[Table of Contents] [previous part] [next part]
Part 5 out of ten parts in the Law Society Rules

 

These Law Society Rules no longer in effect

These Law Society Rules were in effect until June 30, 2015, and are archived here for reference.

The revised and consolidated Law Society Rules 2015 came into effect on July 1, 2015. Download a PDF of the concordance between the new and old rules.


PART 5 – HEARINGS AND APPEALS


Application of Part

5-1 This Part applies to

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

(b) a hearing on a citation, and

(c) unless the context indicates otherwise, a review by a review board of a hearing decision.

[amended 05/2002; amended 09/2012, effective 01/2013]

Hearing panels

5-2 (1) A panel must consist of an odd number of persons but, subject to subrule (2), must not consist of one person.

(2) A panel may consist of one Bencher who is a lawyer, if

(a) no facts are in dispute,

(b) the hearing is to consider a conditional admission under Rule 4-22 [Consent to disciplinary action],

(b.1) the hearing proceeds under Rule 4-24.1,

(b.2) the hearing is to consider a preliminary question under Rule 4-26.1 [Preliminary questions],

(c) it is not otherwise possible, in the opinion of the President, to convene a panel in a reasonable period of time, or

(d) one or more of the original panel members cannot complete a hearing that has begun.

(3) A panel must be chaired by a Bencher who is a lawyer.

(4) Panel members must be permanent residents of British Columbia over the age of majority.

(5) The chair of a panel who ceases to be a Bencher may, with the consent of the President, continue to chair the panel, and the panel may complete any hearing or hearings already scheduled or begun.

(6) [rescinded]

(7) Two or more panels may proceed with separate matters at the same time.

(8) The President may refer a matter that is before a panel to another panel, fill a vacancy on a panel or terminate an appointment to a panel.

(9) Unless otherwise provided in the Act and these Rules, a panel must decide any matter by a majority, and the decision of the majority is the decision of the panel.

[(1), (2) and (4) amended 09/2005; (2) amended 07/2007; (2), (4) and (5) amended,
(6) rescinded 10/2010; (8) amended 09/2012, effective 01/2013]


Panel member unable to continue

5-2.1 (1) Despite Rule 5-2 [Hearing panels], if a member of a hearing panel cannot, for any reason, complete a hearing that has begun, the President may order that the panel continue with the remaining members.

(2) Despite Rule 5-2 [Hearing panels], if the chair of a hearing panel cannot, for any reason, complete a hearing that has begun, the President may appoint another member of the hearing panel who is a lawyer as chair of the hearing panel, whether or not the lawyer is a current Bencher.

[added 03/2015] 


Disqualification

5-3 (1) The following persons must not participate in a panel hearing a citation:

(a) a person who participated in the decision that authorized issuing the citation;

(b) one of the Benchers who made an order under Rules 3-7.1 to 3-7.3 or Rule 4-17 regarding the respondent;

(c) a member of a panel that heard an application under Rule 4-19 [Review of interim suspension or practice conditions] to rescind or vary an interim suspension or practice condition or limitation in respect of the respondent.

(2) A person who participated in the decision to order the hearing on an application for enrolment as an articled student, for call and admission or for reinstatement must not participate in the panel on that hearing.

(3) [rescinded]

(4) A person must not appear as counsel for any party for three years after

(a) serving as a Bencher, or

(b) the completion of a hearing in which the person was a member of the panel.

[(4) added 02/2002; (1) amended 09/2012; (3) rescinded 09/2012, effective 01/2013]

Compelling witnesses and production of documents

5-4 (1) In this Rule, “respondent” includes a shareholder, director, officer or employee of a respondent law corporation.

(2) At any time during a hearing, a panel may

(a) compel the applicant or respondent to give evidence under oath,

(b) order the applicant or respondent to produce all files and records that are in the applicant's or respondent's possession or control that may be relevant to the matters raised by the application or in the citation, or

(c) make an order under section 44(4) or an application under section 44(5) of the Act.

(3) A person who is the subject of an order under subrule (2)(a) may be cross-examined by counsel representing the Society.

