Honan v. The Bar of Montreal

the judgment of the Superior Court, sitting in review, at Montreal and maintaining the judgment of the Superior Court, District of Montreal, which quashed a writ of prohibition sued out by the appellant with costs.

A statement of the case will be found in His Lordship Mr. Justice Girouard.

McDougall Q.C. for the appellant. The appellant complains of the sentence of the Council of the Bar:- (1) Because the letter of complaint does not allege any offence that might give the Council of the Bar of Montreal jurisdiction; (2) because no act is alleged which constitutes an offence at law, or under the rules of the Bar of the Province of Quebec; (3) because the Council of the Bar of Montreal could not take action nor give a decision upon that complaint, and appellant was never summoned nor required to answer the charges; (4) because the decision is arbitrary and unjust and contrary to law and to the by-law of the (1) Q. R. Q. B. 26.

Bar of the Province of Quebec; (5) because the decision does not allege any offence that could authorise such sentence ; (6) because the complaint is entirely false and had been withdrawn by the complainant; (7) because the decision was ultra vires of the powers of the council, and no notes of evidence were taken or transmitted to the General Council ; because there is no rule by the General Council of the Bar of the

Province of Quebec which classes the acts with which the appellant is reproached in the complaint, as being derogatory to professional honour and dignity; and because the complainant had been given credit for the moneys in question upon his account due for professional services for a much larger amount before the complaint was made.

Prohibition is the appropriate remedy to stay the execution of the sentence; O'Farrell v. Brassard (1) ;

or for redress of the wrong sustained; Roberts v.

Humby (2); Lloyd on Prohibition, pp. 11, 12 & 13;

art. 2329 S. Q. Prohibition lies to restrain all courts, whether or not courts of record, from proceeding in matters over which they have no jurisdiction; or having jurisdiction, when the court has attempted to proceed by rules differing from those which ought to be observed; The Queen v. .Tudicial Committee of

Privy Council (3).

Ex parte Burke (4) establishes that for an error not apparent on 'the face of the proceedings and without objection as to the jurisdiction, recourse may be had to prohibition for setting aside a judgment of an inferior court.

See also Mayor of London v. Cox (5)

at page 241 and cases there cited. The appellant had a right to a regular summons before the tribunal which was to pass judgment on the pretended complaint. The complaint was not made on oath and appellant t"

did not receive a copy.

We also refer to arts. 450 and 1031 0. C. P. (1) which apply to this case; art. 3523 R. S. Q. and 58 Vict. ch. 36, sec. (Que.)

The council had full jurisdiction under art. 3527 R. S. Q., and consequently prohibition cannot lie; Molson v. Lambe (2); Wood on Prohibition. pp. 141, 147; Shortt on Informations, 771; Spelling on Extraordinary Relief, par. 1760. A writ of prohibition can only issue for excess of jurisdiction; Re Beaudry ; LalibertI v. Fortin (4). Since the repeal of arts. 3569-3596, R. Q., regulating proceedings before the council there is no necessity for taking notes in writing of the evidence in such cases, nor to take that evidence upon oath. The new regulations do not even give power to administer an oath in such proceedings.

The third section of the repealing Act details the new procedure and permits the exercise of wide discretion as to the verification of such charges.

The provision for an appeal cannot be construed as requiring either the administration of an oath or written notes of evidence. The state of the statutes leaves this case under the application of the maxim omnia praesumuntur, etc.

By the new statute the council has become a domestic tribunal in disciplinary matters and requires no precise form of information or complaint, and may exercise discretion both as to inquiry and sentence to the exclusion of all courts, subject only to the appeal of the General Council of the Bar. Art. 3537, R. S. Q. The by-law in respect to offences against professional honour and dignity clearly covers the present case.

At most, the manner of procedure can constitute nothing more than an irregularity '^q which affords no ground for prohibition. The appel- '. lant did not take these objections before the council but acquiesced in the procedure and continued to acknowledge both the jurisdiction and procedure of the domestic forum in following up his remedy by appeal to the General Council.

The discontinuance by the private prosecutor cannot affect the validity of the sentence. The disciplinary power in the council remained intact and could not be removed by a settlement between the parties. Comparing the arr~t on a similar point referred to by Mellot, R~gles de la Profession d'Avocat, no. 499, p. 279. We also refer to the O'Farrell Case (1); Duval v. HIbert (2); Bergevin v. Rouleau (3); Simard v. Corporation Montmorency (4) ; Mayor of Sorel v. Armstrong J.-The Bar of the Province of Quebec constitutes a general corporation having jurisdiction over the whole province and is divided into districts or sections which are local corporations.

