The Court dismissed a petition for a declaration that the sections of the Legal Professions Act, S.B.C. 1998, c.9 and the Law Society Rules allowing a practice review on a solicitor are inconsistent with the Constitution Act, 1982 and the Charter of Rights and Freedoms and are of no force and effect. The Court further refused to quash the decision of the Law Society’s Practice Standards Committee to conduct a practice review in respect of the Petitioner on the grounds that it was contrary to the principles of natural justice and made in bad faith.

Administrative law – Barristers and solicitors – Boards and tribunals – Disciplinary proceedings – Charter of Rights – Application to disciplinary proceedings – Validity of legislation – Judicial review – Natural justice – Disclosure of third party records – Solicitor-client privilege

Greene v. Law Society of British Columbia, [2005] B.C.J. No. 586, British Columbia Supreme Court, March 21, 2005, Gerow J.

The Petitioner was a member of the Respondent Law Society and had been the subject of complaints made by two of his clients, a member of the Law Society and a staff lawyer in the Law Society’s Professional Conduct Department. The Law Society’s investigating lawyer determined that the combination of the four complaints raised issues about the standard of law being practised by the Petitioner and determined that it was appropriate to refer the two client complaints to the Practice Standards Committee and the other two complaints to the Disciplinary Committee for consideration. The Practice Standards Committee considered the complaints against the Petitioner and ordered a practice review of the Petitioner’s practice.

The Petitioner first argued that the legislative scheme established by the Law Society through the Legal Profession Act and the Law Society Rules unnecessarily infringed on the privacy rights and solicitor-client privilege of clients with their lawyers. The legislative scheme required lawyers to breach the confidentiality of their clients to representatives of the Law Society by requiring lawyers to submit to a search of the files of their clients for purposes of practice reviews.

The Petitioner argued that the impugned provisions breached the common law rights of clients to independent and confidential representation and therefore violated sections 7, 8 and 10 of the Charter. The Petitioner argued that the impugned sections of the Act and the Rules erode solicitor-client privilege and that the interference with solicitor-client privilege is unreasonable given that there was another remedy available to the Law Society to fulfil its mandate to protect the public, namely, responding only when there is a complaint. The Petitioner argued that section 89 of the Act, which attempts to protect the client’s information, is inadequate as it would result in the name of the client being disclosed.

The Court rejected the Law Society’s argument that the Petitioner’s Constitutional and Charter arguments lacked a proper evidentiary foundation. The Petitioner had presented evidence that the impugned provisions had been applied against him and that a practice review had been ordered. The effect of the impugned provisions was that it allowed the Law Society to review files which are subject to solicitor-client privilege and asked the Petitioner questions about his client’s files. As well, the Law Society had presented legislative evidence regarding the purpose and history of the impugned provisions. In the result, there was a proper factual foundation to measure the legislation against the provisions of the Charter.

The Court considered the remedial authority on which the Petitioner was proceeding. The Petitioner had cited section 24 of the Charter, which makes remedies available to “anyone whose rights and freedoms, as guaranteed by this Charter, have been infringed or denied”. The Court held that the Petitioner’s arguments regarding sections 7, 8 and 19 of the Charter related to arguments that the impugned provisions breached his clients’ rights, as opposed to his rights, and the Petitioner had no standing to pursue a claim for breach of his clients’ Charter rights on their behalf. However, inconsistency with one of the enumerated Charter rights may give rise to a declaration under section 52 of the Constitution, which provides that “the Constitution of Canada is the supreme law of Canada, and any law which is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”.

The Court proceeded to consider the Petitioner’s Charter challenges pursuant to section 7. The Court held that there was nothing in the impugned provisions that permitted or contemplated any consequences to a client of the lawyer whose practice was being reviewed and, in the result, there was no basis for the invocation of section 7.

Insofar as section 8, the Court held that, in light of the protections afforded by the Act and the Rules against disclosure of information obtained in a practice review, other than for purposes of the Act and the Rules, the client’s information remains confidential. The Court held that the public interest context in which the Law Society may demand access to client files must also be borne in mind. In the result, section 8 of the Charter had no application.

The Court held that section 10 had no application in the circumstances of this petition.

The Petitioner also argued that the Committee’s decision should be quashed because it was made contrary to the rules of natural justice and in bad faith. The Petitioner asserted that the principles of natural justice had been breached by the Committee because he had not been provided with an opportunity to be heard and was not provided with all the information the Committee relied on. He also argued that neither the investigating lawyer nor the Committee, which made the decision for a practice review, acted in good faith.

The Court held that the Judicial Review Procedure Act had no application to the case. The decision to order a practice review does not decide or prescribe the legal rights, powers or privileges, immunities, duties or liabilities of the Petitioner. The Committee’s decision was purely administrative and, in the result, the Petitioner was not entitled to the relief that he sought under section 7 of the Judicial Review Procedure Act, to have the Committee’s decision set aside.

The Court also held that courts must be careful of unduly burdening investigations during their embryonic stages where the information is being gathered for further consideration, as opposed to when the investigation is being conducted by a body seized of power to determine the rights of an individual in a final sense or any sense which may be detrimental to the individual. In the latter case, courts will be more inclined to intervene. Here, it was not necessary for the Petitioner to have a copy of a referral opinion in order to respond to the complaints against him. The Petitioner was advised of complaints against him, was given an opportunity to respond and did so. There was also no requirement to hold a hearing, given the early stage of the complaint process and the fact that the decision of the Committee was simply to order further investigation.

Regarding the Petitioner’s allegation of bad faith among the investigating lawyer and the Committee, the Court held that there was nothing untoward about assigning only one investigating lawyer to investigate a number of complaints made against the same lawyer. The evidence showed that the investigating lawyer had treated the Petitioner with courtesy and professionalism. The Petitioner had not adduced any evidence to support his allegations that the investigating lawyer or the Committee was biased towards him.

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