Nova Scotia Barristers' Society v. Pavey

Nova Scotia Barristers' Society v. Pavey Court Court of Appeal Date 2001-11-21 Citation 2001 NSCA 165 Docket CA 171931 Judge/Registrar/Adjudicator Hallett, J. Doane (Honourable Justice) (CA); Bateman, Nancy J. (Honourable Justice) (CA); Glube, Constance R. (Honourable Chief Justice) (CA) Document Type Decision Relations Library Sheet - Nova Scotia Barristers' Society v. Pavey - 2001 NSCA 165 - 2001-11-21 - Library Sheet Decision Content Date: 20011121 Docket: CA 171931 NOVA SCOTIA COURT OF APPEAL [Cite as: Nova Scotia Barristers’ Society v. Pavey, 2001 NSCA 165] Glube, C.J.N.S.; Hallett and Bateman, JJ.A. BETWEEN: ANDREW PAVEY Appellant - and - NOVA SCOTIA BARRISTERS’ SOCIETY Respondent REASONS FOR JUDGMENT Counsel: Patrick J. Duncan, Q.C. for the appellant Alan J. Stern Q.C. for the respondent Appeal Heard: September 28, 2001 Judgment Delivered: November 21, 2001 THE COURT: Application to intervene dismissed per reasons for judgment of Hallett, J.A.; Glube, C.J.N.S. and Bateman, J.A. concurring. HALLETT, J.A.: [1] Andrew Pavey, a lawyer suspended from practising law for 18 months by a resolution order of a discipline subcommittee of the Nova Scotia Barristers’ Society, applies to this Court to intervene and quash the suspension. The application is brought pursuant to s. 32(13) of the Barristers and Solicitors Act, R.S.N.S. 1989, c. 30 (the Act), which states as follows: 32 (13) Where (a) ... (b) a resolution order is made, pursuant to this Section, the Appeal Division of the Supreme Court, or in the case of urgency a judge of that Court, may, upon such grounds and in accordance with such procedures as it shall determine, at any time during the investigation or subsequent to a resolution or order being made but not later than six months following the day on which the order is made, intervene upon the request of (c) the barrister or articled clerk being investigated or in respect of whom a resolution or order is made; (d) ... (e) ... and make such order or give such direction as it shall deem fit and necessary under the circumstances. (emphasis added) [2] Pavey, while representing the mother of two children in proceedings relating to the custody of the children, allegedly purchased cocaine which he shared with his client and engaged in sexual acts with her over a period of thirteen and a half hours on a day in July of 1997. In August of 1999 the client complained to the Barristers’ Society. The Society subsequently filed a formal complaint alleging that Pavey was guilty of professional misconduct. As provided in the Act, the complaint was heard by a subcommittee (the panel) of the Discipline Committee. The panel heard evidence from the client, Pavey and others over a four day period. The client testified that she accompanied Mr. Pavey in his car for the purpose of obtaining drugs. The trip was successful and Pavey purchased crack cocaine. This took place in the afternoon. He drove the client home and gave her a piece of the crack cocaine he had purchased. That evening the client shared the crack cocaine with her friend, C.K.. Pavey and the client had agreed to meet for a party the next morning at 9 o’clock at an office he occasionally used to conduct mediation in family disputes. This was not his law office. The next morning the client went to Pavey’s mediation office where she and Pavey partied from 9 in the morning until 10:30 in the evening. [3] She testified that these events with Pavey occurred on a day in July, 1997. She testified that she was 95% sure that the party took place on Friday, July 18th, 1997 and if not on the 18th then on Friday, July 25th. She testified that over this extended period they drank Jack Daniels whiskey, had sexual relations and smoked crack cocaine. No one came to the office. [4] Pavey denied the allegations. [5] The panel accepted the evidence called by Pavey that the alleged 13.5 hour party could not have taken place on either July 18th or 25th as he had appointments on those dates within the time frame 9 a.m. to 10:30 p.m. His evidence was corroborated by clients. After reviewing all the evidence in considerable detail and after considering Pavey’s submission that the client had reason to fabricate, the panel concluded that the client’s evidence was credible and that her allegations were true. [6] Pavey’s counsel submits to this Court that we ought to intervene and quash the suspension. The grounds of appeal are as follows: That Discipline Subcommittee “A”: 1. erred in law by making a finding that the Applicant was guilty of the complaint of misconduct on some other date than the dates put in issue at the hearing of the matter, when there was no evidence before them to support such a determination; 2. erred in law, by disregarding relevant and material evidence to the contrary, when making the determination that the Applicant was guilty of the complained of misconduct on some other, unspecified date than the dates put in issue at the hearing of the matter; 3. erred in law, by improperly assessing credibility and reaching conclusions so unreasonable as to warrant overriding the usual deference afforded a tribunal on matters of credibility. More particularly, the Subcommittee erred: (i) by drawing the unreasonable inference that the complainant was credible in relation to the allegations she made, even though (a) she was wrong about the dates asserted; (b) there was no evidence to support any other date in July, 1997, than those asserted; and (c) what evidence the Subcommittee did have before it was directly contradictory to that inference. The bald finding that the complainant was credible (merely mistaken as to the date the alleged events occurred) and that, therefore, the events alleged must have occurred, but on some other unspecified date, without further thought, analysis or evidence, is manifestly unreasonable and unfair. (ii) by making a finding of misconduct in the absence of evidence which was clear and cogent, and that was in no way commensurate with the seriousness of the allegations; (iii) by improperly shifting the burden of proof onto the Applicant as a result of having placed undue weight on their conclusion that the complainant had no motive for fabricating the allegations, and, in essence, requiring the Applicant to prove such a motive; (iv) by failing to consider whether, on the evidence, the Applicant’s version of events could reasonably be true; 4. erred in jurisdiction, by failing to afford the Applicant the opportunity to respond to the issue raised in the minds of the Subcommittee that, having found that the events complained of did not take place on the dates put in issue by the parties at the hearing, those events may have taken place on some unspecified date