On March 30, 2017, the SCC dismissed the appeal of Sidney Green, a lawyer called to the Bar of Manitoba in 1955 and a Life Bencher who did not comply with his Law Society’s minimum 12 hours of annual continuing professional development (“CPD”) requirement. The SCC decided 5-2 (Abella and Côté JJ. dissenting) that the applicable standard of review was reasonableness and the impugned CPD rules were valid in light of the Law Society’s mandate under its Act.1

Failure to self-report compliance

Since 2008, lawyers in Manitoba have been required to file an annual report with the Law Society of Manitoba (“LSM”) reporting their voluntary CPD activities.

Upon study of the uneven results of voluntary CPD, effective January 1, 2012, the benchers of the LSM imposed mandatory CPD. Mr. Green failed to report any CPD activities in his annual report for 2012 and again for 2013. After the second year of non-compliance, the LSM sent Mr. Green a letter inviting him to advise if the information was incorrect and indicating that extensions of time would be considered but that if the CPD requirement was not fulfilled within 60 days and no extension was obtained, there would be an automatic administrative suspension until the CPD was met and a reinstatement fee paid. Such an administrative suspension involves no disciplinary charges or proceedings.

Mr. Green’s sole response to this letter, warning of an administrative suspension sanction, was to bring an application for declaratory relief and to request a stay of the automatic suspension until its determination. Although the LSM initially suspended Mr. Green’s practicing certificate, it then agreed to not enforce the suspension until the litigation was resolved. Mr. Green was unsuccessful before both the Manitoba Court of Queen’s Bench and the Manitoba Court of Appeal but the SCC granted leave to appeal in December 2015 and heard the appeal in November 2016.

Mr. Green conceded in the Court of Appeal that the LSM has the power to make rules to set up a CPD program. In the SCC, Mr. Green, represented by Charles Huband and Kevin Williams of Taylor McCaffrey LLP, challenged the validity of the rules under which the LSM had suspended his practicing certificate on two grounds. First, he argued that The Legal Profession Act, C.C.S.M., c. L107 did not explicitly permit the LSM to enact mandatory CPD rules or to enforce those rules with the imposition of a suspension. Secondly, he argued that the rules violated the principles of natural justice because they gave the LSM authority to impose a suspension without a right of hearing or appeal.

Rocky Kravetsky, in-house counsel for the LSM, submitted that the CPD rules were an authorized and reasonable condition of the right to practice law as a profession. He argued that the object and purpose of the Legal Profession Act (“LPA”) of Manitoba is to provide the delivery of legal services with competence, integrity and independence, and that the enactment of mandatory CPD is within the authority found in the ordinary meaning of the LPA, as are the consequences for failure to comply. The LSM saw no procedural unfairness in the application of its CPD rule which was not premised on a finding of misconduct or incompetence but simply non-compliance.

The Federation of Law Societies of Canada (“FLSC”) was granted intervener status and made written and oral submissions in support of the authority of law societies to enforce such administrative suspensions as a necessary incident of law society regulatory jurisdiction. Neil Finkelstein and Brandon Kain, counsel for the FLSC argued that in exchange for the legal profession having the privilege of self-regulation, law societies have a statutory obligation to protect the interests of the public with respect to the services of their members. In pursuing their public protection mandate, the SCC has previously concluded that law societies are entitled to deference by the courts in respect of the articulation and enforcement of professional standards. As such, the FLSC argued that a law society’s decision that it possessed a CPD-related administrative suspension power under its grant of power by legislation should only be set aside if unreasonable. And while only Ontario expressly authorizes a CPD-related administrative suspension power, the FLSC submitted that such a power is necessarily incidental to an effective CPD program in all the provinces and territories.

SCC Majority upholds the Rule

Wagner J. for the majority opens:

“[1] A lawyer’s professional education is a lifelong process. Legislation is amended, the common law evolves, and practice standards change as a result of technological advances and other developments. Lawyers must be vigilant in order to update their knowledge, strengthen their skills, and ensure that they adhere to accepted ethical and professional standards in their practices.”

He characterizes the nature of Mr. Green’s claim:

“[18] Mr. Green has challenged the impugned rules because he has no interest in complying with them….He argues that the impugned rules are unfair because they impose a suspension without a right to a hearing or a right of appeal. Yet Mr. Green has not applied for judicial review of the Law Society’s decision to suspend him. He has not complained that the Law Society treated him unfairly. Mr. Green is challenging these rules on these procedural grounds, not for fear of injustice.”

Dealing first with the question of the applicable standard of review, and reasoning that the rules made by law societies are akin to bylaws passed by municipal councils, Wagner J. states that the legislature has given the LSM a broad discretion to regulate the legal profession and its elected benchers are accountable to members of the legal profession. Citing Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 as specific guidance, he concludes that the LSM’s rules reflect broad policy considerations and the benchers act in a delegated legislative capacity that is entitled to deference.

To determine whether the impugned rules are reasonable, he adopts a two-step approach: (1) considering whether the purpose, words, and scheme of the Act to support an expansive construction of the LSM’s rule-making authority, and (2) assessing whether the particular rules are unreasonable because they permit the imposition of a suspension for failure to meet the minimum CPD requirement.

Having no difficulty finding that the establishment of mandatory CPD standards is compatible with the Law Society’s public interest purpose and duties under the Act, a point conceded by Mr. Green contrary to his position in the courts below, Justice Wagner writes:

“[46] To ensure that those standards have an effect, the Law Society must establish consequences for those who fail to adhere to them. As a practical matter, an unenforced educational standard is not a standard at all, but is merely aspirational.

