII), [2010] M.J. No. 198 (QL); Kalin v. Ontario College of Teachers, 2005 CanLII 18286 (ON SCDC)[2005] O.J. No. 2097 (QL)Vancouver v. Picadilly Investments Ltd., 2010 BCSC 245 (CanLII)[2010] B.C.J. No. 328 (QL)R. v. R.E.M., 2008 SCC 51 (CanLII)[2008] 3 S.C.R. 3.

 

  1. It might be tempting to extend deference to the ADM’s decision by seeing whether this Honourable Court can think of its own reason to reach the same conclusion which the ADM did. However, that would be but superficial deference. It would not follow the expertise of a tribunal; it would substitute the court’s own views, usurping the ADM’s work. And it might encourage future tribunals to give no reasons, gambling that some lawyer or court would later find or invent reasons. The controlling authorities are clear and unambiguous that when there are no reasons, there is no deference. It is a question that the courts examine under the correctness standard as, inter alia, it subsumes issues of procedural fairness and natural justice. It is for this Honourable Court to determine the correctness of the Limitless Seizure Order. However, it would fail under the most deferential standard of reasonableness. Therefore, it automatically fails under the least deferential test of correctness.

 

Vires

 

Respondent’s Position

  1. The Respondent improperly defines the issue as was the “Rule 4-43 Order ultra vires the Respondent”? The issue is broader than the Respondent posits.

 

  1. At paragraph 22 of the Respondent’s Response to Petition:

 

The petitioner relies on Gardner v Law Society of British Columbia (1990), 46 BCLR (2d) 122 (SC), affirmed (1991) 61 BCLR (2d) 219 (CA) ('Gardner'), in which a similar order made under an earlier version of the Legal Profession Act was set aside. The legislation was amended following the judgment and Gardner is of no assistance in interpreting the present legislation. The petitioner's legal argument in this regard was considered and rejected by Gerow J on a summary judgment application in the third action.

Respondent’s Argument on Vires and Res Judicata Rejected by Mr. Justice Grauer

  1. To the contrary, the Respondent made forceful submission that the issue of vires was “res judicata” before Grauer J. The Petitioner countered that Her Ladyship made no such finding. Grauer J explicitly rejected the argument made by Respondent and found in favour of the Petitioner. His Lordship Grauer cited “vires” twice in his recent decision and of particular import:

 

[66]         The first question is whether the Law Society exceeded its statutory jurisdiction when it granted the investigation order; in other words, was the order ultra vires the Law Society?  If so, it must be set aside.

 

[67]         The second question is whether, assuming that it had jurisdiction to grant the order, the Law Society nevertheless acted improperly in the manner in which it granted the order, giving rise to procedural unfairness, so that the order must be set aside and, presumably, remitted to the Chair of the Discipline Committee.  On this aspect, Mr. McLean relies upon: the failure of Mr. Riddell to give reasons for his decision to grant the order; the absence of information under oath to support the decision; the fact that the order was granted without notice to Mr. McLean; the absence of procedural safeguards (such as would, for instance, be available in an application for an Anton Pillar order, to which Mr. McLean likens the investigation order); and the conflict of interest that arises from what Mr. McLean terms a solicitor-client relationship that existed between Mr. Bussanich and Mr. Riddell.

 

[68]         If either of those two questions were resolved in favour of Mr. McLean, then it would follow that the steps taken by the Law Society in carrying out the order were unlawful.  The question of consent becomes immaterial.

 

  1. Further, vires accompanies more than just the issue of Rule 4-43 itself but the other Impugned Rules and all that surrounds the Limitless Seizure Order. Ultra vires: without authorityor, literally,beyond powers. A decision which is beyond the powers or authority of the person or organization which took it. Regulations too may be ultra vires the statute they are made under.

 

  1. The issue of vires and jurisdiction relate to the following issue as to whether the Respondent has the authority to compel the immediate production of “other records” (privileged or irrelevant), “wherever located” for forensic copying from a member, a law entity of which a lawyer is affiliated, or professionals retained by a member, without a court application, without evidence under the penalty hat the failure to comply results in an immediate loss of livelihood. The parties agree that the Limitless Seizure Order is made under the threat of immediate suspension. Rule 3-5.01 is unequivocal and unambiguous in that its language:

 

3-5.01 (1) Subject to subrules (2) and (3), a lawyer who is required under Rule 4-43 [Investigation of books and accounts] to produce and permit the copying of files, documents and other records, provide information or attend an interview and answer questions and who fails or refuses to do so is suspended until he or she has complied with the requirement to the satisfaction of the Executive Director.

 

  1. The Respondent’s position that there is a distinction between access to a record and copying a record is utterly misguided. Firstly, the Supreme Court of Canada has found that copying is a seizure (see: v. Law). Secondly, to the extent that they are saying there is a difference between search and a seizure, that is trite and known law. The members of the Law Society, and other professionals of any regulatory body, are protected from search or seizure. A demand for immediate forensic copying of any and all electronic devices that takes a perfect snapshot of all devices under the penalty of immediate suspension is a seizure in British Columbia. The Court of Appeal in Bishop, supra, that it remains a seizure whether the member complies or not. The Respondent had admitted the holding of the seize CPU, phones and other electronic may be done by a non-independent consultant. It is notable that the demands made in Bishop and Branch were far less intrusive upon those members and came with more notice than in the case at bar. Ergo, the Limitless Seizure Order is a seizure (limitless in data, scope and duration) under the immediate penalty of loss of livelihood.

 

 

Procedural Unfairness

 

Respondent’s Position

 

  1. The Respondent provides the following headings relating to the heavy duty of procedural fairness owed by the Respondent to the Petitioner:
    1. Evidence not under oath as required by s. 37 of the Legal Profession Act;
    2. Absence of notice;
    3. Reasonable Apprehension of Bias;
    4. Absence of procedural safeguards; and
    5. Absence of Reasons.

 

  1. The Respondent has not defined the question of procedural fairness properly in the context. The Respondent posits the question in relation to whether only the Limitless Seizure Order was obtained improperly. It is not just the manner in which it is obtained but rather all that encompasses the Limitless Seizure Order Proceeding. Since the pleading is that it is a “fair alternative” to a proceeding and subsequent court application under s. 37 of the Legal Profession Act, then the issue is the fairness of the overall proceeding which encompasses the application, the hearing, the granting of the order, and the continued execution of the Limitless Seizure Order in 2016. To simply ask the narrow question of whether the obtaining the order was fair, which it was not, is a semblance or simulacrum of a legal analysis. It appears to be a tacit admission that it only views procedural fairness in the context of conduct that predates the obtaining of the Limitless Seizure Order. The issue of fairness also relates to when the LSBC returns copies seized records or destroy them after any consent that was given, under admitted threats by the Respondent, has been withdrawn. The elements of procedural fairness are broad and deep.

 

  • Unsworn Evidence

 

  1. Section 37 of the Legal Profession Act is instructive in this regard. Based on the Limitless Seizure Order, the Respondent has the alleged power to seize “other records”, “wherever located”, then it would follow that if this was a fair alternative, then an application would be supported by evidence under oath. The Limitless Seizure Order did grant the Respondent the alleged power to search and seize third parties in the Petitioner and Kevin A. McLean Law Corporation, Peter Stojakovic, and Gary Lo. The Limitless Seizure Order has more power and less safeguards than any conceivable order under s. 37 of the Legal Profession Act and to the extent that it would only be fair that evidence would be in the same form as the Legal Profession Act required under oath or affirmation. Ironically, Mark Bussanich and Eva Milz have easily and frequently sworn evidence under oath in court proceedings but were not willing to do so when the Petitioner’s Charter rights were at issue. The Respondent’s position put forward is that it was an “unnecessary formality”.

