Part 5 – Tribunal, Hearings and Appeals

Application

5-1 (1) This part applies to

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

(b) a hearing of a citation, and

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

(2) In this part, a law firm may act through its designated representative or another lawyer engaged in the practice of law as a member of the law firm. 

[(2) added 04/2018; (1) amended 12/2021, effective January 1, 2022]

The Tribunal

Tribunal

5-1.1 (1) The Tribunal comprises

(a) the Tribunal Chair,

(b) hearing panels,

(c) review boards, and

(d) motions adjudicators.

(2) Subject to the Act and these Rules, the Tribunal may determine the practice and procedure to be followed at a hearing, review or other proceeding.

[added 12/2021, effective January 1, 2022]

Service, filing and communication

5-1.2 (1) The provisions of Rule 10-1 [Service and notice] are subject to this rule.

(2) A document to be filed with the Tribunal must be delivered by

(a) leaving it at or sending it by ordinary or registered mail to the Tribunal Office,

(b) sending it by email to the Tribunal Office, subject to size limits set by practice direction, or

(c) sending it by other means permitted under a practice direction.

(3) The parties to a proceeding must inform the Tribunal and every other party of any change of address, regardless of any other notice to the Society.

(4) The Tribunal may use and rely on the address of a respondent or an applicant provided at the outset of proceeding or the most recently received change of address.

(5) All correspondence to the Tribunal or any of its constituent parts must be

(a) sent to the Tribunal Office, and

(b) copied to all parties.

(6) The fact that correspondence is received and accepted by the Tribunal Office does not, for that reason alone, indicate compliance with requests or demands contained in the correspondence.

(7) All correspondence between parties or counsel and with the Tribunal must be respectful and formal to an extent appropriate to the circumstances.

[added 12/2021, effective January 1, 2022]

Tribunal Chair

5-1.3 (1) The Benchers must appoint a practising lawyer as Tribunal Chair.

(2) The Tribunal Chair must not be a Bencher or a member of the Discipline, Credentials or Practice Standards Committee.

(3) The term of office of the Tribunal Chair is two years.

(4) If the office of Tribunal Chair becomes vacant for any reason, the Benchers must promptly appoint a practising lawyer to complete the term of office.

(5) The functions of the Tribunal Chair may be exercised by another practising lawyer designated by the Tribunal Chair

(a) if the Tribunal Chair is absent or otherwise unable to act, or

(b) with the authorization of the Tribunal Chair.

[added effective January 1, 2022; amended 09/2022, effective January 1, 2023]

Practice directions

5-1.4 (1) The Tribunal Chair may issue practice directions that are consistent with the Act and these rules.

(2) A hearing panel or review board is not bound by a practice direction.

(3) Practice directions must be made accessible to the public.

[added 12/2021, effective January 1, 2022]

Hearing panels

Appointment of hearing panel

5-2 (1) When a hearing is ordered under this part, Part 2, Division 2 [Admission and Reinstatement] or Part 4 [Discipline], the Tribunal Chair must appoint a panel consisting of 3 persons.

(2) Despite subrules (1) and (3), a panel may consist of one Bencher who is a lawyer if

(a) no facts are in dispute,

(b) the hearing is to consider an admission under Rule 5-6.5 [Admission and consent to disciplinary action],

(c) the hearing proceeds under Rule 5-4.5 [Summary hearing],

(d) the hearing is to consider a preliminary question under Rule 5-4.3 [Preliminary questions], or

(e) it is not otherwise possible, in the opinion of the Tribunal Chair, to convene a panel in a reasonable period of time.

(3) A panel must

(a) be chaired by the Tribunal Chair or by another lawyer, and

(b) include at least

(i) one Bencher or Life Bencher who is a lawyer, and

(ii) one person who is not 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 lawyer may, with the consent of the Tribunal Chair, continue to chair the panel, and the panel may complete a hearing already scheduled or begun.

(5.1) If a member of a panel ceases to be a Bencher and does not become a Life Bencher, the panel may, with the consent of the Tribunal Chair, complete a hearing already scheduled or begun.

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

(7) The Tribunal Chair 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.

(8) 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.

[(2), (3) and (5) amended, (5.1) added 03/2016; (2) amended 03/2021; heading, (1) to (3), (5), (5.1) and (7) amended 12/2021, effective January 1, 2022; (3) amended 02/2023]

Panel member unable to continue

5-3 (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 Tribunal Chair may order that the panel continue with the remaining members.

(2) If the chair of a hearing panel cannot, for any reason, complete a hearing that has begun, the Tribunal Chair may appoint another member of the hearing panel who is a lawyer as chair of the hearing panel.

