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Mandatory lawyer development headlines top court’s fall docket

Thursday, October 13, 2016 @ 8:00 PM | By Cristin Schmitz

In a fall session packed with cutting edge Charter cases, the Supreme Court will also consider the provocative question of whether law societies — absent express statutory authority — can suspend lawyers who don’t take mandatory continuing professional development (CPD) programs.

The 28 appeals the judges are hearing from Oct. 5 to Dec. 9 run the gamut of legal issues, including whether: Denying interim release to Dennis Oland, who is jailed for his father’s murder, pending Oland’s conviction appeal, was wrong (Oct. 31); Facebook’s online contractual forum selection clause, which purports to restrict consumers to taking action only in California, effectively defeats the B.C. Supreme Court’s exclusive jurisdiction to enforce that province’s privacy law (Nov. 4);

Settlement discussions, or consultations, B.C. had with its teachers’ union prior to passing a law similar to one previously struck down for breaching the teachers’ right to collective bargaining satisfied the test for meaningful collective bargaining under s. 2(d) of the Charter (Nov. 10); and Canadian courts can enjoin Google worldwide from displaying a website that a third party complains is illegally selling goods based on the third party’s trade secrets and trademarks (Dec. 6).

The Google appeal asks the court to resolve a clash of two points of law and policy relating to the powers of the courts, said Robert Currie, a law professor with the Schulich School of Law at Dalhousie University. “On the one hand, failing to uphold the B.C. Supreme Court order [below] would mean that a litigant having their intellectual property infringed would be left without a remedy, even though the court has jurisdiction over the dispute and over Google, and that can’t be right,” Currie explained by e-mail. “But on the other hand, upholding the order means that jurisdiction to enforce a Canadian court order is being extended beyond Canadian territory into other countries, without the permission of those countries, and that can’t be right either. It will be fascinating to see how the Supreme Court resolves this situation, particularly because it will have implications for criminal law enforcement and freedom of speech, as well.”

One appeal with particular resonance for Canadian lawyers is Sidney Green v. Law Society of Manitoba, to be heard by the top court Nov. 9. Green, an ex-provincial politician and life bencher of the Law Society of Manitoba, who has practised for 61 years with a clean discipline record, insists the 12 hours of CPD the regulator has mandated for lawyers since 2012 are useless to his practice and do not protect the public.

Green unsuccessfully sought a declaration from the Manitoba courts below that the regulator has no jurisdiction to administratively suspend him for failing to take CPD in 2013, because the law society’s enabling legislation authorizes suspension in only four instances — none of which encompass a lawyer’s failure to take CPD. Green also argues that automatically suspending his licence to practise (i.e. without a hearing or appeal) offends the rules of natural justice.

“There’s nothing in the act about a suspension for failure to take CPD and that’s the issue,” says Charles Huband, the 84-year-old litigator, and former Manitoba Court of Appeal judge, who is representing Green, 87, at the top court.

Green’s challenge is not a full frontal legal attack on the merits of mandatory CPD, but neither he nor Huband of Winnipeg’s Taylor McCaffrey LLP believes that the time and expense for mandatory CPD is justified. “His evidence is: ‘I have given lectures in continuing education. I will attend if there is something of interest to me, or that would be of assistance to me in the practice,’ ” Huband told The Lawyers Weekly. “And I think that resonates with a lot of lawyers who are going to these lectures just to fill in the required time…They do it because they’re facing suspension if they don’t, but Mr. Green said, ‘No I’m not going to do it. I’d rather attack the law society rules on the basis that they’re invalid because they don’t have statutory backing for them.’ ”

The law societies’ argument that mandatory CPD protects the public is a “pretence,” Huband said. “They’re cutting it out in England [for solicitors]…because it’s had no [effect] at all to protection of the public. It’s a joke to suggest that going to these lectures is protection of the public.”

