Sheddy v. Law Society of British Columbia., 2007 BCCA 96, has the Court of Appeal overturning a finding of incompetence on the part of a lawyer. The conduct in issue concerned the drafting of an affidavit and the attachment of an exhibit to the affidavit and the method of swearing the affidavit without all the exhibits.

The notice of review in this matter did not have an allegation of incompetence and instead dealt with the matter of professional conduct. Despite this a finding of incompetence was made. The Court of Appeal held:

[11] The Notice of Review in this case did not include an allegation of incompetence. That issue was never before the Review Panel for consideration. It was fundamentally unfair to make a finding of incompetence on a review when that issue was not included in the notice of review. The only issue before the Discipline Panel was professional misconduct, and it was an error for the Review Panel to substitute a decision that the Discipline Panel could not have made.

The Court of Appeal also reviewed the matter of the incompetence finding on the following terms:

[17] The Review Panel made findings of fact based on its own experience. Their view of accepted practice may or may not be sound. But the practice or convention, if such there is, was not in issue before the panel, and Mr. Sheddy had no opportunity to challenge the views held by the panel members, or adduce evidence to the contrary. There is no suggestion that the practice suggested is so notorious that the Review Panel could take “judicial notice” of it, if indeed an administrative tribunal can take “judicial notice” of facts.

[18] It is not necessary to decide on this appeal what sort of evidence if any must be adduced to establish an allegation of incompetence in a citation against a member of the Law Society. In this case there is an absence of evidence which could reasonably support a finding of incompetence. There is no rule, either in the Law Society’s Rules, or in the Supreme Court Rules governing the facts that gave rise to this citation. To make a finding of fact on no evidence in the absence of a clear rule is an error of law. In my opinion this ground of appeal should also succeed.

Finally the Court had this to say:

[19] These errors lead, in my opinion, to the conclusion that the appeal should also succeed on the third ground, namely a breach of the rules of natural justice. The Review Panel decided the citation on an issue that was not before it, and without any evidence to support it, other than the opinion of the panel members. This case does not conform to minimum requirements of natural justice:See: D.J. Mullen, “Administrative Law”, ch. 13 and Brown & Evans, “Judicial Review of Administrative Action in Canada” (Toronto, 2005)