Law Society of Upper Canada v. French, [1975] 2 SCR 767

Supreme Court of Canada

Law Society of Upper Canada v. French, [1975] 2 S.C.R. 767

Date: 1974-10-11

Law Society of Upper Canada (Plaintiff) Appellant;

and

Stephen Charles French (Defendants) Respondent.

1974: May 7; 1974: October 11.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Administrative law—Natural justice—Bias—Members of Discipline Committee participating in Convocation considering Committee’s report—The Law Society Act, 1970 (Ont.), c. 19, ss. 33, 34, 37, 39.

Barristers and solicitors—Discipline—Professional misconduct—Investigation and report by Discipline Committee—Nature of proceedings in Convocation considering Committee report—Right of Benchers to sit on both Committee and Convocation.

Formal complaints against the respondent as a solicitor were laid by the Secretary of the Law Society of Upper Canada and were heard by the Discipline Committee of the Society which found respondent guilty of professional misconduct and reported to Convocation its finding with the recommendation that respondent be suspended for three months. Despite a representation from respondent that members of Convocation who had been members of the Discipline Committee should not participate in Convocation when it considered the report two of the Benchers in question were present and it was ruled from the chair that they could continue to participate. Convocation voted to adopt the report. Respondent applied to the Supreme Court of Ontario to quash the decision of Convocation and the Discipline Committee and this motion was granted in part to the extent of quashing the decision of Convocation and remitting the report to Convocation to be considered in the absence of those members whose report it was. The Court of Appeal dismissed the resulting appeals by both the respondent and the Law Society.

Held (Laskin C.J. and Ritchie and Dickson JJ. dissenting): The appeal should be allowed and the cross-appeal dismissed.

Per Martland, Judson, Spence, Pigeon, Beetz and de Grandpré JJ. Section 39 of The Law Society Act, 1970 (Ont.), c. 19 (now R.S.O. 1970, c. 238) gives a member or student who has been reprimanded a

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specific right of appeal and in sub-section (4) provides that no Bencher who sat on the Committee whose order is appealed should take part in the hearing of the appeal. It is appropriate to apply the maxim expressio unius est exclusio alterius and even if the proceedings were an appeal of a type other than that provided by s. 39 none the less the members of the Discipline Committee could sit in Convocation on the hearing of that Appeal. The preferred view of the procedure in Convocation is that it is not an appeal but the second stage in a two step procedure in which there is no bar to the members of the Discipline Committee sitting in convocation on consideration of the report of that Committee.

Per Laskin C.J. and Ritchie and Dickson JJ. dissenting: There was no ground upon which the solicitor could succeed in his motion to quash the decision of the Discipline Committee. That decision was not tainted either by want of procedural fairness or by any other error of law. As to whether the decision of Convocation adopting the Committee’s findings should stand, the issue did not fall to be decided according to whether the proceedings in Convocation were or amounted to an appeal or were or amounted to a review under a two stage scheme of inquiry. That the Discipline Committee was an adjudicative body was clear from the governing statute. It was equally apparent that Convocation was engaged in a judicial exercise in its consideration of the report of the Discipline Committee and the solicitor was entitled to an unbiased assessment by Convocation. It was unthinkable that Convocation should include members who had already fixed the solicitor with guilt as members of the Discipline Committee. Section 39 of The Law Society Act, 1970 (Ont.), expressly disqualifies a Bencher who took part in a Discipline Committee decision which imposed a minor penalty from sitting in an appeal from that decision, and a fortiori, members of the Committee should be disqualified from participating on a matter involving a greater penalty than mere reprimand. The scruple to be observed in such disciplinary proceedings as might affect livelihood is that of R. v. Optical Board of Registration, [1933] S. Aust. St. R. 1, namely the fact that there is an appeal to a Court does not lift a disqualification affecting membership of the tribunal from which the appeal lies.

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[King v. University of Saskatchewan, [1969] S.C.R. 678; Re Glassman and Council of the College of Physicians and Surgeons, [1966] 2 O.R. 81; R. v. Alberta Securities Commission, ex parte Albrecht (1962), 36 D.L.R. (2d) 199; Re Dancyger and Alberta Pharmaceutical Association (1970), 17 D.L.R. (3d) 206; Law v. Chartered Institute of Patent Agents, [1919] 2 Ch. 276; Frome United Breweries Company Limited v. Keepers of the Peace and Justices of Bath [1926] A.C. 586; Re Merchant and Benchers of the Law Society of Saskatchewan, [1973] 2 W.W.R. 109 referred to.]

