Bar of the Province of Quebec v. Ste-Marie, [1977] 2 SCR 414

Supreme Court of Canada

Bar of the Province of Quebec v. Ste-Marie, [1977] 2 S.C.R. 414

Date: 1976-05-05

Bar of the Province of Quebec Appellant;

and

Jean-Paul Ste-Marie Respondent;

and

Jacques Tisseur et al. Mis en cause.

1976: March 22; 1976: May 5.

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

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Administrative law—Writ of evocation—Appeal to the Council on Discipline of the Bar—Continuation of a sitting of the Council—Members present still seized of the appeal—Bar Act, 1966-67, (Que.), c. 77—Code of Civil Procedure, arts. 846 to 850.

Appeal—Jurisdiction of the Supreme Court—Leave to appeal from interlocutory judgments—Supreme Court Act, R.S.C. 1970, c. S-19, amended by 1974-75-76, (Can.), c. 18, ss. 38, 39, 41, 44 and 47.

On November 20, 1973, the Committee on Discipline of the Bar of the Province of Quebec permanently disbarred the respondent. In accordance with the Bar Act, an appeal was brought before the Council on Discipline, which upheld the penalty. Respondent, who does not challenge the fairness of the condemnation, based as it is on admitted facts the seriousness and derogatory nature of which are indisputable, then applied to the Superior Court by motion for a writ of evocation. The Superior Court found that the irregularities alleged by respondent did not justify issuing a writ of evocation. The Court of Appeal reversed this judgment solely because two of the seven members of the Council on Discipline formed to hear the appeal from the decision of the Committee on Discipline had not been called to the meeting of March 20, 1974 at which this appeal was dismissed. The Court of Appeal ordered a writ of evocation to be issued and the Bar of the Province of Quebec has brought an appeal to this Court by virtue of leave granted by this Court.

Held: The appeal must be allowed.

In ruling that the secretary-general was not exempted from calling the seven members of the Council even though the Council’s quorum for the meeting of March 20, 1974 was five members, the Court of Appeal overlooked an important fact. The sitting of March 20 was actually only a continuation of the sitting of February 27, 1974, to which it must be assumed that the seven

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members were duly convened. The five members of the Council present at this first sitting rightly considered that they were seized of the appeal brought against the decision of the Committee on Discipline. They cannot be criticized for having “continued the sitting” to March 20 owing to the absence of respondent and the withdrawal of his counsel. The notice of hearing sent to the members who were present at the sitting of February 27 did not mean that they had relinquished the case.

Having granted the writ of evocation solely for the above reason, the Court of Appeal did not express an opinion on the other grounds raised in the Superior Court. This Court has the power to refer the case back to the Court of Appeal but is under no obligation to do so. In the case at bar this Court considers the fact that none of these grounds is really serious to be a compelling reason for ruling definitively on the whole case.

The objections raised against the jurisdiction of this Court are not valid. Section 41(1) of the Supreme Court Act includes any judgment, including interlocutories without distinction. The restriction contained in s. 44 does not apply to the power to grant leave to appeal under s. 41 but affects only s. 39 (appeal per saltum) and s. 38 (appeal authorized by the provincial Court of Appeal).

The Bar of the Province of Quebec v. E., [1953] R.L.n.s. 257; Mehr v. The Law Society of Upper Canada, [1955] S.C.R. 344, referred to.

APPEAL against a decision by the Court of Appeal of Quebec[1] reversing the decision of the Superior Court and authorizing a writ of evocation to be issued. Appeal allowed and decision of the Superior Court reinstated.

Gérard Beaupré, Q.C., and Bernard Taillefer, for the appellant.

Marcel Cinq-Mars, Q.C., for the respondent.

The judgment of the Court was delivered by

PIGEON J.—The appeal of the Bar of the Province of Quebec is from a decision of the Court of Appeal reversing a judgment of the Superior Court and authorizing the issuance of a writ of evocation against a sentence of disbarment pronounced against the respondent.

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On the merits the case is quite clear. Respondent attacks the order made against him on procedural grounds only. He does not challenge the fairness of the condemnation based as it is on admitted facts the seriousness and derogatory nature of which are indisputable. The judgment of the Committee on Discipline rendered November 1, 1973 on the syndic’s complaint reads as follows:

[TRANSLATION] Whereas the evidence shows that respondent received from his client, Les Distributions Eclair Ltée, sums of money amounting to $112,654.38, including the $77,683.93 mentioned in the complaint, for which he acknowledges being accountable;

Whereas respondent admits having failed to deposit the said amounts in a trust account, in contravention of the Bar Act and by-laws of the Bar;

Whereas respondent admits having made personal use of the said monies;

Whereas respondent admits that neither on the date of the complaint nor on this day has he had the money necessary to restore the said amounts to the proper persons;

The Committee on Discipline of the Bar of the Province of Quebec, by its undersigned members, finds respondent guilty of the derogatory acts which are set out in the complaint;

And adjourns the submissions of counsel regarding penalty to 9.00 a.m., November 9, 1973.