He pointed, for example, to a recent luncheon talk by Supreme Court Justice Richard Wagner, whose discussion of his experiences as a lawyer on the road to becoming a judge gave lawyers a 1.5-hour CPD credit. “Now how is that protecting the public?” Huband asked. “It’s nonsense. I’m not criticizing Judge Wagner. He was just there to make a little speech.”

According to the intervener Federation of Law Societies of Canada (FLSC), the umbrella group for the country’s 14 legal regulators, Green’s challenge could affect many lawyers across the country. “While only Ontario expressly authorizes a CPD-related administrative suspension power, it is submitted that such a power is necessarily incidental to an effective CPD program,” the Federation’s counsel, Neil Finkelstein of Toronto’s McCarthy Tétrault, argues in the FLSC’s factum. He writes that it would be contrary to the self-regulation of the legal profession, “if the court were to adopt a narrow construction of general enabling provisions in law society statutes, and require specific wording before a power to impose administrative suspensions is found.”

The Law Society of Manitoba argues that whether or not Green agrees with the benchers’ decision to implement mandatory CPD, “it is patent that the mandatory CPD rules are made in pursuing the society’s purpose and in compliance with its obligation to establish standards for the practice of law and to regulate it. These rules are, therefore, within the authority of the benchers.”

The law society maintains the authority exists under s. 3 of the Legal Profession Act, which requires the regulator to set standards of education, competence and professional responsibility of lawyers and to regulate the practice of law. “In passing the mandatory CPD rules the society has done no more than to do what the words of the statute require,” the law society asserts. “It has regulated the practice of law by setting standards of education requiring lawyers, as a condition of their continued right to practise law, to engage in CPD activities.”

Other noteworthy appeals on the court’s fall menu include:

Freedom of expression (Oct. 11): The B.C. courts dismissed the appellant B.C. Freedom of Information and Privacy Association’s s. 2(b) Charter freedom of expression challenge to s. 239 of the province’s Election Act. The provision requires all third-party advertising sponsors to register with the chief electoral officer before advertising in an election. The public interest advocacy organization contends that the province ought to have created a minimum $500 spending threshold before mandatory registration is required, but the courts below held that the threshold chosen by the legislature fell within its zone of discretion: B.C. Freedom of Information and Privacy Association v. B.C. (A.G.)

Expert evidence (Oct. 13): With Ottawa pledged to decriminalize marijuana use, the top court is asked to decide whether the opinions of drug recognition experts (DRE) conducting evaluations of suspected drug-impaired drivers, pursuant to section 254(3.1) of the Criminal Code, are admissible in evidence without first conducting the Mohan voir dire that is normally required for scrutinizing expert evidence. The Ontario Court of Appeal answered “yes” to that question, but the intervener Criminal Lawyers’ Association (CLA) contends the appeal court’s stance “undermines an accused’s right to full answer and defence, risks absurd and unsustainable results in future applications and raises the potential for miscarriages of justice.” According to the CLA, “The ‘soft-science’ underlying the DRE regime mandates that the opinions of DREs be tested prior to admission as evidence. This type of science cannot be analogized to ‘hard-science’ used when testing alcohol impairment by way of a breath test.”: Bingley v. The Queen.

Freedom of religion (Dec. 1): The appellant Ktunaxa Nation Council unsuccessfully objected in the B.C. courts below to the provincial government granting approval to build a ski resort on Crown land near Invermere, B.C.. The site is sacred to the First Nation because one of its most important spirits, the Grizzly Bear Spirit, will be displaced if the resort is built, the appellant says. The appeal marks the first time the Supreme Court will consider how the spiritual beliefs and traditions of indigenous Canadians are protected by the Charter’s s. 2(a) guarantee of freedom of religion, and how such claims should be analyzed in conjunction with the guarantee of Aboriginal rights in s. 35 of the Constitution Act, 1982: Ktunaxa Nation Council et al. v. Minister of Forests, Lands and Natural Resource Operations.