(4) A party to a proceeding under the Act and these Rules may prepare and serve a summons requiring a person to attend an oral or electronic hearing to give evidence in the form prescribed in Schedule 5.

[heading amended 10/2010; rule amended, (1) and (3) added 07/2011; (4) added 07/2012, effective 01/2013; (2) amended 12/2013]


Procedure

5-5 (1) Subject to the Act and these Rules, the panel may determine the practice and procedure to be followed at a hearing.

(2) Before a court reporter begins reporting the proceedings of a hearing, the chair of the panel must ensure that the reporter takes an oath or makes a solemn affirmation to faithfully and accurately report and transcribe the proceedings.

(3) The applicant, respondent or counsel for the Society may call witnesses to testify.

(4) All witnesses, including a respondent ordered to give evidence under section 41(2)(a) of the Act,

(a) must take an oath or make a solemn affirmation, if competent to do so, before testifying, and

(b) are subject to cross-examination.

(5) The panel may make inquiries of a witness as it considers desirable.

(6) The hearing panel may accept any of the following as evidence:

(a) an agreed statement of facts;

(a.1) oral evidence;

(a.2) affidavit evidence;

(b) evidence tendered in a form agreed to by the respondent or applicant and Society counsel;

(b.1) an admission made or deemed to be made under Rule 4-20.1 [Notice to admit];

(c) any other evidence it considers appropriate.

[(6) amended 04/2009; (2) and (6) amended 10/2010; (6) amended 04/2013]


Public hearing

5-6 (1) Every hearing is open to the public, but the panel or review board may exclude some or all members of the public in any circumstances it considers appropriate.

(2) On application by anyone, or on its own motion, the panel or review board may make the following orders to protect the interests of any person:

(a) an order that specific information not be disclosed;

(b) any other order regarding the conduct of the hearing necessary for the implementation of an order under paragraph (a).

(3) Despite the exclusion of the public under subrule (1) in a hearing on a citation, the complainant and one other person chosen by the complainant may remain in attendance during the hearing, unless the panel orders otherwise.

(4) Except as required under Rule 5-7, when a hearing is proceeding, no one is permitted to possess or operate any device for photographing, recording or broadcasting in the hearing room without the permission of the panel or review board, which the panel or review board in its discretion may refuse or grant, with or without conditions or restrictions.

(5) When a panel or review board makes an order under this Rule or declines to make an order on an application, the panel or review board must give written reasons for its decision.

[(2) amended, (4) added 05/2003; (5) added 06/2012; (1), (2), (4) and (5) amended effective 01/2013]


Transcript and exhibits

5-7 (1) All proceedings at a hearing must be recorded by a court reporter and any person may obtain, at his or her expense, a transcript pertaining to any part of the hearing that he or she was entitled to attend.

(2) Subject to solicitor-client privilege or an order under Rule 5-6(2), any person may obtain, at his or her own expense, a copy of an exhibit entered in evidence when a hearing is open to the public.

[heading amended, (2) added 05/2003]


Decision

5-8 (1) A decision of a hearing panel is made by majority vote.

(2) On request, the Executive Director must disclose a panel's written reasons for its decision, subject to the protection of solicitor and client privilege and confidentiality.

(3) When a hearing panel gives written reasons for its decision, it must not disclose in those reasons any information that is confidential or subject to solicitor and client privilege.

[(2) and (3) amended 05/2003]


Costs of hearings

5-9 (0.1) A panel may order that an applicant or respondent pay the costs of a hearing referred to in Rule 5-1, and may set a time for payment.

(0.2) A review board may order that an applicant or respondent pay the costs of a review under section 47 of the Act, and may set a time for payment.

(1) [rescinded 04/2012]

(1.1) Subject to subrule (1.2), the panel or review board must have regard to the tariff of costs in Schedule 4 to these Rules in calculating the costs payable by an applicant, a respondent or the Society in respect of a hearing on an application or a citation or a review of a decision in a hearing on an application or a citation.

(1.2) If, in the judgment of the panel or review board, it is reasonable and appropriate for the Society, an applicant or a respondent to recover no costs or costs in an amount other than that permitted by the tariff in Schedule 4, the panel or review board may so order.

