O’Toole v. Law Society of New Brunswick, [2017] N.B.J. No. 342, 2017 NBCA 56, New Brunswick Court of Appeal, February 15, 2018, J.E. Drapeau C.J.N.B., M.E.L. Larlee, B.V. Green JJ.A.

The Law Society of New Brunswick charged O’Toole with four counts of misconduct under the Law Society Act, 1996, S.N.B. 1996, c. 89 (the “Act”) (counts (a), (b), (c), and (d)).

A Panel of the Discipline Committee of the Law Society found O’Toole not guilty after a full hearing in respect of count (a). It ruled it lacked jurisdiction in respect of counts (b), (c), and (d).

Section 60(3) of the Act states:

Where the respondent is found not guilty of conduct deserving sanction by a panel of the Discipline Committee, it may order that the Society pay costs to the respondent in an amount fixed by the panel.

O’Toole applied to the Panel under s. 60(3) for a costs order against the Law Society.

The Panel interpreted s. 60(3) as requiring, as a condition precedent to making a costs order, the member establish the Law Society’s prosecution should not have occurred.

The Panel considered the issue of costs in respect of all counts, even those it found it had no jurisdiction in respect of. The Panel refused to order costs in respect of count (a), even though it found O’Toole not guilty on that count. The Panel refused to order costs in respect of counts (b) and (c) on the basis O’Toole failed to establish those prosecutions “should not have occurred.” The Panel ordered costs in respect of count (d) on the basis O’Toole established that prosecution “should not have occurred.”

On appeal to the New Brunswick Court of Appeal, the Court found the Panel’s interpretation of s. 60(3) was erroneous.

The Court concluded s. 60(3) only requires as a condition precedent a finding of not guilty of conduct deserving sanction. There is no requirement a member establish a prosecution “should not have occurred.”

On that basis, the Panel erred in dismissing O’Toole’s application for a costs order in respect of count (a).

However, the Panel had no jurisdiction to order costs in respect of counts (b), (c), or (d), as the Panel had no jurisdiction in respect of those counts and there was no requisite finding of “not guilty.”

The Court allowed the appeal in part.