



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Law Society of British Columbia v. Chiang,









2013 BCCA 8




Date: 20130115

Docket:
CA038749

Between:

Law Society of
British Columbia

Respondent

(Defendant)

And

Vivian Chiang

Appellant

(Plaintiff)




Before:



The Honourable Chief Justice Finch





The Honourable Madam Justice Neilson





The Honourable Mr. Justice Harris




On appeal from:  Law
Societys Review Panel decision of September 30, 2010




The Appellant appeared in person:



V. Chiang





Counsel for the Respondent:



H. Wood





Place and Date of Hearing:



Vancouver, British
  Columbia

December 12, 2012





Place and Date of Judgment:



Vancouver, British
  Columbia

January 15, 2013









Written Reasons by:





The Honourable Mr. Justice Harris





Concurred in by:





The Honourable Chief Justice Finch

The Honourable Madam Justice Neilson








Reasons
for Judgment of the Honourable Mr. Justice Harris:

Introduction

[1]

This is an appeal brought by a part-time lawyer from a bencher review, pursuant
to s. 48 of the
Legal Profession Act
,
S.B.C. 1998, c. 9.
 A seven person Bencher Panel reversed a majority decision of an initial three
person Hearing Panel, which had dismissed a citation against the lawyer for
professional misconduct, amongst other allegations.  The citation for
professional misconduct centred on an allegation that the lawyer had misled the
court about the issues in respect of which short leave had been granted.  The
initial decision included a dissenting minority opinion.  On review, the
Bencher Panel unanimously agreed with the dissent, and substituted a finding of
professional misconduct, but confirmed the Hearing Panels dismissal of all
other allegations.

[2]

The appellant seeks a declaration that the proceedings were
ultra
vires
, that the decision of the Review Panel be quashed and the original
majority Hearing Panels decision be restored, that the restrictions placed
upon her be removed, that her record be restored, and that she be paid
restitution.  Alternatively, she seeks court assisted mediation.  In support of
her appeal, the appellant argues that the Review Panel had no jurisdiction to
rehear the original complaint, and if they did, they misapprehended the facts.  She
suggests also that the underlying complaint regarding professional misconduct was
a collateral attack intended to discredit her before the courts, and further,
that the Law Societys intervention in the dispute was an abuse of process.  She
submits that the Law Society was biased against her, that the proceedings
amounted to misfeasance of public office, malicious prosecution, and the
improper exercise of authority.

[3]

The respondent Law Society submits that the appellant has ignored the true
issue on appeal, namely, whether the Review Panel decision was reasonable, and
instead identifies a number of grounds of appeal which are, for the most part,
new and not properly supported with admissible evidence.  Where the appellant
has asserted that the Review Panel misapprehended the facts, the respondents
submit that the assertion is unsupported.

[4]

In my view, the only issue properly before this Court on this appeal is
whether the decision of the Review Panel was reasonable.  I am satisfied that
it was.  For the reasons that follow, I would dismiss the appeal.

Background

[5]

Ms. Chiang is a part time member of the Law Society.  She does not
actively practise.  In 2004, Ms. Chiang was the president of Freshway Specialty
Foods Ltd. (Freshway), a wholesale marketer of fruits and vegetables.  Freshway
was a member of the Fruit and Vegetable Dispute Resolution Corporation (DRC).
 The DRC is an industry group that provides dispute resolution support to its
members.  Following a dispute with a supplier, DRC ordered Freshway to pay approximately
$13,000 US to the supplier.  Freshway did not comply, resulting in DRC
suspending its membership.  DRC notified its members of the suspension.

[6]

Ms. Chiang, on behalf of Freshway, sought assistance from the Supreme
Court to set aside the suspension and procure other relief.  Ms. Chiangs
conduct during a series of appearances on behalf of Freshway became the source
of two complaints to the Law Society from opposing counsel.  The complaints led
to a citation on 11 May 2007, listing four incidents which may have
amounted to professional misconduct by misleading the court.

