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REGULATION OF PROFESSION - Law societies and governing bodies - Authority to regulate practice - Practice of law

Wednesday, April 05, 2017 @ 11:28 AM  

Lexis Advance® Quicklaw®
Appeal from a judgment of the Manitoba Court of Appeal affirming the decision that dismissed Green’s application for declaratory relief challenging the provisions of the Rules of the Law Society of Manitoba (Rules) that made its continuing professional development (CPD) program mandatory. At issue was whether the Law Society of Manitoba (Law Society) could impose rules that coupled a mandatory CPD program with a possible suspension for failing to meet the program’s requirements. On May 30, 2014, over a year after Green had first failed to report the completion of any CPD hours, the CEO of the Law Society sent Green a letter notifying him that if he did not comply with the Rules within 60 days, he would be suspended from practising law. The CEO also informed him that it was possible for the 60 days he had to complete his hours to be extended. Green did not reply to the letter, nor did he apply for judicial review of the decision to suspend him. Rather, he applied for declaratory relief, challenging the validity of certain provisions of the Rules respecting CPD. Green argued that the impugned rules were unfair because they imposed a suspension without a right to a hearing or a right of appeal. The application judge dismissed Green’s application, concluding that the impugned rules fell squarely within the Law Society’s legislative mandate under The Legal Profession Act (Act). The Court of Appeal dismissed the appeal for reasons similar to those of the application judge. Green argued that the impugned rules were unfair because they imposed a suspension without a right to a hearing or a right of appeal.

HELD: Appeal dismissed. The appropriate standard of review to be applied when considering the validity of rules made by a law society was reasonableness. A law society rule would be set aside only if the rule was one no reasonable body informed by the relevant factors could have enacted. The Law Society had expertise in regulating the legal profession “at an institutional level”. With respect to the reasonableness of the impugned rules in light of the Law Society’s mandate, the Act contained an expansive purpose clause that obligated the Law Society to act in the public interest. The wording of the Act was also indicative of the breadth of the Law Society’s authority and its rule-making power. The Act imposed on the benchers a duty to “establish standards for the education ... of persons practising ... law” in Manitoba. Green relied on the implied exclusion rule of statutory interpretation to argue that a suspension could not be imposed under the Act, but his argument disregarded the proper approach to assessing the legality of the impugned rules. The Act’s express references to suspensions were not indicative of an intention to restrict suspensions to specific circumstances. Since the Law Society had the power to create a CPD scheme, it necessarily had the power to enforce the scheme’s standards. The Act provided clear authority for the Law Society to create a CPD program that could be enforced by means of a suspension. The overall purpose of the Act, the words used in it and the scheme of the Act showed that the impugned rules were reasonable considering the Law Society’s statutory mandate. A suspension was a reasonable way to ensure that lawyers complied with the CPD program’s educational requirements. Its purpose related to compliance, not to punishment or professional competence. The provisions of the rules establishing a mandatory CPD program that permitted the suspension of a lawyer as a consequence for contravening those rules were not unreasonable. The suspension of a lawyer for failing to complete the CPD requirements was administrative in nature. In light of the administrative nature of the suspension and the discretion the CEO had under the Rules when imposing a suspension, the fact that the impugned rules did not provide for a right to a hearing or a right of appeal did not make them unreasonable. The rules reasonably included no right to a hearing or right of appeal because lawyers were solely in control of complying with the rules in question at their leisure. The duty of fairness was engaged only when the Law Society made a decision that affected the rights, privileges or interests of an individual by, for example, imposing a suspension, not when it acted in a legislative capacity to make rules of general application in the public interest. Absent an application for judicial review, it would be unwise for the Court to express an opinion on what procedure the Law Society should follow when imposing an administrative suspension on members for failing to comply with the impugned rules. A lawyer’s failure to comply with the impugned educational rules, even after having been warned and given an opportunity to seek an extension, provided clear justification for the Law Society to impose a temporary suspension. The appeal was dismissed with costs throughout to the Law Society.

Green v. Law Society of Manitoba, [2017] S.C.J. No. 20, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon and S. Côté JJ., March 20, 2017. Digest No. TLD-Apr32017008