Fraser v. Nova Scotia Barristers’ Society

Fraser v. Nova Scotia Barristers’ Society Court Court of Appeal Date 2024-12-13 Citation 2024 NSCA 102 Docket CA 530978 Judge/Registrar/Adjudicator Bryson, Peter M.S. (Honourable Justice) (CA) Document Type Decision Decision Content Nova Scotia Court of Appeal Citation: Fraser v. Nova Scotia Barristers’ Society, 2024 NSCA 102 Date: 20241213 Docket: CA 530978 Registry: Halifax Between: Donn Fraser Appellant v. Nova Scotia Barristers' Society, a statutory body corporate, including or as represented by the Complaints Investigation Committee of the Nova Scotia Barristers' Society, and Attorney General of Nova Scotia Respondents Judge: Bryson, J.A. Motion Heard: December 5, 2024, in Halifax, Nova Scotia in Chambers Written Decision: December 13, 2024 Held: Motion dismissed, without costs Counsel: Donn Fraser, the appellant, on his own behalf Ewa Krajewska and Matthew Gourlay, for the respondent Nova Scotia Barristers’ Society Edward A. Gores, K.C., for the respondent Attorney General of Nova Scotia (not participating) Decision: Introduction [1] Donn Fraser was temporarily suspended from the practice of law following a hearing by a Complaints Investigation Committee of the Nova Scotia Barristers’ Society. He appealed that suspension to the Court of Appeal. Appeals are available on questions of law only.[1] Pending the hearing of the appeal, he successfully obtained a stay (“Fraser No. 1”).[2] [2] On November 26, 2024, the Court of Appeal dismissed Mr. Fraser’s appeal (“Fraser No. 2”).[3] Mr. Fraser says he intends to seek leave to appeal to the Supreme Court of Canada. In the meantime, he asks for a stay of this Court’s ruling that had the effect of lifting the interlocutory stay of his suspension from practice. [3] Mr. Fraser says he needs a stay to “avoid irreparable harm and a miscarriage of justice”. Fundamentally, Mr. Fraser argues that the events for which he has been disciplined arise from a private dispute with his former legal partners. He says the Bar Society has no business disciplining him for what he considers a personal dispute for which it lacks jurisdiction. He adds that the Bar Society has been procedurally unfair to him. [4] The Bar Society replies that irrespective of the underlying dispute, some of Mr. Fraser’s behaviour in conducting his case has been prima facie unprofessional and unbecoming a barrister, for which appropriate interim disciplinary steps were taken by the Complaints Investigation Committee. Mr. Fraser then unsuccessfully challenged that interim discipline to the Court of Appeal. Accordingly, Mr. Fraser’s motion should be dismissed because there is no realistic basis upon which he would be granted leave to appeal to the Supreme Court of Canada. [5] The Bar Society adds that there is no serious issue to be tried; that Mr. Fraser has failed to show he will suffer irreparable harm if the stay is denied; and that the balance of convenience favours maintaining the interim suspension. The Bar Society notes that in the unlikely event leave to appeal is granted, Mr. Fraser can reapply for a stay at that time.[4] Background to stay motion [6] On February 1, 2024, Mr. Fraser appeared in Supreme Court Chambers at the Pictou Courthouse to respond to a motion by his former partners for the appointment of a case management judge in an ongoing civil proceeding to which he was a party. The hearing was acrimonious. Further details are provided in Fraser No. 2.[5] [7] At some point when the judge was out of the courtroom, Mr. Fraser threw a cup of water on one of his opponents, splashing him and his colleague. The deputy sheriff informed Mr. Fraser that he was under arrest for assault. Mr. Fraser was uncooperative. He was subsequently charged with assault and resisting arrest. [8] An ex parte hearing of the Complaints Investigation Committee followed. The Committee decided to impose an interim suspension on Mr. Fraser’s licence to practice. [9] On February 8, 2024, the Committee reconvened at Mr. Fraser’s request for a virtual inter partes hearing. The Committee confirmed its earlier decision to suspend Mr. Fraser. [10] The Court of Appeal was critical of the Committee’s decision to proceed ex parte. However, in the end, the Court was satisfied that the inter partes hearing gave Mr. Fraser a full and fair opportunity to participate and respond, curing any flaws in the ex parte process. [11] The Court of Appeal’s decision in Fraser No. 2 was rendered on November 26, 2024. Mr. Fraser immediately asked for a hearing seeking a stay, pending an application for leave to appeal to the Supreme Court of Canada. [12] On December 5, 2024, Mr. Fraser’s motion for a stay was heard. In support of that motion, he filed an affidavit containing extensive exhibit material, including the affidavit filed for the stay granted