[7]

The facts giving rise to the complaints occurred when Ms. Chiang
appeared
ex parte
before Madam Justice Gill in chambers on 11 March
2005, on her application seeking three claims for relief.  Madam Justice Gill
refused the
ex parte
application, but granted short leave with
respect to a claim for injunctive relief only and not the other relief.  The
order, which appears to have been prepared in chambers with the assistance of
the chambers judge, did not expressly identify the relief in respect of which
short leave had been refused or the one ground in respect of which it had been
granted.

[8]

On 15 March 2005, Ms. Chiang appeared before Madam Justice L. Smith
in chambers on a Notice of Motion seeking relief on three grounds.  She did not
inform L. Smith J. that Gill J. had only granted leave on one
ground and refused it on two.  Ms. Chiang attempted to obtain relief on
Freshways behalf on all three grounds, contrary to the terms of the order for
short leave granted by Gill J.

[9]

Freshways application was dismissed by L. Smith J.  Further
litigation ensued, aspects of which also formed the subject matter of the Law
Society disciplinary proceedings.  Eventually, in January 2006, two counsel
involved in the litigation with Freshway made complaints to the Law Society.  The
matter, which involved four allegations, was heard by a Hearing Panel of the
Law Society on 7-8 October 2008.  At the hearing, the Law Society withdrew one allegation.
 The Hearing Panel issued a majority decision on 17 June 2009 dismissing
the other three allegations.

[10]

The allegation which ultimately was upheld by the Review Panel, and
which is the subject of this appeal, is in the following terms, as amended by
the initial Hearing Panel:

[1]        ... Your conduct on
March 15, 2005, when you appeared before Madam Justice Smith in Supreme Court
Chambers in Vancouver Registry Action No. S051013 on behalf of Freshway
Specialty Foods Inc. in respect of its Notice of Motion dated March 11, 2005
and did not inform her that on March 11, 2005 short leave had been granted only
with respect to the claim for injunctive relief, and further made submissions
with respect to all three claims for relief set out in the Notice of Motion,
contrary to the leave granted by Madam Justice Gill on March 11, 2005. This
conduct was contrary to your duty as an officer of the court, in breach of the
terms of the short leave order, or may or did have the effect of misleading the
court, or both.

[11]

The majority of the Hearing Panel were of the view that the allegation
of misconduct was explained by Ms. Chiangs lack of experience and stress,
and did not amount to professional misconduct.  One of the benchers, Mr. Alexander,
agreed with the dismissal of two allegations, but dissented on the allegation set
out immediately above.

[12]

In Mr. Alexanders view, Ms. Chiang intentionally sought an
order from L. Smith J. which she knew she did not have approval to
seek.  He found that Ms. Chiang was motivated by her financial interest in
Freshway, and allowed this to overcome her professional judgment.  He viewed
this as a marked departure from the professional conduct expected of Law
Society members and constituted professional misconduct.

[13]

The Law Society sought a review of the Hearing Panels decision, under s. 47
of the
Legal Profession Act
.  The Review Panel issued its decision on 30 September
2010.  The Review Panel agreed with the dismissal of the two allegations, but
adopted Mr. Alexanders dissent, finding that Ms. Chiangs conduct
did amount to professional misconduct.  The Review Panel referred the matter
back to the Hearing Panel to consider appropriate sanctions.

[14]

Ms. Chiang appeals from this decision.

The Appellants position

[15]

On the issue properly before this Court, Ms. Chiang submits that
the Review Panels decision should be reviewed on a standard of correctness,
not reasonableness, as asserted by the Law Society.  She contends, in any
event, that the Review Panels decision was unreasonable.  Specifically, she
argues that the Review Panel ought to have adopted the reasoning of the
majority of the Hearing Panel, because the Hearing Panel made findings of fact
after listening to the evidence, assessing the witnesses, and assessing her
credibility.  Therefore, she asserts, the Review Panel erred in not deferring
to the findings made by the majority of the Hearing Panel and instead adopting
the findings of the dissenting opinion.  In doing so, it misapprehended the
evidence.  Much of her oral argument, therefore, centred on persuading this
Court that the majority decision of the Hearing Panel was correct, and the dissent
wrong.

