Green v. Law Society of Manitoba, 2017 SCC 20 (Law of professions — Barristers and solicitors — Continuing professional development)
On appeal from a judgment of the Manitoba Court of Appeal (2015 MBCA 67) affirming a decision of Rempel J. (2014 MBQB 249).
G was called to the Bar in 1955 and has been a practising lawyer and member of The Law Society of Manitoba (“Law Society”) for over 60 years. Despite the Law Society’s mandatory rules requiring all practising lawyers to complete 12 hours of continuing professional development (“CPD”) a year, G did not report any CPD activities for 2012 or 2013. Over a year after G’s failure to report the completion of any CPD hours, the Law Society notified him that if he did not comply with the rules within 60 days, he would be suspended from practising law. G was also invited to correct any errors in his CPD record and was informed that it was possible for the 60‑day delay to be extended. G did not reply, nor did he apply for judicial review of the decision to suspend him. Rather, he challenged the validity of certain provisions of the Rules of The Law Society of Manitoba (“Rules”) with respect to CPD, by applying for declaratory relief. The application judge dismissed G’s application, concluding that the impugned rules fell squarely within the Law Society’s legislative mandate. The Court of Appeal dismissed the appeal for similar reasons.
Held (5-2): The appeal should be dismissed.
Per McLachlin C.J. and Moldaver, Karakatsanis, Wagner and Gascon JJ.:
The standard applicable to the review of a law society rule is reasonableness. A rule will be set aside only if it is one no reasonable body informed by the relevant factors could have enacted. This means that the substance of the rule must conform to the rationale of the statutory regime set up by the legislature. Reasonableness is the appropriate standard for several reasons. First, in making rules of general application to the profession, the benchers of a law society act in a legislative capacity. The standard of review must reflect a law society’s broad discretion to regulate the legal profession on the basis of policy considerations related to the public interest. Second, many benchers of a law society are also elected by and accountable to members of the legal profession, and applying the reasonableness standard ensures that the courts will respect the benchers’ responsibility to serve those members. Third, a law society acts pursuant to its home statute in making rules such as those challenged by G, and as a result, there is a presumption that the appropriate standard is reasonableness. A law society must be afforded considerable latitude in making rules based on its interpretation of the “public interest” in the context of its enabling statute. Finally, a law society is a self-governing professional body with expertise in regulating the legal profession at an institutional level.
To determine whether the impugned rules are reasonable, the scope of the Law Society’s statutory mandate must first be construed. The purpose, words and scheme of The Legal Profession Act (“Act”), support an expansive construction of the Law Society’s rule‑making authority. The Law Society was given a broad public interest mandate and broad regulatory powers to accomplish its mandate — a mandate which must be interpreted using a broad and purposive approach. The wording and scheme of the Act are also indicative of the breadth of the Law Society’s authority and rule‑making power. In particular, it is empowered to establish consequences for contravening the Act or the Rules, such as a suspension, for failing to meet the educational standards it is statutorily required to put in place. Since the Law Society has the power to create a CPD scheme, it necessarily has the power to enforce the scheme’s standards.
In this case, the impugned rules are reasonable in light of the Law Society’s statutory mandate. It is reasonable for the Rules to expose a lawyer to a suspension as a consequence for non‑compliance with the CPD program. The Act provides clear authority for the Law Society to create a CPD program that can be enforced by means of a suspension, and the overall purpose of the Act, the words used in it and the scheme of the Act show that the impugned rules are reasonable in light of the Law Society’s statutory mandate. A suspension, the purpose of which relates to compliance, not to punishment or professional competence, is a reasonable and effective way to ensure consistency of legal service across the province and to guarantee that even lawyers who are not interested in meeting the educational standards will comply. The right to practise law is not a common law right or a property right, but a statutory right that depends on the principles set out in the Act and the Rules.