by Chief Justice Wood in Fraser No. 1; his factum filed in support of his appeal in Fraser No. 2; and a brief regarding additional evidence sought to be adduced before the Court of Appeal in Fraser No. 2. Mr. Fraser’s affidavit also described the October, 2024 resolution of criminal charges against him. [13] In response, the Bar Society filed an affidavit attaching a series of exhibits relating to the events of February 1, 2024, including an Agreed Statement of Facts regarding the resolution of the criminal charges to which Mr. Fraser had referred in his affidavit. In that Agreement, signed by Mr. Fraser, he admits throwing a water cup at one of his former partners, “striking him and wetting both his and Saunders’ clothing”. [14] From the same Agreed Statement of Facts, it appears another incident occurred at Provincial Court on July 31, 2024. When Mr. Fraser was in the parking lot leaving the Pictou Courthouse, he saw the prosecutor’s empty vehicle and threw coffee onto the windshield. The Agreed Statement of Facts further notes that on August 7, 2024, when police arrested Mr. Fraser for mischief, he was “confrontational and uncooperative with the police”. [15] In response, Mr. Fraser filed a further rebuttal affidavit attaching letters to the Bar Society in which, among other things, he explains his position with respect to resolving the outstanding criminal matters in October of 2024. In brief, it appears that in return for guilty pleas for assault, mischief and resisting arrest, Mr. Fraser was granted a conditional discharge. Authority to grant a stay [16] Section 65.1 of the Supreme Court Act [6] allows this Court or a judge of the Court to stay a judgment, even before filing and serving an application for leave to appeal: Stay of execution — application for leave to appeal 65.1 (1) The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate. Additional power for court appealed from (2) The court appealed from or a judge of that court may exercise the power conferred by subsection (1) before the serving and filing of the notice of application for leave to appeal if satisfied that the party seeking the stay intends to apply for leave to appeal and that delay would result in a miscarriage of justice. Modification (3) The Court, the court appealed from or a judge of either of those courts may modify, vary or vacate a stay order made under this section. [17] In exercising its jurisdiction under s. 65.1, the Court applies the three-part test from RJR-MacDonald Inc.[7] Additionally, because Mr. Fraser has not yet filed and served a notice of application for leave to appeal, he must satisfy the “more stringent” requirement in ss. (2) that the delay would result in a miscarriage of justice.[8] [18] Mr. Fraser cites authority that the miscarriage of justice requirement of s. 65.1(2) of the Supreme Court Act and the requirement that an applicant must show irreparable harm involve considerable overlap.[9] Serious issue to be tried? [19] In R.J.R. the Supreme Court asked: What then are the indicators of “a serious question to be tried”? There are no specific requirements which must be met in order to satisfy this test. The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case.[10] [Emphasis added] [20] The low threshold involved is emphasized in the Supreme Court’s next paragraph: Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable.[11] [Emphasis added] [21] However, courts have recognized that the serious issue test must be considered in the context of the leave to appeal requirements of the Supreme Court. Mr. Fraser refers us to Justice Beveridge’s decision in Cameron[12] where he said in part: [36] However, the appellants cannot appeal as of right to the Supreme Court of Canada. Leave is required. It is widely accepted that this creates an important nuance to the first part of the test: the appellants must not only show that its appeal raises arguable issues, but their leave application demonstrates serious or arguable issues for leave to be granted by the Supreme Court of Canada […] [Emphasis added. Authorities omitted] [22] In BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust,[13] Justice Laskin put it this way: [18] Ordinarily, the threshold for showing a serious issue to be adjudicated is low. However, the criteria for granting leave to appeal to the Supreme Court of Canada add another layer to this component of the test. Under s. 