 

  • Absence of Notice

 

  1. The Respondent cites four cases in support of that the Petitioner and other members not being entitled to notice:

 

Strauts v College of Physicians and Surgeons of British Columbia, (1997) 36 BCLR (3d) 106 (CA) at [Strauts]

Kennedy v Law Society of Newfoundland, 2005 NLTD 112 at [18]- [40], [47] [Kennedy]

                                                                      

Puar v Association of Professional Engineers and Geoscientists, 2009 BCCA 487 at [Puar]

D 'Mello v Law Society of Upper Canada, 2015 ONSC 5841 (Div

                           Ct) at   [69] [D’Mello]

  1. Strauts involved the College of Physician and Surgeons of BC investigating the doctor for his use of chelation therapy. In that case, there was a serious issue relating to chelation therapy and its detriments to those that used it in relation to that controversial therapy. The investigation was not very limited and focused as it should be but the Court did referencing binding appellate authority of Bishop. Strauts further stood for the following position at paragraph 26:

 

 Given the College's position that it will not base any

     future prosecution of Dr. Strauts on non-compliance with 92-

     73, I conclude that there was no requirement that the College

     give notice to Dr. Strauts before passing the resolution.

 

  1. The corollary of that position is that a regulator basing future prosecution on non-compliance means that some form of notice is required. The Respondent’s case is in the Petitioner’s favour.

 

  1. Kennedy involved a member making some rather incendiary, offensive and defamatory comments about judges in front of some Wildlife Officers. The allegation was forwarded to the member in August 2013, a reply was sought in September 2013 and then in January 2014 the parties were mutually informed that an investigation would take place. Counsel for the member argued that the failure of the Law Society to attempt to obtain the full CBC recording, with subpoena power available to it, left crucial evidence unavailable to the Plaintiff which would have placed his comments in the context necessary to assess whether the comments warranted sanction; and left him exposed to having to recreate that context on his own through viva voce evidence in the hearing with the frailties inherent in that process. However, the importance of the decision in as it relates to this case at bar:

 

[47] Given that the Law Society did not have determinative powers affecting a right or interest of the Plaintiff in process at this stage and the apparent early closure in that process of factual content issues, I incline to the general tendency of the Courts away from intervention.

 

  1. The opposite is the case in the Limitless Seizure Order Under the germane Law Society Rule, failure to comply with the Impugned Rules and Limitless Seizure Order will lead to an immediate indefinite suspension and there is no assurance to the member that he or she will ever be returning to practice. Specific to this case, the Law Society used the failure of the Petitioner to comply to its satisfaction in an interim suspension hearing. Further, it then further fined him and sanctioned him for failing to comply and then used it as a “part and parcel” to disbar him as “UNGOVERNABLE”. The correct legal test is what is “at stake” and that is an “immediate indefinite suspension” of the member, and further indefinite, semi-permanent and permanent sanctions which are viewable to the public. This is yet another case that supports the Petitioner’s orders sought.

 

  1. D’Mello is beyond distinguishable but provides some important points for this case:

 

[73]           Mr. D’Mello did not take any steps to stay the investigation nor to obtain a ruling on his entitlement to disclosure.

 

  1. The Petitioner absolutely did by way of requests and by way of court order in relation to disclosure. When no requests were forthcoming, he sued in Supreme Court of British Columbia and sought document disclosure. He finally obtained document disclosure from the Respondent in an order of Mr. Justice Bowden in November 2015. The Respondent stonewalled the Petitioner in relation to the basis, particulars and Reasons (if there were any) for the Limitless Seizure Order, and then refused to provide any of the underlying documents. The Petitioner continued to make demands upon the Respondent for documents but it took its own misguided interpretation of document production in a civil proceeding but were the very documents that the Petitioner was seeking from the Respondent that related to the Limitless Seizure Order. Even worse, the Respondent refused to even comply with it’s the LSBC Rules by providing him with a copy of the complaint (see: LSBC Rule 3-5(3)). The continued investigation under the Limitless Seizure Order is still ongoing and the Petitioner seeks to stay that and obtain injunctive relief in that regard.

 

  1. Puar is another case that assists the Petitioner. The investigation in said case was very narrowly focused upon a specific file. Further, Puar issue stemmed from his issue with a “Notice of Inquiry” being published on Association’s website regarding said inquiry. Puar’s concern did not lie in his ability to ultimately respond to the allegation against him being in any way impaired.  It lies in the fact the Notice of Inquiry was published. The publishing of a notice on a website and an order empowering investigators to conduct a limitless seizure into the office, personal phone and principal residence are entirely distinct.

 

  1. Further, the seminal quote from Lord Denning:

 

In recent years we have had to consider the procedure of many bodies who are required to make an investigation and form an opinion. ... In all these cases it has been held that the investigating body is under a duty to act fairly; but that which fairness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it.

 

  1. Further, the corollary of the Puar decision is that if a member is not entitled to disclosure before, he or she is certainly entitled to the underlying materials reasonably thereafter and certainly upon request. The Respondent deliberately refused to provide the Petitioner with the bases, particulars, underlying materials and Reasons for the decision despite a request for the same. The Petitioner respectfully submits this was yet another breach of procedural fairness.

 

Distinction between a LSBC “investigation” and the Limitless Seizure Order Proceeding

 

  1. The Petitioner puts forth that he was the subject of certain “investigations” that simply seek specific documents from a member in a certain file with normally a three week deadline that fall within the boundaries of the complaint. The Petitioner has not challenged the constitutionality of those investigations as all of the demands were very specific and related to a legal file in question. The Limitless Seizure Order is the antithesis of that type of “investigation”; it is the regulatory equivalent of an Anton Piller Order as noted in the LSBC Forensic Copy Paper. The primary differences, noted by those authors,

 

Analysis: LSBC standard “investigation” pursuant to s. 26 of LPA and a Limitless Data Seizure Order pursuant to s. 36 of LPA

 

 

Analysis

“Investigation into Specific Matter or File”

Limitless Seizure Order (Regulatory Anton Piller Order pursuant to Rule 4-43 under penalty of Rule 3-5.01)

Conducted by

Law Society

Law Society

Member receives copy complaint

Yes

No

Application to administrative decision maker

No

Yes

Involves administrative decision maker or tribunal

No

Yes

Element of “hear and decide”

No

Yes

Governed by the Administrative Tribunals Act, S.B.C. 2004, c. 45 (the “ATA”)

No

Yes

Decision maker has immunity under s. 56 of ATA

No

Yes

Order granted

No

Yes

Application, ex parte hearing and resulting order

No

Yes

Adjudicative in nature

No

Yes (Further, the Respondent compares the role of this ADM to a justice of the peace in a criminal search warrant process. A Justice of the Peace must act judicially in that circumstance).

Limitless Data Seizure Order served upon member

No

Yes

A fair and economic alternative to a claim filed in Supreme Court and a subsequent court application seeking orders to search and seize

No

Yes

Two forensic accountants and Certified Fraud Examiner attend office

No

Yes

Element of surprise

No

Yes

LSBC enters office without consent

No

Yes

Immediate Penalty for failure to comply

No, the case law shows that members of all bodies are asked for certain documents over months and it is a collaborative and cooperative process

Yes, the member is immediately suspended from the practice of law

Ability to prevent surrender or seizure of the documents or any other evidence regardless of form

Yes

No

Ability to seek a stay

Yes

No

“At stake” for the member

Nothing at the time of the demand for specific documents under investigation

Immediate loss of livelihood,

“Words of limitation”

Yes

No

Seizing of irrelevant material

No

Yes

Seizing of a member’s privileged communications with his or her solicitor

No

Yes

Ability to enter home or office

No

Yes

Reasonable time to seek independent legal advice and retain counsel

Yes

No

Time pressured nature of demand

Often two to three weeks with several follow ups

Immediate production of computers and personal cell phones for forensic copying

Return of any documents provided to the LSBC upon request

Yes

No

Vires

Depends on the nature of the demand, the responsive time of the demand, the intrusion into offices, homes and obtaining of personal data. It cannot be answered as it would depend on the nature of each “investigation”.