The Law Societys position

[16]

The Law Society submits that this is an appeal from the decision of the
Review Panel, not the Hearing Panel, and is to be reviewed against a standard
of reasonableness.  It argues that Ms. Chiang has not identified any basis
to conclude that the Review Panel erred in principle or acted unreasonably in
adopting, after reviewing the evidence, Mr. Alexanders dissent.  Rather, Ms. Chiang
has reargued the merits and not addressed the issue that should engage this
Court on an appeal.

Discussion

[17]

In her factum, Ms. Chiang raised a large number of issues that are
not relevant to the issue which is properly before this Court, therefore it is
unnecessary to address those issues.

[18]

The issue which is properly before this Court is an appeal from the
decision of the Review Panel.  That appeal is brought by way of a statutory
right of appeal under s. 48 of the
Legal Profession Act.

[19]

It is convenient briefly to outline the statutory framework relevant to
this appeal.  Section 47 of the
Legal Profession Act
provides that
either party to a decision of a hearing panel may, within 30 days, apply in
writing to the benchers for a review on the record; s. 47(1).  In this
case the Law Society exercised its right to apply for a review.  Section 47(5)
provides:

After a hearing under this
section, the benchers may

(a) confirm the decision of
the panel, or

(b) substitute a decision the
panel could have made under this Act.

[20]

It is apparent that the Review Panel exercised its authority under s. 47(5)(b)
when it adopted Mr. Alexanders dissent, because his decision is one the
panel could have made under the
Legal Profession Act
.

[21]

Section 48 of the Act provides a person, such as Ms. Chiang, with a
right of appeal of a decision, determination or order of a panel of the
benchers.  The standard of review to be applied by this Court is well settled. 
As Mr. Justice Mackenzie reiterated in
Christie v. The Law Society of
British Columbia
,

2010 BCCA 195, 288 B.C.A.C. 53:

[9]        The standard of review
generally applicable to discipline decisions of the Law Society is
reasonableness:
Goldberg v. Law Society of British Columbia
, 2009 BCCA
147, 92 B.C.L.R.(4th) 18, at para 36, quoting
Canada (Citizenship and
Immigration) v.

Khosa
, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 59.
The facts found by the Panel are entitled to deference unless they are based on
a material misapprehension of the evidence or are otherwise clearly wrong.

[22]

In
Goldberg
, Mr. Justice Donald articulated the standard of
reasonableness as follows:

[36]
Dunsmuir v. New Brunswick
, 2008 SCC 9, 291
D.L.R. (4th) 577, merged the concepts of reasonableness
simpliciter
and
patently unreasonable into a single test, reasonableness.  The Supreme Court of
Canada recently described this test in
Canada (Citizenship and Immigration)
v. Khosa
, 2009 SCC 12:

[59]      Reasonableness is a single standard that takes its
colour from the context.  One of the objectives of
Dunsmuir
was to
liberate judicial review courts from what came to be seen as undue complexity
and formalism.  Where the reasonableness standard applies, it requires
deference.  Reviewing courts cannot substitute their own appreciation of the
appropriate solution, but must rather determine if the outcome falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law (
Dunsmuir
, at para. 47).  There might be more than one
reasonable outcome.  However, as long as the process and the outcome fit
comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome.

[23]

The question before us is whether the adoption by the Review Panel of Mr. Alexanders
dissent was unreasonable.  To answer that question it is necessary to undertake
some analysis of the proceedings before both panels.