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26, the Supreme Court of Canada typically grants leave to appeal only in cases of public or national importance. Thus, a provincial appellate court judge hearing a motion for stay pending leave to appeal to the Supreme Court of Canada must take account of the stringent leave requirements in the Supreme Court Act: see Merck & Co. v. Nu-Pharm Inc. (2000), 2000 CanLII 15240 (FCA), 5 C.P.R. (4th) 417 (F.C.A.) and Ontario Public Service Employees Union v. Ontario (A.G.) (2002), 2002 CanLII 44918 (ON CA), 158 O.A.C. 113. [Emphasis added] [23] The Supreme Court’s focus is on issues of public importance. These may include constitutional issues; conflicting decisions from provincial courts of appeal on law of general application; novel and publicly-important legal issues; and interpretation of federal or provincial legislation of national significance. [24] In sum: it is not enough for an applicant simply to identify alleged errors of law or mixed fact and law. The issues raised must be of public or national importance. [25] Mr. Fraser submits a litany of errors by the Court of Appeal on which he will seek leave to appeal to the Supreme Court of Canada. He alleges the Court of Appeal erred by: 1. admitting fresh evidence from the Bar Society; 2. failing to find the Committee’s process unfair because: (a) he was not given full disclosure of an investigative report; (b) overlapping functions of members of the Committee created bias or a perception of bias; (c) the Committee improperly relied on a flawed disciplinary history; (d) in any event, the Committee was wrong to characterize that history as a “pattern of behaviour”; 3. failing to find the Committee lacked jurisdiction to discipline him on the facts of the case; 4. failing to find the Committee wrongly applied the Groia [14] test to his behaviour. Alleged error in admission of evidence [26] Mr. Fraser says the Court of Appeal erred in admitting the affidavit on behalf of the Bar Society from Elaine Cumming which provided background on Mr. Fraser’s disciplinary history. He claims the court applied the wrong legal test.[15] If they had applied the correct test,[16] the evidence would not have been admitted. [27] The February 2, 2024 decision of the Committee itself referred to Mr. Fraser’s disciplinary history and took that history into account. Mr. Fraser sought to provide context to that history and was allowed to file an extensive affidavit which addressed what he claimed were errors and a lack of procedural fairness in that history. The Bar Society was similarly accommodated by the Court of Appeal. [28] Ms. Cumming’s affidavit was admitted for two reasons. First, as a reply to Mr. Fraser’s fresh evidence. Second, to provide the history of previous disciplinary decisions to which the Committee referred in its decision under appeal.[17] [29] It is not apparent the Court erred in admitting Ms. Cumming’s affidavit. Moreover, it is difficult to see how this alleged evidentiary error is of general public significance on which the Supreme Court would be likely to grant leave. Procedural fairness Alleged Failure to disclose [30] Mr. Fraser says it was wrong for the Committee to rely on his disciplinary history to demonstrate a “pattern of behaviour” without disclosing a report or reports – the “McMillan Reporting” – to which he says the Committee was privy. [31] The Bar Society refers to the Court of Appeal’s decision in reply: [105] The decisive points in the Inter Partes Decision were: (1) Mr. Fraser had, for the first time, acted violently in the courtroom, and (2) he had not been deterred by the lesser restrictions in the CIC’s earlier Decisions. The first point derives from the evidence relating to February 1, 2024, which was disclosed to Mr. Fraser or his counsel. The second is apparent from the face of the CIC’s earlier Decisions, which Mr. Fraser possessed. Whether or not the Executive Director should charge Mr. Fraser for his behaviour in 2021 and 2022 was not a factor in the CIC’s Ex Parte or Inter Partes Decisions in February 2024.[18] Mr. Fraser does not refute the decisive points referred to in the foregoing quotation. He simply reiterates it was unfair not to give him a report that played no apparent role in the decision to suspend him. Respectfully, it is not obvious that there was any procedural unfairness. Nor does a question of national significance clearly arise. Overlapping functions [32] Mr. Fraser argues that the operation of the Committee was inherently unfair and procedurally flawed, giving rise to a reasonable apprehension of bias because it acted both as an investigator and an adjudicator. As an investigator, it was responsible for recommending the laying of charges. As an adjudicator, it decided that Mr. Fraser should be given an interim suspension. [33] Mr. Fraser elaborates that this is contrary to persuasive caselaw.