No, the Respondent does not have any explicit power to grant internal orders that entitle intrusions into private offices and into principal residences to forensically seize personal cell phones and data under the penalty of an immediate indefinite suspension.

Charter

As noted in Branch, a demand to a witness to produce certain records and things at a future date in a proceeding did not mean the seizure was unreasonable because there was “no intrusion into offices or homes”.

Branch and Bishop confirm that that this type of regulatory Anton Piller or equivalent to s. 37 under the Legal Profession Act is a seizure at law. The issue of its reasonableness is assessed below.

 

 

  1. The Respondent raises six points that provide little guidance on why it subjectively felt it could derogate the Petitioner’s natural justice rights and discharge its heavy duty of procedural fairness in the circumstances:

 

  1. Respondent’s position: Notice in advance would undermine the LSBC's ability to investigate transactions that defaulting lawyers would prefer to keep hidden;
  2. Respondent’s position: The application in this case was preceded by requests and discussions with the petitioner in the context of the compliance audit begun in the spring of 2013 and still not completed due to the petitioner's failure to provide information; the petitioner was naturally aware of all this;
    1. Petitioner’s Reply to one and two:
      1. In the case at bar, the Petitioner’s Chartered Accountant was providing monthly trust reconciliations of the law corporation to the LSBC from the time of full reinstatement;
      2. The Respondent fully investigated and all issues relating to accounting and fully reinstated the Petitioner into the practice of law on January 29, 2014;
      3. As deposed by Ms. Milz, the issue only related to “trust accounting” which does not even relate to the Petitioner but a law corporation which is a separate entity in fact and at law;
  • Respondent’s position: A referral by the Trust Assurance Department to the Professional Conduct Department and the request for the Rule 4-43 order signalled the -initiation of a formal investigation that was 'embryonic in form' 'engaging the gathering of raw material for further investigation' (Kennedy v Law Society of Newfoundland, supra, at [37], quoting Irvine v Restrictive Trade Practices Commission, [1987] 1 SCR
    1. Petitioner’s reply:
      1. The evidence of Eva Milz is clear that it related to the “trust accounting” of a law corporation (with a few members practicing under it), not the Petitioner;
      2. It signaled that a seizure order was authorized to seize any and all personal and privileged records under the penalty of immediate suspension;
    2. Respondent’s Position: The order and conduct of the investigation based on the order were private;
      1. Petitioner’s reply:
        1. The Limitless Seizure Order was granted ex parte, without evidence, and without record or minutes so “private” is an inappropriate diction;
      2. Respondent’s Position: The petitioner's ability to practice law and professional conduct record were unaffected by the order;
        1. Petitioner’s Reply:
          1. This is not the correct test under this heading as the test is not what happened but what is at stake and it is common ground that it is an immediate and indefinite suspension;
          2. In any event, this is incorrect as the Respondent takes over an office for a full day and then it must seize a hard drive which takes further days;
          3. McCartney deposed that he and other investigators knew that the Petitioner did not want there and he did not consent to them being in his office;
          4. Results from the Limitless Seizure Order are then used at an interim suspension hearing;
        2. Respondent’s Position: In the event that the investigators concluded that the petitioner should be cited for professional misconduct or a breach of the Law Society Rules, and the Discipline Committee agreed, a formal discipline process would then be engaged with extensive procedural protections to ensure fairness including prehearing disclosure, the appointment of a hearing panel to hear evidence under oath, tested by cross-examination.
          1. Petitioner’s Reply:
            1. The Respondent misses the point that the failure to consent to the Limitless Seizure Order means that a member loses their livelihood through the “Indefinite Immediate Suspension”. This is the most severe immediate sanction that a member can face besides permanent disbarment is the indefinite suspension that can only be lifted once the Executive Director is satisfied to their satisfaction. Further, it was going to be used against him in a pending interim suspension hearing which amounts to an effective disbar;
            2. The test is well settled and it is not what happened to the member but what is “at stake”. When the member reads the Law Society Rules, the member realizes that the failure to comply results in immediate suspension. Kane v. Board of Governors of the University of British Columbia, [1980] S.C.R. 1105, where a university professor was facing disciplinary suspension the Supreme Court stated as follows, at p. 1113:

 

A high standard of justice is required when the right to continue in one’s profession or employment is at stake. A disciplinary suspension can have grave and permanent consequences upon a professional career.

 

 

  1. Madam Justice Gerow found, which the Respondent did not appeal as they are the LSBC Rules that a member must follow, that Rule 3-5.01 is relevant.

 

  1. The fairness of the duration and apparent infinite perpetuity of the Limitless Seizure Order becomes germane as well. In the context of continued usage of the Limitless Seizure Order by the Respondent in 2016 for an “alleged fraud investigation” (which could only conceivably come under the Limitless Seizure Order Proceeding), the issue of fairness and jurisdiction become for how long and what purposes can a regulator continue to regulate a member post practice of law. This issue becomes increasingly relevant in the case at bar considering the Petitioner successfully obtaining injunctive and declaratory relief in relation to the Limitless Seizure Order. The Respondent then forcefully appealed its specific ability to continue to attempt to seize the personal cell phone of the Petitioner and enter the Petitioner’s principal residence. The Respondent was successful in that regard and the confirmatory acts of the Respondent in continued fraud investigation of the member post practice of law are conspicuous. Albeit this is a matter for discovery of David McCartney and Deborah Armour to see if the Respondent has misled the court.

 

  1. The Respondent deliberately did not respond to the Petitioner in an effort to deny him any ability to challenge the Limitless Seizure Order. In so doing, the Respondent, by any measure of any legal test relating to procedural fairness, breached the Petitioner’s entitlement therein.

 

  1. The Petitioner was forced to bring a Notice of Application in November 2015 in Action S-1410056 (some 17 months after the execution of the Limitless Seizure Order) to get the first listed document in that proceed as the Respondent and the named defendants were refusing to list any document. These very counsel were counselling those Defendants to not list and produce the documents. This is sufficient alone to quash the Limitless Seizure Order and return all that is seized therefrom. The Respondent has provided no explanation for why the Petitioner is not entitled to a copy of the complaint and the rationale for why the Respondent blatantly breached its own rule. It is unclear whether this is how it always conduct itself or whether it is particular to this Petitioner. In any event, it is an absolute breach of duty of procedural fairness.

 

  • Reasonable Apprehension of Bias and Independence

 

Respondent’s Position

 

  1. The Respondent has set forth that the “Privileged and Confidential Opinion” is simply a matter of form. This is incorrect and misleading. This Respondent provided a List of Documents to the Petitioner in Action S-1410056 that demonstrates that a solicitor-client relationship predated the privileged application by Mark Bussanich to the ADM, and it postdated it. The ADM deposed as follows:

 

Page 87

 

17 431 Q I'm asking -- I'm just asking off your memory. You

18 remember citing me for not complying with the Rule

19 4-43 order?

20 A I am trying to think. There are, to my

21 recollection, three citations, I think, that I

22 issued.

23 432 Q Involving me?

24 A Involving you.

25 433 Q Okay.