(1.3) The cost of disbursements that are reasonably incurred may be added to costs payable under this Rule.

(1.4) In the tariff in Schedule 4,

(a) one day of hearing includes a day in which the hearing or proceeding takes 2 and one-half hours or more, and

(b) for a day that includes less than 2 and one-half hours of hearing, one-half the number of units or amount payable applies.

(2) [rescinded 04/2012]

(3) If no adverse finding is made against the applicant, the panel or review board has the discretion to direct that the applicant be awarded costs.

(3.1) If the citation is dismissed or rescinded after the hearing has begun, the panel or review board has the discretion to direct that the respondent be awarded costs in accordance with subrules (1.1) to (1.4).

(4) Costs deposited under Rule 2-62 must be applied to costs ordered under this Rule.

(5) An applicant must not be enrolled, called and admitted or reinstated until the costs ordered under this Rule or the Act are paid in full.

(6) As an exception to subrule (5), the Credentials Committee may direct that an applicant be enrolled, called and admitted or reinstated even though costs ordered under this Rule have not been paid in full and may make the direction subject to any conditions that the Committee finds appropriate.

[(0.1) added 03/1999; (3) amended 06/1999; (0.2) added, (1) and (3) amended 09/1999;
(7) rescinded 06/2007; (3) amended 10/2010; (1.1) to (1.4) and (3.1) added, (1) and (2) rescinded,
(3) amended 04/2012; (0.2), (1.1), (1.2), (3) and (3.1) amended 09/2012,
effective 01/2013; (1.1), (1.2) and (1.4) amended 01/2013]


Application to vary certain orders

5-10 (1) An applicant or respondent may apply in writing to the Executive Director for

(a) an extension of time

(i) to pay a fine or the amount owing under Rule 5-9 [Costs of hearings], or

(ii) to fulfill a condition imposed under section 22 [Credentials hearings], 38 [Discipline hearings] or 47 [Review on the record],

(b) a variation of a condition referred to in paragraph (a)(ii), or

(c) a change in the start date for a suspension imposed under section 38 [Discipline hearings] or 47 [Review on the record].

(1.1) An application under subrule (1)(c) must be made at least 7 days before the start date set for the suspension.

(1.2) The Executive Director must promptly notify the President of an application under subrule (1).

(2) The President must refer an application under subrule (1) to one of the following, as may in the President's discretion appear appropriate:

(a) the same panel that made the order;

(b) a new panel;

(c) the Discipline Committee;

(d) the Credentials Committee.

(3) The panel or Committee that hears an application under subrule (1) must

(a) dismiss it,

(b) extend to a specified date the time for payment,

(c) vary the conditions imposed, or extend to a specified date the fulfillment of the conditions, or

(d) specify a new date for the start of a period of suspension imposed under section 38 [Discipline hearings] or 47 [Review on the record].

(3.1) If, in the view of the President and the chair of the Committee to which an application is referred under subrule (2)(c) or (d), there is a need to act on the application before a meeting of the Committee can be arranged, the chair of the Committee may hear the application and make the determination under subrule (3).

(4) and (5)  [moved to Rule 5-10.1 – 09/2014]

(6) An application under this Rule does not stay the order that the applicant seeks to vary.

[(1) and (4) amended, (5) added 06/2007; (1) and (4) amended 09/2007; (4) amended 09/2012, effective 01/2013; heading amended 12/2012; heading, (1), (2) and (3) amended, (1.1), (1.2), (3.1) and (6) added, (4) and (5) rescinded 09/2014]


Failure to pay costs or fulfill practice condition

5-10.1 (1) An applicant or respondent must do the following by the date set by a hearing panel, review board or Committee or extended under Rule 5-10 [Application to vary certain orders]:

(a) pay in full a fine or the amount owing under Rule 5-9 [Costs of hearings];

(b) fulfill a practice condition as imposed under section 21 [Admission, reinstatement and requalification], 22 [Credentials hearings], 27 [Practice standards], 32 [Financial responsibility], 38 [Discipline hearings] or 47 [Review on the record], as accepted under section 19 [Applications for enrollment, call and admission, or reinstatement], or as varied under these Rules.