[(2) amended 03/2016; amended 12/2021, effective January 1, 2022]

Disqualification

5-4 (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) a member of an interim action board that made an order under Rule 3-10 [Interim suspension or practice conditions] or 3-11 [Medical examination] regarding a matter forming the basis of the citation;

(c) a member of a panel that heard an application under Rule 3-12.3 [Review of interim suspension or practice conditions] to rescind or vary an interim suspension or practice condition or limitation in respect of a matter forming the basis of the citation.

(2) A person who participated in the decision to order the hearing of 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) 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.

[(1) amended 03/2016; (1) and (2) amended 12/2021, effective January 1, 2022]

Practice and procedure before a hearing panel

Hearing date and notice

5-4.1 (1) The date, time and place for the hearing to begin must be set

(a) by agreement between the parties, or

(b) on the application of a party, by the Tribunal Chair or by the motions adjudicator presiding at a pre-hearing conference.

(2) When a date is set under subrule (1) (b), the Tribunal must notify the parties in writing of the date, time and place of the hearing at least 30 days before the date set for the hearing to begin, unless the applicant or respondent consents to a shorter notice period.

(3) Written notice under subrule (2) may be made at the same time that the citation is served under Rule 4-19 [Notice of citation], or at a later time.

[added 12/2021, effective January 1, 2022]

Amending an allegation in a citation

5-4.2 (1) Law Society counsel may amend an allegation contained in a citation

(a) before the hearing begins, by giving written notice to the respondent and the Tribunal, and

(b) after the hearing has begun, with the consent of the respondent.

(2) The panel may amend a citation after the hearing has begun

(a) on the application of a party, or

(b) on its own motion.

(3) The panel must not amend a citation under subrule (2) unless each party has been given the opportunity to make submissions respecting the proposed amendment.

[added 12/2021, effective January 1, 2022]

Preliminary questions

5-4.3 (1) Before a hearing begins, any party may apply for the determination of a question relevant to the hearing by filing with the Tribunal and delivering to the other party, written notice setting out the substance of the application and the grounds for it.

(2) When an application is made under subrule (1), the Tribunal Chair must do one of the following as appears to the Tribunal Chair to be appropriate:

(a) appoint a panel to determine the question;

(b) refer the question to a motions adjudicator;

(c) refer the question to the panel at the hearing of the citation or credentials application.

(3) A panel appointed under subrule (2) (a) is not seized of the application or any question pertaining to the application other than that referred under that provision.

[added 12/2021, effective January 1, 2022; (2) amended 07/2022]

Severance and joinder

5-4.4 (1) Before a hearing begins, any party may apply in writing to the Tribunal for an order that

(a) one or more allegations in a citation be determined in a separate hearing from other allegations in the same citation, or

(b) two or more citations be determined in one hearing.

(2) An application under subrule (1) must

(a) be copied to the party not making the application, and

(b) state the grounds for the order sought.

(3) When an application is made under this rule, the Tribunal Chair must designate a motions adjudicator to make a determination.

(4) The motions adjudicator designated under subrule (3)

(a) must consider the submissions of the parties,

(b) may require a pre-hearing conference before making a determination, and

(c) must dismiss the application or allow the application, with or without conditions.

[added 12/2021, effective January 1, 2022]

Summary hearing

5-4.5 (1) This rule may be applied in respect of the hearing of a citation comprising only allegations that the respondent has done one or more of the following:

(a) breached a rule;

(b) breached an undertaking given to the Society;

(c) failed to respond to a communication from the Society;

(d) breached an order made under the Act or these rules. 

(2) Unless the panel orders otherwise, the parties may adduce evidence by

(a) affidavit,

(b) an agreed statement of facts, or

(c) an admission made or deemed to be made under Rule 5-4.8 [Notice to admit].

(3) Despite Rules 5-6.3 [Submissions and determination] and 5-6.4 [Disciplinary action], the panel may consider facts, determination, disciplinary action and costs and issue a decision respecting all aspects of the proceeding.

[added 12/2021, effective January 1, 2022]

Demand for disclosure of evidence

5-4.6 (1) At any time after a citation has been issued and before the hearing begins, a respondent may demand in writing that Law Society counsel disclose the evidence that the Society intends to introduce at the hearing.

(2) On receipt of a demand for disclosure under subrule (1), Law Society counsel must provide the following to the respondent by a reasonable time before the beginning of the hearing:

(a) a copy of every document that the Society intends to tender in evidence;

(b) a copy of any statement made by a person whom the Society intends to call as a witness;

(c) if documents provided under paragraphs (a) and (b) do not provide enough information, a summary of the evidence that the Society intends to introduce;

(d) a summary of any other relevant evidence in Law Society counsel’s possession or in a Society file available to counsel, whether or not counsel intends to introduce that evidence at the hearing.