 

  1. However, on April 10, 2015, the ADM deposed at paragraph six of his Affidavit #1 of S-1410056:

 

“The granting of the Rule 4-43 Order in my capacity as Chair of the Discipline Committee is the extent of my involvement of any Law Society matter involving the Plaintiff.”

 

  1. The ADM appears to have misled the court in an effort to remove himself as a personal defendant as it was an effort to minimize his involvement. It is no longer possible to take any submission made by the Respondent about the ADM’s alleged expertise as he cannot depose simple facts consistent. Further, all of the citations that Philip Riddell issued in relation to the Petitioner were based on privileged legal advice that he received from his solicitor Mark Bussanich as evidenced by the Respondent’s List of Documents. The extent of Mark Bussanich’s legal advice can be determined at a discovery should that be necessary.

 

  1. The Respondent sets forth two cases to demonstrate that there was no reasonable of apprehension of bias and independence:

 

           DeMaria v Law Society of Saskatchewan, 2015 SKCA 106 at [23][25], ]

Ocean Port Hotel Ltd. v. British Columbia (General Manager,

Liquor Control and Licensing Branch), 2001 SCC 52 at [42]-[43]

 

  1. The allegation of bias in DeMaria was in the nature of fraternization and DeMaria was incredibly weak on the evidentiary component of showing fraternization. The Petitioner’s allegation is far stronger than some incidental and cordial fraternization between counsel and a decision maker. The Petitioner is not making an allegation but relying on the Respondent’s own documents and uncontroverted evidence that there was an extensive and lengthy solicitor-client relationship between the applicant seeking the Draconian seizure order and the ADM granting such an order in that adjudicative process. Further, the fact (not allegation) that the very application itself was “PRIVILEGED AND CONFIDENTIAL”. From an objective standpoint, a reasonable person could perceive bias when the applicant, who is making the application, is acting in his capacity as solicitor to his client but that client is the very tribunal granting the decision, and the solicitor-client relationship continued thereafter.

 

  1. The issue in Ocean Port centred around whether members of the Liquor Appeal Board are sufficiently independent to render decisions on violations of the Actand impose the penalties it provides. More specifically, it held that the tenure enjoyed by Board members – appointed “at the pleasure” of the executive to serve on a part-time basis – was insufficiently secure to preserve the appearance of their independence. This is not even the realm of the Petitioner’s argument on independence. The Petitioner is not challenging that portion of the legislation in relation to the appointment of benchers but the uncontroverted fact that an extensive and deep solicitor-client relationship at all relevant times before and after the Limitless Seizure Order Proceeding but during it and application themselves being “Privileged and Confidential”.

 

  1. An important principle comes out of this case as well, “The appellant, with the support of the intervening Attorneys General, argues that this reasoning disregards a fundamental principle of law: absent a constitutional challenge, a statutory regime prevails over common law principles of natural justice.” More importantly, there is a very extensive constitutional challenge to the legislation under the Legal Profession Act and the Law Society Rules with requisite Notice of Constitutional Question being served on the various parties.

 

Controlling Authority

 

  1. The controlling authority in the case at bar is Ghirardosi v. Minister of Highways for British Columbia, [1966] SCR 367, 1966 CanLII 47 at 371:

 

….but the disqualification arises from the circumstance that, unknown to the appellant, the confidential and mutually beneficial relationship of solicitor and client existed at all relevant times

 

  1. In the circumstances, a mutually beneficial solicitor-client relationship existed between Mark Bussanich and the ADM at all relevant times. The documents are conclusive evidence that a solicitor-client relationship existed between Mark Bussanich and the ADM before the application for the Limitless Seizure, and after the granting of the Limitless Seizure Order. The Petitioner was not aware of such a relationship between the two until Mr. Justice Bowden ordered that the Respondent list and produce documents for inspection to the Petitioner under S-1410056. When the Petitioner demand the bases, reasons and particulars for the Limitless Seizure Order of the ADM, he did not know that Mark Bussanich was the applicant for obtaining such a regulatory Anton Piller order. Further, the Petitioner had no knowledge that the Mark Bussanich and the ADM were in a solicitor-client relationship at all relevant times.

 

  1. The ADM’s granting of such a draconian seizure order was adjudicative in nature and the LSBC has pleaded its protected under the ATA, s. 56 in relation to the administrative tribunal decision of the ADM in relation to the application made by Mark Bussanich (the “Tribunal Immunity Clause”). Further, the Respondent says that the ADM was not required to issue Reasons because a judicial Justice of the Peace does not issue Reasons for approving a criminal search warrant.

 

  1. In Caledon, the tribunal remarked that a judicial tribunal hears evidence, makes findings of fact and applies the law. An administrative tribunal hears evidence, makes findings of fact and applies policy. In this case at bar, the ADM deposes under oath that he heard evidence, made certain findings of fact and applied the law. In relation to the Limitless Seizure Order Proceeding, the ADM conducted exclusively adjudicative functions in relation to alleged evidence presented, application materials, draft orders sent by the applicant, approval of the order, and direction of execution therefrom. By the LSBC admission and pleading, the Limitless Seizure Order Proceeding is a fair alternative to the adjudicative court process. As such, the conduct of the ADM should have been such that there could be no reasonable apprehension of bias with regard to his decision.

 

  1. The general rule is that a solicitor-client relationship exists, and the solicitor-client privilege is established when the communication is made:
  2. for the purpose of seeking legal advice; and
  3. to the lawyer as a professionally qualified practising lawyer and not in some other capacity that the lawyer may enjoy.
  4. v. Bencardino and De Carlo(1974), 15 CCC(2d) 342 (Ont CA).
  5. This is highly important in the case at bar as the ADM was seeking legal advice from Mark Bussanich in his capacity as a lawyer, and the very application itself was titled “PRIVILEGED AND CONFIDENTIAL”. It is noteworthy that there were no amendments to the Limitless Seizure Order, it was approved as drafted and returned to the ADM’s counsel. Apparently, Mark Bussanich was unable to honour the request of the Petitioner for disclosure because it was privileged and that privilege belonged to his client, the ADM.

 

  1. In any event, the solicitor-client relationship between the applicant and ADM along with a “Privileged and Confidential” application is entirely sufficient to cause the ADM to lose his independence and disqualify the ADM. It is one of the multiple disjunctive grounds that requires this Honourable Court under the principle of stare decisis to set aside the Limitless Seizure Order.

 

 

  • Absence of Procedural Safeguards Seen in Anton Piller Orders or Orders under s. 37 of the LPA

 

Respondent’s Position

 

  1. “The procedural safeguards in court proceedings for the seizure of documents are not a yardstick by which the fairness of the Rule 4-43 process for the commencement of an investigation can be measured.”

 

  1. It is improper to label as the Rule 4-43 process as it relies on the attachment and, by its very nature, all relevant LSBC Rules as found by the Honourable Madam Justice Gerow found under 2015 BCSC 1431 at the following at paragraph 89 which the Respondent did not appeal:

 

[89] The attachment to the order indicates that Rules 3-5(6) and 3-5(6.1) of the Law Society Rules apply. In my view, Rule 3-5.01(1) is also relevant.

  1. The Respondent does not address Rule 3-5 that were part of the attachment to the Limitless Seizure Order. The Respondent puts forward four positions as it relates to a court order under s. 37 going beyond (whatever that means in fact or at law) the rule itself:

 

        Is made by the court rather than an administrative officer;

  • Authorizes the seizure of records rather than an investigation;
  • May be directed to persons other than the lawyer in question, such as a financial institution for the seizure of a lawyer's bank records;
  • Is enforceable by contempt proceedings.

 

Petitioner’s Position

 

  1. This flies in the face of the pleadings in that the Respondent pleaded that the Limitless Seizure Order is a “fair and economical alternative”. It is not disputed that is economically advantageous to the Respondent. However, the germane question is whether it is a fair alternative to the member.