[19] [34] With respect to Mr. Fraser’s fundamental points of alleged bias, the Court of Appeal quoted from Ocean Port: [20] […] absent constitutional constraints, it is always open to the legislature to authorize an overlapping of functions that would otherwise contravene the rule against bias […] [35] The Court in Fraser No. 2 concluded: [81] Earlier, we set out the legislative framework for the CIC’s functions. Under s. 36 of the Act, the CIC investigates to the point where a charge is laid. Under s. 37, the CIC determines whether to levy interim relief. [82] The CIC’s performance of these functions applies the intent of the legislature. The duality does not exhibit an apprehension of bias or offend the principles of procedural fairness. [36] Mr. Fraser says that in this case the Committee’s adjudicative and investigative roles should have had different personnel. It is not clear how that comports with the Legal Profession Act: Suspension of certificate or imposition of conditions 37 (1) The Complaints Investigation Committee may, by resolution, where in its opinion it is in the public interest to do so, (a) suspend a practising certificate; or (b) impose restrictions or conditions on a practising certificate, during or following an investigation until the suspension, restrictions or conditions are rescinded or amended by the Complaints Investigation Committee or a hearing panel. [Emphasis added] From these introductory provisions, it appears that a Committee may both investigate and suspend or restrict a practicing certificate. [37] In any event, the cases cited by Mr. Fraser can be distinguished. In Gardner, the Ontario Divisional Court quashed decisions of the Ontario Civilian Commission on Police Services in which three members of the adjudicating body were also the investigative body that recommended an inquiry go forward. But in Mr. Fraser’s case, the merits are not determined by the Committee. Rather, the Committee makes an assessment of whether there is a prima facie case that requires interim discipline. The merits are heard later and by others. [38] Ringrose did not involve overturning a decision for bias but commented on the need to separate investigative and final decision-making functions. Ringrose was not a comment on interim decision makers. [39] Mr. Fraser says that Ocean Port stands for the proposition that principles of natural justice should govern regulatory arrangements, absent a clear legislative preference. Again, the investigative and temporary decision-making functions of the Committee in this case, do not involve a final merits decision. [40] In MacKinnon, two members of a law society disciplinary committee were ordered by the court not to hear MacKinnon’s application for readmission to the Bar because they had earlier recommended the laying of a formal complaint against Ms. MacKinnon, and recommended suspension from practice. No such conflict arises in this case because it involves an interim, not final, decision. [41] What Mr. Fraser challenges is an interim decision. A merits hearing is scheduled for the New Year. The Supreme Court is unlikely to intervene and grant leave on an ongoing matter, not yet final. Previous Rulings [42] Mr. Fraser submits the Committee should not have relied on previous disciplinary rulings for three reasons. First, the previous “rulings” were not findings of fact, following a merits hearing, but merely preliminary. Second, he reiterates that previous rulings related to personal, not professional, behaviour. He adds those rulings were tainted by conflicts of interest and bias. The last two points are considered below under “Jurisdiction”. The first can quickly be dispensed with. The Committee applied guidelines [21] which counselled consideration of Mr. Fraser’s disciplinary history when imposing an interim sanction, because the Committee needed to decide on an appropriate restriction, and whether a less onerous restriction would suffice.[22] Pattern of behaviour [43] Mr. Fraser protests that the interactions and incident of February 2024 had “no similarity to anything subject to past complaints before the Committee or past interim Committee decisions, all of which boil down to effectively unfriendly language in a personal dispute […]” This description minimizes Mr. Fraser’s past behaviour and the need of the Bar Society to regulate it. It is true that the assault that occurred in the courtroom on February 1, 2024 was different from behaviours previously complained of. But those behaviours had been judged on a prima facie basis to be unprofessional. That pattern of unprofessional conduct is undiminished by the escalation of the February 1, 2024 offences. [44] We now know from events which transpired after the February incidents that Mr. Fraser faced further charges arising from attending court in the summer of 2024. Mr. Fraser threw coffee on the prosecutor’s vehicle on July 31, 2024 at the Pictou courthouse. He was also uncooperative with officers who had come to arrest him for the charge of mischief that followed. This all followed the stay of his suspension, and to some extent vindicates the Committee’s concern that Mr. Fraser’s “… pattern of conduct would continue …” [23] [45] In deciding to impose an interim suspension, the Committee said it “regards Mr. Fraser’s behaviour on February 1, 2024 to be a culminating event of a pattern of behaviour that has continued and is the subject of the other complaints. We do not view his conduct an isolated incident. Instead, we regard it as ongoing misconduct.” [24] [46] The Court of Appeal found no error of law in the Committee’s consideration of past behaviour. [47] Mr. Fraser’s disagreement with the Court’s decision does not displace the deference owed to the Committee’s decision,[25] or the Court’s finding of no legal error.