in July, 1997. SCOPE OF REVIEW PURSUANT TO S. 32(13) OF THE ACT: [7] This Court has consistently taken a somewhat limited view of the power to intervene as conferred on it by s. 32(13) of the Act. Justice Hart in Ayres v. Nova Scotia Barristers’ Society (1998), 169 N.S.R. (2d) 315 had this to say: [10] This provision of the Act and its predecessors have consistently been interpreted by this court to limit our jurisdiction in the manner described by Cooper, J.A. in Hatfield v. Nova Scotia Barristers' Society (1978), 30 N.S.R. (2d) 386; 49 A.P.R. 386 (C.A.), at p. 389: What we have before us therefore is not an appeal in the ordinary sense but a request by a barrister for intervention. I have nevertheless thought it convenient to refer to Mr. Hatfield as the appellant and the Society as the respondent. In exercising our power of intervention here I think that our function is not to examine and weigh the evidence taken before the sub-committee with a view to determining whether the subcommittee has drawn a right conclusion from it but rather, first, to consider whether or not the procedure followed was in conformity with the Act and applicable regulations and thus free from error of law appearing on the face of the proceedings, and, secondly, whether or not the principles of natural justice were observed ‑ see Mehr v. The Law Society of Upper Canada, [1955] S.C.R. 344, at pp. 346 and 347. [11] This approach was adopted by MacKeigan, C.J.N.S., who delivered the judgment of this court in Nova Scotia Barristers' Society v. Saunders (1982), 55 N.S.R. (2d) 1; 114 A.P.R. 1 (C.A.). [12] In a much more recent case before this court, Markus v. Nova Scotia Barristers' Society (1989), 90 N.S.R. (2d) 156; 230 A.P.R. 156 (C.A.), Clarke, C.J.N.S., speaking for the court, adopted the Hatfield articulation of Mr. Justice Cooper as to the court's jurisdiction. He then went on to state: After reviewing the record and considering the written and oral submissions of counsel, I am satisfied the procedure followed by the Society was free from error of law and that there was no denial of natural justice. ... [13] In my opinion these authorities clearly set forth the law in this Province and unless it can be shown that the subcommittee made an error of law on the face of the record or breached the rules of natural justice, it is not the business of this court to interfere. [8] In Ayres, the application before the Court raised legal issues particularly suited for the application of the test as enunciated by Cooper, J.A. in Hatfield v. Nova Scotia Barristers’ Society (1978), 30 N.S.R. (2d) 386. These included Charter issues and whether a particular course of conduct fell short of the standard required of a member of the profession. In the application before us, the essential issue is whether the alleged conduct actually occurred. The appellant says that the panel’s conclusion that Pavey had engaged in the impugned conduct was not supported by the evidence. The primary issue on this application, therefore, raises questions of fact rather than questions of law or questions of mixed fact and law. [9] Counsel for the Barristers’ Society submits that, in reviewing the panel’s decision, we should consider the various factors which the Supreme Court of Canada has addressed in a series of cases dealing with judicial review of decisions of administrative tribunals culminating in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. He submits that the panel’s decision must be afforded deference by this Court and that the proper standard of review ought to be that of “patent unreasonableness”. [10] In Pushpanathan, Iacobucci, J. reviewed the jurisprudence on judicial review of decisions of administrative tribunals. He identified the four factors to be taken into account in determining the appropriate standard: (i) the absence or presence of a privative clause in the relevant enactment; (ii) the expertise of the tribunal; (iii) the purpose of the Act as a whole and the provisions in issue in particular; and (iv) the nature of the problem that was being dealt with by the tribunal and which is under review. [11] In view of the developing law respecting judicial review and the broad language of s. 32(13) of the Act and considering the issues raised on this application, I will consider these four factors in assessing the degree of deference, if any, that should be accorded this decision of the panel. I do so because the approach to judicial review by appellate courts has undergone significant changes since the 1978 decision of this Court in Hatfield, supra. If we were to apply the narrow review enunciated in Hatfield we would not review the evidence to determine whether the panel’s decision was supported by the evidence. Rather, we would be limited to a consideration of whether or not the procedures which were followed by the panel were in conformity with the Act and Regulations and whether or not the principles of natural justice were observed. Considering the issues raised on this application, such a limited review would not permit us to exercise fully the jurisdiction conferred on this Court by s. 38(2)(4) of the Judicature Act, R.S.N.S. 1989, c. 240 and s. 32(13) of the Act.. [12] I will now address the four factors a review court should consider in reviewing a decision of an administrative tribunal. There is no suggestion that the panel is not such a tribunal. There is no privative clause in the Barristers and Solicitors Act that limits the scope of this Court’s power of review of a resolution order. On the contrary, s. 32(13) of the Act allows this Court to intervene upon such grounds and in accordance with such procedures as it shall determine and that this Court may make such order or give such directions as it shall deem fit and necessary under the circumstances. [13] By s. 32(13) of the Barristers and Solicitors Act the Legislature has conferred on this Court a very broad and flexible power to intervene. [14] I move now to consideration of the second factor. A discipline subcommittee, performing an adjudicative role under the Act, is made up of members of the Barristers’ Society and possibly one lay member. As such a discipline subcommittee has a degree of specialization with respect to determining what type of conduct constitutes “professional misconduct”. This expertise has been recognized in a number of decisions (Markus v. Nova Scotia Barristers' Society (1989), 90 N.S.R. (2d) 156). [15] Furthermore, the ability of members of such a panel to assess the evidence for the purpose of determining if the events testified to by the complainant actually happened is similar to that of a judge hearing civil proceedings. That is so because the members of a discipline committee, like a judge, bring