Moreover, imposing a suspension on members for failing to comply with the impugned rules without giving such members a right to a hearing or a right of appeal is not unreasonable in light of the Law Society’s statutory powers. Rather, it is entirely consistent with the Law Society’s duty to establish and enforce educational standards. The suspension at issue is administrative in nature, and the impugned rules reasonably include no right to a hearing or right of appeal because lawyers are solely in control of complying with the rules in question at their leisure. Only they can end the suspension by complying with the requirements. Further, the rules permitting a suspension are not self-applying. In addition to a lawyer’s common law procedural rights, the rules permitting a suspension expressly vest the chief executive officer of the Law Society with discretion to ensure that the effect of the Rules is not overly harsh. A lawyer’s failure to comply with the impugned educational rules, even after having been warned and given an opportunity to seek an extension, provides clear justification for the Law Society to impose a temporary suspension.
Per Abella and Côté JJ. (dissenting):
The issue in this appeal is not whether the Law Society can impose a suspension for failing to complete the 12 annual hours of mandatory education courses, but whether it can impose an automatic one.
A law society can only enact rules that are consistent with the purposes, scope and objectives of its enabling statute, and its authority to do so must be exercised in a reasonable manner. However, the fact that deference is owed does not mean that a law society has carte blanche; there are several grounds for finding delegated legislation to be unreasonable, such as where it is manifestly unjust.
In Manitoba, the Law Society’s purpose is to “uphold and protect the public interest in the delivery of legal services with competence, integrity and independence”. Those are the core values of a lawyer’s professionalism. Protecting the public interest necessarily involves not only ensuring that a lawyer delivers legal services in accordance with those core values, but also protecting the public’s perception in the professionalism of the delivery. While the primary goal of the Law Society is the protection of the public interest, it cannot do so without also protecting the ability of its members to practise law professionally. A law society must, as a result, exercise its mandate in a way that not only protects the ability of lawyers to act professionally, but that also reinforces the public’s perception that lawyers are behaving professionally. The flip side is that a law society cannot enact rules which unreasonably undermine public confidence in lawyers.
In this case, the Law Society’s rule that members who fail to complete 12 mandatory hours of continuing professional development activities in a calendar year are automatically suspended is unreasonable, because it is inconsistent with the Law Society’s mandate to protect the public’s confidence in the legal profession. When a lawyer is suspended, so is public confidence in him or her. That is why the Law Society takes such care in its investigation of complaints regarding professional misconduct or incompetence — it helps ensure that a suspension is imposed only after at least some minimal procedural protections have been provided, and then only after a range of lesser penalties has been considered. When a suspension is the result of such a process, the loss of public confidence is warranted. Where, however, a suspension is imposed automatically for the least serious disciplinary breach possible — failing to attend 12 hours of classes — the Law Society is in breach of its duty to protect the public from the needless erosion of trust in the professionalism of lawyers.
The economic costs of the suspension are manifest, as are the reputational ones, especially since the rules require the chief executive officer to notify every member of the Law Society and each of the chief justices of the courts in Manitoba of the name of a member who is suspended. This is the only competence matter regulated by the Law Society that has no procedural protections, no range of remedies, and no discretionary leeway on the part of the chief executive officer, and it alone attracts an automatic suspension, regardless of justificatory circumstances. This makes it arbitrary. The absence of discretion, procedural fairness or remedial options stands in stark contrast to other provisions of the Act or Rules furthering the Law Society’s mandate to establish standards for the competence of lawyers. It also stands in stark contrast to the regulations, policies and by‑laws of the continuing professional development requirements of most other Canadian provinces and territories.
The lack of discretion in this case is fatal. A rule that leads to an automatic suspension for failing to attend 12 hours of continuing professional development is so far removed from ensuring the public’s confidence in lawyers that it is manifestly unjust, and therefore, unreasonable.