APPEAL and CROSS-APPEAL from a judgment of the Court of Appeal for Ontario dismissing an appeal from an Order of Osler J.[1] quashing the proceedings of a Convocation of Benchers of the Law Society of Upper Canada. Appeal allowed, cross-appeal dismissed, Laskin C.J. and Ritchie and Dickson JJ. dissenting.

J.J. Robinette, Q.C., for the appellant.

Stephen C. French, in person.

The judgment of the Chief Justice and Ritchie and Dickson JJ. was delivered by

THE CHIEF JUSTICE (dissenting)—This case concerns disciplinary proceedings taken against a solicitor by The Law Society of Upper Canada. Stripped to its essentials, it raises the question whether members of the Discipline Committee of the Society, which inquired into the complaints against the solicitor, were disqualified from sitting and participating in the Convocation of the Benchers, the governing body of the Society, convened to consider the Committee’s report which recommended suspension of the solicitor for three months as a result of the Committee’s finding that seven of the thirteen complaints against the solicitor were well-founded.

Despite timely objection by the solicitor to the participation of members of the Discipline Committee in the Convocation proceedings, Convocation concluded that those members were not only entitled to participate but were obliged to do so. Two members did participate,

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but a third member, whether or not aware of the assertion of obligation, did not attend. The fourth member of the Committee as constituted to inquire into the complaints was defeated in an intervening election of Benchers.

Convocation adopted the findings of the Committee and proposed to consider two motions, one for the three months’ suspension recommended by the Committee and a second for disbarment of the solicitor. The solicitor sought and obtained an adjournment at this point and moved to quash the decision of Convocation adopting the findings against the solicitor and as well the decision of the Discipline Committee finding seven of the complaints to have been established.

Osler J., before whom the motions to quash came, granted relief to the solicitor to the extent only of quashing the decision of Convocation. He directed that the Discipline Committee’s report be remitted to Convocation for consideration without participation of any members of the Committee. The Court of Appeal of Ontario dismissed appeals by both the Law Society and the solicitor, and these parties are now before this Court as appellants by leave granted on February 19, 1973.

I may say at once that I see no ground upon which the solicitor can succeed in his motion to quash the decision of the Discipline Committee embodied in its report. That decision is in no way tainted, either by want of procedural fairness or by any other error of law. The point of substance in this case, as I stated at the beginning of these reasons, is whether the decision of Convocation adopting the Committee’s findings adverse to the solicitor should stand, or whether it should be set aside and the report remitted as directed by Osler J. In my opinion, Osler J. and the Court of Appeal were right, and the Law Society’s appeal should be dismissed.

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In preparing these reasons, I had the advantage of having the reasons drafted by my brother Spence, who has the support of a plurality of this Court in his carefully considered conclusion that there was no reviewable error in the position adopted by the Benchers in Convocation. My different view of the law that should be applied to the facts as accepted by both my brother Spence and by me is explained in what now follows.

I do not think that the issue herein falls to be decided according to whether the proceedings in Convocation are or amount to an appeal or are or amount to a review under a two-stage scheme of inquiry into allegations of professional misconduct. No doubt, characterization of the proceedings as an appeal may lend weight to the contention of the appellant solicitor, but the principle underlying his position rises above any such formalistic approach. The principle is immanent in the ancient maxim nemo judex in causa sua, expressed by Coke in Bonham’s Case in 1610, and, in its evolutionary application to statutory tribunals, has been examined in depth by de Smith, Judicial Review of Administrative Action, 3rd ed. (1973), c. 5, especially at pp. 227ff. and 237ff.

I am not troubled, in considering the evolution of the principle in administrative law that superior court judges did not apply a rule of disqualification in respect of their own appellate functions until so compelled by statute. Statute may express principle for future guidance of Courts no less than common law; and where it abrogates common law I would find it incongruous that the abrogated principle should retain its vitality simply because it is invoked in relation to statutory tribunals rather than superior courts. The key issue is surely impartiality, to be evidenced not by post-facto review of proceedings to determine whether there was bias in fact but rather by a scrupulous a priori regard

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for any reasonable apprehension of bias or of interest.