[26] [48] This proposed ground of appeal discloses no obvious issue of national importance. Alleged jurisdictional error [49] Throughout his dealings with the Bar Society, Mr. Fraser has taken the position that his complained-of conduct was personal and private and had nothing to do with the practice of law. He therefore argued that the Bar Society had no jurisdiction to discipline him. [50] Mr. Fraser asserts that the purpose of the Legal Profession Act is to “uphold and protect the public interest in the practice of the law”. He says none of his impugned behaviour involved the practice of law. He relies on this Court’s decision in Nova Scotia Barristers’ Society v. Trinity Western University,[27] which he says limits the Bar Society’s authority to regulate matters outside “[…] the public interest in the limited sphere of the provision of legal services to clients.” In fact, Trinity Western did not deal with the questionable behaviour of a practicing member of the Society. It says nothing that would restrict the Society from considering a lawyer’s conduct that might bring the legal profession in the province into disrepute. [51] As previously noted, the Supreme Court has frequently ruled that deference should be accorded to decisions of self-regulating professions which have a public interest mandate.[28] [52] The Society refers to other cases in which courts have deferred to disciplinary decisions of regulatory bodies, including a decision regarding the speech by a professional, even in the face of potentially serious infringement of constitutionally-protected rights of free speech.[29] [53] Section 28(1) of the Legal Profession Act gives the Bar Society jurisdiction over a member’s “conduct”. [54] Regulation 9.1.3 describes “conduct unbecoming”:[30] 9.1.3 When considering complaints or charges, the Complaints Investigation Committee and a hearing panel may determine that conduct constitutes: (a) conduct unbecoming, if it involves conduct in a member’s personal or private capacity that tends to bring discredit upon the legal profession, including one (1) or more of the following: i. committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or competence as a member of the Society, ii. taking improper advantage of the youth, inexperience, lack of education, lack of sophistication, or ill health of any person, iii. engaging in conduct involving dishonesty; […] [55] In Fraser v. Nova Scotia Barristers’ Society, 2024 NSCA 63, the Court found that “conduct unbecoming” could extend to personal or private conduct that “tends to bring discredit upon the legal profession”. In light of that decision, Mr. Fraser withdrew and did not argue that point in Fraser No. 2. But he now seeks to appeal it to the Supreme Court of Canada. [56] An alternative argument advanced by Mr. Fraser in this motion was that Regulation 9.1.3 was or could be ultra vires of the Legal Profession Act. He did not make that argument to the Court of Appeal. [57] Respecting leave to appeal, Mr. Fraser says he: […] will be asking the Supreme Court of Canada to determine the proper scope of authority and jurisdiction of the Society and its CIC [Complaints Investigation Committee] should leave to appeal be granted, as an excess of authority and jurisdiction…The scope of authority and jurisdiction of the regulator of an important profession in a Province is submitted to be a matter of public importance.[31] [58] There are three problems with this submission that make granting of leave highly unlikely. First, jurisdiction was not a question put to the Court of Appeal in this case. The jurisdictional issue originally argued was tied to Regulation 9.1.3 regarding conduct unbecoming which Mr. Fraser acknowledged was the “[…] same jurisdictional issue … before this Honourable Court in proceeding CA 529317”[32] which dismissed Mr. Fraser’s restrictive interpretation of Regulation 9.1.3. Second, Mr. Fraser withdrew this jurisdictional issue in Fraser # 2.