 

Controlling Authorities on each of the Respondent’s Positions  

 

(i)Supreme Court Justice v. Administrative Decision Maker

 

  1. The major distinction is that a justice of the British Columbia Supreme Court has absolute immunity for its adjudicative decisions whereas the ADM has immunity for his adjudicative decision in granting the Limitless Seizure Order under the ATA, s. 56. In both cases, the decision by a Supreme Court Justice or the ADM are adjudicative decisions but the order made by the ADM is far more intrusive than any order by a Supreme Court justice. The Limitless Seizure Order only contains a few of the 30 safeguards as the PD Model 31.

 

(ii)Seizure vs. Investigation

 

  1. The Respondent continues to misunderstand the law in our province. The law in our province remains settled as a result of Branch and Bishop. The Respondent has forcefully pleaded the Branchdoes not advance the Petitioner’s claim. It not only advances the Petitioner’s argument regarding the settled law of seizure but demonstrates the distinction between a reasonable seizure and an unreasonable one. The case history and binding findings of law are reproduced below:

 

Branch at British Columbia Supreme Court

 

  1. The question whether a forced production of documents constitutes a "seizure", within the meaning of 8of the Charter, has produced a wealth of authority, some of it conflicting. In this province I am bound to follow two decisions of this Court, both of which applied the decision of the Alberta Court of Appeal in the Alberta Human Rights Commission case, and concluded that a forced production of documents in a civil proceeding, or during an administrative inquiry, is a seizure. See: Bishop v. College of Physicians and Surgeons of British Columbia (1985), 1985 CanLII 569 (BC SC)65 B.C.L.R. 315, and College of Physicians and Surgeons of British Columbia v. Bishop (1989), 1989 CanLII 2674 (BC SC)34 B.C.L.R. (2d) 175. The SCC Canada correctly stated his finding of law: “He also concluded that the seizure authorized by s. 128(1)(c) of the Securities Act is not "unreasonable" within the meaning of s. 8.” Finally, Wood J. considered whether s. 128(1)(c) of the Securities Act authorizes an unreasonable search or seizure contrary to s. 8 of the Charter.  He considered himself bound by British Columbia authority to find that s. 128(1)(c) authorizes a "seizure":  Bishop v. College of Physicians & Surgeons of British Columbia (1985), 1985 CanLII 569 (BC SC)22 D.L.R. (4th) 185 (B.C.S.C.), and College of Physicians & Surgeons of British Columbia v. Bishop (1989), 1989 CanLII 2674 (BC SC).

 

Branch at the BCCA  

 

  1. On this aspect, I mean that Mr. Justice Wood correctly held himself bound by authority to find that the requirement of production is a "seizure". The Supreme Court of Canada further reinforced the position of our British Columbia Court of Appeal, “But she [Madam Justice Southin] held that Wood J. was correct to state that he was bound to find a seizure, and she concluded that if, in fact, a seizure was authorized, it was, "as both Mr. Justice La Forest and Madam Justice L'Heureux-Dubé held [in Thomson Newspapers], reasonable".

 

Branch at SCC

 

  1. Of equal importance is the nature of the seizure authorized by the Securities Act.  The demand for the production of documents contained in the summonses is one of the least intrusive of the possible methods which might be employed to obtain documentary evidence (see: para 60). The importance of this distinction was stressed in Baron v. Canada1993 CanLII 154 (SCC)[1993] 1 S.C.R. 416.  At page 443, the Court adopted the following statement from the reasons of Wilson J. McKinlay Transportsupra, at pp. 649-50:

 

  1. In my opinion, s. 231(3) provides the least intrusive means by which effective monitoring of compliance with the Income Tax Actcan be effected.  It involves no invasion of a taxpayer's home or business premises.  It simply calls for the production of records which may be relevant to the filing of an income tax return.

 

  1. Since the Supreme Court of Canada has found that the demand for documents upon witnesses by way of summonses to attend a hearing with some specified documents is a seizure, then it follows that the order granted by the ADM is a seizure at law.

 

(iii) Directed at persons other than the lawyer in question

 

  1. The Limitless Seizure Order was directed at directed at other persons beside the Petitioner (see: Affidavit material of Mark Bussanaich).

 

(iv) Enforceable by Contempt Proceedings

 

  1. The LSBC has pleaded that Rule 4-43 is authorized by s. 26. Section 26 of the Legal Profession Act entitles the Respondent to enforce by contempt proceedings.

 

Conclusion

 

  1. Based on the facts and binding authorities, the four points put forward by the Respondent are entirely unpersuasive that s. 37 goes beyond the “rule”. Rather, it demonstrates that the Limitless Seizure Order is a seizure that is obtained with less “checks” and “balances”, more intrusive in scope and duration than a s. 37 or Anton Piller Order, and far more penal to the member.

 

(e)Absence of Reasons for a Limitless Seizure Order

 

Respondent’s Position

 

  1. The Respondent puts forward two positions regarding Reasons:
    1. Reasons are not required for a criminal search warrant; and
    2. Where they are required, it is to assist the court.

 

  1. However, the Respondent has filed court documents where explicitly discusses the distinction between criminal search law and the Legal Profession Act. The Respondent has pleaded in court documents that the seizure order process under the Impugned Rules is far more intrusive than the criminal process. The Petitioner agrees. The higher the level of intrusion, the more the need for Reasons. As noted, there are no words of limitation under Rule 4-43. Under Rule 3-5, the member must allow the forensic copying of all “other records”. Under Rule 3-5.01, the member of the LSBC is immediately and indefinitely suspended. It is conceivable that such a suspension may last in perpetuity.

 

  1. The evidence is clear that the only issue related to trust accounting of a law corporation (not the Petitioner). As such, any seizure of anything other the records relating to trust accounting of the law corporation should have been tailored as such in the order.

 

Criminal Search Warrants

 

  1. The process involving criminal search warrants is entirely different legislation, procedures, processes et al but for the court’s benefit:
    1. A criminal search warrant requires evidence under oath;
      1. In the case at bar, there is no evidence under oath;
    2. In order to issue the warrant a justice of the peace must be satisfied that there are reasonable and probable grounds to believe that the prescribed items will be found in a building, receptacle or place and that it has reasonable grounds to believe there will be evidence of an offence being committed.
      1. In this case at bar, it is far different in that there were only trust (not operating) account irregularities with full access to a Chartered Accountant with a two-week compliance audit being done;
    3. The Constitutional requirement is that the justice issuing the warrant is required act judicially and to assess the evidence as to whether the appropriate standard has been met in an entirely neutral and impartial manner;
      1. In the case at bar, there there are no protections, and the person offering it was receiving legal advice and the very application was “PRIVILEGED AND CONFDENTIAL” and the relationship between the applicant and the ADM
    4. If it does not meet the minimum requirements of particularity respecting the things to be search for, it is unreasonable under section 8 (see: v Harris and Lighthouse Video Centres Ltd. (1987), 35 C.C.C. (3d) 1)
      1. In the case at bar, there were was no particularity;
    5. By example with informers, if there is no evidence to substantiate the veracity of the informers, no information as to how the informers acquired this knowledge and no independent evidence it will be set aside (R. v. Berge, (1989), 48 C.C.C. (3d) 185);
      1. In the case at bar, there is no independent evidence but an advancement of a “PRIVILEGED AND CONFIDENTIAL” legal opinion by Mark Bussanich to the tribunal but the tribunal was his client;
    6. In executing a criminal search warrant, once there is a control of the premises, the person has an opportunity to speak to counsel (see: R v. Strachan, [1988] 2 S.C.R. 980);
      1. In the case, that once the investigators were in the Petitioner’s private office without him present and without his consent, the Petitioner was not afforded an opportunity to speak to counsel;
    7. The person whose premises are being searched is entitled to know from examination of the search warrant for what reason the search is taking place and the seizing officer must know in relation to what offence or circumstances the articles are to be seized. The failure, therefore, to describe the offence sufficiently in the search warrant is fatal to the validity of the warrant (see: v. Alder (1977), 37 C.C.C. (2d) 234)).
      1. In the case at bar, there was no alleged offence;
    8. In a review of a criminal warrant the is whether or not there is evidence upon which the justice acting judicially could determine that a warrant should be issued and whether the warrant contained sufficient particulars of the items to be seized so that it could not be said that the discretion of the officer was substituted for that of the justice as to the times seized (see: v. Turcotte, [1988] 2 W.W.R. 97 (Sask C.A.); and
      1. In the case at bar, there is no evidence to challenge anything.