Reasons for judgment: Wagner J. (McLachlin C.J. and Moldaver, Karakatsanis and Gascon JJ. concurring)
Dissenting Reasons: Abella J. (Côté J. concurring)
Neutral Citation: 2017 SCC 20
Docket Number: 36583
APPLICATIONS FOR LEAVE TO APPEAL GRANTED
Canadian Human Rights Commission v. Attorney General of Canada
Canadian Charter of Rights and Freedoms – Equality rights –Administrative law
Several members of two First Nations filed complaints under the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (“CHRA”) with the Canadian Human Rights Commission. The complainants alleged that the eligibility criteria in s. 6 of the Indian Act, R.S.C. 1985, c. I-5, that precludes the registration of their children as “Indians” in their particular circumstances, violates their human rights because the impugned restrictions constitute prohibited discrimination in the provision of a service “customarily available to the public” under s. 5 of the CHRA. In two decisions which relied on Public Service Alliance of Canada v. Canada (Revenue Agency), 2012 FCA 7, 428 N.R. 240, the Canadian Human Rights Tribunal dismissed the complaints for lack of jurisdiction. In doing so, the Tribunal found the complaints were direct challenges to provisions in the Indian Act and the adoption of legislation is not a service customarily available to the general public within the meaning of s. 5 of the CHRA. The Tribunal concluded such a challenge may only be brought under s. 15 of the Canadian Charter of Rights and Freedoms and therefore must be made to a court of law. Applying a reasonableness standard of review, the Federal Court held the Tribunal’s decisions were reasonable and dismissed the Commission’s applications for judicial review. The Federal Court of Appeal dismissed the Commission’s appeal.
Wing Wha Wong v. Her Majesty the Queen
Criminal law – Miscarriage of justice – Guilty plea
Mr. Wong, applicant, pled guilty to one count of trafficking cocaine. At the time he entered the plea, his counsel had not informed him that a conviction for trafficking cocaine would make him inadmissible to Canada on grounds of serious criminality pursuant to s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Nor had his counsel discussed the defence of entrapment with him. On appeal, Mr. Wong argued his plea should be set aside on the basis of ineffective assistance of counsel. The Court of Appeal dismissed the appeal. It found that allowing the conviction to stand, despite Mr. Wong’s uninformed plea, would not amount to a miscarriage of justice, because there was no evidence that he would not have pled guilty had he been informed of the collateral immigration consequences of his plea. Specifically, the court noted that Mr. Wong did not depose in his affidavit that had he known the jeopardy a conviction created to his permanent resident status, he would not have pled guilty.
APPLICATIONS FOR LEAVE TO APPEAL DISMISSED
Her Majesty the Queen v. Brittany Leigh Derbyshire
Charter of Rights and Freedoms – Fundamental justice – Criminal law
Police officers investigating a murder believed that a drug dealer committed the murder and Ms. Derbyshire assisted him after the murder. They believed Ms. Derbyshire’s boyfriend also was a drug dealer and was an associate of the murderer. They believed Ms. Derbyshire often participated in her boyfriend’s drug business. They obtained an authorization and a warrant to intercept and record communications. To elicit communications to intercept, they staged an undercover operation targeting Ms. Derbyshire. Two officers posed as gang members from Quebec sent to clean up after the murder. They confronted Ms. Derbyshire. Within minutes, she provided information about the murder and her involvement. She located where evidence was hidden and drew maps. She then drove the officers to the locations and gave them the clothes she had worn that day. A voir dire was held into the admissibility of the evidence. Ms. Derbyshire testified that she cooperated out of fear. The officers testified that she appeared cooperative and friendly. The Supreme Court of Nova Scotia excluded the evidence for abuse of process. The Court of Appeal dismissed the appeal.
Sharon Mallett v. Keith McCaskill, Carrie Nash, Dallas Vannus, Nicholas Bisson, Brigitte Friedenberger, Eric Wytinck, Constable Van Den Driessche and Gregory Kaatz
Charter of Rights — Constitutional law — Search and seizure
On two occasions in July 2008, Winnipeg police forced entry into the home of the applicant, Ms. Sharon Mallett. On both occasions, the police presence was precipitated by an anonymous 911 call. Ms. Mallett sued the Chief of Police and various police officers in tort for trespass, assault and battery, and breach of privacy, and sought Charter damages to remedy an alleged breach of her right to be free from unreasonable search and seizure under s. 8 of the Charter.
The trial judge dismissed Ms. Mallett’s action, making findings of fact and credibility in favour of the police officers. He dismissed the claims for trespass and assault and battery because the police conduct in question was lawful. The claim for breach of privacy was dismissed on the basis that there was in fact no invasion of privacy as defined by provincial legislation, and that statutory defences applied. The trial judge also dismissed the claim for Charter damages because her claim was not brought against the state, but rather against individual officers. The Court of Appeal dismissed Ms. Mallett’s appeal, concluding that the trial judge correctly interpreted the law and applied the appropriate legal principles to the facts and the evidence, and properly found that the officers’ actions were lawful. There was no error of law, and no palpable and overriding error.