[24]

After reviewing the evidence, the majority of the Hearing Panel reached
the following conclusions:

Second and Fourth
Allegations

[42]  Nor is there any evidence that has sufficient clarity
or cogency with respect to the other allegations upon which professional
misconduct might be successfully advanced. While the Order granted by Madam
Justice Gill was limited to one aspect of the motion requested to be heard, the
Order made by the Court and endorsed on the Short Leave Requisition form
contained no limitation at all except as to service and required the Respondent
to serve all materials with the Requisition essentially forthwith. The evidence
of the Respondent, which was not successfully challenged in cross-examination,
explained that her actions thereafter were taken as a result of her perceived
need for haste, her high anxiety consequent upon her involvement in a process
substantially unfamiliar to her, her lack of experience, the impact of the
emotions arising from circumstances of having a very ill parent in Taiwan and
upon whom she wished to quickly attend, and most importantly, her attempt to
advance in a matter that was misconceived from the outset. All the foregoing
was consistent from the material and the Respondent's concessions.

[43]  As proper practice, the
Respondent should have addressed Madam Justice Smith outlining first the relief
requested of the Court on this occasion, but mistakenly she did not and instead
embarked on the underpinning facts of the case. All of the facts that the
Respondent recited to the Court were relevant as background for injunctive
relief and were therefore properly before the Court. The Respondent went wrong,
however, in not ensuring that the limitation of the Short Leave Order was
clear. This should have been done at the outset of the hearing. This she did
not do, and that is the nub of allegation 2 brought against her. However, we
can find no instance in the transcript that the Respondent did not respond
otherwise than truthfully when asked a question by the Court.

[25]

Mr. Alexander dissented from these conclusions.  His reasons for
doing so are detailed and involve a careful assessment of the evidence.  Mr. Alexander
accepted that a finding of professional misconduct required clear and cogent
evidence to prove the facts on a balance of probabilities.  He defined professional
misconduct as involving a marked departure from the conduct the Law Society
expects of its members.

[26]

Mr. Alexander noted that there was no issue that L. Smith J.
was misled about what relief Freshway was entitled to seek on its application. 
Ms. Chiang admitted that she understood that she had only been granted
leave in respect of one ground of relief.  Mr. Alexanders findings are
set out at paragraphs 99103 of his reasons:

[99]      I must reject the explanations offered by the
Respondent for her failure to observe the limitations imposed by Madam Justice
Gill. None of the explanations offered demonstrate an honest attempt to comply
with the Order.

[100]    Her explanation to the Law Society for not complying
was that she was forced to spend the whole night preparing for the application
that she could not adjourn because of the urgency of the matter. She was
concerned with the several hundreds of thousands of dollars of perishable
produce in inventory and each day's delay had severe consequences. It must be
noted, at the same time, that there was no urgency about preventing the DRC
from further negative publications -the DRC had not indicated any inclination
to publish further and in fact, had nothing more to say about F Inc. When Madam
Justice Gill denied the application to have the DRC suspension lifted, the
urgency of all remaining issues disappeared.

[101]    By the morning of March 15, the only Order that
would have provided relief to F Inc. was an order setting aside the suspension
of F Inc. by the DRC. Despite the specific refusal of Madam Justice Gill to
permit that application on short leave, the Respondent proceeded to seek that
relief. In my opinion, all available evidence points overwhelmingly to the fact
that the Respondent proceeded to seek relief on all grounds set out in her
Notice of Motion in an attempt to save her company from the consequences of
losing the warehouse full of deteriorating produce. In doing so, I am of the
view that the Respondent acted wilfully and knowingly and without regard for
her professional responsibilities to the Court and the Law Society.

[102]    I would find that the Respondent intentionally, and
in the face of the specific Order of Madam Justice Gill to the contrary,
proceeded to seek relief in respect of a portion of the Notice of Motion for
which short leave had not been granted. With the exception of her stated desire
to respond to the urgent need to preserve the inventory of produce, all
explanations offered by the Respondent are inadequate to explain the behaviour.