The penalty imposed on November 20, 1973 was permanent disbarment from the Roll of the Order and payment of costs. Respondent appealed under the Bar Act to the Council on Discipline against the judgment and penalty. This appeal was dismissed on March 20, 1974. Respondent then applied to the Superior Court by motion for a writ of evocation under arts. 846 to 850 of the Code of Civil Procedure. On this motion, Anthime Bergeron J. of the Superior Court held that there were no grounds for authorizing the issuance of a writ, stating:

[TRANSLATION] Careful study of this case in its entirety, particularly a complete reading of the transcripts of the hearing of November 1, 1973 before the Committee on Discipline (Exhibit I-II), forces the Court to conclude that this motion is a purely dilatory step intended to delay implementation of the severe but just penalty imposed on applicant by respondents…

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It is true that at one point the proceedings were affected by an irregularity, which was pointed out by counsel for the applicant, but the situation was corrected and there is no reason to believe that justice was not done. One should not lose sight of the fact that applicant admitted the facts alleged against him. How, then, can he now complain of the serious consequences which he regrets when, to use his own expression (page 93, Exhibit I-II), he has, alas, over the years gradually used up sums of money entrusted by his clients in 1965 and 1966.

The Court of Appeal reversed this judgment and ordered a writ of evocation to be issued solely because two of the seven members of the Council on Discipline formed to hear the appeal from the decision of the Committee on Discipline were not called to the meeting of March 20, 1974 at which this appeal was dismissed. It was pointed out that the fact that the Council’s quorum is five members does not exempt the secretary-general from calling them all to hear the case. That is correct. However, what was overlooked is that the minutes of the sittings of the Council on Discipline filed with the motion for a writ of evocation show that the sitting of March 20 was a continuation of the sitting of February 27, 1974. Respondent in this Court does not contend that all seven members were not duly convened to that earlier sitting although five only were present. It must therefore be assumed that all the members were duly convened. The minutes of this first sitting are as follows:

[TRANSLATION] MINUTES OF A SITTING OF THE COMMITTEE ON DISCIPLINE OF THE BAR OF THE PROVINCE OF QUEBEC AT MONTREAL ON FEBRUARY 27, 1974 AT 4:30 P.M.

COMMITTEE:	Mr. Bâtonnier John G. Ahern
	Mr. Bâtonnier J. Sénécal
	Mr. J.-M. Brassard
	Mr. P.F. Vineberg
	Mr. J.W. Hemens
PRESENT:	Mr. Bâtonnier Marcel Cinq-Mars, counsel for the respondent
	Mr. Claude Boisvert, syndic
	Mr. André Pasquin, secretary

PETITION IN APPEAL

Counsel for the respondent submitted to the members of the Council that by virtue of Bill 251, in force

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February 1, 1974, he was prohibited from representing appellant and requested them to take cognizance of such disability.

Counsel for the respondent filed his letter dated February 27, 1974 to Mr. Jacques Tisseur, Secretary-General of the Bar, in the record.

Since counsel for the respondent no longer represented the latter, he withdrew.

The syndic made submissions to the members of the Council and insisted that the case be proceeded with.

After deliberating, the Council decided to continue today’s sitting on March 20, 1974 at 4.30 p.m., peremptorily, and the syndic undertook to send a notice of the hearing to appellant.

The meeting was adjourned.

	André Pasquin
	Secretary

At the hearing in this Court, the parties admitted that these were minutes of the Council on Discipline, not of the Committee. Moreover, Mr. Marcel Cinq-Mars was counsel for the appellant, not the respondent, and it is he who is referred to at the beginning where one reads [TRANSLATION] “Counsel for the respondent submitted to the members of the Council that by virtue of Bill 251 (S.Q. 1973, c.44), in force February 1, 1974, he was prohibited from representing appellant and requested them to take cognizance of such disability”. It is also he who is referred to where counsel for the respondent is mentioned at the beginning of the second and third sentences of these poorly worded minutes.