 

  1. If the Respondent seeks to have the regulatory Limitless Seizure Order process compared against criminal search warrant process and adjudication by a justice, it is yet another ground to set aside the Limitless Seizure Order.

 

Controlling Authorities

 

  1. The issue centers around whether Reasons are required and whether it is procedurally unfair to this Petitioner and to the LSBC members to deny them any form of Reasons despite multiple requests for the same. The Respondent does not address whether it is procedurally unfair to the member.

 

  1. The case cited by the Respondent is also cited by the Petitioner in the SCC authority:

 

It is true that the breach of a duty of procedural fairness is an error in law.  Where there are no reasons in circumstances where they are required, there is nothing to review. But where, as here, there are reasons, there is no such breach.  Any challenge to the reasoning/result of the decision should therefore be made within the reasonableness analysis

 

  1. The corollary of that is when there are no Reasons, the challenge is made under the correctness standard. The issue is whether it was correct for the ADM not to issue them in the circumstances. The Respondent’s position offers no analytical and jurisprudential resistance to the Petitioner’s argument and orders sought. The comparison to the criminal search warrant process is not how the defence has been pleaded. The plea is clear that the seizure order granted by the ADM is a “fair alternative” to s. 37 of the Legal Profession Act, and that pleading has defined the ambit of the dispute between the parties.

 

  1. The Respondent then makes a further misstatement of law, Where it is possible to make that assessment without reasons, then reasons are not required.” The process is far more complex and nuanced than such a simplistic statement. In the administrative law context when this ADM has performed adjudicative function such as granting an order in relation to an application, the correct legal test that the Court applies are the factors identified supra. For summary purposes, the court applies all of these factors in determining the correctness in failing to issue reasons;
    1. “At Stake” or Significant Importance to the member;
    2. Level of protection of tribunal from judicial review;
    3. Whether decision of the tribunal is subject to judicial review;
    4. Whether the substance of the seizure order can be understood;
    5. Participatory rights of the member;
    6. Whether the appeal process has been frustrated;
    7. Complying with the Supervisory Role of Courts;
    8. Whether there are appeal rights within the statute;
    9. The finality of the decision;
    10. The resemblance and similarities of the tribunal process with the judicial process;
    11. Unusual Circumstances;
    12. Nature of the Order (Draconian versus conventional);
    13. Member centric vs. polycentric; and

 

  1. There are further factors that are unique to this case that militate in favour of Reasons being issued in relation to this adjudicative decision made by the ADM:
  2. Admission: the ADM admitted that his adjudicative decision, wherein he has immunity for said decision under the ATA, s. 56;
  3. Failure to disclose underlying application materials: the Petitioner requested a copy of the underlying application but Respondent deliberately refused to provide a copy of the same until it was under court order of Mr. Justice Bowden. Since the Respondent’s practice is not provide the underlying application materials and the ADM is aware of that, then it is another factor that militates in favour of the issuing of Reasons;
  4. Failure to disclose a copy of the complaint in contravention of LSBC Rule 3-5: Since the practice of the Respondent to not provide a copy of the complaint and the ADM has knowledge of that fact, then that militates more in favour of requiring Reasons in this case;
  5. Pleadings: This is the apparent fair alternative to the model order that the LSBC explicitly adopts under s. 37 of the LPA so fairness would indicate that Reasons (and the seizure order) should mirror the court process;
  6. Ex parte proceedings: Ex parte proceeding militate more in favour of Reasons being issued by an ADM exercising adjudicative functions;
  7. No Oral Hearing: when there is no oral hearing, then this factor militates in favour of Reasons being issued by the adjudicative ADM;
  8. No transcription of the hearing or minutes of hearing: this process favour
  9. Immunity of the ADM and a final decision in relation to the application:
    1. Under the ATA, s. 1(1) and s. 56(2) respectively:
      1. An: "application"includes an appeal, a review or a complaint but excludes any interim or preliminary matter or an application to the court;
      2. Subject to subsection (3), no legal proceeding for damages lies or may be commenced or maintained against a decision maker, the tribunal or the government because of anything done or omitted

(a) in the performance or intended performance of any duty under an enactment governing an application, or

(b) in the exercise or intended exercise of any power under an enactment governing an application.

  1. Solicitor-client relationship between applicant and ADM: since the relationship is a solicitor-client relationship, it militates in favour of disclosure of Reasons as one does not see other communications by nature of the relationship; and
  2. Application itself is privileged: when the application itself is “privileged and confidential”, then some form of Reasons should be issued due to the privileged and confidential nature of the relationship between applicant and ADM, and the refusal to give the disclosure despite a request for the same.

 

  1. The controlling authorities are overwhelming that it was incorrect for the ADM not to issue some form of Reasons for this type of final Draconian seizure order during a highly unusual secretive adjudicative process that put the Petitioner’s career at stake wherein he had no appeal rights within the LPA coupled with being denied a copy of the underlying complaint and privileged and confidential application materials.

 

INCORRECT OR UNREASONABLE

 

Respondent’s Position

 

  1. The Respondent’s position is incorrect as it relates to standard of review being conduct globally and generally on a reasonableness standard.

 

Controlling Authority

 

  1. Standard of review is analyzed on the basis of each question of law that is put forth. It varies depending on the question of law put forth. In this case, the questions are primarily centred around natural justice, procedural fairness, conflicts of interests, jurisdiction, vires, and Charter Each of these questions are analyzed on the standard of correctness where no deference is shown. Further, the authorities are clear that when there are no Reasons, no deference is shown to the tribunal’s order. Finally, the ambit of the Petition is not a narrow as the Respondent suggests. For example, the Respondent did not face the issue of the duty of an applicant in an ex parte hearing which is an independent ground to set aside a Draconian order of this nature.

 

Unreasonable Decision

 

  1. Even one were to accede that the search and seizure order would be given deference, which the law says it is not, the decision would still be unreasonable. A decision will be unreasonable only if there is “no lines of analysis within the given reasons” that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived (see: Ryan, supra). With no given reasons, there are no lines of analysis. Ergo, there are no lines of analysis so the decision. The Respondent has confused the notion of “Having regard to the information provided to him” with the legal test for reasonableness.

 

 

Charter RIGHTS

 

Respondent’s Position

 

  1. It appears that the Respondent is unable to determine its position. In one pleading, it pleads as follows at paragraph 26:

 

Even in the context of a request for a search warrant issued by a justice of the peace for a criminal investigation — a more intrusive procedure engaging police powers the application is made ex parte and the materials are not disclosed before charges are laid

 

  1. However, the Petitioner made demands for the disclosure thereafter and it was never provided until the Petitioner brought an application, which the Respondent opposed production, yet Justice Bowden ordered production. Then at paragraph 43, it pleads:

 

A reasonable regulatory scheme giving rise to civil consequences may be substantially-more intrusive than would be justified in a criminal context.

