Ayres v. Nova Scotia Barristers Society

Ayres v. Nova Scotia Barristers Society Court Court of Appeal Date 1995-09-13 Citation 1995 NSCA 182 Docket CA 119800 Judge/Registrar/Adjudicator Chipman, David (Honourable Justice) Document Type Decision Decision Content C.A. No. 119800 NOVA SCOTIA COURT OF APPEAL Cite as: Ayres v. Nova Scotia Barristers Society, 1995 NSCA 182 BETWEEN: ) ) RAMEY AYRES ) Applicant appeared ) in person Applicant ) ) - and - ) ) NOVA SCOTIA BARRISTERS' SOCIETY FOR THE ) Terry L. Roane PROVINCE OF NOVA SCOTIA, DARREL PINK, ) for the Respondents EXECUTIVE DIRECTOR, FOR THE NOVA SCOTIA ) BARRISTERS' SOCIETY FOR THE PROVINCE OF ) NOVA SCOTIA, C. RICHARD COUGHLAN, Q.C., ) CHAIR, JOEL E. PINK, Q.C., VICE, BRIAN D. ) WILLISTON, Q.C., VICE, THOMAS O. BOYNE, Q.C., ) W. BRIAN SMITH, MEMBERS OF THE DISCIPLINE ) SUBCOMMITTEE "A" FOR THE YEARS 1993/94 ) Application Heard: AND 1994/95 OF THE NOVA SCOTIA ) September 7, 1995 BARRISTERS' SOCIETY FOR THE PROVINCE OF ) NOVA SCOTIA, MARK PENFOUND, VIVIAN ) FARRELL, AND JOHN COOPER, MEMBERS OF ) Decision Delivered: THE FORMAL HEARING PANEL ) September 13, 1995 ) Respondents ) BEFORE THE HONOURABLE JUSTICE DAVID R. CHIPMAN IN CHAMBERS CHIPMAN, J.A.: This is an application by Ms. Ayres for an order pursuant to ss. 7 and 11 of the Charter of Rights and Freedoms and Rule 62.10 of the Civil Procedure Rules and under s. 32(13) of the Barristers and Solicitors Act, R.S.N.S. 1989, Chap. 30, and the amendments thereto for a stay of the formal hearing proceedings of the Nova Scotia Barristers' Society currently in the process of being held for the purpose of determining complaints against Ms. Ayres. I have reviewed Ms. Ayres' affidavits of August 22, 1995 and September 2, 1995 and have reviewed Mr. Pink's affidavit of September 5, 1995. I have considered the written submissions and oral arguments of Ms. Ayres and counsel for the Society. Two lawyers, Mr. Leahey and Mr. Anderson, made complaints to the Society against Ms. Ayres. A subcommittee of the Society investigated the complaints as authorized by s. 32 of the Barristers and Solicitors Act and the Regulations made thereunder. On May 6, 1994 pursuant to Regulation 43(5)(d), the subcommittee instructed the Executive Director of the Society to file a formal complaint. The formal complaint, signed by Kerry Oliver, was filed September 2, 1994. On April 10, 1995 the Executive Director (Mr. Pink) advised Ms. Ayres that the formal complaint would be heard by a subcommittee on June 13 - 16, 1995. The hearing panel commenced its hearing on June 13 as scheduled and completed 11 days of hearings (June 13, 14, 15, 16, 21, 22, 27, 29 and August 8, 9 and 10, 1995) and is scheduled to reconvene on October 5, 1995 with five additional hearing days scheduled. The relevant legislation authorizing an application to this Court for a stay of the complaint proceedings is s. 32(13) of the Barristers and Solicitors Act which provides: "(13) Where (a) an investigation is being conducted; or (b) a resolution or 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) an officer of the Society; or (e) a member of the Discipline Committee or a subcommittee thereof, and make such order or give such direction as it shall deem fit and necessary under the circumstances." On May 25, 1995 Ms. Ayres applied to Hallett, J.A. in Chambers for an order similar to that which is being sought here. Hallett, J.A. dismissed the application. The investigation of the two complaints had been completed and the formal complaint had not as yet been heard and no resolution or order had been made pursuant to s. 32 of the Barristers and Solicitors Act. There was no basis therefore for the Court to intervene at that time. The only difference between the circumstances here present and those before Hallett, J.A. on May 25 is that the hearing has now started but has not been completed. No resolution or order has been made. I quote the following from the decision of Hallett, J.A.: "Having considered the factual circumstances giving rise to this application and the provisions of s. 32(13), it is my opinion that this court has no jurisdiction to intervene as the investigation of the two complaints has been completed and as the formal complaint has not yet been heard, a resolution or order has not been made pursuant to s. 32 of the Barristers and Solicitors Act. Therefore, there is no basis for this court to intervene at this time." The necessary conditions set forth in s. 32(12) for an intervention at this time have still not been met. The application is dismissed with costs payable by Ms. Ayres to the Society in the amount of $500.00, plus disbursements. Chipman, J.A.