I readily agree that drawing the line at the point of disqualification may be difficult. The late Professor de Smith in his book, already referred to, caught the exact problem faced by this Court in this case by noting (at pp. 228-229) that where a report by members of a sub‑committee to the parent body consists of a statement of findings and recommendations, which may be controverted before the parent body, “the participation of members of the sub‑committee in the final decision may be of dubious validity”. The important consideration in the present case which, in my view, over-rides the characterization of the disciplinary proceedings as either a two-stage procedure or as involving judicial review is that the Discipline Committee did not merely make findings of fact but also drew conclusions of guilt of seven of the complaints laid against the solicitor. This was done in conformity with s. 33(1)(c) and s. 33(12) of The Law Society Act, 1970 (Ont.), c. 19, and also pursuant to Reg. 556, s. 13(6) which requires the Discipline Committee to “report in writing to Convocation setting forth a summary of the evidence at the hearing, its findings of fact and conclusions of law, if any, based thereon and its recommendations as to the action to be taken by Convocation…”. Section 33(1)(c) speaks of the Discipline Committee reaching “the decision that he is guilty”, and s. 33(12) speaks in the words of Regulation 13(6) quoted above, referring to the “decision…[containing] the reasons…in which are set out the findings of fact and the conclusions of law, if any, based thereon…”. Indeed, s. 33(12) goes on to speak of service of a copy of the decision and reasons upon the affected person together with a notice of his right of appeal.

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Much was made of the fact that s. 39 of the Act, in referring to a right of appeal where a reprimand has been recommended, expressly disqualifies a Bencher who sat on the Discipline Committee from taking part in the hearing of the appeal in Convocation. It is to me a curious, if not inverted view of expressio unius, exclusio alterius to urge that where a graver penalty than mere reprimand is recommended there is no disqualification. I should have thought it a fortiori, without the need of express reference; at the worst, I would consider it a casus omissus which cries for judicial intervention in accordance with accepted principles of administrative law. Of course, I have already made it plain that I see no value in chasing a conceptual ghost to the neglect of the substantial question, a question that is answered by the terms of s. 33(1)(c), s. 33(12) and Regulation 13(6).

Again, the hearing before Convocation was not a hearing de novo, nor one in which Convocation was presented with merely factual findings for its consideration. It was a hearing based on findings of guilt which the adversely-affected solicitor was seeking to reverse and which he was invited to challenge by the notice served upon him by the Law Society that the Discipline Committee’s report and findings would be considered by Convocation at a stated time and place. The point is made by Widgery L.J., as he then was, in Hannam v. Bradford City Council[2], at p. 697 that in such a case it is immaterial whether the proceedings are, strictly speaking, an appeal.

The likelihood that members of the Discipline Committee would stand above their findings and conclusions could be best ensured if they abstained from participating in the ensuing Convocation proceedings. That they should do so as a matter of law seems to me to be the more obvious when it is the organized legal profession whose conduct is under scrutiny. It is a

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reasonable expectation that lawyers, in their organized capacity as the governing body of their profession, should be most sensitive to the application of the rationale underlying the principle of impartiality. Indeed, whether or not the law was on their side—and I think it is not—it would have been a simple matter to have acceded to the request of the solicitor that members of the Discipline Committee abstain from participation in proceedings consequent upon their report and findings of guilt. One such member did abstain on his own. That way this protracted litigation might have been avoided without sacrifice by the Law Society of either principle or authority.

I do not think that I stretch the conception of bias beyond reasonable limits in supporting the disqualification of members of an adjudicative body when they come to its proceedings with their names attached to previous findings of guilt upon which those proceedings are based. It is not as if they served reluctantly and ex necessitate because without them there could be no quorum. The Law Society Act prescribes for more than a sufficient number of Benchers who can constitute a quorum without the participation of the members of the Discipline Committee. In the present case, there were more than enough Benchers for a quorum and, even if there were not, the proper course would be to adjourn the proceedings until a qualified quorum was present.

That the Discipline Committee in the exercise of its statutory function was an adjudicative body is clear from the governing statute. Equally apparent from that statute is that Convocation was engaged in a judicial exercise in its consideration of the report, findings and recommendations of the Discipline Committee. The solicitor was as entitled to an unbiased assessment by Convocation as by the Discipline Committee. It would have been unthinkable that the Discipline Committee would have among its members a person who laid any of the charges against the solicitor: see Leeson v. General

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Council of Medical Education & Registration[3]; and cf. Hurley v. Institute of Chartered Accountants of Manitoba[4], at p. 368. Equally unthinkable, in the absence of express authorization, is that Convocation should include members who had already fixed the solicitor with guilt as members of the Discipline Committee. An adjudicator may not properly sit in further proceedings based upon his adjudication any more than can an accuser sit as a member of the tribunal hearing his accusation, unless authorized by statute. R. v. Law Society of Alberta, ex parte Demco[5] is an illustration of a case where there was express legislative authorization for members of a discipline committee or investigating committee to participate and vote in subsequent Convocation proceedings.