to the task of assessing the credibility and reliability of a witness’s evidence their training in the law and, thus, an enhanced capability to ascertain what is critical evidence from that which has only marginal relevancy. As a result, both have expertise in the assessment of evidence. And, having the opportunity to hear and observe the witnesses while testifying, both have a distinct advantage over an appellate court which assesses evidence on a printed page. [16] The third factor we must consider in determining the scope of review is the purpose of the Act and the provision in issue, namely, s. 32(13). The Legislature has authorized the legal profession to be self-regulating. The Act authorizes the Barristers’ Society to appoint a discipline committee (s. 26). The discipline committee is divided into two subcommittees (s. 31(1)). Either subcommittee is authorized to perform an investigative role and an adjudicative role. Section 31(5) provides: 31 (5) A subcommittee may hear and adjudicate any formal complaint referred to in subsection (4), but no subcommittee may hear or adjudicate a formal complaint which arises out of an investigation in which the subcommittee has participated. Section 32(3) empowers an adjudicative subcommittee to suspend a lawyer for a fixed period of time. A subcommittee performing an adjudicative role hears a specific complaint and adjudicates as to whether or not the allegations in the complaint are true and whether such allegations constitute professional misconduct. Such a subcommittee does not perform the same sort of regulatory function as does a tribunal that regulates an industry such as a securities commission or competition tribunal. Decisions of such commissions or tribunals involve application of policy considerations. The question arises whether a decision of an adjudicative subcommittee in resolving a complaint under the Act ought to be accorded as high a degree of deference as is accorded tribunals which perform a complex regulatory function. [17] The Act provides a mechanism to protect the public, the profession and lawyers when complaints of professional misconduct are made (Markus, supra). This is an integral part of self governance. Therefore, a degree of deference to a decision of a discipline subcommittee is in order as the Legislature intended that such matters be resolved by the Barristers’ Society in accordance with the Act and the Regulations, subject to this Court’s power to intervene. [18] I will now consider the fourth factor — the nature of the problem. In assessing the degree of deference to be accorded to a decision of a discipline sub-committee in performing an adjudicative function, this Court must not only look at the nature of the problem that was before the tribunal, but also the nature of the problem that is the primary focus of the judicial review in the specific application for court intervention pursuant to s. 32(13) of the Act. In the proceedings before the panel, the primary question was one of fact: whether or not the events which the client described happened or did not happen. It was not disputed that, if, in fact, the events happened as the client testified then Pavey’s actions constituted professional misconduct. Therefore, the principal issue before us is whether we should interfere with the finding of fact by the panel that the events happened as testified to by the client. [19] In considering this issue we ought to take a pragmatic approach and apply the same standard of review that courts of appeal apply to findings of fact made by a trial judge in civil proceedings. [20] In this appeal we are reviewing a finding of fact which finding is essentially based on the panel’s acceptance of the evidence of the client as being credible over the evidence of Pavey which directly contradicted the client’s evidence. [21] In Stein v. The ship “Kathy K”, [1976] 2 S.C.R. 802, Ritchie, J., writing for the Court, had this to say respecting the power of a court of appeal to interfere with factual conclusions reached by a trial judge based, in part, on the trial judge’s assessment of the credibility of the witnesses. He stated at p. 806: ...findings of credibility were involved in the trial judge’s conclusions. I think that under such circumstances the accepted approach of a court of appeal is to test the findings made at trial on the basis of whether or not they were clearly wrong rather than whether they accorded with that court’s view of the balance of probability. [22] After reviewing several leading cases on this issue Ritchie, J. stated at p. 808: These authorities are not to be taken as meaning that the findings of fact made at trial are immutable, but rather that they are not to be reversed unless it can be established that the learned trial judge made some palpable and overriding error which affected his assessment of the facts. While the Court of Appeal is seized with the duty of re-examining the evidence in order to be satisfied that no such error occurred, it is not, in my view, a part of its function to substitute its assessment of the balance of probability for the findings of the judge who presided at the trial. [23] The limits of intervention to be exercised by an appellate court with respect to findings of fact in a civil proceeding founded on the assessment by the trial judge of the credibility of witnesses were considered by the Supreme Court of Canada in Beaudoin-Daigneault v. Richard, [1984] 1 S.C.R. 2. Lamer, J., writing for the Court, stated at p. 8: So far as the rules for intervention by a first court of appeal in the findings of fact of a trial judge are concerned, in my opinion, whatever the uncertainty of the rule regarding some of our decisions in recent years (Schreiber Brothers Ltd. v. Currie Products Ltd, [1980] 2 S.C.R. 78; Stein v. The Ship “Kathy K”, [1976] 2 S.C.R. 802; Lewis v. Todd and McClure, [1980] 2 S.C.R. 694; Jaegli Enterprises Ltd. v. Taylor, [1981] 2 S.C.R. 2; Rubis v. Gray Rocks Inn Ltd., [1982] 1 S.C.R. 452; Doerner v. Bliss & Laughlin Industries Inc., [1980] 2 S.C.R. 865; Wire Rope Industries of Canada (1966) Ltd. v. B.C. Marine Shipbuilders Ltd., [1981] 1 S.C.R. 363; Liverpool & London & Globe Ins. Co. v. Canadian General Electric Co., [1981] 1 S.C.R. 600), the rule is clear with regard to findings based on the credibility of witnesses: an appellate court should not intervene unless it is certain that its difference of opinion with the trial judge is the result of an error by the latter. As he had the benefit of seeing and hearing the witnesses, such certainty will only be possible if the appellate court can identify the reason for this difference of opinion, in order to be certain that it results from an error and not from his privileged position