Executive Summary: Key Legal and Evidentiary Issues

• Section 77A of the Legal Profession Act prohibits disclosure and admissibility of NSBS reports and testimony in legal proceedings unless statutory exceptions apply.

• The court found no evidence that the NSBS waived its statutory protections or acted in bad faith to nullify the application of s. 77A.

• NSBS employees and former employees are not compellable as witnesses regarding matters within the scope of their regulatory duties.

• Gray's request to admit documents obtained from the Human Rights Commission proceeding was deferred pending identification of the specific records.

• The motion to subpoena Justice Jillian Barrington was adjourned pending resolution of a limitation period issue on a related motion.

• All of Clara Gray’s motions to compel disclosure and subpoena witnesses from the NSBS were dismissed by the court.

Background and facts of the case

Clara Elizabeth Gray was admitted to the Nova Scotia Bar around the year 2000 and practiced with a private law firm in Sydney before opening her solo practice in 2005. In 2007, she was suspended by the Nova Scotia Barristers’ Society (NSBS) for failing to file her trust account report, triggering an audit at that time.

In 2014, based on the trust account report filed for 2012, the NSBS initiated a second audit. This led to a practice review and referral to the Complaints Investigation Committee (CIC), which requested that Gray undergo an independent medical assessment. Following further concerns, Gray was referred to the Fitness to Practice Program Committee (FTPC). In July 2014, the FTPC presented Gray with an interim agreement requiring her to wind down her practice by August 29, 2014, and to close her trust account by August 31, 2014. She was also restricted from practicing law independently but could practice in association with other lawyers.

Gray retained legal counsel in July 2014 and signed the interim agreement on August 5, 2014. She proposed joining another lawyer’s practice, but the NSBS rejected this proposal. The NSBS subsequently concluded that Gray had breached the interim agreement by failing to close her practice and by not submitting documentation confirming the closure of her trust account. On September 10, 2014, she was suspended for not filing an accountant’s report. Her practice certificate was suspended the following day, September 11, 2014. That same day, the FTPC referred her back to the CIC, and she received a suspension letter outlining the reasons.

On November 21, 2014, the NSBS approved Gray’s request to resign, submitted by her counsel. On September 1, 2017, Gray initiated legal action against the NSBS, seeking damages and other remedies. The NSBS filed its Notice of Defence on October 2, 2017. Both parties exchanged affidavits of documents in April 2018. Gray subsequently brought motions to amend her pleadings and add additional parties, including Sheldon Nathanson, Sheldon Nathanson Law Inc., the Nova Scotia Legal Aid Commission, and the Nova Scotia Public Prosecution Service.

On April 23, 2025, Gray filed a motion to compel the NSBS to produce a wide range of documents related to her conduct, fitness to practice, and related matters for the period from September 30, 2013, to September 30, 2014. She also sought to subpoena NSBS witnesses and Justice Jillian Barrington and requested the admission of documents obtained through proceedings at the Nova Scotia Human Rights Commission.

Legal arguments and policy terms at issue

The central legal issue concerned Section 77A of the Legal Profession Act, which prohibits compelling the NSBS, its employees, agents, or committee members to testify or disclose certain documents in legal proceedings. It also prohibits the admissibility of reports generated through NSBS disciplinary processes unless the relevant committee determines that it is in the public interest and authorizes disclosure. The section includes no exceptions for bad faith or alleged procedural unfairness.

The court found that the types of records Gray sought—including emails, texts, and committee communications—fell within the statutory definition of “report” under s. 77A(1)(c) and were therefore protected. The judge noted that Gray did not fall within the statutory exceptions allowing admission, such as consent from the complainant or the member, nor had the NSBS waived the protections.

Gray argued that the NSBS acted in bad faith and had therefore lost the protection of s. 77A, but the court rejected this argument. The judge found no evidence of bad faith, fraud, or procedural unfairness on the part of the NSBS and emphasized that s. 77A does not contain a bad faith exception. The court referenced relevant case law supporting the strict enforcement of statutory immunity provisions in professional regulatory contexts.

Gray also attempted to compel testimony from NSBS witnesses listed on the defendant’s witness list. The court held that listing witnesses does not make them compellable under s. 77A and that the NSBS is not required to call those listed. Furthermore, immunity extends to former employees if the testimony relates to their role within the NSBS.

Regarding documents obtained through the Human Rights Commission, the court noted that it was unclear whether Gray intended to admit such documents and whether they were subject to the implied undertaking rule. The issue was deferred pending identification of the documents.

Gray also sought to subpoena Justice Jillian Barrington concerning a 2014 letter written before Barrington’s judicial appointment, while she was with Sheldon Nathanson Law Inc. However, the court held that the motion to issue a subpoena would be adjourned until the limitation period issue—relevant to Gray’s attempt to add parties and claims—was determined. No evidence was presented to suggest Justice Barrington’s testimony would assist in that determination.

Outcome of the court decisions

Justice Mona Lynch dismissed all of Clara Gray’s motions to compel production of documents and to issue subpoenas for current and former NSBS staff. The court confirmed that s. 77A of the Legal Profession Act applied strictly and that the NSBS had neither waived its protections nor acted in a way that rendered them inapplicable.

The motion to admit evidence obtained from the Nova Scotia Human Rights Commission proceeding was adjourned until Gray could specify which documents she sought to introduce. Similarly, the motion to subpoena Justice Jillian Barrington was adjourned pending resolution of the applicable limitation period for adding new claims and parties.

In conclusion, the court upheld the statutory protections granted to the NSBS and emphasized the need to preserve the confidentiality and integrity of regulatory disciplinary processes.

No monetary award, damages, or costs were granted or ordered in this decision.