[33] Accordingly, this means the Supreme Court would be asked to rule on an issue not put to or decided by the Court of Appeal. Third, if, as Mr. Fraser argues, the Legal Profession Act of Nova Scotia is more restrictive of the regulatory authority of the Bar Society than in other provinces,[34] it could not be a matter of national importance that would favour leave to the Supreme Court. Alleged Groia error [59] In Groia v. Law Society of Upper Canada,[35] the Supreme Court provided guidance on regulation of allegedly uncivil conduct of a lawyer in the course of discharging his professional duties. The Court overturned a finding of professional misconduct against Joseph Groia regarding his advocacy when defending a client against insider trading charges before the Ontario Securities Commission. [60] Mr. Fraser says Groia justifies his language and behaviour about which the Bar Society complains. He maintains that his advocacy does not offend Groia principles of “resolute advocacy”. Groia is not an apt analogy. The triggering event for Mr. Fraser’s interim suspension was the February 1, 2024 courtroom encounter. When a lawyer assaults his opponent in a courtroom and then resists arrest, he is not practicing “resolute advocacy”. [61] The Supreme Court’s Groia decision is recent. The Court is unlikely to revisit it by granting leave in this case. Conclusion on serious issue [62] The ability to assess “serious issue” on a preliminary basis will vary with the circumstances of the case, the comprehensiveness of the record, and the certainty of the law. [63] Usually, the threshold is low and relatively easy to meet. In this case, these factors render the threshold more challenging to meet: • Because Mr. Fraser must obtain leave to appeal, the serious issue test must be viewed through the leave criteria of public or national importance; • Arguably Mr. Fraser’s most important point – jurisdiction – was withdrawn from the Court of Appeal, which did not rule on it. This diminishes the prospect that leave to appeal would be granted; • The disciplinary process to date has been interim only. A merits hearing is scheduled for next year. There is not yet a full record. This would reduce the prospect of the Supreme Court granting leave. Irreparable Harm [64] A party seeking an interlocutory injunction or stay must establish irreparable harm. [65] The classic definition of irreparable harm comes from RJR: "Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. Examples of the former include instances where one party will be put out of business by the court's decision; or one party will suffer permanent market loss or irrevocable damage to its business reputation; or where a permanent loss of natural resources will be the result when a challenged activity is not enjoined […][36] [66] The irreparable harm is calculated from the time of the application to the time when a hearing on the merits will occur.[37] In this case, that would be when the decision on leave is rendered. The Bar Society says – and Mr. Fraser does not disagree – that decisions on leave applications to the Supreme Court on average are made within three months of the motion for leave. For practical purposes in this case, that probably means approximately four months. [67] Irreparable harm cannot be speculative. Asserting it will not suffice. Evidence is necessary.[38] [68] Mr. Fraser’s affidavit says little of irreparable harm. He refers to many events prior to February 1, 2024 which are not relevant to irreparable harm now. He reminds us of the stay decision in Fraser No. 1. His affidavit in Fraser No. 1 is exhibited to his affidavit in this motion. But the calculation of irreparable harm now must be for the period until a result on a leave motion is obtained. In the case of the interlocutory stay before Chief Justice Wood, there was no clear end date in sight. It took approximately eight months for the merits of that appeal to be finally determined. The period of potential harm was substantially longer. [69] It is reasonable to infer that Mr. Fraser will suffer some hardship because he cannot practice law at least until the results of his motion for leave are known. But it is not obvious that this harm is irreparable.[39] Loss of income and loss of good will are things that courts assess every day. In the case of reputational harm, it would be remedied or substantially mitigated by a successful appeal.