Reliance was placed by counsel for the Law Society upon Re Dancyger and Alberta Pharmaceutical Association[6] and, more heavily, upon Re Merchant and Benchers of The Law Society of Saskatchewan[7]. In neither of these cases did the relevant legislation speak either of express inclusion or exclusion of members of the investigating or discipline committee from participating in subsequent council or Convocation proceedings. The judgment of the Alberta Appellate Division in the Dancyger case was given by Johnson J.A. who delivered its judgment in the Demco case. It is sufficient to note, by way of distinction from the case at bar, that the court in the Dancyger case considered that there was only one adjudication, namely, by the Council, which decided guilt or innocence and alone imposed sentence following consideration of the report of its investigating committee. There is language in the reasons that bears on the characterization of the proceedings before the Council and distinguishes those that are appellate and those that are by way of a review

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that is something less than an appeal. Johnson J.A. appears to accept the proposition that in the absence of authorizing legislation, a member of a deciding committee cannot sit on appeal from his own decision.

I have already indicated that I do not think the disqualification should rest on whether there is or is not an appeal in the strict sense. The more material question is whether there has been an adjudication rather than an investigation merely of the facts. That there was an adjudication in the present case is undoubted, and I do not agree that it is an answer to disqualification that the solicitor’s status could not be altered until Convocation pronounced the penalty. The judgment of guilt in Committee is the stigmatizing element that raises the reasonable apprehension of bias if members of the Committee sit in Convocation which considers the Committee’s adjudication and determines the penalty.

If, indeed, the Dancyger case involved an adjudication in committee I would hold it wrongly decided on the point under discussion. I say this because the Saskatchewan Court of Appeal in the Merchant case cited Dancyger in support of the proposition that members of a Discipline Committee which made a finding of guilt of professional misconduct were not thereby disentitled to sit in Convocation which considered and accepted the Committee’s report embodying the finding of guilt and recommending a penalty.

The Merchant case had not been decided by the Saskatchewan Court of Appeal when the present case was before the Ontario Court of Appeal, and in the result there are two conflicting judgments of provincial Courts of Appeal that fall to be considered here. I read the reasons in the Merchant case as again dwelling upon the distinction between appeal and a single two-stage proceeding in which there is inquiry and investigation followed by consideration of the results of the inquiry. In my opinion, this

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analysis fails to note that the first stage proceeding involved an adjudication of guilt, and, in my view, that destroys the notion of one proceeding, if that is meant to be the determining factor on the issue of disqualification.

The scruple that should be observed in disciplinary proceedings that may affect livelihood is underlined by the approach taken in R. v. The Optical Board of Registration[8], where the tribunal that was to hear a complaint was disqualified for involving itself in the investigation thereof and in the procuring of evidence to support it. I agree with the Supreme Court of South Australia in that case that the fact that there is an appeal to a court, as there is in the present case, does not lift a disqualification affecting membership of the tribunal from which the appeal to the court lies.

I would dismiss the appeal of The Law Society with costs and dismiss the cross-appeal of the solicitor without costs.

The judgment of Martland, Judson, Spence, Pigeon, Beetz and de Grandpré JJ. was delivered by

SPENCE J.—This is an appeal from the judgment of the Court of Appeal for Ontario pronounced on September 28, 1972. By that judgment, the said Court dismissed an appeal from the Order of Osler J. pronounced on April 12, 1972. By his Order, Osler J. had quashed the proceedings of the convocation of Benchers held January 20, 1972, and had ordered that the report of the Discipline Committee dated September 10, 1971, should be remitted to Convocation to be dealt with in the absence of those members of the Committee whose report it was.

Formal complaints against the respondent as a solicitor had been laid by the Secretary of the Law Society of Upper Canada. The complaints numbered thirteen in all. The complaints were

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heard by the Discipline Committee of the Society. Such Discipline Committee was, at first, composed of the following Benchers: Mr. Arthur Maloney, Q.C, who is the Chairman of the Discipline Committee, Mr. Nathan Strauss, Q.C., Mr. Walter Harris, Q.C., and Mr. Hyliard Chappel, Q.C.