as the trier of fact. If the appellate court cannot thus identify the critical error it must refrain from intervening, unless of course the findings of fact cannot be attributed to this advantage enjoyed by the trial judge, because nothing could have justified the judge’s conclusion whatever he saw or heard; this latter category will be identified by the unreasonableness of the trial judge’s finding (Métivier v. Cadorette, [1977] 1 S.C.R. 371; Latour v. Grenier, [1945] S.C.R. 749; Workmen’s Compensation Board v. Greer, [1975] 1 S.C.R. 347; Schreiber Brothers Ltd. v. Currie Products Ltd., supra). [24] The principle of curial deference was considered by L’Heureux-Dubé, J. in Dickason v. University of Alberta, [1992] 2 S.C.R. 1103 at p. 1148 where she stated: The principle of curial deference is not simply based upon what appellate courts may do, acting within their jurisdiction. It is based on the recognition of the "signal advantage" enjoyed by lower courts and quasi-judicial bodies which see and hear witnesses. The classic statement on this subject is found in Clarke v. Edinburgh and District Tramways Co., [1919] S.C. (H.L.) 35, where Lord Shaw of Dunfermline states (at p. 36): When a Judge hears and sees witnesses and makes a conclusion or inference with regard to what is the weight on balance of their evidence, that judgment is entitled to great respect, and that quite irrespective of whether the Judge makes any observation with regard to credibility or not. . . . In Courts of justice in the ordinary case things are much more evenly divided; witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page. What in such circumstances, thus psychologically put, is the duty of an appellate Court? In my opinion, the duty of an appellate Court in those circumstances is for each Judge of it to put to himself, as I now do in this case, the question, Am I -- who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the Judge who heard and tried the case -- in a position, not having those privileges, to come to a clear conclusion that the Judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the Judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment. [25] In 1994 Justice McLachlin in Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, [1994] 1 S.C.R. 114 stated at p. 121: [13] It is by now well established that a Court of Appeal must not interfere with a trial judge's conclusions on matters of fact unless there is palpable or overriding error. In principle, a Court of Appeal will only intervene if the judge has made a manifest error, has ignored conclusive or relevant evidence, has misunderstood the evidence, or has drawn erroneous conclusions from it: see P. (D.) v. S. (C.), [1993] 4 S.C.R. 141, at pp. 188‑89 (per L'Heureux‑Dubé J.), and all cases cited therein, as well as Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, at pp. 388‑89 (per Wilson J.), and Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802, at pp. 806‑8 (per Ritchie J.). A Court of Appeal is clearly not entitled to interfere merely because it takes a different view of the evidence. The finding of facts and the drawing of evidentiary conclusions from facts is the province of the trial judge, not the Court of Appeal. [26] In this application, Pavey submits that the panel failed to consider material evidence and that such omission dictates that we quash the suspension. [27] In a recent decision, Van de Perre v. Edwards, [2001] S.C.J. No. 60 (Q.L.) the Supreme Court of Canada enunciated the proper approach to appellate review in determining whether the fact finder made “material error” in arriving at a conclusion of fact when it is submitted to the Court that the trier of fact ignored or misdirected itself with respect to relevant evidence. The Court stated at § 15 as follows: ¶ 15 ... the approach to appellate review requires an indication of a material error. If there is an indication that the trial judge did not consider relevant factors or evidence, this might indicate that he did not properly weigh all of the factors. In such a case, an appellate court may review the evidence proffered at trial to determine if the trial judge ignored or misdirected himself with respect to relevant evidence. This being said, I repeat that omissions in the reasons will not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial. As stated in Van Mol (Guardian ad litem of) v. Ashmore (1999), 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal ref'd [2000] 1 S.C.R. vi, an omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence. [28] Van de Perre holds that, only if a reviewing court finds that such omission gives rise to a reasonable belief that the decision-maker must have forgotten, ignored or misconceived the evidence in a way that affected the conclusion of fact, will the reviewing court “reconsider” the evidence. I take “reconsider” to be an additional process beyond that of the initial review of the evidence. Reconsideration of the evidence would entail an appeal court embarking on a consideration of the evidence and coming to its own conclusions. In summary, without such a reasoned belief as described an appeal court would not be required to take this second step. [29] In Canada (Directorof Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at issue was the scope of review of a decision of the Competition Tribunal. The Competition Act provided for an appeal to the Federal Court of Appeal from a decision of the tribunal. The decision in Southam is best known for establishment of the third standard of review “reasonableness simpliciter” which has been held to be an appropriate standard where there is a statutory right of appeal from a tribunal decision. With respect to this third standard, Iacobucci, J., writing for the Court, stated at p. 778: 59 The standard of reasonableness simpliciter is also closely akin to the standard that this Court has said should be applied in reviewing findings of fact by trial judges. In Stein v. "Kathy K" (The Ship), [1976] 2 S.C.R. 802, at p. 806, Ritchie J. described the standard in the following terms: . . . the accepted approach of a court of appeal is to test the findings [of fact] made at trial on the basis of whether or not they were clearly wrong rather than whether they accorded with that court's view of the balance of probability. [Emphasis added.] 