Thursday, 13 June 2013

Mind your Metadata, Counsel!

These days, we are all very aware of the importance of metadata. Administrative decision-makers should be too: a failure to be fully aware of the implications of metadata nearly did for the respondent in Demaria v Law Society of Saskatchewan, 2013 SKQB 178.

The applicant challenged, on numerous grounds, the Law Society's refusal to admit him as a member: the initial decision was made by the Admissions & Education Committee and then on appeal by the Benchers.

A couple of these grounds related to the process by which the Committee decision was made. In particular, the applicant had concerns about the involvement of Mr. Huber, the Law Society's in-house counsel. As is common in such matters, Mr. Huber acted as counsel before the decision-makers, not as counsel to the decision-makers. Naturally, this had an effect on what assistance Mr. Huber could legitimately provide to the Committee.

The Committee first sent an electronic Word version of its decision to Mr. Huber. Because the members of the Committee were located in different cities, it was necessary for each of them to print and sign a copy of the decision (or the signature page) and scan and email it back. Schwann J. approved the procedure: it was "not fatal" to the decision (at para. 69), though (in my view) it surely would have been better if the Committee members had circulated the decision and signatures amongst themselves rather than enlisting the help of counsel.

At the very end of this back and forth, Mr. Huber prepared a PDF of the decision with all the signatures affixed. Of course, the result was that "Tim" appeared as the author of the document. (Author information appears in the metadata, which you can access by right-clicking on a document icon and clicking "properties".) Cue consternation on the part of the applicant.

Schwann J. was most uneasy about this but held that counsel's technical authorship of the final decision did not invalidate it:
[74]               Hubers affidavit evidence demonstrates that he exercised a limited administrative or clerical role in directing the correction of formatting errors brought about by use of different versions of word processing software or platforms. Under his direction, these formatting errors were corrected by his assistant and the document subsequently renamed. In this respect, to the extent he was involved, it was merely of a clerical or formatting nature. I am also satisfied the conversion process to .pdf, which resulted in the file path bearing the word Tim, in no way became his document nor is it proof he altered its contents. In the face of these explanations, I am not satisfied a reasonable inference can be drawn that the document was anything other than the product of the A & E Committee.
[75]               All of that said, the aforementioned cases and principles derived from them deal with situations where legal counsel for the tribunal was nominally involved with the final decision. None of these cases deal with a situation involving legal counsel before the tribunal, i.e. for one of the parties.

[76]               At a minimum, the process engaged upon by the committee, (i.e. Mr. Patterson sending the decision directly to Huber prior to obtaining signatures from the other two members,  Huber subsequently directing the re-formatting and his conversion to a .pdf version), all raise legitimate concerns about the integrity of the process itself. However, given the explanation provided, I find the A & E Decision was not rendered a nullity by the corrective, re-formatting undertaken by the Law Society. In any event, having regard to the whole of the facts, and in particular the fact DeMaria availed himself of the review process before the Benchers in relation to the A & E Decision, I am satisfied any deficiency was cured by the subsequent review proceedings and there was no manifest unfairness to the DeMarias rights.
So, mind your metadata, counsel!

The application was dismissed on all grounds.

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