In Jhanji v The Law Society of Manitoba, the Manitoba Court of Appeal discussed quorum for professional discipline tribunals – or how many tribunal members are required for the tribunal to hold a hearing - when quorum has not been otherwise defined.  

In this case, two lawyers and one public member were appointed to a discipline tribunal to hear allegations of incompetent practice against Jhanji under the Rules of the Law Society of Manitoba. 

The tribunal heard evidence and issued a decision finding Jhanji incompetent to practice law. However, before the tribunal considered the appropriate penalty, one of the tribunal members was appointed as a judge and was unable to continue. 

Jhanji took the position that as the tribunal no longer had three members, it had lost quorum and could not continue. Jhanji argued that a new three-member tribunal must be appointed to hear the matter. 

The remaining tribunal members considered the legislative framework for quorum. At the time of the hearing, Manitoba's Legal Profession Act, CCSM c L107 at s. 70, required the Law Society's governing body of Benchers to make rules requiring discipline hearings to be conducted by a panel of discipline committee members. Those rules provided that discipline tribunals must have three members: two lawyers and one public member. However, neither the Legal Profession Act nor the rules addressed what would happen if one tribunal member could not continue.

The remaining tribunal members relied on Manitoba's Interpretation Act, CCSM c I80 at s. 19. The Interpretation Act provided that if an act or regulation requires or authorizes a body consisting of three or more members to do anything, and if the body had a fixed number of members, then unless otherwise specified a majority of that fixed number would constitute quorum.

The remaining two tribunal members determined they had quorum and could determine the appropriate penalty. They heard submissions and ordered that Jhanji be suspended from practicing law until he could demonstrate competence. Jhanji appealed the tribunal's decision, in part, on the basis that only two of the three original tribunal members made the decision. 

On appeal, the Court affirmed the tribunal's decision. 

In the absence of direction in the Legal Profession Act or the rules, the Interpretation Act allowed the two remaining tribunal members to complete the hearing and impose a penalty. 

The Court highlighted two important factors in their analysis: 

1. When the tribunal was initially formed, it had met the requirement in the rules to have one public member and two lawyers. The Interpretation Act cannot perfect an administrative tribunal that was not properly constituted in the first place. 
2. The two remaining tribunal members had reached a unanimous decision on the penalty, so the hearing's sanctions phase had been heard and determined by a quorum of the tribunal. 

Ultimately, the Court held that the tribunal had applied the Interpretation Act correctly. The third tribunal member's departure mid-way through the hearing did not cause a loss of quorum or jurisdiction. 

Comment

Discipline tribunal members may be unable to continue in their roles for various reasons, such as illness or injury, family emergencies, or other factors. Tribunals must then determine if they have quorum and jurisdiction to continue. Tribunals may look to other legislation where the governing statute, regulations, bylaws or rules do not address this. 

Although the Court in Jhanji considers legislation from Manitoba, the Court provides valuable direction on the general determination of quorum and is likely to guide other jurisdictions with similar legislation. For example, Alberta's Interpretation Act, RSA 2000 c I-8 at s. 17, considers quorum and states:

• If in an enactment an act or thing is required or authorized to be done by more than two persons, a majority of them may do it;
• Where an enactment establishes a board (or administrative tribunal) at least 1/2 of the number of members provided for under the enactment constitutes a quorum at a meeting;
• An act or thing done by a majority of the members of the board (or administrative tribunal) present at a meeting, if the members present constitute a quorum, is deemed to have been done by the board; and 
• A vacancy in the membership of the board (or administrative tribunal) does not invalidate the constitution of the board or impair the right of the members of the board to act, if the number of members is not less than a quorum.

While not identical to Manitoba's Interpretation Act, this section establishes a similar method to determine quorum in the absence of other guidance. It makes clear that an administrative tribunal can continue to carry out its duties so long as quorum is established.

If you have questions about whether a change in circumstances has affected a tribunal's quorum status and require guidance on how your jurisdiction's Interpretation Act may apply, please contact Caitlyn Field or any member of Field Law's Professional Regulatory Group.

Link to decision: Jhanji v The Law Society of Manitoba, 2022 MBCA 78