Dino Orsini v. Canada Revenue Agency
Charter of Rights — Fundamental justice
The applicant was the owner of a family business. In 1998, a search warrant was issued and executed on the business premises. The business was missing one of the permits required to operate. The applicant is claiming moral and punitive damages against the Canada Revenue Agency. The Superior Court of Quebec granted the Respondent’s motion to strike. The Court of Appeal granted the Respondent’s application to dismiss the appeal.
Gemma A. Le Bouthillier v. J.M. Bastille Inc., a corporation, Claude Boudreau
Procedure – Appeal – Dismissal of appeal
On June 24, 2004, the applicant was injured in a motor vehicle accident after she swerved to avoid colliding with a Freightliner tractor trailer (“Freightliner”) and lost control of her vehicle. The accident occurred as she tried to overtake the Freightliner once its driver indicated his intention to turn right. In the process of making the right turn, the Freightliner made a wide sweep to the left and encroached upon the lane of traffic occupied by the applicant. She commenced an action against the owner and driver of the Freightliner, alleging that they were solely responsible for the accident and claiming damages for injuries suffered. The trial judge in 2013 found the applicant solely responsible for the accident. On appeal, the Court of Appeal allowed the appeal and ordered a new trial on the issues of liability and damages.
Bryan James Balla v. Her Majesty the Queen
Charter of Rights and Freedoms – Search and seizure
Over a period of several days in May 2011, the applicant and Jongoh Kim were the targets of “Operation Mastermind” that involved primarily police surveillance of a “dial-a-dope” operation. The police observed the applicant and Mr. Kim undertaking activities that they believed were consistent with drug trafficking. As a result, police obtained four search warrants: one for the Apple Village Residence and three for the vehicles (the Mercedes, the Volkswagen and the Cadillac). All of the warrants referred to Mr. Kim and the applicant. A significant amount of cash was found in one of the vehicles. In the applicant’s bedroom, the police found: a “score sheet” in a dresser drawer, containing names, telephone numbers, drug preferences and other “drug vernacular”; five cellular telephones; a bullet-proof plate that goes into a vest; ammunition and machetes; various receipts in a dresser drawer that bore the applicant’s name; plastic baggies in a garbage can which were described as “packaging”; 0.2 grams of powder cocaine on top of the dresser; and a digital camera. The digital camera that Cst. Graw seized from the applicant’s bedroom contained many photographs of the applicant handling a variety of weapons, including handguns, and the AK-47-type weapon. There were also photographs of other handguns, a rifle and a handgun with the serial number scratched off. The applicant was convicted of thirteen drug and firearms offences. The Court of Appeal dismissed the appeal.
Robert James Thomson v. Attorney General of Canada
Charter of rights – Right to equality – Legislation
On October 30, 1991, the applicant, Mr. Thomson, then an on-duty civil employee of the Department of National Defence, was onboard a Canadian Forces airplane which crashed over the Northwest Territories. He became paraplegic, suffered multiple amputations and eventually developed post-traumatic stress disorder. He elected to be compensated for his injuries under the Flying Accidents Compensation Regulations (“FACR”). He requested a pension, along with special allowances, including attendance, clothing, and exceptional incapacity allowances.
The Department of Veterans Affairs awarded a pension, but denied special allowances as those were not available to civilian pensioners under the FACR. Mr. Thomson appealed to the Entitlement Review Panel, and then to the Entitlement Appeal Panel, unsuccessfully. The Appeal Panel found no legislative authority to grant the special allowances. Additionally, it found that denying Mr. Thomson allowances did not discriminate against him based on his severe disability under s. 15 of the Charter. In its view, Parliament intended to distinguish between military and civilian pensioners, and all civilian flying accident pensioners under the FACR were being treated the same.