(3) Despite subrule (2), Law Society counsel must not provide any information or documents about any discussion or other communication with the Equity Advisor in that capacity.

[added 12/2021, effective January 1, 2022; (3) amended 07/2023]

Application for details of the circumstances

5-4.7 (1) Before a hearing begins, the respondent may apply for disclosure of the details of the circumstances of misconduct alleged in a citation by filing with the Tribunal and delivering to Law Society counsel written notice setting out the substance of the application and the grounds for it.

(2) If a motions adjudicator is satisfied that an allegation in the citation does not contain enough detail of the circumstances of the alleged misconduct to give the respondent reasonable information about the act or omission to be proven and to identify the transaction referred to, the motions adjudicator must order Law Society counsel to disclose further details of the circumstances.

(3) Details of the circumstances disclosed under subrule (2) must be

(a) in writing, and

(b) delivered to the respondent or respondent’s counsel.

[added 12/2021, effective January 1, 2022]

Notice to admit

5-4.8 (1) At any time, but not less than 45 days before a date set for the hearing of a citation, a party may request the other party to admit, for the purposes of the hearing only, the truth of a fact or the authenticity of a document. 

(2) A request made under subrule (1) must

(a) be made in writing in a document clearly marked “Notice to Admit” and served in accordance with Rule 10-1 [Service and notice], and

(b) include a complete description of the fact, the truth of which is to be admitted, or attach a copy of the document, the authenticity of which is to be admitted.

(3) A party may make more than one request under subrule (1).

(4) A party that receives a request made under subrule (1) must respond within 21 days by serving a response on the other party in accordance with Rule 10-1 [Service and notice].

(5) The time for response under subrule (4) may be extended by agreement of the parties or by an order under Rule 5-4.3 [Preliminary questions] or 5-5.1 [Pre-hearing conference].

(6) A response under subrule (4) must contain one of the following in respect of each fact described in the request and each document attached to the request:

(a) an admission of the truth of the fact or the authenticity of the document attached to the request;

(b) a statement that the party making the response does not admit the truth of the fact or the authenticity of the document, along with the reasons for not doing so.

(7) If a party who has been served with a request does not respond in accordance with this rule, the party is deemed, for the purposes of the hearing only, to admit the truth of the fact described in the request or the authenticity of the document attached to the request.

(8) If a party does not admit the truth of a fact or the authenticity of a document under this rule, and the truth of the fact or authenticity of the document is proven in the hearing, the panel may consider the refusal when exercising its discretion respecting costs under Rule 5-11 [Costs of hearings].

(9) A party who has admitted or is deemed to have admitted the truth of a fact or the authenticity of a document under this rule may withdraw the admission with the consent of the other party or with leave granted on an application

(a) before the hearing has begun, under Rule 5-4.3 [Preliminary questions] or 5-5.1 [Pre-hearing conference], or

(b) after the hearing has begun, to the hearing panel.

[added 12/2021, effective January 1, 2022; (9) added 07/2022]

Compelling witnesses and production of documents

5-5 (1) In this rule “respondent” includes a shareholder, director, officer or representative of a respondent law firm.

(2) A panel may

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

(b) at any time before or during a hearing, 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.

(2.1) A party applying for an order under subrule (2) (a) must give reasonable notice to the applicant or respondent.

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

(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 [Form of Summons].

(5) Before a hearing begins, any party may apply for an order under section 44 (4) [Witnesses] by filing with the Tribunal and delivering to the other party written notice setting out the substance of the application and the grounds for it.

(6) After considering any submissions of the parties, a motions adjudicator must

(a) make the order requested or another order consistent with section 44 (4) [Witnesses], or

(b) refuse the application.

(7) On the motion of any party, the motions adjudicator may apply to the Supreme Court under section 44 (5) [Witnesses] to enforce an order made under subrule (6). 

[(1) amended 04/2018; (2.1), (5) to (7) added, (3) amended 12/2021, effective January 1, 2022]

Pre-hearing conference

5-5.1 (1) With or without a request from any party, the Tribunal Chair may order a pre-hearing conference at any time before a hearing begins.

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

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

(b) designate a motions adjudicator to preside at the conference.

(3) Law Society counsel and the applicant or applicant’s counsel or both, must be present at the conference.

(4) A respondent may attend the conference in person, through counsel or both.

(5) If the respondent fails to attend the conference, the motions adjudicator presiding may proceed with the conference in the absence of the respondent and may make any order under this rule, if the motions adjudicator is satisfied that the respondent had notice of the conference.

(6) Any person may participate in a 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.