60 Even as a matter of semantics, the closeness of the "clearly wrong" test to the standard of reasonableness simpliciter is obvious. It is true that many things are wrong that are not unreasonable; but when "clearly" is added to "wrong", the meaning is brought much nearer to that of "unreasonable". Consequently, the clearly wrong test represents a striking out from the correctness test in the direction of deference. But the clearly wrong test does not go so far as the standard of patent unreasonableness. For if many things are wrong that are not unreasonable, then many things are clearly wrong that are not patently unreasonable (on the assumption that "clearly" and "patently" are close synonyms). It follows, then, that the clearly wrong test, like the standard of reasonableness simpliciter, falls on the continuum between correctness and the standard of patent unreasonableness. Because the clearly wrong test is familiar to Canadian judges, it may serve as a guide to them in applying the standard of reasonableness simpliciter. [30] This Court’s statutory power to intervene is comparable to a statutory provision that allows for an appeal of a tribunal decision to a court. Accordingly, the comments of Iacobucci, J. are clearly relevant in determining the appropriate degree of deference this Court ought to accord to findings of fact by a discipline subcommittee. [31] In considering the decision of the panel and in view of the issues raised on Pavey’s application we must review the decision to ascertain if the panel made a palpable or overriding error in concluding that the events happened as described by the client. Was the panel clearly wrong in finding that the events happened as testified to by the client? Expressed in the language of the spectrum of deference to be accorded to decisions of administrative tribunals from that of correctness to patent unreasonableness with reasonableness simpliciter somewhere in between, I am of the opinion that we must be satisfied that the panel’s conclusion of fact that the events testified to by the client actually happened was an unreasonable conclusion before we should interfere. In short, considering the factors enumerated in Southam, supra and Pushpathathan, supra, the scope of review we ought to exercise on this application is that of reasonableness simpliciter. The alleged error is not so obvious that it can be detected without a careful review of the evidence (Southam, p. 777). Therefore, the patently unreasonable standard of review would not be appropriate. THE PANEL’S DECISION: [32] I have reviewed the evidence adduced before the five-person panel for the purpose of assessing the submissions of counsel on this application. I have reviewed the decision. There is no suggestion that the panel did not understand the law and, in particular, the law with respect to the burden of proof on the Barristers’ Society. After reviewing the evidence, the panel stated at p. 29 of its decision: Reasons for Decision ¶ 118 The Panel is mindful of the standard of proof which is upon the Society in a hearing involving a lawyer’s alleged misconduct or conduct unbecoming a barrister and solicitor. It has been endorsed in several prior Panel decisions that the onus upon the Nova Scotia Barrister’s Society is to establish its allegations by cogent and convincing evidence commensurate with the gravity of the matters complained of and the lawyer’s conduct should not be the subject of an adverse finding so long as a reasonable probability remains that his or her side of the story may be true. Thus, the grounds of the complaint must be established by cogent and convincing evidence and in assessing the evidence, the Panel should accept the lawyer’s explanation if there is a reasonable probability of its being true. [33] I am satisfied that the panel carefully reviewed the evidence. After doing so, the panel in its decision dealt with the issues raised by Pavey’s counsel including the primary issue that the client’s evidence was not credible; that the client had fabricated the evidence that Pavey had provided her with crack cocaine and had sexual relations with her so that she would achieve a benefit as Pavey would likely have to withdraw as her counsel and she would be granted an adjournment thus delaying the anticipated proceedings respecting the custody of two of her children. At that time (April 1999) she anticipated that such proceedings would result in the loss of custody of those children because she had slipped back into her drug habit. The delay would give her time to clean up her act. [34] After carefully reviewing the evidence and the law applicable to the task before them, the panel, in considering the evidence, accepted the evidence adduced on behalf of Pavey that, in the 13½ hour period on July 18th and July 25th, 1997 he had appointments and, therefore could not have been involved on those days in the party testified to by the complainant. [35] The panel then considered the evidence and the fact that the complaint did not allege that the offence took place on a specific date or dates in July. It concluded that it was not essential that the Barristers’ Society prove the exact date the offence took place. [36] The panel in its decision then referred to the correct principles of law in assessing directly conflicting testimony and went on to consider the submissions made by Pavey that the client had a motive to fabricate. It considered the evidence on this issue and, in particular, the evidence of Mr. Whitzman and Ms. Rogers who were professionals involved in advising and assessing the client’s situation respecting the custody of her children. The panel also considered the evidence of Fran MacIntyre, another counsellor provided to the client by Community Services. The panel in its decision stated: ¶ 137 Mr. Whitzman was aware Ms. Nicholson wanted to tell him something in confidence, during a phone call with her back as early as February ‑‑ March, 1999. At the time, Kaitlin and Kaleb were to be returned to Ms. Nicholson. Subsequently, at a counselling session on March 25, 1999 Ms. Nicholson again wanted to tell him something in confidence and identified it related to Mr. Pavey. In Ms. Nicholson's evidence these were incidents of her wanting to tell Mr. Whitzman about having drugs and sex with Mr. Pavey. ¶ 138 Why would Ms. Nicholson want to tell Mr. Whitzman about Mr. Pavey at a time when the Department had a plan that entailed the return of the children to Ms. Nicholson? ¶ 139 Even earlier than February ‑‑ March, 1999 Ms. Nicholson told her sister, Tracy Nicholson and Fran McIntyre. That was back on March 25, 1998, one year earlier, when Ms. Nicholson with her sister Tracy attended a counselling session with Fran McIntyre. The Panel accepts the evidence of Ms. McIntyre that Tracy Nicholson first raised the matter at the session, by stating her sister had sex with Mr. Pavey. Lisa Nicholson then broke down and according to Ms. McIntyre, then told her about their buying crack cocaine and using it the next day, along with having sex. 140 There is no reason for Lisa Nicholson to have made up the allegations in March, 1998. There was no