[40] [70] Mr. Fraser also protests the impact on his reputation if a stay is not granted. Much of the unfavourable notoriety of which Mr. Fraser complains flows from his own conduct or media coverage of it, some of which he acknowledged in the Agreed Statement of Facts filed in the Provincial Court in October 2024. That Statement admits to incidents of criminal conduct which previously were only allegations. [71] In the context of disciplinary proceedings, it is plain that many professional people in various vocations will suffer financial and other prejudice from disciplinary sanctions. [72] The Bar Society quotes from Kitmitto on harm in this context: [14] Financial loss may constitute irreparable harm, but such loss is not determinative. Indeed, in the context of a regulated profession, “financial inconvenience or loss will inevitably result” from suspension or revocation of a licence, but “it will generally be far from dispositive”: Sazant at para. 12; Azeff v. Ontario Securities Commission, 2016 ONSC 1279 (Div. Ct.) at para. 13. Similarly, “emotional harm and psychological attachment to a profession will almost always exist”, but “[s]omething more…must be required otherwise irreparable harm as a consequence would always weigh in favour of granting a stay”:Sazant at para. 13; Noriega v. College of Physicians and Surgeons of Ontario, unreported, October 22, 2015 (Div. Ct.) at para. 26; Aboujamra v. College of Physicians and Surgeons of Ontario, 2023 ONSC 1136 at paras. 18-20. The same is true for reputational harm, which is remedied by a successful review or appeal: Doe v. College of Physicians and Surgeons, 2021 ONSC 7550 at para. 12. [Emphasis added] [73] The refusal of a stay will be harmful to Mr. Fraser. It is not likely irreparable. Balance of convenience [74] Balance of convenience is usually not be considered if an applicant has failed to prove irreparable harm.[41] For completeness, it will be considered here. [75] Broadly stated, the balance of convenience involves weighing the respective harm to each party of granting or withholding the stay. [76] In the context of a professional regulatory matter, the Court needs to consider whether a stay would be in the public interest.[42] [77] Mr. Fraser argues that he is not a risk to the public at large. There is no suggestion that Mr. Fraser is not a competent practitioner. He refers to Policy 4.2 which provides that an investigating committee should not grant an interim order suspension unless it is satisfied on evidence that the public requires protection: 4.2 The CIC should be satisfied that there is a prima facie case supporting the allegations, and that having regard to such material and evidence as is put before the CIC, the public requires protection through an interim order for suspension or practice conditions or restrictions. [78] With respect, Mr. Fraser’s argument considers the public interest too narrowly. Public interest also engages the confidence of the public in the integrity of the regulatory process.[43] [79] Mr. Fraser quotes from Garcia-Ahmadi to argue against concern of public perception in a regulatory context in which a stay is granted, because the public would be mollified by a Court-ordered stay.[44] [80] This case has moved beyond Garcia-Ahmadi. The Court of Appeal has dismissed Mr. Fraser’s appeal. At some point, the professional regulator must be allowed to regulate. [81] The confidence of the public in the regulatory process has to be measured against the facts in this case. Mr. Fraser’s interim suspension was prompted by his assault of an opposing litigant in court, his resistance to arrest following that assault, in the context of previous disciplinary history and in the face of an interim decision that lesser measures did not appear to restrain Mr. Fraser’s behaviour, and concern that his misconduct would continue. In light of Mr. Fraser’s conduct last summer which gave rise to further charges against him, that judgment was prescient. [82] Taking all of the foregoing into account, the balance of convenience weighs against granting a stay. Exceptional circumstances [83] Even if the classic triparte test is not fully met, in the exercise of its discretion, Mr. Fraser says the Court may grant a stay if there are “exceptional circumstances”.[45] It is not clear that this criterion applies to stays pending leave to the Supreme Court.[46] [84] Mr. Fraser argues that he is being treated differently from other practitioners who have been disciplined and says this is an exceptional circumstance warranting the Court’s discretionary exercise of granting a stay. [85] Whether the Bar Society has appropriately dealt with other cases is not something about which there is any evidence on this motion and it would be wrong to comment. This argument would more properly appear at a merits hearing. Conclusion [86] The triparte RJR test is a guide, not a formula, for the exercise of judicial discretion concerning the granting of an interlocutory injunction or stay. A “box-ticking” approach does not do justice to the complexity of the decision to be made.