 

  1. The Respondent puts forward three cases for its position that it there was not an unreasonable search or seizure:

 

R v McKinlay Transport Ltd., [1990] 1 SCR 627 at

        British Columbia Securities Commission v Branch[1995] 2 SCR 3

                               Greene v Law Society of British Columbia, 2005 BCSC 390

  1. Branch is addressed supra and the Respondent appears to have not understood the binding finding of law that it was a seizure. The reason it was found not to be unreasonable was addressed above due to the minimal intrusiveness as the very specific fact that an investigation order, which was found to be a seizure at law, came with no intrusion into an office or home.

 

  1. McKinlay continues to make the point of a seizure at law and how the courts look to intrusiveness. If anything, it provides support for the Charter breach of the Petitioner.

 

  1. Greene is of no import to this case as the Petitioner has had practice reviews conducted by the Respondent and there is no challenge to practice reviews in this case. Again, the Respondent continues to submit cases that are not factually similar and do not provide assistance to the court on the issues before it.

 

  1. In response to the opinion that it is a careful and balanced scheme, the seizure is limitless in scope, date and time as it relates to the Petitioner’s data (and in this case some objects), and now the Respondent has confirmed it will effectively never return any seized documents.

 

  1. In relation to the allegation that the Petitioner did not avail himself, that is misleading. The Petitioner made exclusion request and gave the reasons for his exclusion requests which amounts to not consenting to any further search through the seized records but a search occurred in any event.

 

Controlling Authority

 

  1. It is uncontroverted that the Limitless Seizure Order constitutes a seizure. However, the issue are the distinguishing facts between the case at bar and Branch. As stated in Branch, “The demand for the production of documents contained in the summonses is one of the least intrusive of the possible methods which might be employed to obtain documentary evidence”.  The importance of this distinction was stressed in Baron v. Canada1993 CanLII 154 (SCC)[1993] 1 S.C.R. 416.  At page 443, the Court adopted the following statement from the reasons of Wilson J. McKinlay Transportsupra, at pp. 649-50:

 

                      In my opinion, s. 231(3) provides the least intrusive means by which effective monitoring of compliance with the Income Tax Act can be effected.  It involves no invasion of a taxpayer's home or business premises.  It simply calls for the production of records which may be relevant to the filing of an income tax return.

 

  1. The greater the departure from the realm of criminal law, the more flexible will be the approach to the standard of reasonableness. It is well settled that discipline proceedings are quasi-criminal in nature. However, in this case, the Respondent has worked with the police forces to continue to seize documents that not only affect his s. 8 rights but also now s. 7 Charter

 

  1. As noted, the corollary in Branch is that intrusion into offices and principles residences are highly intrusive and would constitute unreasonable search or seizures. Branch further made an important distinction between seizure of business and personal records. There can be nothing more intrusive that a search or seizure of a personal cell phone, private office and principal residence. Ergo, the seizure order granted by the ADM, deriving its presumptive power from the Impugned Rules, that compels immediate production of all records and any other evidence regardless of form for immediate seizure in the Petitioner’under threats and penalties such as an immediate indefinite suspension from the practice of law, is unreasonable.

 

  1. In Hill v. Church of Scientology of Toronto1995 CanLII 59 (SCC)[1995] 2 S.C.R. 1130at para. 80, the Supreme Court of Canada reiterated that alleged Charterviolations should not be determined in the absence of a proper evidentiary record. Courts should be reluctant to engage in Charter analysis in a factual vacuum. Each case must be considered on its own facts or lack of facts:  Danson v. Ontario (Attorney General)1990 CanLII 93 (SCC)[1990] 2 S.C.R. 1086MacKay v. Manitoba1989 CanLII 26 (SCC)[1989] 2 S.C.R. 357. To the extent that the absence of the evidentiary record is not present, then it is incumbent upon the Respondent to list and produce those documents.

 

 

 

 

 

DETERMINATION ON LIABILITY AND UNLAWFUl CONDUCT

 

  1. Therefore, the Honourable Court is required to quash or set aside the Limitless Seizure Order and make the other ancillary orders sought as a result with the following headings being applicable to the correct legal analysis:

 

Applicant duty in Ex Parte Proceedings

 

  1. Did the applicant, Mark Bussanich fail to discharge his onerous duty to make full, frank disclosure and present both sides of the argument during this adjudicative process of him serving his application on the ADM?
    1. The binding jurisprudence is unequivocal that Mark Bussanich failed to meet the standard required of applicants in ex parte hearings.
    2. As such, the Limitless Seizure Order must be quashed or set aside.

 

Ex Parte Hearings

 

  1. Was the Respondent able to have this hearing conducted ex patre without a clear grant do so?
    1. The binding jurisprudence is clear that when there was no statutory grant to have an ex parte hearing, then the Respondent was not so entitled
    2. As such, the Limitless Seizure Order must be quashed or set aside.

 

 

Notice to Member

 

  1. Was the Petitioner entitled to notice of the hearing of this application that had so much at stake for him?
    1. The binding jurisprudence is unequivocal that the Petitioner should have been entitled to some form of notice especially in light of the penalties at stake and how they could be used against him in future prosecution.
    2. As such, the Limitless Seizure Order must be quashed or set aside.

 

 

Oral Hearing Requirement

 

  1. Was an oral hearing required for this privileged application for such a Draconian limitless data seizure order?
    1. The binding jurisprudence is unequivocal that an oral hearing, albeit potentially brief, should have been held.
    2. As such, the Limitless Seizure Order must be quashed or set aside.

 

Evidence under Oath

 

  1. Was the applicant required to swear evidence under oath in support of the application for the Limitless Seizure Order?
    1. The nature of the Draconian Order being sought was more intrusive than an order under s. 37 of the Legal Profession Act.
    2. As such, the Limitless Seizure Order must be quashed or set aside.

 

Failure to Disclose Underlying Application Materials and Copy of Complaint Despite Request for Same

 

  1. Was the Respondent required to provide the Petitioner with the underlying materials before or at the time of the execution of the Limitless Seizure Order? If not, was it required to provide copies of the materials after the Petitioner made a request for the same?
    1. The controlling authorities are clear that to the extent that the underlying materials should be provided as soon as possible, and certainly upon request.
    2. Even further, the LSBC’s own rules require it.
  • As such, it is yet another ground to quash or set aside the Limitless Seizure Order.

 

Legal Classification of Draconian Order granted by ADM

 

  1. At law and in our province, is the order granted by the ADM a seizure?
    1. The binding jurisprudence in our province is unequivocal that the forced production of documents is a seizure (see: Bishop and Branch).
    2. It does not matter whether it is called a Rule 4-43 Order, investigation order, or Limitless Seizure Order as the “investigation order” in Branch, which was far less intrusive than the order granted by the ADM, was found to be a seizure at the BCSC, BCCA, and SCC.
  • As such, the vires and the constitutionality of the Limitless Seizure Order are examined in relation to intrusiveness of the seizure.

 

Standard of Review when no Reasons (formal or informal; written or oral) are issued to support the 

 

  1. Is deference owed to this ADM when the ADM has failed to issue any reasons (formal or informal; written or oral) despite a request for the same for a regulatory Anton Piller or an LPA, s. 37 order that entitles immediate limitless seizure of a member’s CPU and cell phone (irrelevant or privileged records) along with entry into a personal residence for the purposes of seizure under the penalty of immediate indefinite suspension from practice of law and loss of livelihood.
    1. The binding jurisprudence in our country is unequivocal that no deference is owed in this situation of no reasons whatsoever.