benefit to be gained by her making up the allegations in 1998. ¶ 141 At several subsequent counselling sessions in 1998, between Ms. Nicholson and Ms. McIntyre, Ms. McIntyre's evidence was that the "inappropriate behaviour" between Ms. Nicholson and Mr. Pavey was discussed and recorded in her notes. It was not just in one session Ms. Nicholson discussed having had drugs and sex with Mr. Pavey, it was at several sessions. ¶ 142 The Panel does not accept Mr. Pavey's assertion Ms. Nicholson made up the allegations to obtain a benefit, which benefit was to be achieved in April, 1999, by delaying the Court proceeding relating to Kaitlin and Kaleb. The Panel accepts the evidence of Fran McIntyre that she was told about it, by Ms. Nicholson in March, 1998, at a time when there would be no benefit for Ms. Nicholson to make up such allegations. ¶ 143 The Panel finds Ms. Nicholson to be a credible witness. The Panel accepts the evidence of Ms. Nicholson in respect to her and Mr. Pavey acquiring the crack cocaine and then, subsequently using it and having sex, including sexual intercourse. ... [37] After reviewing in some detail the evidence relating to the events giving rise to the complaint, the panel stated at paragraph 152: ¶ 152 The Society has met the onus on it, by establishing its allegations by cogent and convincing evidence. The Panel does not accept the denial by Mr. Pavey or the explanation by Mr. Pavey about why Ms. Nicholson made up the allegations about him. ISSUES ON THE APPLICATION: [38] On the application to intervene, counsel for Pavey submits that: (i) the evidence before the panel did not support the finding that the client’s evidence was credible; (ii) the evidence was not cogent and compelling; (iii) Pavey’s explanation that the client fabricated the evidence was plausible; (iv) the panel wrongly put the burden on Pavey to prove that the client had motive to fabricate; and, (v) the panel made a jurisdictional error by failing to afford Pavey the opportunity to respond to the issue raised in the minds of the panel that having found the events complained of did not take place on either Friday, July 18th or Friday, July 25th, that those events may have taken place on some unspecified date in July 1997. [39] I will deal with items (i) and (ii) and (iii) together. In rejecting Pavey’s explanation the panel made reference to the fact that on March 25th, 1998, the client told Fran MacIntyre, a counsellor, about the use of crack cocaine and having sexual relations with Pavey in July of 1997. The panel concluded there was no reason for the client to have made up the allegations in March of 1998 as there was no benefit to be gained by her making up the allegation at that time. [40] Initially I thought there might be merit to the submission that the client had a motive to fabricate. However, upon analysis of the evidence the submissions must be rejected. The evidence supports the panel’s conclusion that there was no reason in March of 1998 for the client to have told Fran MacIntyre a false story. However, even if the client had a motive to fabricate, there remained the question whether she was telling the truth in her testimony before the panel. [41] What she told Fran MacIntyre in March of 1998 is consistent with the testimony she gave before the panel. [42] Counsel submits that the panel ought to have considered that the client may have lied to Fran MacIntyre when she told her of Pavey having provided her with drugs and their having had sexual relations. I would note that counsel did not make this submission to the panel. Furthermore, it very well may be that the panel did give consideration to that possibility. There is no requirement for a judge or, in this instance, the panel, to give reasons from which it could be ascertained that they considered every possible argument even if not advanced . As stated in Van de perre: ... omissions in the reasons will not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial. [43] I do not have a reasoned belief that the panel misconceived the evidence of Fran MacIntyre in a way that affected the panel’s conclusion that the events happened as testified to by the client. [44] The panel in paras. 137 to 143 of its decision focused on the key issue: whether Pavey’s explanation that the client on April 8th, 1999, had fabricated the allegations to gain an advantage by delaying the scheduled custody proceedings knowing the matter would likely be adjourned if Pavey were required to withdraw which, in fact, is what happened. The panel gave careful consideration to this explanation and rejected it. Credibility of the complainant was for the panel. In rejecting the explanation the panel did not make a manifest error or ignore material evidence. [45] In paragraph 150 of the decision, the panel stated that it “accepted” Ms. Nicholson’s evidence in respect of her complaint and that they did not “accept” that Ms. Nicholson purposely misled the panel or made up her complaint. Paragraph 150 of the decision continued: The panel does not find the evidence of Mr. Pavey convincing or compelling in respect to his denial or the explanation as to why Ms. Nicholson made up the allegations leading to her Complaint. [46] The wording of this paragraph creates the impression that the panel may have imposed a burden on Pavey to disprove the complaint whereas it goes without saying that the burden to prove the allegation was on the Barristers’ Society. With respect to Pavey’s explanation, the law requires that if Pavey adduced evidence that would support a finding that his version of events and his denial is reasonably probable the complaint ought to have been dismissed. It is the evidence in proof of the complaint that must be compelling and cogent. The statement in paragraph 150, while overstating the evidentiary burden on Pavey is, in my opinion, irrelevant as the panel, prior to making that statement, had already reached the conclusion that Pavey’s explanation as to why the client was fabricating was not plausible nor did the panel believe his evidence that the events did not happen. I refer specifically to paragraphs 140 to 143 of the panel’s decision. In short, the panel had accepted the client’s evidence. As the evidence of the client and Pavey was in direct conflict as to whether these events happened the panel, prior to making the statements in paragraph 150, had already rejected Pavey’s denial and his explanation. Accordingly, the comments in paragraph 150 which create the impression that the panel had put a heavy burden of proof on Pavey respecting his evidence denying the allegations and his evidence that the client had a motive to fabricate were irrelevant and, therefore, not a ground upon which we ought to quash the suspension. [47] On