Welcome to Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t! This week, lawyer Kyla Lee discusses tribunals receiving legal advice.
Acumen Law Corporation lawyer Kyla Lee gives her take on a made-in-Canada court case each week, and discusses why these cases should have been heard by Canada’s highest court: the Supreme Court of Canada.
Daniel Clark was an accountant facing discipline for a complaint of professional misconduct. However, the person who was appointed to give independent legal advice to the tribunal overseeing his disciplinary action, had previously acted in prosecutions against accountants before the tribunal. Mr. Clark successfully argued that there had been a conflict of interest and that it was incumbent of the lawyer acting for the tribunal to disclose that she had also previously acted prosecuting people before the tribunal. It essentially created an apprehension of bis against him because she was somebody who would have been trying to get him in trouble in the past.
The Supreme Court of Canada should have taken the opportunity to hear this because it deals specifically with issues of tribunals getting legal advice. In Canada, as we move towards more tribunals dealing with more issues, the more legal advice that tribunals are going to get becomes important.
Unfortunately, the SCC missed the opportunity to create a better tribunal system across Canada so that we can have confidence that legal advice given to tribunals, is given by people who are not in a position of conflict.
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