(2) If, on December 31, an applicant or respondent is in breach of subrule (1), the Executive Director must not issue to the applicant or respondent a practising certificate or a non-practising or retired membership certificate, and the applicant or respondent is not permitted to engage in the practice of law.

[added 09/2014]


Recovery of money owed to the Society

5-11 (1) A lawyer or former lawyer who is liable to pay money under the following provisions must pay to the Society the full amount owing by the date set by the Discipline Committee:

(a) costs of an audit or investigation ordered under Part 2 or Rule 4-43;

(b) a fee or assessment under Rule 3-18.4 or Rule 3-74.

(2) A lawyer who has not paid the full amount owing under subrule (1) by the date set or extended by the Discipline Committee is in breach of these Rules and, if any part of the amount owing remains unpaid by December 31 following the making of the order, the Executive Director must not issue a practising certificate to the lawyer unless the Benchers order otherwise.

[heading and (1) amended 12/2003; (1) amended 07/2008, 06/2012]


Reviews and appeals

Review by review board

5-12 (1) In Rules 5-12 to 5-21, "review" means a review of a hearing panel decision by a review board under section 47 of the Act.

(2) Subject to the Act and these Rules, a review board may determine the practice and procedure to be followed at a review.

(3) Delivery of documents to a respondent or applicant under Rules 5-12 to 5-21 may be effected by delivery to counsel representing the respondent or the applicant.

(4) If the review board finds that there are special circumstances and hears evidence under section 47(4) of the Act, the Rules that apply to the hearing of evidence before a hearing panel apply.

[amended, (3) added 05/2002; (1) and (3) amended 07/2007, 10/2007; heading, (1) and (2) amended 09/2012, effective 01/2013; (4) added effective 01/2013]


Review boards

5-12.1 (1) A review board must consist of

(a) an odd number of persons, and

(b) more persons than the hearing panel that made the decision under review.

(2) A review board must be chaired by a Bencher who is a lawyer.

(3) Review board members must be permanent residents of British Columbia over the age of majority.

(4) The chair of a review board who ceases to be a Bencher may, with the consent of the President, continue to chair the review board, and the review board may complete any hearing or hearings already scheduled or begun.

(5) Two or more review boards may proceed with separate matters at the same time.

(6) The President may refer a matter that is before a review board to another review board, fill a vacancy on a review board or terminate an appointment to a review board.

(7) Unless otherwise provided in the Act and these Rules, a review board must decide any matter by a majority, and the decision of the majority is the decision of the review board.

[added 09/2012, effective 01/2013]


Disqualification

5-12.2 The following must not participate in a review board reviewing the decision of a hearing panel:

(a) a member of the hearing panel;

(b) a person who was disqualified under Rule 5-3 [Disqualification] from participation in the hearing panel.

[added 09/2012, effective 01/2013]


Review board member unable to continue

5-12.3 (1) Despite Rule 5-12.1 [Review boards], if a member of a review board cannot, for any reason, complete a review that has begun, the President may order that the review board continue with the remaining members, whether or not the board consists of an odd number of persons.

(2) Despite Rule 5-12.1 [Review boards], if the chair of a review board cannot, for any reason, complete a review that has begun, the President may appoint another member of the review board who is a lawyer as chair of the hearing panel, whether or not the lawyer is a current Bencher.

[added 03/2015]


Initiating a review

5-13 (1) Within 30 days after the decision of the panel in a credentials hearing, the applicant may deliver a notice of review under Rule 5-15 [Notice of review] to the Executive Director and counsel representing the Society.

(1.1) [rescinded]

(2) Within 30 days after a decision of the panel in a credentials hearing, the Credentials Committee may, by resolution, refer the decision for a review on the record by a review board.

(2.1) When a review is initiated under subrule (2), counsel representing the Society must promptly deliver a notice of review under Rule 5-15 [Notice of review] to the Executive Director and the applicant.

(2.2) Within 30 days after the decision of the panel under Rule 4-35 [Disciplinary action], the respondent may deliver a notice of review under Rule 5-15 [Notice of review] to the Executive Director and discipline counsel.

