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Part 5 out of 11 parts in the Legal Profession Act


PART 5 – HEARINGS AND APPEALS


Panels

41 (1) The benchers may make rules providing for any of the following:

(a) the appointment and composition of panels;

(b) the practice and procedure for proceedings before panels.

(2) A panel may order an applicant or respondent, or a shareholder, director, officer or employee of a respondent law corporation, to do either or both of the following:

(a) give evidence under oath or by affirmation;

(b) at any time before or during a hearing, produce all files and records that are in the possession of that person and that may be relevant to a matter under consideration.

 

Section 41(2) preamble is amended as follows (unproclaimed):

41 (2) A panel may order an applicant or respondent, or a representative of a respondent law firm, to do either or both of the following: ...

[2012-16-30]


Failure to attend

42 (1) This section applies if an applicant or respondent fails to attend or remain in attendance at

(a) a hearing on an application for enrolment as an articled student, call and admission, or reinstatement,

(b) a hearing on a citation, or

(c) a review by a review board under section 47.

(2) If satisfied that the applicant or respondent has been served with notice of the hearing or review, the panel or the review board may proceed with the hearing or review in the absence of the applicant or respondent and make any order that the panel or the review board could have made in the presence of the applicant or respondent.

 

Section 42 is amended as follows (unproclaimed):

42 (1) This section applies if an applicant, a respondent or the representative of a respondent law firm fails to attend or remain in attendance at

(a) a hearing on an application for enrolment as an articled student, call and admission, or reinstatement,

(b) a hearing on a citation, or

(c) a review by a review board under section 47.

(2) If satisfied that the applicant, respondent or representative of the respondent law firm has been served with notice of the hearing or review, the panel or the review board may proceed with the hearing or review in the absence of the applicant or respondent and make any order that the panel or the review board could have made in the presence of the applicant or respondent.

[2012-16-31]


[2016-5-41]


Right to counsel

43 (1) An applicant, a respondent or a person who is the subject of a proceeding may appear at any hearing with counsel.

(2) The society may employ or retain legal or other assistance in conducting an investigation under Part 2, 3 or 4 or on the issue of a citation and may be represented by counsel at any hearing.

[2012-16-32]


Witnesses

44 (1) In this section:

“party” means an applicant, a respondent or the society;

“tribunal” means the benchers, a review board or a panel, or a member of the benchers, a review board or a panel, as the context requires.

(2) For the purposes of a proceeding under Part 2, 3, 4 or 5 of this Act, a party may prepare and serve a summons, in a form established in the rules, requiring a person to attend an oral or electronic hearing to give evidence, on oath or affirmation or in any other manner, that is admissible and relevant to an issue in the proceeding.

(3) A party may apply to the Supreme Court for an order directing

(a) a person to comply with a summons served by a party under subsection (2),

(b) any directors and officers of a person to cause the person to comply with a summons served by a party under subsection (2), or

(c) the custodian of a penal institution or another person who has custody of a person who is the subject of the summons to ensure the person in custody attends the hearing.

(4) For the purposes of a proceeding under Part 2, 3, 4 or 5 of this Act, a tribunal may make an order requiring a person

(a) to attend an oral or electronic hearing to give evidence, on oath or affirmation or in any other manner, that is admissible and relevant to an issue in the proceeding, or

(b) to produce for the tribunal or a party a document or other thing in the person’s possession or control, as specified by the tribunal, that is admissible and relevant to an issue in the proceeding.

(5) A tribunal may apply to the Supreme Court for an order directing

(a) a person to comply with an order made by the tribunal under subsection (4),

(b) any directors and officers of a person to cause the person to comply with an order made by the tribunal under subsection (4), or

(c) the custodian of a penal institution or another person who has custody of a person who is the subject of an order made by the tribunal under subsection (4) to ensure the person in custody attends the hearing.

(6) On an application under subsection (3) or (5), the Supreme Court may make the order requested or another order it considers appropriate.

[2007-9-54; 2010-6-97; 2012-16-33]

Application of Administrative Tribunals Act

44.1 (1) For the purposes of a proceeding under Part 2, 3, 4 or 5 of this Act, sections 48, 49 and 56 of the Administrative Tribunals Act apply, subject to the following:

(a) “decision maker” in section 56 means a member of the benchers, of a review board or of a panel;

(b) “tribunal” in those sections has the same meaning as in section 44(1).

(2) A tribunal may apply to the Supreme Court for an order directing a person to comply with an order referred to in section 48 of the Administrative Tribunals Act, and the court may make the order requested or another order it considers appropriate. 

 [2012-16-33]   

 

45 [repealed 2012-16-34]

 

Society request for evidence

45.1 (1) On application by the society, if it appears to the Supreme Court that a person outside British Columbia may have evidence that may be relevant to an investigation or a hearing under this Act, the Supreme Court may issue a letter of request directed to the judicial authority of the jurisdiction in which the person who may have evidence is believed to be located.

(2) A letter of request issued under subsection (1) must be

(a) signed by a judge of the Supreme Court, and

(b) provided to the society for use under subsection (5).

(3) A letter of request issued under subsection (1) may request the judicial authority to which it is directed to do one or more of the following:

(a) order the person referred to in the letter of request to be examined under oath in the manner, at the place and by the date referred to in the letter of request;

(b) in the case of an examination for the purposes of a hearing, order that a person who is a party to the hearing is entitled to

(i) be present or represented by counsel during the examination, and

(ii) examine the person referred to in paragraph (a);

(c) appoint a person as the examiner to conduct the examination;

(d) order the person to be examined to produce at the examination a record or thing specified in the letter of request;

(e) direct that the evidence obtained by the examination be recorded and certified in the manner specified in the letter of request;

(f) take any other action that the Supreme Court considers appropriate.