 

Administrative Decision Maker’s Requirement to Issue Reasons

 

  1. Was it incorrect for the ADM not to issue Reasons in relation to his adjudicative function in granting a seizure order based on a privileged application from his solicitor that entitled the Respondent to intrude into Petitioner’s private office and principal residence and forensically copy and all data from computers and personal mobile devices under multiple threats including, but not limited to, an immediate and indefinite suspension coupled with the Petitioner not receiving the complaint or underlying materials?
    1. The binding authorities are unequivocal and overwhelming that it was absolutely incorrect for the ADM to not issue Reasons.
    2. As such, the Limitless Seizure Order must be quashed or set aside.

 

Effect of Failing to Issue reasons

 

  1. Was is the effect of this ADM failing to issue Reasons?
    1. The controlling authorities in this area of administrative adjudicative law that the failure to issue reason is a sufficient and independent ground to quash.
    2. As such, the Limitless Seizure Order must be quashed or set aside.

 

 

Loss of Jurisdiction

 

  1. Did the ADM lose jurisdiction by failing to issue Reasons?
    1. There are authorities that demonstrate that the failure to issue Reasons can cause a tribunal to lose jurisdiction.
    2. As such, the Limitless Seizure Order must be quashed or set aside.

 

 

Standard of Review: Conflict of Interests

 

  1. What is the standard for review when dealing with issues of bias, reasonable apprehension, conflicts of interest and independence?
    1. This is jurisdictional issue as to whether there exists a reasonable apprehension of bias on the part of the decision-maker. Any error in respect of this is therefore a reviewable error of law with no deference being shown to the deliberate decision of the Respondent to have Mark Bussanich enter into an extensive and ongoing solicitor-client relationship with the ADM.

 

Principle of Dictation

 

  1. Did the ADM act under the principle of dictation in receiving legal advice from his solicitor about granting the Limitless Seizure Order?
    1. This is not a matter that falls under a pure point of law but the Petitioner’s submission is that the ADM was acting under the principle of dictation as he was receiving confidential and privileged legal advice from his solicitor.
    2. As such, the Limitless Seizure Order must be quashed or set aside.

 

 

Actual Bias of the ADM

 

  1. Was the actual ADM biased?
    1. This is a matter to be determined by the Honourable Court.
    2. If he was, the Limitless Seizure Order must be quashed.

 

Reasonable Apprehension of Bias

 

  1. The properly framed issued is whether a reasonably informed member could reasonably perceive bias on the adjudicator when this adjudicator admitted under oath and court ordered produced documents demonstrated there was a mutually beneficial and confidential solicitor-client relationship at all relevant times and/or the application itself was “Privileged and Confidential”?
    1. Yes, an objective person could reasonable perceive bias in these circumstances.
    2. As such, the Limitless Seizure Order must be quashed.

 

Independence

 

  1. Alternatively, did the ADM lose his independence as a result of being in a solicitor-client relationship with the applicant, Mark Bussanich and the very application seeking the granting of the order was privileged itself?
    1. Yes, the controlling and binding
    2. As such, the Limitless Seizure Order must be quashed.

 

 

Standard of Review of Issues of Jurisdiction, Vires and Constitutionality

 

  1. What is the standard of review for these questions of law?
    1. Certain matters have been held by the court to always warrant a correctness standard: Questions of constitutional law and division of powers (see: Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 SCR 322; and Crevier v. Quebec,supra). a "true question of jurisdiction" (in determining whether an administrative decision-maker has properly exercised its authority granted under a statute) (see: United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City), [2004] 1 SCR 485) questions of general law that are both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise (see:  Toronto (City) v. C.U.P.E., Local 79, [2003] 3 SCR 77, 2003 SCC 63 at para 62 per Lebel J.).
    2. As such, no deference (reasonable leeway as referred to by the Respondent) to these matters.

 

 

Ultra Vires

 

  1. Was the Limitless Seizure Order Proceeding, at any juncture, ultra vires?
    1. The Respondent did not have the power to grant such a wide sweeping limitless seizure order
    2. The Respondent does not have the power to continue to send investigators to execute on the Limitless Seizure Order when consent has not been given in that regard.
  • The Respondent does not have the jurisdiction to hold seized documents in perpetuity as it has now told the Petitioner.
  1. The decision by the United States Supreme Court in Ganias becomes applicable and another issue of national importance.

 

 

Return or Destruction of Seized Documents

 

  1. Was the Respondent required to return or destroy the seized records in the face of Petitioner’s request to do so and after consent had been withdrawn?
    1. Yes, the Petitioner was never advised of his right to withdraw consent or the potential consequences of consent, and the Respondent admits that consent is obtained under threats.
    2. The binding authorities are overwhelming that the Petitioner could not have given informed consent.
  • As such, the Limitless Seizure Order must be quashed and all seized records and any other evidence regardless of form must be destroyed with an undertaking by the lawyer who destroys it as affidavit evidence of this Respondent has proved to be misleading, unreliable and inconsistent.

 

  1. Was the Respondent required to destroy or return the Petitioner’s documents pursuant to the Legal Profession Act?
    1. Yes, the LPA is clear that it is required to do so.

 

 

Charter Rights

 

  1. Does the Limitless Seizure Order Proceeding, at any juncture, breach the Petitioner’s Charter rights?
    1. Yes, the Respondent’s process unjustifiably infringes the Petitioner’s Charter rights.
  2. Did the Respondent breach the Petitioner’s Charter rights?
    1. Yes, the evidence is overwhelming that the Respondent conducted search and seizures without the Petitioner’s consent and/or informed consent.

 

  1. The controlling authorities in this case are overwhelming in support of the orders sought the Petition. The Petitioner asks that this Honourable Court make orders in relation to case management, a trial management conference and the damages trial set for January 8, 2018.

 

 

Costs

 

  1. The Petitioner respectfully submits that he should have his costs of this Petition herein [previously para 139].

 

Part 4: MATERIAL TO BE RELIED ON

 

  1. Affidavit #1 of Kevin A. McLean at the British Columbia Court of Appeal;
  2. Petitioner’s Filed Reply at the Supreme Court of Canada;
  3. Affidavit #1 of Naim Abou-Khazaal;
  4. Limitless Seizure Order of ADM;
  5. Privileged Legal Opinion/Application to the ADM;
  6. Certified Transcripts of hearings before The Honourable Madam Justice Gerow on March 30, 2015, May 28 and May 29, 2015; and
  7. The decision of the Law Society tribunal dismissing the LSBC’s application to interim suspend the Petitioner;
  8. Order of Mr. Justice Bowden under S-1410056;
  9. Such further material as the court considers appropriate.

The Petitioner estimates that the hearing of the Petition will take 30 45 minutes     

 

June 19, 2017                July 19, 2017                                

Dated                                                                           Signature for Petitioner

                                                                                    Authorized Signatory

 

 

 

                       

To be completed by the court only:

   
         

Order made

   

[ ]

 

in the terms requested in paragraphs ...................... of Part 1 of this notice of application

   

[ ]

 

with the following variations and additional terms:

   
   

...............................................................................................................

   
   

...............................................................................................................

   
   

...............................................................................................................

   
         

Date: __________________

   
   

....................................................

Signature 

   

 

 

 

 

 

 

 

#MRUNGOVERNABLE   

 #Ungovernable Lesson of the Day: How can a disbarred lawyer understand this area of law better than his former regulator? Is he that #good or he has just hung around long enough to expose holes in the regulator's alleged fabric? How can the regulator not understand this area of law? 

#UNGOVERNABLE: ESCAPE YOUR OPPRESSED STATE

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We define Ungovernable like the dictionaries (we are amenable to follow when its appropriate to do so): "escape the control".