(7) The conference may consider any matters that may aid in the fair and expeditious disposition of the matter, including but not limited to

(a) setting a date for the hearing,

(b) simplification of the issues,

(c) admissions or an agreed statement of facts,

(d) amendments to the citation,

(e) any matter for which the motions adjudicator may make an order under this rule,

(f) conducting all or part of the hearing in written form or by video conference or teleconference,

(g) disclosure and production of documents,

(h) agreement for the hearing panel to receive and consider documents or evidence under Rule 5-6.1 (3) (e) [Preliminary matters],

(i) the possibility that privilege or confidentiality might require closure of all or part of the hearing to the public, or exclusion of exhibits and other evidence from public access,

(j) any application to withhold the identity or locating particulars of a witness, and

(k) any other matters that may aid in the disposition of the matter.

(8) The motions adjudicator may

(a) adjourn a pre-hearing conference generally or to a specified date, time and place,

(b) order discovery and production of documents,

(c) set a date for the hearing, and

(d) allow or dismiss an application under subrule (7) (k).

(9) A party may apply to the motions adjudicator for an order

(a) to withhold the identity or contact information of a witness,

(b) to adjourn the hearing of the citation,

(c) for severance of allegations or joinder of citations under Rule 5-4.4 [Severance and joinder],

(d) for disclosure of the details of the circumstances of misconduct alleged in a citation under Rule 5-4.7 [Application for details of the circumstances],

(e) that the motions adjudicator may make under subrule (10), or

(f) concerning any other matters that may aid in the fair and expeditious disposition of the citation.

(10) The motions adjudicator may, on the application of a party or on the motions adjudicator’s own motion, make an order that, in the judgment of the motions adjudicator, will aid in the fair and expeditious disposition of the matter, including but not limited to orders

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

(b) setting a date for the hearing to begin,

(c) allowing or dismissing an application made under subrule (9) or referred to the conference by the Tribunal Chair,

(d) specifying the number of days to be scheduled for the hearing,

(e) establishing a timeline for the proceeding including, but not limited to, setting deadlines for the completion of procedures and a plan for the conduct of the hearing,

(f) directing a party to provide a witness list and a summary of evidence that the party expects that any or all of the witnesses will give at the hearing,

(g) respecting expert witnesses, including but not limited to orders

(i) limiting the issues on which expert evidence may be admitted or the number of experts that may give evidence,

(ii) requiring the parties’ experts to confer before service of their reports, or

(iii) setting a date by which an expert’s report must be served on a party, or

(h) respecting the conduct of any application, including but not limited to allowing submissions in writing.

(11) If an order made under this rule affects the conduct of the hearing, the hearing panel may rescind or vary the order on the application of a party or on the hearing panel’s own motion.

[added 12/2021, effective January 1, 2022; (8) amended 05/2022]

Adjournment

5-5.2 (1) Before a hearing begins, a party may apply for an order that the hearing be adjourned by filing with the Tribunal and delivering to the other party written notice setting out the reasons for the application.

(2) Before a hearing begins, a motions adjudicator must decide whether to grant the adjournment, with or without conditions, and advise the parties accordingly.

(3) After a hearing has begun, the chair of the panel may adjourn the hearing, with or without conditions, generally or to a specified date, time and place.

(4) Rule 5-4.1 (2) [Hearing date and notice] does not apply when a hearing is adjourned and re-set for another date.

(5) When a hearing is adjourned under Rule 2-92 (5) [Security for costs], Law Society Counsel must file a notice with the Tribunal and deliver a copy to the applicant.

[added 12/2021, effective January 1, 2022]

Application moot

5-5.3 If the circumstances of the applicant have changed so as to make the outcome of the hearing moot, after hearing submissions on behalf of the parties, the panel may do one of the following:

(a) adjourn the hearing generally;

(b) reject the application;

(c) begin or continue with the hearing.

[added 12/2021, effective January 1, 2022]

Procedure

5-6 (1) [rescinded, see Rule 5-1.1(2)]

(2) If a court reporter is employed to record the proceedings of a hearing, the chair of the panel must ensure that the reporter first takes an oath or makes a solemn affirmation to faithfully and accurately report and transcribe the proceedings.

(2.1) Unless the chair of the panel otherwise orders, an applicant must personally attend the entire hearing.

(2.2) If a respondent fails to attend or remain in attendance at a hearing, the panel may proceed under section 42 [Failure to attend].

(3) The parties may call witnesses to testify.

(4) All witnesses, including an applicant or respondent ordered to give evidence under section 41 (2) (a) [Panels],

(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;

(b) oral evidence;

(c) affidavit evidence;

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

(e) an admission made or deemed to be made under Rule 5-4.8 [Notice to admit];

(f) any other evidence it considers appropriate.