Thus, the Bar of Montreal forms a section and a separate corporation subject in certain cases to the higher jurisdiction or control of the council of the general corporation, called the.General Council of the Bar of the Province of Quebec.

Both the general corporation and the cor. porations of sections may pass by-laws for matters of general interest to their respective bodies and to the members thereof, but the by-laws of a section must not conflict with those of the general council. The general corporation has power to make by-laws and also

HoMN for defining and enumerating the professions, trades, occupations, THE advocate as well as the offices or charges incompatible with tthe practice of the profession.

Girouard J.

The statute then indicates how the delinquents are to be dealt with. The Revised Statutes of Quebec (Art. 3527), says:

Each council of a section has power

rhe council of such section may also, according to the gravity of the offence, punish such member by suspending him from his functions for any period whatsoever, in the discretion of the said council, and may deprive him forever of the right of practising his profession. In default of a by-law of the general council applicable to a particular case, the council of the section decides definitely to the exclusion of all courts, subject only to appeal to the general council, whether the act complained of is derogatory to the honour or dignity of the bar, or against the discipline of the members, if the position or office is incompatible with the practice of the profession of advocate, and the calling, trade or industry, business or office is inconsistent with the dignity of the profession.

The Quebec Statute, 58 Vict. ch. 16 (1895), says: 3. Article 3527 of the said statutes is amended :

This constitution of the Bar of Quebec will be found in the revised statutes of the province, art. 3504 and following, except the last two paragraphs which were enacted in 1895 by 58 Vict. ch. 36.

The mode of procedure to be followed in the trial of the accused was thus materially changed.

Under sections 3569 and 3596 R. Q. the complaint had to be made under oath, the witnesses sworn (art. 3577), proof taken down in writing (art. 3575), and on appeal the record was transmitted, etc., (art. 3586).

All these rules are repealed by 58 Vict. ch. 36. s. 11, and replaced by the section quoted above, which simply provides that the councils may have recourse to all means they deem expedient to ascertain the facts to verified. The appeal to the general council is instituted by a mere letter addressed to the secretary-treasurer of such council containing a copy of the decision, and thereupon it is decided summarily.

58 Vict. ch. 36, s. 3.

It is apparent that the Legislature has armed the councils of the Bar of Quebec with discretionary powers which may inflict serious, if not irreparable, injury upon its members and also to the public.

Carr6,

Lois de la Proc6dure (3rd ed.), Int. n. 10, says that

The present case is an illustration of this result. The councils of the bar are bound by no rules of procedure, except "to allow the accused to defend himself."

He must therefore be summoned to appear and be allowed to defend himself, but how ? And what rules will protect his defence ? The statute has left all that to the discretion of the tribunal. It is not even necessary that there should be a private information.

The initiative may be taken by the council or by a member '^,, thereof called the Syndic.

Clause of Vict. ch. says:

Grourd The appellant, who is an old practising advocate the Bar of Montreal, complains of a decision of its council which suspended him during three months, and by writ of prohibition demands that the Bar be prohibited from executing the sentence for, in substance, three reasons, first, because the private complaint does not allege any offence in law or under the by-laws of the Bar that might give jurisdiction to the council of the Bar of Montreal ; secondly, because the council did not take any note in writing of the evidence adduced, so as to permit the appellant to have its decision revised and reversed; and thirdly, because the private prosecutor, Labb6, had withdrawn his charge against the appellant.

The two last reasons are unfounded. Notwithstanding the disistement, the Bar could proceed with the inquiry in the interest of the profession.

All the courts were against the appellant upon this point. The appellant adduced evidence before the local council, but did not request that it should be taken in writing, and it was not so taken. The local council perhaps inferred from his course that he never intended to appeal upon the sufficiency of the evidence, but (if an appeal was contemplated at all), only upon the sufficiency of the charge.

In appeal, he found himself without any proof, and although he offered to summon again his witnesses, his appeal was dismissed The local council should not have taken for granted that the appeal would be limited, and the moment Girouard that the sentence pronounced opened the door of the general council they should have seen that it was susceptible of revision. This was undoubtedly a great hardship to the appellant, but it constituted a mere irregularity or illegality in the proceedings which cannot justify the issue of a writ of prohibition.

