Ellen B. Murray

The Law Society appealed a decision of its Appeal Panel, which had set aside a Hearing Panel's finding that the respondent lawyer committed professional misconduct through sexual harassment.

The Appeal Panel had ordered a new hearing, finding the Hearing Panel erred by failing to strictly apply the credibility assessment test from R. v. W. (D.).

The Divisional Court allowed the appeal in part, holding that strict application of W. (D.) is not required in administrative disciplinary proceedings provided the correct civil standard of proof is applied.

The court restored the finding of professional misconduct but upheld the Appeal Panel's conclusion that the penalty of disbarment was unreasonable, substituting a 12-month suspension.

The respondent leased a BMW and installed extensive aftermarket modifications.

The airbags deployed without a collision, and BMW refused warranty coverage, citing the modifications.

The trial judge found BMW liable for breach of warranty, concluding the exclusion clause was ambiguous.

On appeal, the Divisional Court allowed the appeal and dismissed the action.

The majority held that the trial judge erred in failing to require the respondent to prove the defect was not caused by the modifications, and found the exclusion clause unambiguously excluded coverage for modifications that may result in damage to original components.

The applicant police officer sought judicial review of a decision refusing to quash a notice of hearing regarding a misconduct complaint.

The applicant argued that because the chief of police's delegate initially found the complaint unsubstantiated, he was functus officio and could not subsequently issue a notice of hearing.

The Divisional Court dismissed the application, holding that the initial decision was an investigative, administrative screening function, not a final adjudicative decision, and therefore the doctrine of functus officio did not apply.