Standing of Complainants on Judicial Review
Perspectives for the Professions
Del Valle v Law Society, 2017 NWTSC 29, holding that a complainant has no standing to bring an application for judicial review to challenge the merits of a regulator’s decision to dismiss a complaint.
Mr. Holden, a member of the Law Society of the Northwest Territories, represented Mr. Del Valle’s former employer in various proceedings related to the termination of Mr. Del Valle’s employment. After facing no success in those proceedings, Mr. Del Valle made a 97-page complaint about Mr. Holden to the Law Society, alleging that, among other things, Mr. Holden had wilfully misled three levels of court, led false evidence at the arbitration and failed to inform the courts of relevant case law.
The Discipline Committee designated Ms. MacPherson to investigate the complaint. After she finished her investigation, she recommended that the complaint be dismissed. When the Discipline Committee accepted her recommendation, Mr. Del Valle made an application for judicial review.
The Supreme Court of the Northwest Territories dismissed the application on the basis that Mr. Del Valle did not have standing. The Court once again explained that while members of the public can make complaints against members of the Law Society, members of the public do not have status as a party to those proceedings. Rather, the only parties to an investigation and the general disciplinary process are the regulator and the member. Further, while a complainant has a right to procedural fairness, they do not have the right to appeal a decision on its merits.
The Court further remarked that Mr. Del Valle’s entire application for judicial review was really an attempt to re-litigate the termination of his employment. The Court went on to find that the Law Society was extremely fair in the way it responded to Mr. Del Valle’s complaint. In doing so, it especially praised the Discipline Committee’s decision to even send the complaint to investigation: “The nature of the allegations against the member were such that he could have exercised his winnowing function and rejected it as meritless from the outset.”
Comment: This case once again affirms that a complainant is not a party to disciplinary proceedings and thus does not have standing to bring an application for judicial review to challenge the merits of a regulator’s decision to dismiss a complaint. While there continues to be some uncertainty as to the extent of the duty of fairness owed by a regulator to a complainant prior to a hearing, the Court’s comment that the Law Society was fair, open and transparent, demonstrates how important it is that regulators respond to all complaints in a procedurally fair way, even where it appears that the complaint may have been made for an improper purpose.
Article can be reproduced with permission. To request permission, contact Field Law.