[(1) rescinded, (2) to (4) and (6) amended, (2.1) and (2.2) added 12/2021, effective January 1, 2022]

Preliminary matters

5-6.1 (1) Before hearing any evidence on the allegations set out in a citation, the panel must determine whether

(a) the citation was served in accordance with Rule 4‑19 [Notice of citation], or

(b) the respondent waives any of the requirements of Rule 4‑19.

(2) If the requirements of Rule 4‑19 [Notice of citation] have been met, or have been waived by the respondent, the citation or a copy of it must be filed as an exhibit at the hearing, and the hearing may proceed.

(3) Despite subrule (1), before the hearing begins, the panel may receive and consider

(a) the citation,

(b) an agreed statement of facts,

(c) an admission made or deemed to be made under Rule 5-4.8 [Notice to admit],

(d) the respondent’s admission of a discipline violation and consent to a specified disciplinary action submitted jointly by the parties under Rule 5-6.5 [Admission and consent to disciplinary action], and

(e) any other document or evidence by agreement of the parties.

[added 12/2021, effective January 1, 2022]

Burden of proof

5-6.2 At a hearing ordered under Part 2, Division 2 [Admission and Reinstatement], the onus is on the applicant to satisfy the panel on the balance of probabilities that the applicant has met the requirements of section 19 (1) [Applications for enrolment, call and admission, or reinstatement] and that division.

[added 12/2021, effective January 1, 2022]

Submissions and determination

5-6.3 (1) Following completion of the evidence, the panel must invite the parties to make submissions on the issues to be decided by the panel.

(2) After submissions under subrule (1), the panel must find the facts and

(a) make a determination on each allegation in a citation, or

(b) decide whether to

(i) grant the application

(ii) grant the application subject to conditions or limitations that the panel considers appropriate, or

(iii) reject the application.

(3) A panel must reject an application for enrolment if it considers that the applicant’s qualifications referred to in Rule 2‑54 (2) [Enrolment in the admission program] are deficient.

(4) The panel must prepare written reasons for its findings.

(5) A copy of the panel’s reasons prepared under subrule (3) must be delivered promptly to each party.

[added 12/2021, effective January 1, 2022]

Disciplinary action

5-6.4 (1) Following a determination under Rule 5-6.3 [Submissions and determination] adverse to the respondent, the panel must

(a) invite the parties to make submissions as to disciplinary action,

(b) take one or more of the actions referred to in section 38 (5) to (7) [Discipline hearings],

(c) include in its decision under this rule

(i) any order, declaration or imposition of conditions under section 38(7), and

(ii) any order under Rule 5‑11 [Costs of hearings] on the costs of the hearing, including any order respecting time to pay,

(d) prepare a written record, with reasons, of its action taken under paragraph (b) and any action taken under paragraph (c),

(e) if it imposes a fine, set the date by which payment to the Society must be completed, and

(f) if it imposes conditions on the respondent’s practice, set the date by which the conditions must be fulfilled.

(2) A panel may proceed under subrule (1) before written reasons are prepared under Rule 5-6.3 (4) [Submissions and determination]

(a) if the panel gives reasons orally for its decision under Rule 5-6.3 (2) (a), or

(b) when the panel accepts an admission jointly submitted by the parties under Rule 5-6.5 [Admission and consent to disciplinary action].

(3) Despite subrule (1) (b), if the respondent is a member of another governing body and not a member of the Society, the panel may do one or more of the following:

(a) reprimand the respondent;

(b) fine the respondent an amount not exceeding $50,000;

(c) prohibit the respondent from practising law in British Columbia permanently or for a specified period of time;

(d) declare that, had the respondent been a member of the Society, the panel would have

(i) disbarred the respondent,

(ii) suspended the respondent, or

(iii) imposed conditions or limitations on the practice of the respondent.

(4) A copy of the panel’s reasons prepared under subrule (1) (d) must be delivered promptly to each party.

(5) The panel may consider the professional conduct record of the respondent in determining a disciplinary action under this rule.

(6) Regardless of the nature of the allegation in the citation, the panel may take disciplinary action based on the ungovernability of the respondent by the Society.

(7) The panel must not take disciplinary action under subrule (6) unless the respondent has been given at least 30 days’ notice that ungovernability may be raised as an issue at the hearing on disciplinary action.

(8) The panel may adjourn the hearing on disciplinary action to allow compliance with the notice period in subrule (7).

[added 12/2021, effective January 1, 2022; (2) amended 04/2023]

Admission and consent to disciplinary action

5-6.5 (1) The parties may jointly submit to the hearing panel an agreed statement of facts and the respondent’s admission of a discipline violation and consent to a specified disciplinary action.