(3) Within 30 days after a decision of the panel in a hearing on a citation, the Discipline Committee may, by resolution, refer the decision for a review on the record by a review board.

(4) When a review is initiated under subrule (3), discipline counsel must promptly deliver a notice of review under Rule 5-15 [Notice of review] to the Executive Director and the respondent.

(5) Within 30 days after the order of the Practice Standards Committee under Rule 3-18(1) [Costs], the lawyer concerned may deliver a notice of review under Rule 5-15 [Notice of review] to the Executive Director.

[(2.1) added, (4) and (5) amended 09/1999; rescinded and replaced 05/2002; (1) amended 07/2007;
(1) to (4) amended, (1.1) added 10/2007; (1.1) amended 10/2010; (1) to (4) amended, (1.1) rescinded,
(2.1) and (2.2) added 12/2010; (2) and (3) amended, (5) added 09/2012, effective 01/2013]


Stay of order pending review

5-14 (1) When a review is initiated under Rule 5-13 [Initiating a review], the order of the panel or the Practice Standards Committee with respect to costs is stayed.

(2) When the Credentials Committee initiates a review under Rule 5-13(2), an order of the hearing panel to call and admit or reinstate the applicant is stayed.

(3) When a review has been initiated under Rule 5-13, any party to the review may apply to the President for a stay of any order not referred to in subrule (1) or (2).

(4) On an application under subrule (3), the President may designate another Bencher to make a determination.

[(5) amended 06/1999; (2.1) added, (4) and (5) amended 09/1999; rescinded and replaced 05/2002; (1) amended 09/2012, effective 01/2013; (3) amended 04/2013]


Notice of review

5-15 A notice of review must contain the following in summary form:

(a) a clear indication of the decision to be reviewed by the review board;

(b) the nature of the order sought;

(c) the issues to be considered on the review.

[added 05/2002; amended 10/2007; amended 09/2012, effective 01/2013]

Record of credentials hearing

5-16 (1) Unless counsel for the applicant and for the Society agree otherwise, the record for a review of a credentials decision consists of the following:

(a) the application;

(b) a transcript of the proceedings before the panel;

(c) exhibits admitted in evidence by the panel;

(c.1) any written arguments or submissions received by the panel;

(d) the panel's written reasons for any decision;

(e) the notice of review under Rule 5-15.

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

[added 05/2002; (1) amended 07/2007; 10/2007; 07/2012; (2) amended 09/2012, effective 01/2013]


Record of discipline hearing

5-17 (1) Unless counsel for the respondent and for the Society agree otherwise, the record for a review of a discipline decision consists of the following:

(a) the citation;

(b) a transcript of the proceedings before the panel;

(c) exhibits admitted in evidence by the panel;

(c.1) any written arguments or submissions received by the panel;

(d) the panel's written reasons for any decision;

(e) the notice of review under Rule 5-15.

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

[added 05/2002; (1) amended 07/2007; 10/2007; 07/2012; (2) amended 09/2012, effective 01/2013]


Record of an order for costs by the Practice Standards Committee

5-17.1 (1) Unless counsel for the lawyer and for the Society agree otherwise, the record for a review of an order for costs under Rule 3-18 [Costs] consists of the following:

(a) the order;

(b) all correspondence between the Society and the lawyer relating to the assessment and ordering of costs;

(c) the Committee’s written reasons for any decision on costs;

(d) the notice of review under Rule 5-15 [Notice of review].

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

[added 09/2012, effective 01/2013]


Pre-review conference

5-18 (1) The President may order a pre-review conference at any time before the hearing on a review, at the request of the applicant, respondent or counsel for the Law Society, or on the President's own initiative.

(2) When a conference has been ordered under subrule (1), the President must

(a) set the date, time and place of the conference, and

(b) designate a Bencher to preside at the conference.

(3) Counsel representing the Society must be present at the conference.

(3.1) The Executive Director must notify the applicant or the respondent, as the case may be, or his or her counsel, of the time and place of the conference.

