Continuing Standard of Review Development: Green v. Law Society of Manitoba, 2017 SCC 20

Paul Daly March 31, 2017

I was not looking forward to the Supreme Court of Canada’s decision in Green v. Law Society of Manitoba, 2017 SCC 20 with any great excitement. I suspected that Court would resolve the case narrowly, as a question of vires, and not employ the standard of review framework. I was agreeably surprised, therefore, that in Green the majority of the Court, in reasons given by Wagner J. delivered a coherent and convincing decision.

The issue here was whether the Law Society could impose a mandatory continuing professional development (CPD) requirement on its members and couple it with the sanction of a suspension for failure to fulfil the requirement. The Law Society has broad powers under the Legal Profession Act, C.C.S.M., c. L107 to “make rules to manage the society’s affairs, pursue its purpose and carry out its duties” (s. 4(5)). One of its two duties under the Act is to “establish standards for the education, professional responsibility and competence” of lawyers (s. 3(2)).

The Law Society’s rules, adopted pursuant to these statutory provisions, now provide for a mandatory annual CPD requirement of 12 hours for practicing lawyers:

Where a practising lawyer fails to comply…,the chief executive officer may send a letter to the lawyer advising that he or she must comply with the requirements within 60 days from the date the letter is sent. A member who fails to comply within 60 days is automatically suspended from practising law until such time as the requirements have been met and a reinstatement fee paid (Rules of the Law Society of Manitoba, art. 2-81.1(12)).

Green, who has practiced law and been a member of the Society since the 1950s, sought a declaration that the requirement was unlawful. He did not comply with the requirement. Indeed, his practicing certificate has been suspended by the Society, though the Society agreed not to enforce the suspension while Green’s challenge was ongoing.

Green advanced two arguments: first, that the mandatory CPD requirement was ultra vires; second, that the decision to suspend him violated the duty of fairness owed to him by the Society.

Wagner J. applied a standard of reasonableness to the question of whether the Law Society had the authority to impose a mandatory CPD requirement. In recent years the Court has typically justified the application of a reasonableness standard summarily. Indeed, in its most recent foray into the standard of review thicket in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 (see here), a majority of the Court set its face against a contextual analysis in which a wider variety of factors could be taken into consideration in deciding whether to apply a reasonableness or correctness standard.

Here, however, Wagner J. gave extensive reasons to justify his application of the reasonableness standard. First, the Law Society had been granted, by legislation, “a broad discretion to regulate the legal profession on the basis of a number of policy considerations related to the public interest” (at para. 22). Second, “many of the benchers of the Law Society are elected by and accountable to members of the legal profession” (at para. 23). Third, the Society “acted pursuant to its home statute in making the impugned rules, and in such a case there is a presumption that the appropriate standard is reasonableness” (at para. 23). Fourth, “self-governing professional bodies have particular expertise when it comes to deciding on the policies and procedures that govern the practice of their professions” (at para. 24).

Given that I have been arguing for many years that contextual analysis that takes account of statutory language, expertise, complexity and democratic legitimacy is inevitable and appropriate in contemporary administrative law, it hardly lies in my mouth to criticize Wagner J.’s approach here. It does sit uneasily with the approach of the majority in Edmonton East, but it provides a much more useful roadmap for future cases. Let us hope that the Court follows it.

Wagner J. went on to uphold the mandatory CPD requirement after applying a two-step approach:

First, I will construe the scope of the Law Society’s statutory mandate in accordance with this Court’s modern principle of statutory interpretation: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21. Second, I will address whether, in light of this mandate, the impugned rules are unreasonable because they expose a lawyer to a suspension in the event of non-compliance and unreasonable having regard to their procedural protections (at para. 26).

Again, I can hardly criticize Wagner J.’s approach. I have consistently argued that, on judicial review, courts should not use the principles of statutory interpretation to determine whether the provision at issue is ambiguous or to otherwise draw an independent conclusion about the meaning of the provision. The principles of statutory interpretation should be used only as Wagner J. used them here: to “construe the scope of the…statutory mandate”.

In particular, I commend Wagner J.’s response to an argument Green made based on the “implied exclusion” canon of statutory interpretation. Noting that the Act specifically provides for suspension in four different contexts but not in the context of CPD, Green argued that the Society had no power to include suspension as a sanction for breach of the mandatory CPD requirement. Quite properly, Wagner J. rejected this argument: “What the Court must do is to determine not whether the Act specifically refers to this power, but whether the impugned rules are reasonable in light of the Law Society’s statutory mandate” (at para. 36). Indeed, the closest Wagner J. came to setting out his own independent conclusion about the meaning of the Act was in saying “the legislature gave the Law Society the discretion, in exercising its general rule-making authority, to establish consequences for contravening the Rules” (at para. 41), which seems to be an unobjectionable proposition.