(2) If the panel accepts the agreed statement of facts and the respondent’s admission of a discipline violation

(a) the admission forms part of the respondent’s professional conduct record,

(b) the panel must find that the respondent has committed the discipline violation and impose disciplinary action, and

(c) the Executive Director must notify the respondent and the complainant of the disposition.

(3) The panel must not impose disciplinary action under subrule (2) (b) that is different from the specified disciplinary action consented to by the respondent unless

(a) each party has been given the opportunity to make submissions respecting the disciplinary action to be substituted, and

(b) imposing the specified disciplinary action consented to by the respondent would be contrary to the public interest in the administration of justice.

(4) An admission of conduct tendered in good faith by a lawyer during negotiation that does not result in a joint submission under subrule (1) is not admissible in a hearing of the citation.

[added 12/2021, effective January 1, 2022]

Rejection of admission

5-6.6 (1) A conditional admission tendered under Rule 4‑29 [Conditional admission] must not be used against the respondent in any proceeding unless the admission is accepted by the Discipline Committee.

(2) An admission tendered under Rule 5-6.5 [Admission and consent to disciplinary action] must not be used against the respondent in any proceeding unless the hearing panel accepts the admission and imposes disciplinary action.

[added 12/2021, effective January 1, 2022]

5-7  [see Rule 10-2.1, rescinded 12/2021, effective January 1, 2022]

Public hearing

5-8 (1) Every hearing is open to the public, but the panel or review board may exclude some or all members of the public.

(1.1) The panel or review board must not make an order under subrule (1) unless, in the judgment of the panel or review board

(a) the public interest or the interest of an individual in the order outweighs the public interest in the principle of open hearings in the present case, or

(b) the order is required to protect the safety of an individual.

(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 despite Rule 5-9 (2) [Transcript and exhibits];

(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 of 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 5-9 [Transcript and exhibits], when a hearing is in progress, 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 or declines to make an order under this rule, the panel or review board must give written reasons for its decision.

[(1) and (2) amended, (1.1) added 10/2020; (3) amended 12/2021, effective January 1, 2022]

Transcript and exhibits

5-9 (1) All proceedings at a hearing must be recorded by a court reporter or by other means.

(2) Subject to the Act, these rules and the Freedom of Information and Protection of Privacy Act, any person may obtain, at the person’s own expense, a copy of

(a) a transcript of any part of the hearing that is open to the public, or

(b) an exhibit entered in evidence when a hearing is open to the public.

(3) This rule must not be interpreted to permit the disclosure of any information, files or records that are confidential or subject to a solicitor client privilege.

[(1) and (2) amended, (3) added 10/2020; (1) amended 12/2021, effective January 1, 2022]

Decision

5-10 (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.

Costs of hearings

5-11 (1) A panel may order that an applicant or respondent pay the costs of a hearing referred to in Rule 5-1 [Application], and may set a time for payment.

(2) A review board may order that an applicant or respondent pay the costs of a review under section 47 [Review on the record], and may set a time for payment.

(3) Subject to subrule (4), the panel or review board must have regard to the tariff of costs in Schedule 4 [Tariff for hearing and review costs] to these Rules in calculating the costs payable by an applicant, a respondent or the Society.

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

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

(6) In the tariff in Schedule 4 [Tariff for hearing and review costs],

(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.

(7) 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.

(8) 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 (3) to (6).

(9) Costs deposited under Rule 2-92 [Security for costs] must be applied to costs ordered under this rule.

(10) 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. 

(11) As an exception to subrule (10), 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.

[(5), (9) and (10) amended 12/2021, effective January 1, 2022]

Application to vary order

5-12 (1) A party may apply in writing to the Tribunal for

(a) an extension of time

(i) to pay a fine or the amount owing under Rule 5-11 [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), 

(c) a change in the start date for a suspension imposed under section 38 or 47, or

(d) a variation or rescission of another order that has not been fully executed or fulfilled.

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

(2.1) A party or anyone with an interest in information subject to an order made under Rule 5-8 (2) (a) [Public hearing] may make an application in writing to the Tribunal for rescission or variation of the order.

(3) [rescinded 06/2016]

(4) The Tribunal Chair must refer an application under subrule (1) or (2.1) to one of the following, as may, in the discretion of the Tribunal Chair, appear appropriate:

(a) the same panel or review board that made the order;

(b) a new panel;

(c) a motions adjudicator.

(5) The panel, review board or motions adjudicator that decides an application under subrule (1) must

(a) dismiss the application,

(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,

(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], or

(e) grant the variation or rescission applied for or as otherwise appears appropriate to the panel, review board or motions adjudicator.

