In its recent decision of Green v. Law Society of Manitoba, 2017 SCC 20, the Supreme Court of Canada confirmed that professional regulatory organizations will be granted deference when they enact general rules or bylaws to meet their public interest mandate. The Supreme Court indicated that rules enacted in the absence of express statutory wording authorizing them will not be invalidated if the rule is consistent with the statutory regime created by the legislature.
The case concerned a Manitoba lawyer, Mr. Sidney Green, who did not report any continuing professional development ("CPD") activities in 2012 or 2013, even though the Law Society of Manitoba had mandatory rules requiring all practicing lawyers to complete 12 hours of CPD each year and rules imposing an administrative suspension on those who failed to do so. As a consequence of his failure, Green was notified that he would be suspended from practicing law if he did not comply with the rules. Instead of complying, Green challenged the validity of the rules regarding the mandatory CPD.
The primary issue before the Supreme Court was whether the Law Society could impose a mandatory CPD requirement, coupled with a possible suspension for failure to comply.
First, in determining how it should review the impugned rules, the Supreme Court of Canada confirmed that a law society rule will only be set aside if it is one "no reasonable body informed by the relevant factors could have enacted." This means that it must conform to the rationale of the statutory regime set up by the legislature. The Supreme Court's rationale for deferring to the Law Society of Manitoba included:
- The Law Society was granted, by the legislation, a broad discretion to regulate the legal profession on the basis of policy considerations related to the public interest;
- The benchers were empowered to act in a legislative capacity to make rules of general application to the profession;
- Many of the benchers making the rules were elected by members of the legal profession and were accountable to these members;
- The Law Society acted pursuant to its home statute and had to be afforded latitude in making rules based on its interpretation of the "public interest" in the context of its enabling statute; and
- The Law Society was a self-governing professional body with expertise in deciding on the policies and procedures that governed the practice of their profession.
The Supreme Court held that, in determining whether the rules passed by the Law Society of Manitoba were reasonable, it was not required to determine whether Manitoba's Legal Profession Act specifically referred to a power to pass the particular rule. Instead, the question to be asked was whether the challenged rules were reasonable in light of the Law Society's statutory mandate.
The Court found that the purpose, words and scheme of Manitoba's Legal Profession Act gives the Law Society a broad public interest mandate, as well as broad regulatory powers to accomplish the mandate. In pursuing that mandate, the Act required the Law Society to establish standards for the education of persons practicing law, granted the Law Society rule-making authority to achieve public interest objectives, and expressly permitted the Law Society to establish a CPD program. The Act also authorized the Law Society to establish consequences for contraventions of the Act or the rules enacted. Since the Law Society has the power to create a CPD scheme, it necessarily has the power to enforce the scheme's standards.
The Supreme Court noted that CPD programs serve the public interest and enhance confidence in the legal profession by requiring lawyers to participate, on an ongoing basis, in activities that enhance their skills, integrity and professionalism. It found that educational standards can ensure consistency of service only if they are adhered to and a temporary administrative suspension is a reasonable way to ensure compliance.
Given the statutory regime, the Law Society of Manitoba's role, and the importance of CPD, the Supreme Court confirmed that the Law Society can establish consequences, such as an administrative suspension without a right to a hearing or appeal, for failing to meet the educational standards it is statutorily required to put in place.
While dealing specifically with the Law Society of Manitoba, this decision is important as it confirms that professional regulatory organizations have broad discretion to enact rules and bylaws in furtherance of their statutory mandates. As the protection of the public is a fundamental aspect of a regulatory organization, regulators will likely receive deference from courts if rules or bylaws aimed at this purpose are challenged, even in the absence of express legislative authority. In addition, the Supreme Court acknowledged the importance of CPD programs and effective consequences to ensure compliance.
The Supreme Court of Canada's decision also provides some insight as to how the Alberta Court of Appeal may decide the challenge to the bylaws imposed by the Alberta College of Pharmacists at issue in Sobeys West Inc v. Alberta College of Pharmacists, 2016 ABQB 232, a case previously examined by Field Law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.