[47] A suspension is a reasonable way to ensure that lawyers comply with the CPD program’s educational requirements. Its purpose relates to compliance, not to punishment or professional competence. Other consequences, such as fines, may not ensure that the Law Society’s members comply with those requirements. An educational program that one can opt out of by paying a fine is not genuinely universal. I am mindful of the fact that in making these mandatory rules, the Law Society was responding to the reality that many lawyers in Manitoba had not complied with the CPD program when it was voluntary.

[48] To ensure consistency of legal service across the province, the possibility of a suspension effectively guarantees that even lawyers who are not interested in meeting the educational standards will comply. Mr. Green submits that, in his opinion, the CPD activities that were made available to him would not have been helpful to him in his practice. But it is not up to Mr. Green to decide whether CPD activities are valuable or adequate. The legislature has decided that the Law Society must impose educational standards on practising lawyers (s. 3(2)) and that it is for the Law Society to determine the nature of those standards.

[49]…. 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 made by the Law Society. As this Court has stated, “the Law Society has total control over who can practise law in the province, over the conditions or requirements placed upon those who practise and, perhaps most importantly, over the means of enforcing respect for those conditions or requirements”: Pearlman, at p. 886. The Law Society has not interfered with Mr. Green’s rights. It is merely doing what the statute requires it to do: regulate the education of lawyers in the public interest.”

Justice Wagner notes that the Rules do not automatically impose a suspension on a lawyer who fails to complete the necessary CPD hours. Instead, the CEO of the Law Society “may” send a letter to a member advising that the lawyer has 60 days to comply. In this case, the CEO waited a full year before exercising his discretion to send such a letter, effectively waiving Mr. Green’s non-compliance for the first year of mandatory CPD, and had Mr. Green complied within the 60 days no suspension would have occurred. Moreover, the CEO held open the prospect of a time extension and had the discretion to withdraw the letter within the 60-day period if circumstances so justified.

Justice Wagner concludes:

"[52] In light of the administrative nature of the suspension and the discretion the CEO has under the Rules when imposing a suspension, I conclude that the fact that the impugned rules do not provide for a right to a hearing or a right of appeal does not make them unreasonable."

SCC Minority would have set aside the Rule

In Justice Abella’s vigorous dissent, she accepts the LSM’s authority to require 12 hours of mandatory CPD but finds the automatic suspension for non-compliance to be unreasonable “because it gratuitously …impairs the public confidence in the lawyer.” She finds it incongruous that for more serious complaints of professional misconduct or incompetence, a suspension can only be imposed after at least some minimum procedural protections are assured and a range of lesser penalties have been considered, whereas for what she considers to be “the least serious disciplinary breach possible – failing to attend classes” a suspension is imposed automatically.

She writes that:

"[81] 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.

[91] It is as close to a victimless breach as it is possible to imagine, yet it is the only breach that attracts the automatic loss of the ability to practise law. It alone attracts automatic suspension, regardless of justificatory circumstances. This makes it arbitrary.

She concludes that: “[97]…It is undeniably in the public interest to sanction lawyers for breaches of professionalism; it is in no one’s interest to sanction them arbitrarily.”

Decision consistent with other jurisprudence

In addition to the jurisprudence cited in the Reasons, this decision is consistent with the Court’s previous upholding of administrative penalties in other regulatory contexts.

In Cartaway Resources Corp. (Re), 2004 SCC 26, the Court upheld the power of the B.C. Securities Commission to impose administrative penalties against regulated securities brokers for breach of prospectus requirements. The Court found this consistent with the mandate of the Securities Commission to protect the public interest and applied a reasonableness standard of review.

More recently, in Guindon v Canada, 2015 SCC 41, the Court upheld administrative monetary penalties (“AMPS”) under the Income Tax Act for false statements made in donation receipts. Again, the Court accepted that the legislation authorized the imposition of such AMPs in the public interest in order to encourage honest tax reporting and that this was a reasonable scheme to maintain compliance within a limited sphere of activity.

This decision also reinforces the opinion of the Court in Ernst v Alberta Energy Regulator, 2017 SCC 1, a case in which Ms. Ernst claimed Charter damages for breach of her freedom of speech rights and argued the regulator’s immunity clause was unconstitutional. In Ernst the SCC clearly signaled that, where available, judicial review is a more timely and effective route to relief. As Justice Wagner states, Mr. Green’s challenge of the procedural fairness of the CPD rules should have been pursued by way of judicial review of the specific decision by the Law Society and not by way of an application for a general declaration that the impugned rules were invalid under the Act. If the Law Society’s decision were procedurally unfair, the decision could have been quashed as a normal judicial review remedy. In other words, questions of procedural fairness should be determined on a case-by-case basis and cannot be generically asserted in a vacuum.

Implications

Had the SCC gone so far as to say that LSM had no authority to impose mandatory CPD without express statutory wording, the effect would have been to invalidate these requirements virtually everywhere in Canada except Ontario, until legislative amendment. More generally, it would also have diminished the extent to which regulatory bodies can rely on a general authority to make rules to fulfill their stated purposes.

If the opinion of Justice Abella had prevailed and the SCC declared the automatic suspension power invalid, lawyers would have still had to meet their minimum CPD hours but the LSM and most other law societies in Canada would have had to establish different enforcement procedures that were proportional to the circumstances. Conceivably, law societies could have turned to their statutory disciplinary process which would necessarily leave non-compliant lawyers practising for a longer time without sanction and may have well lead to cases being resolved by lesser sanctions, essentially creating a licence cost to ignore the rules.

Instead, the SCC has upheld the LSM model and, subject to closer review by other law societies in Canada, it appears that mandatory CPD is here to stay and administrative sanctions including an automatic suspension will remain effective tools for enforcement of these requirements.