(5.1) The panel, review board or motions adjudicator that decides an application under subrule (2.1) must

(a) dismiss the application,

(b) rescind the order, or

(c) vary the order to one that the original panel or review board was permitted to make under Rule 5-8 (2) (a) [Public hearing].

(6) [rescinded]

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

[(4) amended 09/2015; (1) amended, (3) rescinded 06/2016; (4) and (5) amended 04/2018; (2.1) and (5.1) added, (4) and (5) amended 10/2020; heading, (1), (2.1), (4) , (5) and (5.1) amended, (6) rescinded 12/2021, effective January 1, 2022]

5-13  [see Rule 4-56, rescinded 12/2021, effective January 1, 2022]

5-14  [see Rule 4-57, rescinded 12/2021, effective January 1, 2022]

The review board

Review by review board

5-15 (1) In Rules 5-15 to 5-28, “review” means a review of a hearing panel decision by a review board under section 47 [Review on the record].

(2) [rescinded]

(2.1) Rule 5-4.3 [Preliminary questions] applies, with any necessary changes, to an application by a party to a review for the determination of a question relevant to the review.

(3) Delivery of documents to a respondent or applicant under Rules 5-15 to 5-28 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) [Review on the record], the Rules that apply to the hearing of evidence before a hearing panel apply.

[(3) amended 05/2016; (2) rescinded, (2.1) added 12/2021, effective January 1, 2022]

Review boards

5-16 (1) When a review is initiated under Rule 5-19 [Initiating a review], the Tribunal Chair must establish a review board consisting 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 or by the Tribunal Chair.

(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 lawyer may, with the consent of the Tribunal Chair, 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 Tribunal Chair 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.

[(4) amended 03/2016; (1), (4) and (6) amended 12/2021, effective January 1, 2022; (2) amended 02/2023]

Disqualification

5-17 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 5-4 [Disqualification] from participation in the hearing panel.

Review board member unable to continue

5-18 (1) Despite Rule 5-16 [Review boards], if a member of a review board cannot, for any reason, complete a review that has begun, the Tribunal Chair may order that the review board continue with the remaining members, whether or not the board consists of an odd number of persons.

(2) If the chair of a review board cannot, for any reason, complete a review that has begun, the Tribunal Chair may appoint another member of the review board who is a lawyer as chair of the review board. 

[(2) amended 03/2016; (1) and (2) amended 12/2021, effective January 1, 2022] 

Practice and procedure before a review board

Initiating a review

5-19 (1) Within 30 days after being notified of the decision of the panel in a credentials hearing, the applicant may initiate a review by filing with the Tribunal and delivering to Law Society counsel a notice of review.

(2) Within 30 days after being notified of the decision of a panel under Rule 5-6.4 [Disciplinary action] or 5-11 [Costs of hearings], the respondent may initiate a review by filing with the Tribunal and delivering to Law Society counsel a notice of review.

(3) Within 30 days after a decision of the panel in a credentials hearing, the Credentials Committee may initiate a review by resolution.

(4) Within 30 days after a decision of the panel in a hearing of a citation, the Discipline Committee may initiate a review by resolution.

(5) When a review is initiated under subrule (3) or (4), Law Society counsel must promptly file with the Tribunal and deliver to the other party a notice of review.

(6) Within 30 days after the order of the Practice Standards Committee under Rule 3-25 (1) [Costs], the lawyer concerned may initiate a review by filing a notice of review with the Tribunal. 

 [(1), (2), (5) and (6) amended 06/2016; (1), (2) and (4) to (6) amended 12/2021, effective January 1, 2022]

Extension of time to initiate a review

5-19.1 (1) A party may apply to the Tribunal to extend the time within which a review may be initiated under Rule 5-19 [Initiating a review] by filing with the Tribunal and delivering to the other party a notice of the application.

(2) When a party makes an application under subrule (1), a motions adjudicator must

(a) refuse the extension of time, or

(b) grant the extension, with or without conditions or limitations.

(3) [rescinded]

[added 10/2019; (1) and (2) amended, (3) rescinded 12/2021, effective January 1, 2022]

Stay of order pending review

5-20 (1) When a review is initiated under Rule 5-19 [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 5-19 (3) [Initiating a review], 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 5-19 [Initiating a review], any party to the review may apply to the Tribunal for a stay of any order not referred to in subrule (1) or (2).

(4) When an application is made under this rule, a motions adjudicator must make a determination under subrule (3).

[(3) and (4) amended 12/2021, effective January 1, 2022]

Notice of review

5-21 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.

Record of credentials hearing

5-22 (1) Unless the parties 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;

(d) any written arguments or submissions received by the panel;

(e) the panel’s written reasons for any decision;

(f) the 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.