this application, counsel for Pavey submits that the panel erred in that it: (i) failed to consider the character evidence of Pavey versus that of his client; (ii) failed to properly assess the evidence of C.K.; and (iii) failed to consider that the client was also motivated to fabricate because she held Pavey responsible for the way he had acted as her counsel with respect to the custody matter involving her older daughter Morgan. [48] In summary, the essence of counsel’s factum indicates that he wishes us to retry the complaint. He submits that the panel failed to consider the totality of the evidence. He submits that had it done so it would not have found the client’s evidence credible. I have not recited each and every submission made in the factum or during the hearing of the appeal with respect to more minute aspects of the evidence that counsel submits the panel failed to consider. This submission presumes that if no mention is made in the decision of specific points in the evidence that the panel did not consider it. That is not a valid presumption. However, I will make reference to the points on which counsel put particular emphasis, as being omissions of a serious nature. [49] Considering the approach to a review of findings of fact as enunciated by the Supreme Court of Canada in the decisions I have referred to and, most recently, in the decision in Van de Perre, the omission of the panel to expressly mention and comment on certain aspects of the evidence does not necessarily amount to a material error. [50] First, with respect to the character evidence, the panel was well aware of the respective characters of Pavey and the client. While there is no question that the client’s character was not exemplary neither was that of Pavey who, despite his laudable work with respect to assisting indigent persons and his contribution to the development of poverty law, by his own admission, was a regular user of cocaine throughout this period and used it recklessly while practicing law. In the circumstances, the evidence of good character was more than offset by significant evidence to the contrary. I do not have a reasoned belief that the panel’s omission to state that it considered the character evidence means that it ignored that evidence in a way that affected its ultimate conclusion. The failure of the panel to mention the character evidence was not a material error. [51] With respect to the evidence of C.K., counsel submits that the panel wrongly relied on it as corroborative of the client’s evidence that Pavey had supplied and shared crack cocaine with the client and had sexual relations with her over the 13½ hour period on a day in July 1997. [52] It is my opinion that her evidence was not particularly relevant other than the panel treated it as confirming the client’s evidence that she and C.K. had partied together the last night they saw each other, being the evening before the party Pavey and the client engaged in at his mediation office. The exact words used by the panel in paragraph 151 were that the client’s “observations about the night before were, in part, corroborated by the evidence of C.K.”. The panel did not use C.K.’s evidence as corroborative of the client’s evidence respecting the party between Pavey and the client the next day. The panel was very conscious of the fact that with respect to the 13½ hour party that there was no one present at that party other than Pavey and the client and the panel so stated in para. 151 of its decision. [53] Prior to testifying, C.K. had neither seen nor “run with” the client in the party scene for some two years. C.K. testified that on that evening the client had told her that Pavey had supplied the drugs and that on prior occasions the client had told C.K. that she and Pavey had used drugs together and had insinuated that there was a sexual relationship. The client had testified there had not been any sexual relations with Mr. Pavey prior to the 13½ hour party. The panel did not mention this conflict between the evidence of the client and C.K. It is clear from a review of the evidence that C.K. was a heavy drug user herself, and that she had a lot to drink and in her words had smoked a lot of dope that night. The panel, in its decision, went no further than to conclude that the client’s observations about the night before were, in part, corroborated by C.K. I do not have a reasoned belief that the panel misconceived C.K.’s evidence in a way that affected the panel’s conclusion that the events, as testified to by the client, actually happened. I have no doubt the panel was well aware of the deficiencies in C.K.’s evidence as the events she was recalling were two years away and had occurred when she was a heavy drug user. [54] With respect to the submission that the client had a motive to lie because of her fixation that Pavey was responsible for her losing custody of her daughter Morgan, the panel reviewed the client’s evidence respecting her dissatisfaction with Pavey. The panel concluded the review with the following statement: ¶ 52 Ms. Nicholson was not just dissatisfied with the services of Mr. Pavey, and the non‑involvement by the Department, she also admitted she had some periods of instability in her residency, had a couple of months she was moving around, was seriously involved in drugs and, as a result her conduct up until July, 1997, would have had something to do with why Morgan's father was granted custody of Morgan. Ms. Nicholson was not able to look after Morgan at that time and she admitted that also had something to do with custody being granted to Stephen Cross. (emphasis added) [55] Therefore, it is quite apparent why the panel did not find it necessary to deal with that issue in the “reasons for decision” section of its decision. The client knew very well that her own conduct was the root cause of her losing custody of Morgan, not Pavey’s handling of the custody matter. The failure of the panel to make any further reference to this issue was not a material error. [56] It goes without saying that assessing the credibility of witnesses is for the trier of fact not an appeal court. Cases like this one, where the only direct evidence on the critical issue of fact comes from the parties, are troublesome. The trier of fact must make the difficult decision whether or not to believe the evidence of the complainant as in this case. Our function is not to retry the complaint. Unless it can be shown that the panel’s finding of fact on this issue is unreasonable, this Court ought not to interfere. In my opinion, the panel, in its decision, did not make such errors in its assessment of the evidence and its conclusion that the client’s evidence was credible. The panel’s finding of fact ought