(4) The failure of a person entitled under subsection (3) (b) to be present or represented by counsel during an examination or to examine the person referred to in subsection (3) (a) does not prevent the society from reading in the evidence from the examination at a hearing, if the examination has otherwise been conducted in accordance with the letter of request.

(5) The society must send a letter of request issued under subsection (1),

(a) if an examination is to be held in Canada, to the Deputy Attorney General for the Province of British Columbia, or

(b) if an examination is to be held outside Canada, to the Under Secretary of State for Foreign Affairs of Canada.

(6) A letter of request must have attached to it all of the following:

(a) any questions to be put to the person to be examined;

(b) if known, the name, address and telephone number of

(i) the solicitor or agent of the society,

(ii) the person to be examined, and

(iii) if applicable, the person entitled under subsection (3) (b) to be present or represented by counsel during the examination and to examine the person referred to in subsection (3) (a);

(c) a translation of the letter of request and any questions into the official language of the jurisdiction where the examination is to take place, if necessary, along with a certificate of the translator, bearing the full name and address of the translator, and certifying that the translation is a true and complete translation.

(7) The society must file with the Deputy Attorney General for the Province of British Columbia or with the Under Secretary of State for Foreign Affairs of Canada, as the case may be, an undertaking to be responsible for any charge and expense incurred by either of them in relation to the letter of request and to pay them on receiving notification from them of the amount.

(8) This section does not limit any power the society may have to obtain evidence outside British Columbia by any other means.

(9) The making of an order by a judicial authority in accordance with a letter of request issued under subsection (1) does not determine whether evidence obtained under the order is admissible in evidence in a hearing.

(10) Unless otherwise provided by this section, the practice and procedure for appointing a person, conducting an examination and certifying and returning the appointment under this section, as far as possible, is the same as the practice and procedure that govern similar matters in civil proceedings in the Supreme Court.

[2007-14-39] 

Costs

46 (1) The benchers may make rules governing the assessment of costs by a panel, a review board or a committee under this Act including

(a) the time allowed for payment of costs, and

(b) the extension of time for payment of costs. 

 (2) If legal assistance employed by the benchers is provided by an employee of the society, the amount of costs that may be awarded under the rules in respect of that legal assistance may be the same as though the society had retained outside counsel.

(3) The amount of costs ordered to be paid by a respondent or applicant under the rules may be recovered as a debt owing to the society and, when collected, the amount is the property of the society.

(4) For the purpose of recovering a debt under subsection (3), the executive director may

(a) issue a certificate stating that the amount of costs is due, the amount remaining unpaid, including interest, and the name of the person required to pay it, and

(b) file the certificate with the Supreme Court.

(5) A certificate filed under subsection (4) with the Supreme Court is of the same effect, and proceedings may be taken on it, as if it were a judgment of the Supreme Court for the recovery of a debt in the amount stated against the person named in it.

[2012-16-35]


Review on the record

47 (1) Within 30 days after being notified of the decision of a panel under section 22(3) or 38 (5), (6) or (7),the applicant or respondent may apply in writing for a review on the record by a review board.

(2) Within 30 days after the decision of a panel under section 22(3), the credentials committee may refer the matter for a review on the record by a review board.

(3) Within 30 days after the decision of a panel under section 38 (4), (5), (6) or (7), the discipline committee may refer the matter for a review on the record by a review board.

(3.1) Within 30 days after an order for costs assessed under a rule made under section 27 (2) (e) or 46, an applicant, a respondent or a lawyer who is the subject of the order may apply in writing for a review on the record by a review board.

(3.2) Within 30 days after an order for costs assessed by a panel under a rule made under section 46, the credentials or discipline committee may refer the matter for a review on the record by a review board.

(4) If, in the opinion of a review board, there are special circumstances, the review board may hear evidence that is not part of the record.

(4.1) [repealed]

(5) After a hearing under this section, the review board may

(a) confirm the decision of the panel, or

(b) substitute a decision the panel could have made under this Act.

(6) The benchers may make rules providing for one or more of the following:

(a) the appointment and composition of review boards;

(b) establishing procedures for an application for a review under this section;

(c) the practice and procedure for proceedings before review boards.

 

[2007-14-40, 216; 2012-16-36]

 

Sections 47(1) and (3) are amended as follows (unproclaimed):

47 (1) Within 30 days after being notified of the decision of a panel under section 22 (3) or 38 (5), (6), (6.1) or (7), the applicant or respondent may apply in writing for a review on the record by a review board.

(3) Within 30 days after the decision of a panel under section 38 (4), (5), (6), (6.1) or (7), the discipline committee may refer the matter for a review on the record by a review board.

[2012-16-36]

 

Appeal

48 (1) Subject to subsection (2), any of the following persons who are affected by a decision, determination or order of a panel or of a review board may appeal the decision, determination or order to the Court of Appeal:

(a) an applicant;

(b) a respondent;

(c) a lawyer who is suspended or disbarred under this Act;

(d) the society.

(2) An appeal by the society under subsection (1) is limited to an appeal on a question of law.

[2007-14-216; 2012-16-37]

 


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Part 5 out of 11 parts in the Legal Profession Act

An appeal by the society under subsection (1) is limited to an appeal on a question of law.