During the course of the hearing of the complaints, an election of Benchers was held and Mr. Hyliard Chappel, Q.C., was not returned as a Bencher. He, therefore, took no part in the deliberations of the Committee after the evidence had been concluded and the written submission of counsel for the respondent received. The Chairman and the other two remaining members of the Committee delivered to the Society the report of the Committee dated September 10, 1971, and in that report the Discipline Committee found that seven of the thirteen complaints had been established. The Committee recommended that Convocation order the solicitor to be suspended for a period of three months. The Secretary of the Law Society gave notice to the respondent that the report of the Discipline Committee would be considered in Convocation on November 19, 1971. Since the contents of that notice are of some importance, I quote the said notice in full:

NOTICE OF DECISION

IN THE MATTER OF The Law Society Act, 1970

AND IN THE MATTER OF Stephen Charles French, Q.C., of the City of Toronto, Barrister and Solicitor

TO: STEPHEN CHARLES FRENCH, Q.C., Barrister and Solicitor

TAKE NOTICE that the attached decision of the committee of Benchers dated the 10^th day of September 1971 will be considered by Convocation of the Law Society at Osgoode Hall, Toronto, on Friday, the 19th day of November 1971 at 10:00 o’clock in the forenoon when Convocation may accept or reject the said decision and may by order cancel your membership in the Society by disbarring you as a barrister and striking your name off the Roll of solicitors, or may suspend your rights and privileges as a member of the Society for a period to be named or may by order reprimand you or make such

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other disposition of the matter as it considers proper in the circumstances pursuant to the powers conferred upon it by Section 34 of The Law Society Act, 1970.

AND FURTHER TAKE NOTICE that if you intend to object to any of the findings and fact and the conclusions of law contained in the decision of the committee notice of such objection together with the grounds therefor should be filed with the Secretary of the Law Society at Osgoode Hall, Toronto as soon as possible but not later than the day before the matter will be considered by Convocation.

AND FURTHER TAKE NOTICE that you have the right to appear before Convocation at the time and place mentioned above either with or without counsel and to make submissions with respect to the decision of the committee and any order that may be made by Convocation.

AND FURTHER TAKE NOTICE that after the matter has been dealt with by Convocation you have the right to appeal to the Court of Appeal from any order made by Convocation pursuant to the powers conferred upon it by Section 34 of The Law Society Act, 1970, such appeal to be taken within 15 days from the day upon which you may be served with the order of Convocation and to be proceeded with in the manner prescribed by Section 44 of The Law Society Act, 1970.

The respondent did not serve any notice of appeal but he did file with the Law Society a very long and detailed submission dealing extensively with the matter which had concerned the Discipline Committee. The solicitor did not appeal from the decision of the Discipline Committee but he did, on January 13, 1972, one week before the matter was considered by the Benchers in Convocation, write to the Assistant Secretary of the Law Society when he said:

I must insist that none of such members, being Messrs. Harris, Maloney and Strauss attend, or participate in any manner whatsoever in the deliberations before Convocation.

If Mr. Chappell should be appointed to fill a vacancy by that date, I reiterate the same views so far as he is concerned.

When the matter came before the Convocation on January 20, 1972, the respondent renewed his objection to the presence of Mr.

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Strauss and Mr. Harris. Mr. Maloney was not present and Mr. Chappell has not been appointed to fill a vacancy. Counsel for the Law Society submitted that there could be no objection to those two Benchers who had been members of the Discipline Committee sitting on the deliberations of Convocation and Convocation then deliberated and came to a decision that Messrs. Strauss and Harris had a right, indeed they had an obligation, to participate in the continuance of the investigation when it came before Convocation. The Treasurer ruled that accordingly Mr. Strauss and Mr. Harris would continue to participate.

After hearing, in great detail, representations made by the respondent, Convocation deliberated in the absence of both the respondent and counsel for the Law Society and then, recalling them both, announced its decision that it would adopt the findings of the Discipline Committee and that two motions had been made—one that the respondent be suspended in accordance with the recommendation in the Discipline Committee’s report, and, secondly, that the respondent be disbarred. The respondent then requested an adjournment to consider his position and, during the course of the adjournment, applied to the Supreme Court of Ontario to quash the decision of Convocation and also the decision of the Discipline Committee. Osler J. granted that application only to the extent of quashing the decision of Convocation and remitting the report of the Discipline Committee to Convocation to be considered in the absence of those members whose report it was.

Both the Law Society and the respondent appealed to the Court of Appeal. The Court of Appeal dismissed the appeals of both the respondent and the Law Society. Both the respondent and the Law Society have appealed to this Court by leave of the Court granted on February 19, 1973.