Even theirejection or refusal of legal evidence will not affect the jurisdiction of the tribunal. Ex parte Higgins (1); Am. & Eng. Ancy. of Pleading, vo. Prohibition (2 ed.) pp. 1108, 1125, 1126, 1127; see also Molson v. Lambe ; The Governor and Company of Adventurers of England v. Joannette ; Mackonochie v. Lord Penzance per Lord Blackburn; Reid v. Graham (5).

The only question in the case is really that of jurisdiction. The Code of Procedure lays down this principle (art. 1031), which is taken from the English common law :

See also R. Q. art. 2329.

Has the council of the Bar of Montreal exceeded its jurisdiction?

Jurisdiction is claimed both under the statute and the by-laws.

We have quoted the statutes in full; we will now see what the by-laws provide for. The by-laws of the general council, passed on the

16th September, 1886, sec. II, art. say:

and art. 7 :

The following actions, among others. are derogatory to the bonour THE BAR OFand dignity of the profession, viz.: par. 6.

Any breach of trust (abus conjiance) by an advocate to the detriment of client * * ar par.

To unduly withhold the monies, documents and papers of Girouard clients.

The complaint made against the appellant reads as follows:

Ecr.,

Syndic du Barreau de Montria].

MONSIEUR,-R~firant h la plainte qui vous a t faite contre Honan, avocat, je prends la libert4 de vous exposer les faits: Dans le mois de dicembre dernier, une saisie avant jugement a 6mande par Honan contre Baldwin Bros., courtiers de New York, pour la somme d'environ neuf cents piastres, argent qui 6tait soci6td.

La dite soci~t6 6tait Madame Anabella Stein, 6pouse de Honan, et, du soussigu6, mais au fond c'tait Honan qui dtait associ.

apparatt que le juge Mathieu a ddbout6 l'action le 27 on f6vrier dernier.

Etant domicilid & New York b cette date j'ai regu un message de la part de Honan ainsi congu:

Judge Mathieu has quashed the seizure re Baldwin, send immediately sixty dollars to inscribe case in review, "sure to win;" Auquel message j'ai fait r6ponse que je ne voulais pas envoyer ce montant. II a taut insist6 en envoyant d'autres messages, que je lui ai envoy6 les soixante dollars par un chbque que vous avez en votre possession.

A mon retour ici, j'ai demand6 h M. Honan oii il en 4tait dans 'affaire Baldwin, il m'a fait rdponse que la cause etait inscrite pour It huit-avril.

Aprbs lui avoir demand6 plusieurs fois il m'a fait r~ponse comme auparavant, que la cause 6tait encore remise A une autre date.

avait, dans ce temps-14, rigl6 la cause avec les avocats de la partie adverse, et s'est fait payer ses frais par eux, et plus gardant lea soixante dollars que je lui avais remis pour inscrire la cause en rdvision.

II 4tait entendu qu'il n'y aurait aucun frais en fait de la saisie et que ces $60 devaient 6tre appliquies pour l'inscription en Cour de R6vision seulement laquelle inscription n'a jamais dffaite.

Je considkre que cet argent doit m'Otre remis et je demande justice.

Votre obt. serviteur,

N. E. LABB.

THE BAR OF On the 26th June, 1895, the Council of the Bar of Montreal, after having heard the parties and their Girouard J. witnesses but without taking any note of the evi- dence, rendered the following decision:

In re v.

Les parties comparaissent devant le conseil et plaident leur cause.

Le conseil ayant mrement ddlibdr6 trouve la plainte fondde, ddclare le d4fendeur coupable de conduite d4rogatoire D 1'honneur professionel et A la dignit4 du Barreau pour avoir indifment obtenu du plaignant une somme d'argent qu'il retient encore injustement en sa possession, et condamne le dit Martin Honan A la suspension pendant trois mois.

L. E. BERNARD,

Montral, 9 juin, 1886.

Secrdtaire du Barreau.

The appellant appealed to the General Council, but on the 29th October, 1895, his appeal was summarily dismissed, there being no evidence before the appellate tribunal, which moreover refused to hear the witnesses de novo or send the case back to the local council for the purpose of obtaining written evidence, and of allowing the appellant to defend himself. The judgment in appeal reads as follows:

It is decided by the General Council of the Bar that Martin Honan,

Esquire, a member of the Bar of the Section of Montreal, who has appealed to this Council from a decision of the Council of his section of the twenty-sixth of June last, suspending him from his functions as an advocate for a period of three months, having failed to show any good or sufficient reason why the said decision should be set aside, his appeal therefrom be rejected.

