Administrative law – Decisions of administrative tribunals – Law Societies – Powers under legislation – Self-governing professions – Rules and by-laws – Barristers and solicitors – Training requirements – Continuing Professional Development – Disciplinary proceedings – Penalties – Public interest – Judicial review – Procedural requirements and fairness – Natural justice
Green v. Law Society of Manitoba,  M.J. No. 350, 2014 MBQB 249, Manitoba Court of Queen’s Bench, December 17, 2014, H. Rempel J.
A lawyer applied to the court for an order declaring that the Law Society’s rules mandating continuing professional development (CPD) are invalid. After the lawyer, a longstanding member of the profession, refused to complete the minimum 12 hours of CPD activities, his practice certificate was suspended. The Law Society agreed not to enforce the suspension until the litigation resolved. The lawyer challenged his suspension on two grounds. Firstly, he argued that the Legal Profession Act does not explicitly permit the Law Society to enact mandatory CPD rules and enforce suspensions for the violation of the rules. Secondly, he argued that the Act and the Law Society’s rules violate the rules of natural justice because they give the Law Society the authority to enact a suspension without a hearing or right of appeal.
The court was satisfied that the powers set out in the Act are broad enough to allow for the creation of a mandatory CPD program by the Law Society. The court held that the Law Society’s obligation to uphold and protect the public interest in the delivery of legal services with competence, integrity and independence provided a proper foundation for the creation of mandatory CPD rules. With respect to the second argument, the court held that the Act and rules pursuant to which the lawyer was suspended do not violate the rules of natural justice. The court noted that the lawyer’s argument conflated the administrative consequences (i.e., suspension) of non-compliance with the CPD rules and professional misconduct or incompetence. There is no moral approbation inherent in the former. The court found that the non-compliance rule strikes a proper procedural balance between the nature or gravity of the offence and the potential penalty. The rule gives the offending member 60 days’ written notice of his or her obligation to comply with the CPD rules before a suspension is imposed, and the suspension is lifted upon proof of compliance. The court said this is not a situation where the rules require a disciplinary process akin to professional misconduct. The court concluded that the lack of a hearing and right of appeal did not constitute breaches of the rules of procedural fairness.
This case was digested by Kara Hill of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact her directly at firstname.lastname@example.org or review her biography at http://www.harpergrey.com.
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