The appeal of the Law Society of Upper Canada is based on the submission that Osler J. erred in his conclusion that under the proper interpretation of the provisions of the Law Society Act and Rules the members of the Dis-

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cipline Committee were not entitled to sit as Benchers in Convocation when their report was being considered. It is my intention to deal first with this appeal.

The relevant sections of The Law Society Act, 1970 (Ont.) c. 19, are of importance, and I cite hereunder s. 33 (12) and ss. 34, 37 and 39.

33. (12) The decision taken after a hearing shall be in writing and shall contain or be accompanied by the reasons for the decision in which are set out the findings of fact and the conclusions of law, if any, based thereon, and a copy of the decision and the reasons therefor, together with a notice to the person whose conduct is being investigated of his right to appeal, shall be served upon him within thirty days after the date of the decision.

34. If a member is found guilty of professional misconduct or of conduct unbecoming a barrister and solicitor after due investigation by a committee of Convocation. Convocation may by order cancel his membershiip in the Society by disbarring him as a barrister and striking his name off the roll of solicitors or may by order suspend his rights and privileges as a member for a period to be named or may by order reprimand him or may by order make such other disposition as it considers proper in the circumstances.

. . .

37. If a committee of Convocation finds that a member has been guilty of professional misconduct or conduct unbecoming a barrister and solicitor which in its opinion does not warrant disbarment, suspension or reprimand in Convocation, the committee may by order reprimand him.

. . .

39. (1) Any member who had been found guilty under section 37 or any student member who has been found guilty under section 38 and, in either case, has been ordered to be reprimanded in committee, may appeal from the order of reprimand to Convocation within fifteen days from the day upon which he is served with the order of the committee.

(2) An appeal under this section shall be by motion, notice of which shall be served upon the Secretary, and the record shall consist of a copy of the proceedings before the committee, the evidence

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taken, the committee’s report and all decisions, findings and orders of the committee in the matter.

(3) Upon the hearing of an appeal under this section, Convocation may vary the punishment imposed by the committee or may refer the matter or any part thereof back to a committee with such directions as it considers proper or may make such order as it considers proper in the circumstances.

(4) No bencher who sat on the committee of Convocation when the order appealed from was made shall take any part in the hearing of the appeal in Convocation.

(5) Subject to section 44, the decision of Convocation under this section is final and not subject to any further appeal.

Counsel for the Law Society makes his submissions in the alternative. Firstly, even if the proceedings in Convocation on January 20, 1972, did amount to an appeal from the decision of the Discipline Committee, there is nothing in the common law which would prevent the members of that Discipline Committee sitting in Convocation and considering the so-called appeal and, moreover, that such a right is implicit at any rate in the provisions of the statute which I have cited above. Secondly, counsel submits that the proceedings in Convocation were not an appeal at all but merely a review by Convocation of a report of its committee and that the proceedings were, in fact, designed to be in two stages: (1) a hearing by the Discipline Committee and a decision by that committee and the report of that decision then to Convocation where the second step would take place.

Apart from the provisions of The Law Society Act, I am in grave doubt as to whether, If the proceedings before Convocation were an appeal, the members of the Discipline Committee who made the decision should be entitled to sit in Convocation on that appeal. It is true that long ago in common law there was no prohibition of such duplication in the tribunal and that changes have been wrought by such statutes as counsel for the appellant refers to, that is, the Judicature Act in England, the Ontario Judicature Act, and the Supreme Court of Canada Act.

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I am of the opinion that there is modern authority now which, apart from statute, might tend to indicate such duplication as being bias or the opportunity for bias which would make the proceedings contrary to natural justice and I believe that the decision of this Court in King v. University of Saskatchewan[9], must be understood as applying only to its particular circumstances. Speaking for the Court there, I said at p. 690:

It is to be noted that those decisions all deal with either appeals from one administrative body to another or appeals from a licensing committee to the justice of the peace. In my view, they are inappropriate to apply to the situation under review in this appeal. These were all university bodies. It was inevitable that there would be duplication as one proceeded from one body to another; so, it was perfectly proper that the president of the university should be a member of the special appeal committee which he set up to consider the appeal that had been made originally to him. Again, the executive of the faculty council could not be presided over by anyone more fit for the office than the chief member of the faculty, that is, the president. And finally, the president of the university as vice-chancellor thereof was required, by the university statute, to be a member of the senate appeal committee. The other duplications are of persons carrying out their ordinary duties as members of the faculty of the University of Saskatchewan.