[(1) amended 12/2021, effective January 1, 2022]

Record of discipline hearing

5-23 (1) Unless the parties 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;

(d) any written arguments or submissions received by the panel;

(e) the panel’s written reasons for any decision;

(f) the 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.

[(1) amended 12/2021, effective January 1, 2022]

Record of an order for costs by the Practice Standards Committee

5-24 (1) Unless the parties agree otherwise, the record for a review of an order for costs under Rule 3-25 [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.

(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.

[(1) amended 12/2021, effective January 1, 2022]

Preparation and delivery of record

5-24.1 (1) The party initiating a review must prepare the record for the review in accordance with the relevant rule.

(1.1) Within 60 days of filing a notice of review, a party must file the record with the Tribunal in the form specified in the relevant practice direction and deliver a copy to the other party. 

(2) The time for producing the record may be extended by agreement of the parties.

(3) No date may be set for the hearing of a review unless the party initiating the review has delivered all copies of the record required under subrule (1.1).

(4) By filing with the Tribunal written notice setting out the grounds for the application, and delivering a copy to the other party, the party initiating the review may apply for

(a) an extension of time to prepare and deliver the record, or

(b) an order that the Society bear all or part of the cost of obtaining and copying all or part of the record.

(5) When an application is made under subrule (4), a motions adjudicator must decide whether to grant all or part of the relief sought, with or without conditions, and must notify the parties accordingly.

(6) [rescinded]

(7) A determination under subrule (5) is without prejudice to an order of the review board under Rule 5-11 [Costs of hearings].

[added 05/2016; (1), (4) and (5) amended 06/2016; (1) amended 12/2019; (1) and (3) to (5) amended, (1.1) added, (6) rescinded 12/2021, effective January 1, 2022]

Notice of review hearing

5-24.2 (1) The date, time and place for the hearing of a review to begin must be set

(a) by agreement between the parties, or

(b) on the application of a party, by the Tribunal Chair or by the motions adjudicator presiding at a pre-review conference.

(2) When a date is set under subrule (1), the Tribunal must notify the parties in writing of the date, time and place of the hearing at least 30 days before the date set for the hearing to begin, unless the parties agree to a shorter notice period.

[added 06/2016; amended 12/2021, effective January 1, 2022]

Pre-review conference

5-25 (1) The Tribunal Chair may order a pre-review conference at any time before the hearing of a review, at the request of a party, or on the Tribunal Chair's own initiative.

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

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

(b) designate a motions adjudicator to preside at the conference.

(3) Law Society counsel must be present at the conference.

(4) [rescinded 06/2016]

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

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

(7) The motions adjudicator presiding at a pre-review conference 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.

(8) 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,

(e) 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,

(f) setting a date for the review, and

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

(9) The motions adjudicator presiding at a pre-review conference may

(a) adjourn the conference or the hearing of the review 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, subject to Rule 5-24.1 (3) [Preparation and delivery of record], and

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

[(9) amended 04/2016; 05/2016; (2) amended, (4) rescinded 06/2016; (7) amended 05/2021; (1) to (3), (6), (7) and (9) amended 12/2021, effective January 1, 2022]

Adjournment

5-26 (1) Before a hearing of a review begins, a party may apply for an order that the hearing be adjourned by filing with the Tribunal and delivering to the other party written notice setting out the grounds for the application.

(2) [rescinded]

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

(4) [rescinded]

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

[(5) amended 04/2016; (1) amended, (2) rescinded 06/2016; (1), (3) and (5) amended, (4) rescinded 12/2021, effective January 1, 2022]

Decision on review

5-27 (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) 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.

(4) A copy of the review board’s written reasons prepared under subrule (2) must be delivered promptly to each party.

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

[(4) amended 06/2016; (4) amended 12/2021, effective January 1, 2022]

Inactive reviews

5-28 (1) If no steps have been taken for 6 months or more, a party may apply for an order dismissing a review by filing with the Tribunal and delivering to the other party a notice in writing that sets out the basis for the application.

(2) [rescinded]

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

(4) [rescinded]

[(1) amended, (2) rescinded 06/2016; (1) and (3) amended, (4) rescinded 12/2021, effective January 1, 2022]

Corrections

Slip rule

5-28.1 At any time, the Tribunal may

(a) correct an error in an order or decision that arose from a clerical mistake or from any other accidental slip or omission, or

(b) amend an order or decision to provide for any matter that should have been but was not adjudicated.

[added 12/2021, effective January 1, 2022]

Appeals

Appeal to Court of Appeal

5-29 (1) The Discipline Committee may, by resolution, instruct the Executive Director to commence an appeal under section 48 [Appeal] 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 [Appeal] 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 [Appeal] of a decision of a review board with respect to an order for costs under Rule 3-25 [Costs].