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Argument.

The

This disciplinary jurisdiction was first given by 39 Vic. ch.
31 (0.), and the power was extended by 44 Vic. ch. 17 (0.),
but there was no power to take evidence on oath.
words now in question were put in by the commissioners
in revising the statutes in 1887, and the statutes as revised
were validated by the Act bringing them into force. Con-
ferring the power to take evidence on oath does not create
the obligation to do so. It might be not unreasonably
contended that it would be obligatory to do so where a new
Court is being constituted and powers conferred upon it,
but here there is simply an added power to a Court con-
stituted years before, and this added power cannot be
considered as taking away the power formerly enjoyed of
taking the evidence without oath: Whelan v. The Queen,
28 U. C. R., at p. 117. Even if it were primâ facie
obligatory to take evidence under oath it is too late now to
raise the question as the plaintiff without objection cross-
examined the unsworn witnesses and gave his own evi-
dence without any oath being administered: Birch v.
Somerville, 2 Ir. C. L. R. 243; Rickards v. Hough, 30 W. R.
676; Allen v. Francis, 4 D. & L. 607; Ridoat v. Pye, 1 B. &
P. 91; Biggs v. Handsell, 16 C. B. 562; Lawrence v. Hough-
ton, 5 Johns. 129; Turner v. Pearte, 1 T. R. 717. The
proceedings now in question are not of a criminal or quasi
criminal nature, but are purely civil and there can be and
has been waiver: Osgood v. Nelson, L. R. 5 H. L. at p. 652;
In re Hardwick, 12 Q. B. D. 148. Here the admissions
of the plaintiff were quite sufficient to justify the decision
of Convocation.

Then in this case there is no right of action at all. Where a domestic forum is provided the Courts have no jurisdiction unless there is mala fides or entire want of jurisdiction. In this Province the Judges now and always have been visitors of the Law Society, and in all matters of discipline an appeal lies to them from the decision of the Benchers, and this appeal not having been taken the plaintiff cannot bring an action. It is true that the Benchers have been given the powers of visitors, but that

does not take away the powers previously held by the Argument. Judges as visitors, or if it does then the Benchers as visitors have passed upon this matter, and their decision cannot now be interfered with: Essery v. Court Pride, 2 O. R. 596; Manisty v. Kenealy, 24 W. R. 918; Dawkins v. Antrobus, 17 Ch. D. 615; Queen v. Dean of Chester, 15 Q. B. at pp. 520, 521; Philips v. Bury, 2 T. R. at pp. 353, 354; King v. Bishop of Worcester, 4 M. & S. 416; King v. All Souls' College, Skin. 12; Attorney-General v. Archbishop of York, 2 Russ. & M. 461.

C. J. Holman, for the respondent. Special power is given by statute to Convocation to delegate enquiries and matters of this kind to a committee. That must mean the committee as a whole, and all the members must be present. The committee was acting not ministerially merely but judicially, and a rule of the Law Society making three members of the committee a quorum could have no legal effect. While the treasurer was absent from Canada, the committee could not be properly constituted. At any rate notice should have been sent to him: Fisher v. Keane, 11 Ch. D. 353; Regina v. Bailiffs of Ipswich, 2 Ld. Rayd. 1232.

Then no proper notice was given to the members of the committee of the nature of the business that was to be brought before them. For all that appears in the notice the question involved might have been a trifling one of irregularity in a student's articles, and if the grave nature of the complaint had been set out, it is quite possible that more members of the committee would have attended, and that the result might have been very different: Marsh v. Huron College, 27 Gr. 605; Labouchere v. Wharncliffe, 13 Ch. D. 346; Fisher v. Keane, 11 Ch. D. 353; Rex v. Faversham, 8 T. R. 352; Dean v. Bennett, L. R. 9 Eq. 625.

There was no power to take evidence except under oath. The power to examine means the power to take legal testimony, that is, on oath; Dwarris on Statutes, p. 672; Burn's Justice, vol. III., p. 1075; Regina v. Lewis, 1 D. & L. 822 ; Paley on Convictions, 6th ed., pp. 120, 121; Maxwell, In

Argument.

terpretation of Statutes, 2nd ed., p. 294; Regina v. The Justices of Buckinghamshire, 14 L. J. M. C. 45; Regina v. Bishop of Oxford, 4 Q. B. D. at pp. 259, 260; 5 App. Cas. at p. 222. It is different if the power is altogether a voluntary power, but if the thing must be done, and it is then said that it may be done in a certain way, then it must be done in that way: Smith v. Goff, 3 D. & L. 47; Aitcheson v. Mann, 9 P. R. 253, 473; Rex v. Barlow, 2 Salk. 609; Croke v. Powell, 2 E. & B. 210; Bell v. Crane, L. R. 8 Q. B. 481; In re Neath and Brecon R. W. Co., L. R. 9 Ch. 263; Taylor v. Taylor, 1 Ch. D. 426; Regina v. Tithe Commissioners, 14 Q. B. 459; Dwarris on Statutes, p. 604.