(3.2) The applicant or the respondent, as the case may be, may attend the conference, in person, through counsel or both.

(3.3) If the applicant or the respondent, as the case may be, fails to attend the conference, the Bencher presiding may proceed with the conference in the absence of that party and may make any order under this Rule, if the Bencher is satisfied that the party had been notified of the conference.

(4) If the Bencher presiding at a pre-review conference considers it appropriate, he or she may allow any person to participate in the conference by telephone or by any other means of communication that allows all persons participating to hear each other, and a person so participating is present for the purpose of this Rule.

(5) The conference may consider

(a) the simplification of the issues,

(b) any issues concerning the record to be reviewed,

(c) the possibility of agreement on any issues in the review,

(d) the exchange of written arguments or outlines of argument and of authorities,

(d.1) the possibility that privilege or confidentiality might require that all or part of the hearing be closed to the public or that exhibits and other evidence be excluded from public access,

(e) setting a date for the review, and

(f) any other matters that may aid in the disposition of the review.

(6) The Bencher presiding at a pre-review conference may

(a) adjourn the conference generally or to a specified date, time and place,

(b) order the exchange of written arguments or outlines of argument and of authorities, and set deadlines for that exchange,

(c) set a date for the review, and

(d) make any order or allow or dismiss any application consistent with this Rule.

[added 05/2002; (5) amended 05/2003; (3) amended 04/2009; (3) to (6) amended,
(3.1) to (3.3) added 10/2010]

Adjournment

5-19 (1) Before a hearing on a review commences, the applicant, respondent or counsel for the Society may apply for an order that the hearing be adjourned by delivering to the Executive Director and to the other party written notice setting out the grounds for the application.

(2) The Executive Director must promptly notify the President of an application under subrule (1).

(3) Before the hearing begins, the President must decide whether to grant the adjournment, with or without conditions, and must notify the parties accordingly.

(4) The President may

(a) designate another Bencher to make a determination under subrule (3), or

(b) refer the application to a pre-review conference.

(5) After a hearing has commenced, the chair of the review board may adjourn the hearing, with or without conditions, to a specified date, time and place.

[added 05/2002; (1) to (3) and (5) amended 10/2007; (1) to (4) amended 10/2010; (5) amended 09/2012, effective 01/2013]


Decision on review

5-20 (1) The decision of the review board on a review is made by majority vote.

(2) The review board must prepare written reasons for its decision on a review.

(3) [rescinded]

(4) When the review board gives written reasons for its decision, it must not disclose in those reasons any information that is confidential or subject to solicitor and client privilege.

(5) The Executive Director must promptly deliver a copy of the review board’s written reasons prepared under subrule (2) to the applicant or respondent and counsel for the Society.

(6) On request, the Executive Director must disclose the review board’s written reasons for its decision.

[added 07/2007; (1) to (5) amended, (3) rescinded, (6) added 09/2012, effective 01/2013]

Inactive reviews

5-21 (1) If no steps have been taken for 6 months or more, a party may apply for an order dismissing a review by delivering to the Executive Director a notice in writing that sets out the basis for the application.

(2) The Executive Director must promptly notify the following of an application under subrule (1):

(a) the party not making the application;

(b) the President;

(c) anyone else who, in the Executive Director’s opinion, should be notified.

(3) If it is in the public interest and not unfair to the respondent or applicant, the President may dismiss the review.

(4) The President may designate another Bencher to make a determination under subrule (3).

[added 10/2007]

Appeal to Court of Appeal

5-22 (1) The Discipline Committee may, by resolution, instruct the Executive Director to commence an appeal under section 48 of a decision of a panel or review board in a discipline hearing.

(2) The Credentials Committee may, by resolution, instruct the Executive Director to commence an appeal under section 48 of a decision of a panel or review board in a credentials hearing.

(3) The Practice Standards Committee may, by resolution, instruct the Executive Director to commence an appeal under section 48 of a decision of a review board with respect to an order for costs under Rule 3-18 [Costs].

[added 09/2012, effective 01/2013]


[Table of Contents] [previous part] [next part]
Part 5 out of 10 Parts in the Law Society Rules