In Green v. Law Society of Manitoba (Green), a majority of the Supreme Court of Canada (SCC) held that the Law Society of Manitoba (Law Society) has the authority to suspend lawyers who fail to comply with the Law Society’s mandatory continuing professional development (CPD) program without providing the lawyer with an automatic hearing or right of appeal. In so deciding, the SCC made important comments about administrative law and the deference owed to law societies as they discharge their statutory mandates in the public interest.

BACKGROUND

Like other law societies, the Law Society of Manitoba requires practicing lawyers to complete 12 hours of CPD per year. If a lawyer fails to comply with this requirement, the Law Society’s CEO “may” send a letter to the lawyer advising him or her of the requirement and if the lawyer fails to comply within 60 days, he or she is “automatically suspended from practising law until such time as the requirements have been met”, according to the Rules of the Law Society of Manitoba (Rules). In contrast to the procedure applicable to an investigation into professional misconduct or incompetence, the Rules regarding CPD program compliance do not provide for a range of lesser sanctions or certain procedural safeguards such as a hearing or right of appeal.

The appellant, Sidney Green, has been a member of the Law Society for 60 years. He did not report any CPD activities for 2012 or 2013. The CEO sent Mr. Green a letter notifying him that he would be suspended from practising law if he did not comply with the CPD requirements within 60 days. In response, Mr. Green applied to the Manitoba Court of Queen’s Bench for declaratory relief, challenging the Law Society’s authority to suspend him. The Court of Queen’s Bench dismissed Mr. Green’s application and the Court of Appeal dismissed his appeal.

SCC DECISION

The SCC unanimously concluded that the Law Society has the authority to suspend a lawyer for failing to comply with CPD requirements “in light of the importance of CPD programs and the Law Society’s broad rule-making authority over the maintenance of educational standards”. However, the SCC split on whether the Rules authorizing the suspension were reasonable in light of the fact that they did not explicitly provide procedural safeguards.

Writing for the majority, Justice R. Wagner dismissed the appeal, holding that it was reasonable for the Rules to allow for the suspension of lawyers without explicitly providing for a hearing or right of appeal. Justice Wagner also interpreted the Rules to provide the CEO with discretion as to whether to suspend a lawyer for failing to comply with the CPD requirement.

In dissent, Justice Abella would have allowed the appeal. She interpreted the Rules as providing for automatic suspensions for failure to comply with the CPD requirement and reasoned that an automatic suspension in the absence of sufficient procedural safeguards “is inconsistent with the Law Society’s mandate to protect the public’s confidence in the legal profession because it gratuitously — and therefore unreasonably — impairs public confidence in the lawyer”.

ADMINISTRATIVE LAW PRINCIPLES ARISING FROM THE DECISION

The SCC makes a number of important observations with respect to administrative law principles:

  1. Standard of Review. Until Green, the SCC had not considered the standard for reviewing the validity of a law society’s rules. Analogizing to bylaws passed by municipal councils and regulations, the SCC held that the appropriate standard of review is reasonableness and that deference to the Law Society is important for reasons including the Law Society’s broad public interest mandate and the fact that many Law Society benchers are elected.
  2. Reasonableness Assessed Purposively. In assessing the reasonableness of the Rules, the SCC determined that the applicable test is whether the rule at issue conforms to the Law Society’s statutory public interest mandate.
  3. Common Law Duty of Fairness. According to the majority, even though the Rules do not expressly provide for procedural safeguards, the common law duty of fairness fills the gaps and supplements existing statutory duties. The dissent adopted a narrower approach, noting that the Law Society “has only such powers as are given to [it] by or under the Act or the [Rules]”. The majority’s willingness to supplement the words of the statutory regime signals that procedural rights may transcend the four corners of the statute at issue.
  4. Discretion Preserves Fairness. Justice Wagner emphasised that the CEO “may” (as opposed to “shall”) trigger the suspension procedure, which ensures that the Rules are not applied in an “overly harsh” manner and opens the door to judicial review. Justice Abella concluded that the Law Society had no discretion and that judicial review was therefore unavailable. The SCC’s split on this point indicates that the availability of discretion and judicial review will be a key factor in assessing the reasonableness of certain administrative regimes.
  5. Administrative vs. Penal Sanctions. Finally, Green comments on the tricky distinction between administrative and penal sanctions, which is important as penal sanctions often attract enhanced procedural protections. The majority found the suspension to be administrative because it furthers the CPD program’s purposes and the effect of the sanction on the suspended lawyer is not too severe. Justice Abella disagreed, concluding that the suspension is penal in nature because “[a] suspension is a suspension is a suspension” and the economic and reputational costs “are manifest”. The distinction between penal and administrative sanctions will likely continue to vex courts.

CONCLUSION

One of the most notable aspects of the majority’s analysis is the high level of deference it accorded to the Law Society as a result of the Society’s “broad public interest mandate and broad regulatory powers to accomplish its mandate”. This could have important implications for future litigation involving the discharge of a law society’s public interest mandate. For example, the SCC recently granted leave to appeal in two cases regarding the Law Society of British Columbia’s and the Law Society of Upper Canada’s decisions to refuse to accredit the proposed law school at Trinity Western University (see our July 2016 Blakes Bulletin: Court of Appeal Upholds Law Society of Upper Canada’s Decision to Not Accredit Proposed Law School). Green’s impact on these appeals remains unclear but should be watched closely.

But until then, one thing is certainly clear: lawyers should log their CPD hours!