It will thus be seen that on February 27, 1974 five members of the Council on Discipline constituting a quorum were present at the sitting convened to hear the appeal of the present respondent. He was not present and the attorney whom he had retained as counsel, and who had on his behalf and in this capacity filed the appeal to the Council, stated that under legislation that came into force on February 1, 1974, he was now prohibited from representing his client. He withdrew and the syndic insisted that the case be proceeded with nevertheless, but the Council decided to “continue the sitting” on March 20, 1974. It was as a result of this decision that the

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five members who then made up the Council on Discipline sitting to hear the appeal, met again on March 20, 1974, dismissed the request for a postponement and the objections made by the new counsel for the present respondent, heard the appeal and dismissed it.

In my opinion, the members of the Council on Discipline who were present at the first sitting on February 27, 1974, rightly considered that they were seized of the appeal brought against the decision of the Committee on Discipline. They certainly cannot be criticized for having decided not to proceed immediately when the party appealing was not present and his counsel had ceased to represent him for a peremptory reason. The fact that, under these circumstances, the syndic undertook to send a notice of hearing does not mean that the members present had relinquished the case. It was merely a prudent and equitable decision which they took under the circumstances and they cannot be faulted for it. If in addition to the five members present at the sitting of February 27, those who had been designated to sit but did not attend, had been present at the sitting of March 20, appellant would certainly not fail to cite the judgment of the Court of Appeal in The Bar of the Province of Quebec v. E[2], and to argue that those not present at the first sitting were disqualified to sit at its continuation (see the views expressed obiter in Mehr v. The Law Society of Upper Canada[3], at p. 351).

I must therefore conclude that the Court of Appeal was in error in authorizing the issuance of a writ of evocation on the ground stated in its reasons.

With respect to the other grounds raised in the motion to the Superior Court and on which the Court of Appeal did not find it necessary to express an opinion, respondent first asked this Court to order that the case be referred back to the Court of Appeal. I do not doubt that we have the power to do so, but we are under no obligation to so order, for under s. 47 of the Supreme Court Act we may render the judgment “that the court, whose decision is appealed against, should have

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given”. In the case at bar there is a compelling reason for ruling definitively on the whole case, and it is that none of the grounds on which the Court of Appeal did not pronounce is really serious. Therefore, after hearing counsel for the respondent, the Court informed counsel for the appellant that he was not required to be heard in reply on those points.

I will nevertheless say a few words about the irregularity mentioned by the Superior Court judge. The Council on Discipline is not a permanent body. The resolution of the Executive Committee appointing five members to hear the appeal in question added: [TRANSLATION] “The other members of the Council are appointed as substitutes”. The objection raised on this ground by Mr. Cinq-Mars was sustained by the Council thus constituted. The Executive Committee then adopted a new resolution designating seven persons by name to form the Council, including the five who were present on February 27 and March 20, 1974. May the respondent who has confessed his defalcation, seriously contend that the error in the first resolution had the effect of absolving him completely without his repaying anything? In Canadian law, an error by a judge at the trial of an accused person against whom there is substantial evidence does not result in his acquittal on appeal but in a new trial.

Before closing, I think it would be appropriate to dispose specifically of the objection raised by counsel for the respondent against the jurisdiction of this Court. He argued that it has not yet been decided whether, in s. 41(1) of the Supreme Court Act, the expression “any final or other judgment” really includes any judgment, including all interlocutories without distinction. Why are the words “final or other” used, it was argued, if “any judgment” is meant?

It seems clear to me that, even if these words are strictly speaking superfluous, it cannot be supposed that Parliament intended to limit the scope of the enactment. On the contrary, these are clearly words added from excessive caution, ex abundanti cautela, in order to indicate clearly that the power to grant leave to appeal was henceforth to

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be unlimited with respect to both interlocutory and final judgments, whereas previously, the power to grant leave with respect to judgments that were not final was limited to certain specific cases.

As for s. 44, which was also cited by counsel for the respondent, it need only be said that by reason of subs. 2, it does not restrict the power of this Court to grant leave to appeal under s. 41 as was done in this case. Section 44 now affects only our power to authorize an appeal per saltum under s. 39 and the power of the Court of Appeal under s. 38 to grant leave to appeal from its own judgments.

I conclude that the appeal should be allowed, the judgment of the Court of Appeal should be set aside and the judgment of the Superior Court dismissing the motion should be restored, with costs throughout against the respondent.

Appeal allowed with costs.

Solicitors for the appellant: Beaupré, Trudeau, Sylvestre & Taillefer, Montreal.

Solicitors for the respondent: Martineau, Walker, Allison, Beaulieu, MacKell & Clermont, Montreal.