Executive Summary: Key Legal and Evidentiary Issues

• Ms. Wang's complaint against her former lawyer was summarily dismissed due to a five-year delay in filing, exceeding the three-year threshold under Law Society rules.

• The Law Society's Appeal Panel upheld the dismissal, finding no exceptional circumstances to explain the significant delay.

• A chambers justice struck Ms. Wang's originating application for judicial review, ruling she lacked standing as a complainant in professional disciplinary proceedings.

• Established case law confirms that complainants are not parties to regulatory proceedings and cannot challenge the merits of a regulator's decision.

• No clear allegations of procedural unfairness were raised by Ms. Wang in her originating application or submissions, with her arguments focusing on the merits of the decision.

• The Court of Appeal dismissed the appeal with no costs payable to either party.

The underlying complaint and its dismissal

In 2016, Xiaoli Lily Wang retained a lawyer to assist her in appealing a costs order against her. That appeal did not proceed and was deemed abandoned. Over five years later, in 2022, Ms. Wang made a complaint about the lawyer to the Law Society of Alberta. The Law Society's Executive Director summarily dismissed the complaint pursuant to section 53(4)(a) of the Legal Profession Act, RSA 2000, c L-8. Under rule 85(6)(f) of The Rules of the Law Society of Alberta, the Executive Director may summarily dismiss a complaint where there has been a significant delay in bringing forth the complaint. The decision noted the delay of approximately five years from the events outlined in the complaint to when the complaint was made and stated that complaints delayed more than three years will not engage the regulatory process without exceptional circumstances.

The appeal to the Law Society's Appeal Panel

Ms. Wang appealed the dismissal of her complaint to the Appeal Panel of the Law Society, which agreed there had been significant delay in bringing the complaint, and that there were no exceptional circumstances to explain the delay. The Appeal Panel upheld the Executive Director's decision and dismissed the complaint pursuant to section 54(2)(a) of the Legal Profession Act.

The application for judicial review and the standing issue

Ms. Wang then filed an originating application for judicial review in the Court of King's Bench seeking to quash the Appeal Panel decision. The Law Society filed an application to strike the originating application for failure to disclose a reasonable cause of action. The chambers justice, Justice D. Jugnauth, held that, as the complainant in professional disciplinary proceedings, Ms. Wang did not have standing to seek judicial review of the Appeal Panel decision. The originating application was struck on November 22, 2024.

The law on complainant standing in regulatory proceedings

The Court of Appeal, in its analysis delivered by Justice de Wit for the Court, cited the legal principle that a complainant in professional regulatory proceedings is not a party to those proceedings, unless made one by the governing legislation, referencing Mitten v College of Alberta Psychologists, 2010 ABCA 159 and Makis v College of Physicians and Surgeons of Alberta (Complaint Review Committee), 2019 ABCA 341. The Court noted that a complainant does not seek a personal remedy through professional discipline and that it is the role of the regulator, and not the complainant, to ensure that professional standards are met, citing Tran v College of Physicians and Surgeons of Alberta, 2017 ABQB 337. As a non-party, a complainant has no standing to seek judicial review of the merits of the regulator's decision, including a decision not to proceed with disciplinary action. The Court further noted that while Ms. Wang relied on Warman v Law Society of Alberta, 2015 ABCA 368, that case refers to standing for procedural issues and it is not authority that a complainant to the Law Society has standing in every case, and the facts in Warman are much different than the facts in this case. A complainant who has a statutory right to appeal a decision dismissing a complaint has a limited right to seek judicial review of the fairness of the appeal process. The duty of fairness owed is at the low end of the spectrum and judicial review will be granted only if the appeal process was conducted in a fundamentally unfair manner.

Absence of procedural unfairness claims

The Court observed that Ms. Wang's originating application states as its basis that the Appeal Panel exercised its discretion in an unreasonable way. She raised no clear allegations of procedural unfairness in either her originating application or her submissions before the chambers justice. Her argument focused on the merits of the decision to dismiss her complaint, not on the process. The Court also noted that a review of the record did not indicate the existence of any procedural unfairness.

The ruling and outcome

The Court of Appeal concluded that the chambers justice correctly referred to case law suggesting that Ms. Wang has no standing to bring her originating application for judicial review on the merits of the Appeal Panel's decision, and it was within his discretion to strike the application. Accordingly, the appeal was dismissed in favour of the Law Society of Alberta. Rule 9.4(2)(c) was invoked, and the Court determined that no costs will be payable in this matter to either party. No specific monetary award was granted or ordered in this decision.