Wagner J. waved away the various badges of unreasonableness that Green brandished in his argument. Green argued, for instance, that the available CPD programmes would not have been of any utility 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” (at para. 48). Green’s argument that his common law right to practice law was being taken away without clear statutory authorization was “unpersuasive”: “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” (at para. 49). This was analytically robust reasonableness review.

Finally, Wagner J. addressed Green’s procedural fairness arguments. Green had applied for declaratory relief rather than challenging the suspension decision. As such, it was inappropriate for him to attempt to mount a procedural fairness challenge, given that the Society was obliged to act fairly in making the suspension decision (at paras. 53-57); there was some residual discretion which would enable account to be taken of individual circumstances (at paras. 64-65). More generally, it was not unreasonable for the Society to provide that there would (subject to the duty to act fairly in any given case) be no no hearing or right to appeal:

The suspension of a lawyer for failing to complete the CPD requirements is administrative in nature. The impugned rules reasonably include no right to a hearing or right of appeal because lawyers are solely in control of complying with the rules in question at their leisure. Members report on their own compliance with the impugned rules ― no adjudication is needed in order to determine whether a member has failed to meet the requirements. A suspension under the impugned rules ends immediately when the member comes into compliance with them. There is no residual punishment or fine other than a reinstatement fee. Thus, this suspension is similar to the one that may be imposed on a member for failing to pay fees (s. 19(5), rr. 2-88 and 2-91) or failing to file an annual trust account report (r. 547(10)). In both cases, the Act and the Rules reasonably grant no right to a hearing or right of appeal because only the member can end the suspension by complying with the requirements (at para. 62).

The Society could have provided for more extensive procedures, but “there is no magic formula for making rules with respect to CPD” and the Court’s role was “not to rewrite the Rules so as to include every procedural protection imaginable, but to determine whether the impugned rules are reasonable in light of the Act” (at para. 66).

Abella and Côté JJ. dissented. They took the view that breach of the mandatory CPD requirement would automatically lead to suspension regardless of a lawyer’s individual circumstances. Such a requirement was unreasonable:

There is only one “competence” issue regulated by the Law Society that has no procedural protections, no range of remedies, and no discretionary leeway on the part of the chief executive officer: failure to comply with Continuing Professional Development requirements. 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 (at para. 90).

It is true that other breaches of the Law Society’s Rules are not punishable automatically (at paras. 87-89), that the other provinces have not imposed an automatic punishment for breach of CPD requirements (at para. 92) and that suspending a lawyer’s licence is a very serious sanction (at paras. 94-96). But it does not follow that the Law Society’s Rules are “arbitrary”.

In fact, there are at least three good reasons for imposing an automatic punishment for breach of a mandatory CPD requirement and not for other breaches of the rules. First, the mandatory CPD requirement is a rule, not a standard. All that matters is that the lawyer has amassed 12 hours of CPD over the course of the year, something that is verifiable by a simple administrative process. By contrast, if a lawyer has been accused of misconduct, a judgement will ultimately have to be made on whether the lawyer respected his or her professional standards, a judgement which can only be made after a fairly detailed adjudicative process. Nothing in the Act suggests that the Law Society cannot make a policy choice to prefer rules over standards in some instances. Second, given resistance in the legal profession to mandatory CPD requirements, the Law Society might well have taken the view that it was necessary to take a hard line and provide for serious sanctions to arise automatically in order to encourage compliance. Third, the costs of providing a procedure which allows practicing lawyers to justify failures to comply with the mandatory CPD requirement might heavily outweigh the benefits of providing such a procedure. This is especially so where a lawyer can ultimately comply with the requirement by accumulating additional hours of CPD: that Law Society has provided this simple route to compliance (which might be widened or lengthened in accordance with the common law of procedural fairness) counts in favour of not providing other routes. One might agree or disagree with any or all of these reasons. But their very existence tends to undermine the argument that the Rules are “arbitrary”.

Finally, I previously criticized the Court’s decision in Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64 (see here) for failing to apply the standard of review framework to regulations adopted by an administrative decision-maker. Here, the standard of review framework was applied (at para. 19) and Katz was treated as an application of the framework to regulations (at paras. 20 and 67). For Wagner J., “[a] law society rule will be set aside only if the rule “is one no reasonable body informed by [the relevant] factors could have [enacted]”: Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 (CanLII), [2012] 1 S.C.R. 5, at para. 24″ (at para. 20). This might revive suggestions that there is a special reasonableness standard for legislative measures, but Wagner J.’s analytically robust application of the reasonableness standard could be understood as exemplifying a situation in which the Law Society had a broad range of reasonable regulatory outcomes to choose from.


Updated March 31, 2017 at 22:36.