[47] [87] The overall assessment must do justice in all the circumstances. Sharpe on Injunctions and Specific Performance[48] refers us to the Saskatchewan Court of Appeal on the process: … the strength of case, irreparable harm and balance of convenience considerations, although prescribed and necessary parts of the analysis mandated by the Supreme Court, are nonetheless not usefully seen as an inflexible straightjacket. Instead, they should be regarded as the framework in which a court will assess whether an injunction is warranted in any particular case. The ultimate focus of the court must always be on the justice and equity of the situation in issue. As will be seen, there are important and considerable interconnections between the three tests. They are not watertight compartments. (Sharpe 2:17 at p. 2-93 quoting Potash Corporation of Saskatchewan Inc. v. Mosaic Potash, Esterhazy Limited Partnership (2011), 341 D.L.R. (4th) 407 at para. 26 Sask. CA) [Emphasis added] [88] In this case, discretion should be exercised to refuse a stay because: • It is extremely unlikely that leave to appeal to the Supreme Court of Canada would be granted on the issues raised by Mr. Fraser in his submissions to the Court; • The “arguable issues” raised at Mr. Fraser’s earlier stay [49] have been considered and dismissed by the Court of Appeal; • The time to decide Mr. Fraser’s leave to the Supreme Court is not lengthy. If granted leave, he could apply for a stay then; and • While there would be harm suffered by Mr. Fraser as a result of denying the stay, that harm is likely not irreparable. The balance of convenience favours allowing the regulator to regulate, now that his appeal has been heard. [89] It follows that no miscarriage of justice will result from a refusal of a stay. [90] The motion for a stay of the decision of the Court of Appeal is dismissed. This case involves an attempted appeal of an administrative decision. There will be no costs. Bryson, J.A. [1] Legal Profession Act, S.N.S. 2004, c. 28, s. 1. [2] Fraser v. Nova Scotia Barristers’ Society, 2024 NSCA 26. [3] Fraser v. Nova Scotia Barristers’ Society, 2024 NSCA 94. [4] There would be no automatic stay if the Supreme Court granted leave: Amica Mature Lifestyles Inc. v. Brett, 2004 NSCA 100, paras. 35-36. [5] 2024 NSCA 94, paras. 19-22. [6] R.S.C., 1985, c. S-26. [7] RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311; Northern Construction Enterprises Inc. v. Halifax (Regional Municipality), 2015 NSCA 75, para. 13. [8] Nova Scotia (Attorney General) v. Cameron, 2019 NSCA 58, para. 33. [9] Amica, para. 33. [10] RJR, p. 337. [11] RJR, pp. 337-38. [12] Nova Scotia (Attorney General) v. Cameron, 2019 NSCA 58. [13] 2011 ONCA 620. [14] Groia v. Law Society of Upper Canada, 2018 SCC 27. [15] R. v Wolkins, 2005 NSCA 2, para 61. [16] R. v. Palmer, 1979 S.C.J. No. 126, para. 37. [17] Fraser No. 2, paras. 54-55. [18] 2024 NSCA 94. [19] Gardner v. Ontario Civilian Commission on Police Services, [2004] OJ No 2968 (Div Ct.), leave to appeal refused [2004] OJ No 4320 (C.A.); Ringrose v. College of Physicians and Surgeons (Alberta), [1977] 1 SCR 814; Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52; Law Society of Prince Edward Island v. MacKinnon, 2001 PESCTD 57. [20] Para 20. [21] Professional Responsibility Procedure, ss. 1.1 and 2.2. [22] 2024 NSCA 94, para. 24. [23] Committee Decision, February 2, 2024, Reasons Issued February 12, 2024, para. 16. [24] Committee Decision, February 2, 2024, Reasons Issued February 12, 2024, para. 10. [25] Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, para. 34. [26] Fraser No. 2, paras. 73-75. [27] 2016 NSCA 59. [28] Trinity Western, 2018 SCC 32, para. 34. [29] Rathe v. College of Physicians and Surgeons of Ontario, 2013 ONSC 821, para. 24; Peterson v. College of Psychologists of Ontario, 2023 ONSC 4685, para. 5, leave to appeal to ONCA denied, CA COA-23-OM-0242 (16 January 2024), leave to appeal to SCC denied, 41168 (8 August 2024). [30] NSBS Regulations, made pursuant to the Legal Profession Act. [31] Brief, para. 101. [32] 2024 NSCA 63; Mr. Fraser’s factum in Fraser No. 2, para. 107. [33] 2024 NSCA 94, para. 64. [34] Per Trinity Western, 2016 NSCA 59. [35] 2018 SCC 27. [36] [1994] 1 SCR 311 at p. 341; 1994 SCJ No. 17 at para. 59. [37] American Cyanamid Co v Ethicon Ltd, [1975] AC 396 at 408 (H.L.). [38] Myatt v. Myatt, 2004 NSCA 124, para. 10. [39] Kitmitto et al. v. Ontario Securities Commission, 2023 ONSC 1739 (Div Ct.), para. 14. [40] Kitmitto, para. 14. [41] American Cyanamid Co v Ethicon Ltd, [1975] AC 396 at 408 (H.L.). [42] Garcia-Ahmadi v Alberta (Director of Safe Roads), 2023 ABKB 713, paras. 13-19. [43] Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 176, para. 22; Yazdanfar v. College of Physicians and Surgeons of Ontario, 2012 ONSC 2422, para. 67. [44] Garcia-Ahmadi, para. 23. [45] Fulton v. Purdy, [1990] N.S.J. No. 361. [46] Amica, para. 46. [47] National Commercial Bank of Jamaica Limited v. Olint Corp. Limited (Jamaica), [2009] UKPC 16 (J.C.P.C.), para. 21. [48] The Honourable Robert J. Sharpe, Injunctions and Special Performance, Looseleaf Edition (Toronto: Thomson Reuters, 2023). [49] Fraser No. 1.