The Federal Court dismissed Mr. Thomson’s application for judicial review. In its view, the Appeal Panel’s interpretation of the FACR was reasonable. It also ruled that Mr. Thomson’s s. 15rights were not violated. Contrary to what Mr. Thomson asserted, the FACR did not distinguish between a pensioner’s level of disability. Rather, all civilian pensioners under the FACR were denied access to additional allowances based on Parliament’s policy choice. The Federal Court of Appeal dismissed the appeal.
Sylvester Chuang, HSC Holding inc., Transoriental Fine Cars ltd., 1405768 Ontario Limited and Ontasian Enterprises inc. v. Toyota Canada Inc
Contracts – Breach of terms
In 2003, the applicants, Dr. Sylvester Chuang and various corporations under his control (collectively, “Dr. Chuang”), entered into an agreement with the respondent Toyota Canada Inc. to build and operate a Lexus dealership in Toronto. The agreement provided for certain deadlines. Dr. Chuang was not able to meet these deadlines due to issues such as municipal approvals and soil remediation. He sought to extend the agreement. Toyota agreed to an extension but demanded amendments that included a termination clause in its favour and an exclusion clause limiting Toyota’s liability in the event of termination. In addition, Toyota requested that Dr. Chuang supply a certificate of Independent Legal Advice. Dr. Chuang suggested changes in those proposals, but Toyota did not agree to them. Dr. Chuang eventually agreed to the amendments and provided Toyota with the certificate of Independent Legal Advice
In 2005, Toyota terminated the agreement. It took the position that Dr. Chuang once again failed to meet certain specified deadlines, and that as a result, Dr. Chuang is unlikely to be able to meet some, if not all, of the other conditions set out in the agreement. Dr. Chuang sued Toyota, initially claiming specific performance of the agreement and damages. By the time of trial, Dr. Chuang had opened a different dealership on the site and limited his claim to damages for wrongful termination of the agreement. The Ontario Superior Court of Justice dismissed the action for breach of contract. The Court of Appeal dismissed the appeal.
Donna Elizabeth Gariepy and Sally Ann Chriss v. Her Majesty the Queen
Taxation – Director’s liability – Resignation
In 2001, the Applicants, Ms. Chriss and Ms. Gariepy expressed to their husbands, the owners and executives of 1056922 Ontario Ltd., their desire to resign as directors. Mr. Chriss instructed 105 Ltd.’s solicitor at Gowlings to draft the resignations. The solicitor prepared resignation documents for both Applicants. They were, however, not executed, contained a blank date field and never left Gowlings’ offices. The solicitor subsequently sought instructions as to the date the resignations were to be effective. None were received. Several months later, Mr. Gariepy instructed a lawyer, Mr. Caroline at a different firm to prepare resignation documents solely for Ms. Gariepy.
From 2000 to 2005, 105 Ltd. failed to remit its payroll tax withholdings, including EI, CPP and GST source deductions. Subsection 227.1(1) of the Income Tax Act renders the directors of a company which fails to remit source deductions personally liable for the unremitted amounts. The Respondent, Minister assessed the Applicants for these liabilities and the Applicants appealed the assessments. The trial judge concluded that the preparation of the draft letters of resignation, combined with the fact that the Applicants verbally communicated to their husbands that they were tendering their resignations, resulted in an effective resignation. In the alternative, he found that if the resignations were not effective, Ms. Chriss had a reasonable belief that she had resigned, but that Ms. Gariepy did not. The trial judge rejected the argument that the due diligence defence could be made out on the basis that the Applicants had lost control of the company to Mr. Caroline. The Court of Appeal concluded that the trial judge made reviewable errors and allowed the appeals.
V.I. Fabrikant v. Her Majesty the Queen
Civil Procedure – Appeals – Courts
The Applicant has been incarcerated in a federal penitentiary since 1992. In 2014, he requested either an unescorted or escorted temporary pass to visit his family. The Parole Board denied his request on February 26, 2015, on the basis that he represented an undue risk to society. On July 24, 2015, the Appeal Division confirmed the Board’s decision not to authorize such passes. The Applicant’s subsequent application for judicial review was dismissed by the Federal Court. On September 1, 2016, Stratas J.A. refused his motion to waive fees for his intended notice of appeal.