[103]    It is my view that the
Respondent allowed her personal financial interest in F Inc. to overcome her
professional judgment and in the result of that lapse she attempted to obtain
an Order from Madam Justice Smith which she knew she did not have approval to
seek. Misleading the Court in this manner represents a marked departure from
behaviour that the Law Society expects of its members, and so, in that regard,
I would have found that the Respondent has committed professional misconduct.

[27]

In reaching these conclusions, Mr. Alexander supported his analysis
by comprehensive reference to the transcript of the proceedings before Gill J.
in which the chambers judge explained in detail the scope of the order for
short leave and the reasons why the other relief could not be granted on an
interlocutory basis.  He also referred to the reasons for judgment of Mr. Justice
Macaulay in
Freshway Specialty Foods v. Map Produce LLC, et al,
2005
BCSC 1485, 143 A.C.W.S. (3d) 668, criticizing the conduct of Ms. Chiang in
relation to the matters forming the subject of the citation.  Mr. Alexander
then examined correspondence between the Law Society and Ms. Chiang in which
she gave inconsistent explanations of her conduct, but which referred to the
urgency of the financial situation facing the company.  Mr. Alexander
placed weight on the fact that Ms. Chiang was concerned about the urgency
involved in the deteriorating inventory in support of his conclusion that she
deliberately attempted to get relief that would address that problem: relief
she was not entitled to seek before L. Smith J.

[28]

Mr. Alexander also analyzed Ms. Chiangs evidence at the
hearing before the Panel.  In that evidence, she claimed that by the time the
motion came on the hearing before L. Smith J. she had forgotten the
restriction on the relief she was entitled to seek.  Mr. Alexander
rejected that explanation as not credible.  He also rejected the explanation
that she did not abide by the restrictions imposed on the application by Gill J.
because she was preoccupied with the service of documents.

[29]

Finally, based on an examination of the transcript at the hearing of the
motion before L. Smith J., Mr. Alexander concluded that Ms. Chiang
was reciting facts in support of her application to retract the suspension order
which was what was creating the urgency surrounding the deteriorating
inventory.  Indeed, Mr. Alexander quoted portions of the transcript before
L. Smith J. which he concluded demonstrated that Ms. Chiang was
deliberately seeking relief that she knew she was not entitled to.

[30]

The Review Panel, after reconsidering the Hearing Panels decision,
stated its conclusions in the following terms:

[13]  On this aspect of the matter, a majority of the Hearing
Panel concluded that the evidence did not justify a finding of professional
misconduct. Mr. Alexander delivered a vigorous dissent.

[14]  We have examined with some care not only the reasons of
the majority and of Mr. Alexander but also the underlying evidence,
including that reviewed by Mr. Alexander. We have come to the conclusion,
respectfully, that on a proper analysis of all of the evidence the decision of
the majority of the Hearing Panel to reject a finding of professional
misconduct on the evidence was wrong.

[15]  Mr. Alexanders conclusion is set out in
paragraphs [102] and [103] of his dissenting reasons:

[102]    I would find that the
Respondent intentionally, and in the face of the specific Order of Madam
Justice Gill to the contrary, proceeded to seek relief in respect of a portion
of the Notice of Motion for which short leave had not been granted. With the
exception of her stated desire to respond to the urgent need to preserve the
inventory of produce, all explanations offered by the Respondent are inadequate
to explain the behaviour.

[103]    It is my view that the
Respondent allowed her personal financial interest in F Inc. to overcome her
professional judgment and in the result of that lapse she attempted to obtain
an Order from Madam Justice Smith which she knew she did not have approval to
seek. Misleading the Court in this manner represents a marked departure from
behaviour that the Law Society expects of its members, and so, in that regard,
I would have found that the Respondent has committed professional misconduct.

[16]  We agree not only with these conclusions but also with
the analysis that led Mr. Alexander to them. In our view, his analysis is
comprehensive, balanced and careful. We have found it completely persuasive. We
do not think that there is anything that we can usefully add to it.