Quebec, February 26th, 1896.

W. C. LANGUEDOC,

Sec.-Treas. Gen. C.B.P.Q.

Thereupon, the appellant applied for a writ of prohibition to prevent the local council from carrying the sentence into execution.

The Superior Court (J. Alp. Ouimet J.) quashed the writ of prohibition.

The Court of Review (Taschereau, Gill and Mathieu JJ.) reversed this judgment, which was, however, restored by the Court of Appeal Girouard J. (3 to 2), Boss6, Blanchet and Hall JJ.; contra Wftrtele and Ouimet JJ.:

Considdrant que le Bref de Prohibition ne pent tre adress6 & un tribunal inf6rieur que lorsqu'il agit sans juridiction on 1'exchde an cours de ses proc~dures et que Pon ne peut y recourir uniquement pour faire r6former ses d6cisions quelqu'erron6es qu'elles soient; Consid6rant que les faits contenus dans la plainte soumise an Conseil du Barreau de Montr6al, savoir : que lintim6 aurait obtenu une somme de soixante piastres pour inscrire en r6vision un jugement renvoyant une saisie-arrit que Pintimd avait fait dmaner, comme procureur du plaignant, tandis qu'il avait alors lui-mAme r6gl 1'affaire avec les avocats de la partie adverse qui lui avait aussi pay ses frais, constitue, primd facie, une faute grave, un abus de conflance regrettable et par cons6quent un acte d~rogatoire h Phonneur professionel et A la dignit6 du Barreau, et que m6me en admettant que 1intim aurait eu un int6rAt dans la proc6dure en question comme associ6 du plaignant, sons le nom de son 6pouse, et avait en outre une r4clamation de deux cents piastres h exercer contre le plaignant pour honoraires et d6bours6s, ces faits ne pouvaient soustraire Pacte reproch6 h Pintim6 an contr8le disciplinaire du conseil de la section & laquelle il appartient d'empicber cette derniure de proc6der sur la plainte qui lui 6tait soumise, la loi lui donne juridiction sur tons les actes professionnels de ses membres sans exception et sans distinction; Consid6rant que le Conseil du Barreau de Montrial avait partant juridiction pour entendre et d6cider cette plainte, et que les all6gu6s qu'il aurait adjug6 saus preuve on contrairement aux faits, et n'aurait pas pris Ienquite par Acrit on par notes (arts. 236, 243,264, 266 C. P.C.) sont insuffisants pour donner ouverture an Bref de Prohibition; Con'sid6rant que le Conseil du Barreau de Montrial n'a pas non plus exc6dd sa juridiction;

Cette Cour maintient Pappel, casse et annule le jugement rendu par la Cour de R6vision I Montr6al le trente et unibme jour de mars mil buit cent quatre-vingt dix huit, et confirme celui rendu le seizibme jour d'octobre mil buit cent quatre vingt seize par la Cour Sup6rieure renvoyant le dit Bref de Prohibition.

Mais consid6rant que Pacte 58 V. ch. 36 a conserv6 1'appel de la d6cision d'an conseil de section an Conseil Gndral de la Province et <16crte que les accus6s devront avoir une d6fense entibre et complbte; We entirely agree with the Court of Appeal that GirouardJ. the Council of the Bar had jurisdiction over the subject matter disclosed in the complaint, not only for the reasons mentioned by the learned judges, but also because the appellant was charged with carrying on trade and commerce.

This court is not sitting in appeal from the decision of the Council of the Bar or even on a writ of certiorari, but on a writ of prohibition, and, theretore, we have no power to look into the evidence adduced on the merits, much less to appreciate the same, however favourable it might be to the appellant.

Members of a corporation who submit to extraordinary powers like these enjoyed by the Bar of the Province of Quebec " to the exclusion of all courts," have no reason to expect relief from courts of justice, except when there is absence or excess of jurisdiction. The appeal is therefore dismissed, but without costs, as was done by the Court of Appeal.

We would go even further. The wrong inflicted by the Bar Montreal upon the appellant-in not allowing him to effectively prosecute his appeal-is so serious, so grave in its consequences, that it should be a sufficient reason for the Bar not to carry out the sentence pronounced and we hope that the Bar of Montreal will be satisfied with this recognition of its supreme authority. Appeal dismissed without costs.