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Discretion - Consistent with the Law (Okanagan)
COMMENT
This is a tentative file on the theory that the discretion limitation of 'consistent with the law' is rendering more limited by the British Columbia (Minister of Forests) v. Okanagan Indian Band (SCC, 2003) case, quoted below. Okanagan does not limit 'law' to statutory law, but opens it up broadly to normal case-by-case judicial interpretation (ie. common law).
CASES
. Law Society of Ontario v Schulz
In Law Society of Ontario v Schulz (Div Court, 2023) the Divisional Court considered errors in the exercise of discretion, here in a Law Society Tribunal Hearing Division regarding the composition of the hearing panel:[30] The Appeal Division’s conclusion that there was no error in the exercise of discretion by the Chair or Vice-Chair was based on its finding that there was no record upon which the panel might find some impropriety in excluding a lay adjudicator from the panel and no evidence on which it might conclude whether the discretion was “properly or improperly” exercised. The Appeal Division further found that the Chair is under no obligation to “record or document” the reason for appointing an all-lawyer panel. I find this reasoning problematic for the following reasons.
[31] First, in this case, there is nothing in the record to suggest that the Chair or Vice-Chair actually exercised their discretion to proceed with a panel of three lawyers, let alone that the discretion was exercised for one of the available grounds under s. 1(4) of the Regulation. The hearing panel made no mention of the composition of the panel at the outset of the hearing or at any other time.[3] In the absence of an order, statement or any indication that the discretion not to assign a lay adjudicator to the panel was exercised, it is impossible to conclude that the discretion was exercised and that it was exercised for a ground provided in s. 1(4) of the Regulation. In my view, it cannot simply be assumed that the discretion was exercised, and that it was exercised for a ground available under the Regulation.
[32] Second, the Chair’s discretion to depart from the requirements of s. 1(2) is not absolute. Because the Chair can only exercise their discretion for one of the grounds stated in s. 1(4) of the Regulation, the issue is not whether a party challenging the composition of the panel can demonstrate impropriety in the Chair’s exercise of discretion. Rather, the issue is whether the discretion was exercised in accordance with s. 1(4) of the Regulation.
[33] A party challenging the composition of the hearing panel would rarely be able to put forward evidence that the exercise of discretion was not in accordance with s. 1(4) of the Regulation. It is for this reason that the Appeal Division’s finding that the Chair is under no obligation to “record or document” the reason for appointing an all-lawyer panel is particularly problematic. If this were the case, a party would never know whether the discretion to depart from s. 1(2) of the Regulation was exercised in accordance with the Regulation. In my view, because the Regulation requires that the Chair assign a lay adjudicator to the hearing panel and provides only limited grounds for departing from that requirement, the Chair must provide the basis for the exercise of discretion.
[34] One of the bases the Appeal Division gave for finding that the Chair was not required to notify the parties of the panel’s composition was that an agenda naming the adjudicators was published a week before the hearing, and the parties could have checked the adjudicator biographies on the Tribunal website. I agree that the parties can and ought to check that the panel is properly constituted. However, the burden of ensuring that the composition of the panel complies with the Regulation is not on the parties, but on the Chair.
[35] My finding is not intended to suggest that the Chair must render a written decision and/or provide extensive reasons when assigning a panel that departs from the requirements of s. 1(2) of the Regulation. The Tribunal’s current practice is to send out an agenda prior to the hearing identifying the panel members. Where the Chair has exercised their discretion under s. 1(4), the agenda could include a statement indicating under which of the three grounds the discretion was exercised.
[36] Alternatively, the information could be stated on the record at the outset of the hearing. While this could give rise to an objection to the composition of the panel at the outset of the hearing, it would be preferable that the objection be raised and addressed at the hearing stage rather than on appeal before the Appeal Division. It would also be open to the Chair to issue an order in advance of the hearing.
[37] Nothing in my reasons should be interpreted as constraining the discretion of the Chair under s. 1(4) of the Regulation to assign panels that depart from the requirements of s. 1(2).
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[40] In summary, the Appeal Division erred in law in finding that the composition of the hearing panel did not give rise to a lack of jurisdiction and in failing to remit the matter to a properly constituted panel. . British Columbia (Minister of Forests) v. Okanagan Indian Band
In British Columbia (Minister of Forests) v. Okanagan Indian Band (SCC, 2003) the Supreme Court of Canada considered court review of discretionary decisions, here costs:B. Appellate Review of Discretionary Decisions
42 The discretion of a trial court to decide whether or not to award costs has been described as unfettered and untrammelled, subject only to any applicable rules of court and to the need to act judicially on the facts of the case (Earl v. Wilhelm (2000), 199 Sask. R. 21, 2000 SKCA 68, at para. 7, citing Benson v. Benson (1994), 1994 CanLII 4554 (SK CA), 120 Sask. R. 17 (C.A.)). Sigurdson J.’s decision in the present case was based on his judicial experience, his view of what justice required, and his assessment of the evidence; it is not to be interfered with lightly.
43 As I observed in R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12, however, discretionary decisions are not completely insulated from review (para. 118). An appellate court may and should intervene where it finds that the trial judge has misdirected himself as to the applicable law or made a palpable error in his assessment of the facts. As this Court held in Pelech v. Pelech, 1987 CanLII 57 (SCC), [1987] 1 S.C.R. 801, at p. 814-15, the criteria for the exercise of a judicial discretion are legal criteria, and their definition as well as a failure to apply them or a misapplication of them raise questions of law which are subject to appellate review.
44 Two errors in particular vitiate the chambers judge’s decision and call for appellate intervention. First, he overemphasized the importance of avoiding any order that involved prejudging the issues. In a case of this kind, as I have indicated, this consideration is of less weight than in the ordinary case; in fact, the allocation of the costs burden may, in certain cases, be determined independently of the outcome on the merits. Sigurdson J. erred when he concluded that his discretion did not extend so far as to empower him to make the order requested. Secondly, Sigurdson J.’s finding that a contingent fee arrangement might be a viable alternative for funding the litigation does not appear to be supported by any evidence, and I agree with Newbury J.A. that the prospect of the Bands’ hiring counsel on a contingency basis seems unrealistic in the particular circumstances of this case.
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