[17]  Our decision is that the
complaint reflected in allegation 2 of the citation has been made out.
Accordingly, under section 47(5)(b) of the
Legal Profession Act
, we
determine that the Respondent committed professional misconduct, and we refer
the matter back to the Hearing Panel to consider appropriate sanctions.

[31]

To reiterate, the Review Panel is entitled to substitute a decision the
panel could have made under the
Legal Profession Act
.  The decision
reached by Mr. Alexander is one the Hearing Panel could have reached
although it did not.  In my view, there is nothing unreasonable in the Review
Panel adopting as its own both Mr. Alexanders conclusions and his analysis. 
As the Review Panel stated, Mr. Alexander's analysis is comprehensive,
balanced and careful.  The Review Panel made that assessment after reviewing
both the majority and minority reasons, as well as the underlying evidence.  It
is clear that the Review Panel assessed the majority and minority reasons
according to a standard of correctness in concluding that on a proper analysis
of all of the evidence the decision of the majority of the Hearing Panel to
reject a finding of professional misconduct on the evidence was wrong.

[32]

In my view, the Review Panel cannot be said to have misapprehended the
evidence in reaching its conclusion.  The Review Panel was entitled to reach
the conclusion that the majority of the Hearing Panel was wrong in accepting Ms. Chiangs
explanations for her behaviour such as her lack of experience, business and
personal distractions, anxiety, lack of sleep and conduct to support the view
that her conduct was an isolated lapse.  The Review Panels conclusion was
based on a review of the evidence on the record.  The conclusions reached by Mr. Alexander
and affirmed by the Review Panel are based on the evidence and involved
inferences that were open to be drawn from the evidence.  None of the facts
found were unsupported by evidence.

[33]

Ms. Chiang was not able, in her written or oral argument before us,
to identify any errors in principle committed by the Review Panel.  Her argument
was reduced to the proposition that the dissent and the Review Panel were wrong
in rejecting her explanations to exculpate her conduct.  But it is clear in my
view that the Review Panel is not bound by the majoritys conclusions that
inexperience or stress, in this case, excuse misconduct, even when issues of
credibility may be involved.  Moreover, the Review Panel did not commit any
error in disagreeing with the conclusions of the majority, even allowing for
the fact that the Hearing Panel had the benefit of hearing some part of the
evidence.

[34]

The Review Panel accepted that the evidence established that Ms. Chiang
had intentionally sought relief that she admitted that she was not entitled to
seek.  It concluded from that evidence that it was wrong for the majority of
the Hearing Panel to treat her explanations for her conduct as an adequate
answer to the allegation of professional misconduct.  Ms. Chiang alleged
that the Review Panel misapprehended the facts, but in my view, they accepted
the facts as found by the Hearing Panel, but determined, as they were entitled
to do, that in Ms. Chiangs circumstance, stress and inexperience did not
excuse deliberate and misleading conduct.  In my view, this is a reasonable
conclusion to reach in the circumstances of this case.

[35]

In brief, Ms. Chiang had admitted that she knew that she had been
granted short leave only with respect to one ground of relief and not the
others.  She admitted that she did not advise Madam Justice Smith of that
fact when the motion came on for hearing.  There is no question that Madam
Justice Smith was, in fact, misled by the nondisclosure.  It was open, on the
evidence, for the Review Panel to conclude that Ms. Chiang intentionally
misled the court, even if there were mitigating circumstances.  It is for the
Law Society to determine whether such conduct is professional misconduct.  Ms. Chiang
did not allege that such conduct would not be professional misconduct.  Rather
she put her appeal on the basis that she had not intentionally misled the court
by failing to advise it of limited grounds properly at issue in the
application.

Conclusion

[36]

Ms. Chiang has not persuaded me that the decision of the Review
Panel was unreasonable.  As a result, I would dismiss the appeal.

The Honourable Mr.
Justice Harris

I agree:

The Honourable Chief Justice
Finch

I agree:

The Honourable Madam Justice
Neilson