not to be disturbed. [57] Counsel for Pavey also asserts that the panel committed a jurisdictional error by breaching the rules of natural justice by failing to advise him that the panel was considering the possibility that the alleged drug and sex activities could have happened on a date other than July 18th or 25th, 1997. It is quite clear from a review of the evidence, accepted by the panel, that the events did not happen on July 18th or 25th. Pavey testified that the events as described by the client did not happen at any time. [58] Counsel has not cited any cases to support his position that he should have been given a further opportunity to adduce evidence to refute the allegation that the events happened on a date in July other than July 18th or 25th. He submits that such a failure constitutes a jurisdictional error or a breach of the rules of natural justice. In my opinion, the latter classification would be the proper one. Therefore, in considering this submission we should apply a standard of correctness. However, I am not persuaded that the submission has merit. First of all the formal complaint was that the events happened in July of 1997 and the client testified to this fact. She also testified that she was 95% sure it was on Friday, the 18th and if not on the 18th then on the 25th. Counsel for Pavey did not ask that the complaint be particularized as to date. Counsel and Pavey were well aware that the complaint related to events that happened in “July 1997". In fact, at the end of the direct examination of Pavey, his counsel, after eliciting evidence from Pavey that the event the client described could not have happened on July 18th or 25th, asked Pavey the following questions and received the following responses: Q. Okay. Is there anything that you’d like to add to your evidence? A. No, thank you. Q. While I guess we’ve dealt with this in the context of the 18th and the 25th of July, what do you have to say about the suggestion that at any time you engaged in the acquisition of drugs, usage of drugs, or engaging in sex with Ms. [N]? A. It didn’t happen at any time. [59] Counsel for Pavey is a very competent and experienced lawyer who practices criminal law. He was well aware of the wording of the complaint and he made sure that Pavey’s answer that he had not engaged in sex or acquired or used drugs with his client at any time was on the record. [60] Counsel for Pavey submits that had he known the panel was considering that the events could have happened on some date other than July 18th or 25th he could have adduced evidence to deal with all the days in July. Both counsel and Pavey knew how the complaint was worded. They chose not to adduce evidence other than tendering Pavey’s diary and time sheets for July, 1997. As previously mentioned, counsel cites no authority for the submission that at some point in the panel’s deliberations, subsequent to the conclusion of the hearing, the panel, if it was considering that the events could have taken place on another date (say Saturday, July 19th) ought to have reconvened the hearing to allow Pavey to adduce further evidence. Such a requirement would create an unworkable situation for tribunals and judges who have reserved decision following a hearing. While there might be extraordinary circumstances when a tribunal would reconvene to hear further evidence relative to findings it was tentatively considering, I am of the opinion that in these proceedings, considering the manner in which the complaint was framed and the choices made by Pavey and his counsel with respect to presenting his defence to the complaint, the panel did not have a duty to reconvene the hearing. Accordingly, there was no breach of natural justice in failing to do so. [61] Counsel further submits that the panel did not consider evidence that was on the record relevant to the submission that the 13.5 hour party could not have taken place on any day in July as Pavey was otherwise engaged. The evidence he relies on are Pavey’s diaries and day sheets for July 1997. Counsel submits that had the panel reviewed these exhibits the panel would have realized that events could not have happened on any business day in July. [62] I have reviewed the appeal record to ascertain just what is shown on the diaries and the day sheets which were kept at that time by Pavey. There were no entries in the diaries for Saturday, July 19th or for Saturday, July 26th, 1997 nor were there any indications on the day sheets that Pavey did any legal work or had appointments with clients on those two days. [63] Accordingly, there was no evidence on the record that would support the submissions by counsel that the panel ignored evidence on the record that would show that the events could not have happened on any date in July 1997. [64] In summary, the finding by the panel that the events happened as testified to by the client was a reasonable finding on the evidence; there is no manifest error by the panel in the assessment of the evidence nor do I have a reasoned belief that the panel ignored or misconstrued relevant evidence which had it been considered, would have resulted in the panel rejecting the client’s evidence. The evidence supports the conclusion of the panel that the events happened as testified to by the complainant. There was no material or overriding error in the panel’s assessment of the evidence and the conclusions of fact drawn from that assessment are not unreasonable. [65] On this application I have reviewed and have considered in some detail the evidentiary issues raised by Pavey’s counsel. This should not be interpreted as meaning that this Court, in every application to intervene, will undertake such an exercise. It is sufficient that the Court consider the errors of fact if raised. If the Court does not have a reasoned belief that the panel made a palpable and overriding error in its assessment of the evidence and that such error affected the panel’s conclusion that is the end of the matter. A short statement to this effect will satisfy the Court’s duty when asked to intervene on the ground that the panel made an unreasonable finding of fact on a critical issue. [66] The panel did not breach the rules of natural justice in failing to afford an opportunity to Pavey at some point during the panel’s deliberations to adduce further evidence and make further submissions. [67] The panel did not err in its application of the law respecting the burden on the Barristers’ Society to prove the complaint. [68] Under all of the circumstances, this Court ought not to intervene. The application to intervene is dismissed with costs to the Society in the amount of $2000.00 inclusive of disbursements. Hallett, J.A. Concurred in: Glube, C.J.N.S. Bateman, J.A.