It was significant that no members of any of the bodies was a member of the faculty of the law school, and that when the dean or members of that faculty attended any of the bodies they withdrew before voting. I am of the opinion that, in such matters as were the concern of the various university bodies here, duplication was proper and was to be expected, and I am not ready to agree that such duplication would result in any bias or constitute a breach of natural justice.

A consideration of the provisions of The Law Society Act, however, moves me to the conclusion that the duplication of members of the tribunal between the court of first instance and

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the appellate court in this particular case has been, at any rate, implicitly accepted by the legislature.

Firstly, I refer to s. 34(12) and note that the decision after hearing shall be in writing and a copy of the decision thereof together with a notice to the person whose conduct is being investigated, of his right of appeal shall be served upon that person. Therefore, the legislation contemplated an appeal by the solicitor whose conduct was being investigated and that was an appeal from the decision of the Discipline Committee. There is no other reference in the statute to an appeal from the decision of the Discipline Committee. Section 44 grants the right of appeal to any person dissatisfied with a decision of Convocation but does not in any way apply to an appeal from the decision of the Discipline Committee. There is, moreover, in the statute, no reference to the body to which the person whose conduct is being investigated may appeal, though I think it must be understood that the appeal is from the decision of the Discipline Committee to Convocation. Section 55 of The Law Society Act provides, in part:

55. Subject to the approval of the Lieutenant Governor in Council, Convocation may make regulations respecting any matter that is outside the scope of the rule-making powers specified in section 54 and, without limiting the generality of the foregoing,

1. respecting any matter ancillary to the provisions of this Act with regard to the admission, conduct and discipline of members and student members and the suspension and restoration of their rights and privileges, the cancellation of memberships and student memberships, the resignation of members, and the readmission of former students and student members;

It would appear that acting on that authorisation the Law Society enacted what it designates as Reg. 556, R.R.O. 1970, and subs. (7) of s. 13 provides:

13. (7) The Secretary shall;

(a) repare the report referred to in subsection 6 for approval by the Committee, and the Commit-

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tee’s approval shall be evidenced by the signature thereto of the member of the Committee who presided at the hearing or in his absence by another member of the Committee who was present at the hearing; and

(b) serve upon the member whose conduct is being investigated a copy of the report as so approved, a notice of the time and place of the Convocation that will consider the report, a summons requiring him to attend thereat and a notice substantially as follows:

“If you intend to dispute any statement of fact or finding of fact contained in the attached report of the Discipline Committee at the time of its consideration by Convocation, you are required to file with the Secretary not later than the day preceding Convocation a written statement setting forth any such statement of fact or finding of fact that you intend to dispute.”

Acting on that notice, the appellant delivered to the Law Society a long and detailed statement of his position which concluded:

It is, therefore, respectfully submitted that all of the charges found to be established by the committee should be determined by Convocation not to be established and dismissed.

It is, perhaps, of some significance that no place in s. 13 is the procedure referred to as an appeal from the decision of the Discipline Committee but rather the decision of the Discipline Committee is designated as a report and the notice is of the solicitor’s right to dispute a finding of fact in the report.

It should be observed that by s. 39 of The Law Society Act a member or a student who has been found guilty by the Discipline Committee and who has been reprimanded by that committee is given a specific right of appeal and by subs. (4) of that section it is provided that no bencher who sat on the committee of Convocation when the order appealed from was made should take part in the hearing of the appeal in Convocation. It would seem that this is a proper place to apply the maxim expressio unius est exclusio alterius. It would be difficult to understand why the legislators would seem to grant a

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right of appeal in s. 33(12) and remain silent as to whether members of the Discipline Committee could join Convocation upon that appeal and then create a specific right of appeal in s. 39 and specifically prohibit members of the Discipline Committee sitting on the appeal. For this reason, I am inclined to the opinion that if the proceedings were an appeal then none the less the members of the Discipline Committee could sit in Convocation on the hearing of that appeal.

I am, however, much more impressed by the alternative argument of counsel for the Law Society. I have already pointed out that the appellant did not purport to appeal from the decision of the Discipline Committee. The Law Society simply, in accordance with the rule which I have quoted, sent him a notice of the time when the report of the Discipline Committee would be considered by Convocation and notified him also of his opportunity to object to that report.

After the proceedings in Convocation on January 20, 1972, the Treasurer announced the decision of Convocation in these words:

Convocation has voted to accept the decision of the Discipline Committee. Accordingly you have been found guilty of professional misconduct as set forth in the report of the Discipline Committee.