The plaintiff did not object to the witnesses being examined without being sworn, because he was not aware of the provision, and he is not deprived of his right to now object: Labouchere v. Wharncliffe, 13 Ch. D. 346; Marsh v. Huron College, 27 Gr. 605; Serjeant v. Dale, 2 Q. B. D at p. 568; In re Rushbrook and Starr, 46 U. C. R. 73.

The plaintiff was not given any proper opportunity of showing cause, and there was not a fair trial. It was not proper to have a report made against the plaintiff by the committee, and then to have this report submitted to Convocation for their approval so as to resolve the question into one as between the committee and the accused, the tendency naturally being to support the committee. Convocation should have themselves passed an independent judgment in the matter: Labouchere v. Wharncliffe, 13 Ch. D. 346; Cannon v. The Toronto Corn Exchange, 27 Gr. 23; City of Exeter v. Glide, 4 Mod. at p. 37.

No admissions were made by the plaintiff upon which action could have been taken, and in fact these admissions were not relied on, but Convocation assumed to proceed upon the evidence of witnesses, and this evidence did not prove the charge.

The powers of the Judges as visitors have been vested in the Benchers, and no such thing as visitors of the Law Society now exist: R. S. O., 1887, ch. 145, sec. 47, and clearly the Court has the right to interfere: Rex v. Liver

pool, 4 Burr. 2244; Rex v. Cambridge, 8 Mod. 148; Re Argument.
Simmons and Dalton, 12 O. R. 505; Helley v. Bates, 13
Ch. D. 498; In re Stewart, L. R. 2 P. C. 88; Combe v.
De La Bere, 22 Ch. D. 316.

A. H. Marsh, in reply.

January 14th, 1890. HAGARTY, C. J. O. :—

It is very much to be regretted that the proceedings before the Law Society should have resulted in furnishing grounds for the objections which have given rise to much difference of opinion among the Judges.

There is no reason whatever for questioning the good faith of all the proceedings taken, or to suggest that any other than a just result has been arrived at in the painful exercise of the Society's right to enquire into the conduct of, and remove, if necessary, any unworthy member from the honourable profession of which it is the guardian.

I only propose to notice two objections out of those urged against the action of the Society.

The first is, that the witnesses were not examined on oath. By 34 Vic. ch. 15, sec. 27, it was declared that on the hearing of any election petition, the Benchers should have power to examine witnesses under oath; and also to compel the attendance of witnesses by subpoena. This is repeated in the R. S. O. 1877, ch. 138.

By 44 Vict. ch. 17, the jurisdiction exercised in this case was created.

Section 1. Whenever a barrister or attorney has been, or may be found by the Benchers, " After due enquiry by a committee of their members or otherwise," guilty of professional misconduct, &c., it shall be lawful for the Benchers in Convocation to disbar any such barrister, &c., and to resolve that any such attorney, &c., is unworthy to practise, &c. No provision whatever is made in this Act either as to taking evidence or compelling attendance of witnesses.

So the law remained until the R. S. O. 1887, ch. 145. In

HAGARTY
C.J.O.

Judgment. it the previous Acts are consolidated, and section 36 provides: "On the hearing of any election petition or upon any enquiry by a committee the Benchers or committee shall have power to examine witnesses under oath, and a summons under the hand, &c., for the attendance of a witness shall have all the force of a subpoena, &c."

This enactment came into force on the 31st of December, 1887, by proclamation.

The petition to the defendants complaining of the plaintiff's professional conduct appears to have been presented some time in May, 1888.

It was said, but it does not clearly appear, that none of the parties to the enquiry were aware of the new powers given for examination of witnesses.

This seems very singular as, previously, no statutable directions whatever existed as to how evidence could or should be taken, or any witness compelled to attend.

The question now arises whether the Legislature when it gives for the first time the power to enforce the attendance of witnesses, and in the same breath or sentence declares that it shall be lawful to examine them on oath, does not in effect prescribe that course of examination to be adopted.

Leaving it optional of course places it in the power of the tribunal to adopt or reject it as it pleases.

Blackburn, J., says in Bell v. Crane, L. R. 8 Q. B. at p. 482: "There is no doubt that 'may' in some instances, especially where the enactinent relates to the exercise of judicial functions, has been construed to give a power to do the act, leaving no discretion as to the exercise of the power when the facts are such as to call for it."

In Taylor v. Taylor, 1 Ch. D. at p. 431, Sir Geo. Jessel says: "It appears to me that the 16th section, though in form merely enabling, is in fact the only enabling part which entitles the Court to set the Act in motion. When a statutory power is conferred for the first time upon a Court, and the mode of exercising it is pointed out it means that no other mode is to be adopted."

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