The Benchers of Convocation are all skilled lawyers. Had it been intended to dismiss an appeal, words appropriate to that procedure would have been used.

Osler J. was of the opinion that the proceedings in Convocation were in the nature of an appeal although perhaps not so entitled. In coming to that conclusion, he examined various authorities, inter alia, Re Glassman and Council of the College of Physicians and Surgeons[10], R. v. Alberta Securities Commission, Ex parte Albrecht [11] and Re Dancyger and Alberta Phar-

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maceutical Association[12]. It is regrettable that neither Osler J. nor the Court of Appeal for Ontario had the opportunity to consider the decision of the Saskatchewan Court of Appeal in Re Merchant and Benchers of the Law Society of Saskatchewan[13]. There, Culliton C.J.S. gave the reasons for the Court and, although a decision of Convocation was quashed on other grounds, held that the presence at Convocation of the members of the Discipline Committee who had considered the charge of misconduct and reported that such charge was well-founded and had recommended that the solicitor be reprimanded was no cause for the quashing of the decision of the Convocation. The Chief Justice said at pp. 180 and 181:

In my view, the inquiry into, and the final disposition of, a complaint under the Legal Profession Act, R.S.S. 1965, c. 301, is a single proceeding in which there are two stages: Firstly, the inquiry and investigation into the complaint by the Discipline Committee, the results of which are embodied in a report to the Benchers; and secondly, the consideration and disposition of the report by the Benchers in Convocation. That being so, I can see no basis for the submission that the Benchers who were members of the Discipline Committee would be precluded from participating in the deliberations of the Benchers in Convocation: Re Dancyger and Alberta Pharmaceutical Association (1970), 17 D.L.R. (3d) 206, [1971] 1 W.W.R. 371; Banks v. Hall, [1941] 4 D.L.R. 217, [1941] 2 W.W.R. 534.

The provisions of the statute considered by the Chief Justice of Saskatchewan in the Merchant case were exactly in para materia with the provisions of The Law Society Act of Ontario which govern the present appeal. It will be seen that the Chief Justice of Saskatchewan adopted the view of the Appellate Division of Alberta in Dancyger and Alberta Pharmaceutical Association, supra, and I am persuaded that such a view is a proper one to take upon the present appeal. It is true that under the provisions of s. 33(12) of The Law Society Act, the

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Discipline Committee makes a decision but, under s. 34 if a member is found guilty of professional misconduct after due investigation by a committee of Convocation, i.e., the Discipline Committee, it is Convocation alone who may take the requisite disciplinary measure other than a mere reprimand in committee permitted by the provisions of s. 37.

I have come to the conclusion that what is intended in ss. 33 ff. of The Law Society Act of Ontario is the same two-step procedure which was found to exist in Alberta in the Dancyger case and in Saskatchewan in the Merchant case.

In the present case, as in those two cases, the members of the committee were in no sense accusers or prosecutors. The accuser in this case was Kenneth Jarvis, the Secretary of the Law Society of Upper Canada, and the proceedings were commenced by his affidavit sworn on January 6, 1971. The members of the discipline committee acted solely to investigate and report. The committee also made a recommendation but I am not ready to agree that such course of action in any way changed their function from that of an investigator and reporter to that of a prosecutor. Under these circumstances, such decisions as Law v. Chartered Institute of Patent Agents[14], Frome United Breweries Company Limited and Keepers of the Peace and Justices for County Borough of Bath[15], and the many cases discussed therein do not apply.

Therefore, to summarize as to the Law Society’s appeal, I would allow this appeal both for the reason that under the provisions of the statute if the proceedings in Convocation were an appeal then it was proper for the members of the Discipline Committee to sit in Convocation and also for the reason that in my view the procedure was not an appeal and, therefore,

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there is no bar to the Benchers who were members of the Discipline Committee sitting in Convocation on a consideration of the report of that Discipline Committee. Since Mr. French’s appeal was based upon the proposition that not only should the decision of Convocation be quashed but also the decision of the Discipline Committee should be quashed rather than merely remitted for further consideration to Convocation, there is no need to consider the appeal in view of the conclusion to which I have arrived. The Law Society should be entitled to its costs in all courts.

Appeal allowed with costs in all courts, cross-appeal dismissed, LASKIN C.J. and RITCHIE and DICKSON JJ. dissenting.

Solicitors for the appellant: Manning, Bruce, Macdonald & Macintosh, Toronto.