First

Session, 50th General Assembly

Elizabeth II, 2021

BILL 42

AN ACT TO AMEND THE

LAW SOCIETY ACT, 1999

Received

and Read the First Time ................................................................

Second

Reading ............................................................................................

Committee .....................................................................................................

Third

Reading ...............................................................................................

Royal

Assent .................................................................................................

HONOURABLE JOHN

HOGAN, QC

Minister of Justice

and Public Safety and Attorney General

Ordered to be printed by

the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would amend the Law Society Act, 1999 to

clarify that honorary benchers

are not permitted to vote;

remove the reference to the

president of the Law Society as the chief executive officer of the Law Society;

allow the vice-president of the

Law Society to conduct an initial investigation of an allegation before

referring the allegation to the complaints authorization committee;

allow the vice-president of the

Law Society and the complaints authorization committee to delegate the conduct

of an investigation to staff of the Law Society;

require that the president of

the Law Society, vice-president of the Law Society, executive director of the

Law Society or the chair or vice chair of the complaints authorization

committee report any information regarding possible criminal activity on the

part of a member obtained during an investigation to a law enforcement

authority;

modernize provisions regarding

the mandatory publication of a

summary of a decision or an order of an adjudication

tribunal;

establish a fitness to practice

committee;

authorize the benchers to make

rules in relation to the fitness to practice committee;

allow the board of governors of

the Law Foundation to appoint a chair and vice-chair from the governors;

allow governors to remain

governors until they are reappointed or replaced;

require a member to annually

transfer interest earned on the member's trust account to the Law Foundation;

allow the collection of fees

from lawyers practicing in the province under the National Mobility Agreement;

replace all references to

"Trial Division" with the correct reference "Supreme

Court"; and

add a definition of "minister" and replace all references to

"Minister of Justice" with "minister".

A BILL

AN ACT TO AMEND THE LAW SOCIETY ACT, 1999

Analysis

S.2 Amdt .

Definitions

S.8 Amdt .

Appointing lay benchers

S.17 Amdt .

Convocations

S.18 Amdt .

Powers of benchers

S.20 Amdt .

President and vice-president

S.34 Amdt .

Enrolment as solicitor

S.38 Amdt .

Appeal

S.41 Amdt .

Definitions

S.42 Amdt .

Committees

S.44 Amdt .

Effect of filing allegation

Ss.44.1 & 44.2 Added

44.1 Fitness to practice

committee referrals

44.2 Fitness to practice

committee agreements

S.45 Amdt .

Complaints authorization committee

S.49 Amdt .

Guilty plea by respondent

S.50 Amdt .

Powers of adjudication tribunal

S.51 R&S

Filing and publication of decisions

S.52 Amdt .

Disbarment and suspension

S.55.1 Amdt .

Collection of fine

S.55.2 Amdt .

Appeal

S.56.1 Amdt .

Order against a professional law corporation

S.57 Amdt .

Appointment of custodian

S.59 Amdt .

Powers of judge re client's property

S.62 Amdt .

Solicitor's lien

S.65 Amdt .

Composition of board

S.69 Amdt .

Duty to maintain trust account

S.70.1 Amdt .

Unclaimed trust funds

S.74 Amdt .

Recovery of fees

S.75 Amdt .

Fees, levies, assessment, etc.

S.80 Amdt .

Injunction

RSNL1990 cP-43 Amdt .

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

SNL1999 cL-9.1

as amended

1. Subsection 2(1) of the Law Society Act, 1999 is amended by adding immediately after

paragraph (

f) the following:

(f.01) "minister" means the minister

appointed under the Executive Council Act

to administer this Act;

(f.02) "National Mobility Agreement" means

the 2013 National Mobility Agreement of the Federation of Law Societies of

Canada, as amended from time to time;

(f.03) "net revenue" means funds received

from trust accounts less administrative expenses of the foundation;

2. (1) Paragraph 8(1)(

a) of the Act is amended by

deleting the words "Trial Division" wherever they appear and

substituting the words "Supreme Court".

(2) Paragraph 8(1 )(

b) of

the Act is amended by deleting the words "Minister of Justice" and

substituting the word "minister".

(3) Paragraph 8(1 )(

c) of

the Act is repealed and the following substituted:

(c) 2 persons, not being members or persons having

a degree in law, to be appointed by the Chief Justice of the Supreme Court

after consultation with the minister,

Section 17 of the Act is amended by adding

immediately after subsection (5) the following:

(6) Honorary benchers are not entitled to vote at

regular or special meetings of the benchers.

4. Subsection 18(2) of the Act is amended by

adding immediately after paragraph (

c) the following:

(c.1) make rules respecting the procedures to be

used by the fitness to practice committee;

(c.2) establish the circumstances in which, and the

procedures by which, a matter may be referred

(

i) by

the vice-president to the fitness to practice committee under subsection 44.1(1)

or (2),

(ii) by the fitness to

practice committee to the complaints authorization committee or the

vice-president under subsection 44.1(3), and

(iii) by the complaints

authorization committee to the fitness to practice committee under subsection

44.1(4);

5. Paragraph 20(1 )(

a) of

the Act is repealed and the following substituted:

(

a) the president who

shall be its presiding officer; and

6. (1) Subsection 34(2) of the Act is amended by

deleting the words "Trial Division" and substituting the words

"Supreme Court".

(2) Subsection 34(4) of the Act is amended by

deleting the words "Trial Division" and substituting the words

"Supreme Court".

7. Subsection 38(3) of the Act is amended by

deleting the words "Trial Division" and substituting the words

"Supreme Court".

(1) Section 41 of the Act is amended by adding

immediately after paragraph (

a) the following:

(a.1) "capacity" means a member's ability

to practice law with reasonable skill and judgment that is not substantially

impaired by a physical, mental or emotional condition, disorder or addiction;

(2) Section 41 of the Act is amended by deleting

the word "and" at the end of paragraph (

e) and adding immediately

after paragraph (

e) the following:

(e.1) "medical assessment" means a physical,

mental health or addictions assessment or examination by a qualified health

professional approved by the society; and

(3) Paragraph 41(

f) of the Act is repealed and the

following substituted:

(f) " respondent "

means

(

i) a member, former

member, law firm, former law firm, student, former student or a person referred

to in subsection 39(1) or (2) whose conduct is being inquired into under this

Part, and

(ii) a member, former

member, student, former student or a person referred to in subsection 39(1) or

(2) whose capacity is being inquired into under this Part.

(1) Section 42 of the Act is amended by adding

immediately after subsection (3) the following:

(3.1) The benchers shall appoint 2 members who are

not elective benchers and the minister shall appoint one person to represent

the public interest who is not a bencher or member who shall together

constitute the fitness to practice committee.

(3.2) The benchers shall

appoint 4 members who are not elective benchers and the minister shall appoint

2 persons, who are not benchers or members to be alternates for the fitness to

practice committee.

(2) Subsection 42(9) of the Act is repealed and

the following substituted:

(9) The complaints

authorization committee, the fitness to practice committee, an adjudication

tribunal appointed under

section 46 and a person appointed by any of them may summon a

respondent or other person and require the respondent or other person to give

evidence, orally or in writing, upon oath or affirmation, and produce the documents

and things that any of them considers necessary for the full investigation and

hearing of an allegation or complaint and shall have the powers, privileges and

immunities that are conferred on a commissioner appointed under the Public

Inquiries Act, 2006.

(1) Section 44 of the Act is amended by adding

immediately after subsection (1) the following:

(1.1) Where the allegation is not satisfactorily

resolved by the vice-president or through alternate dispute resolution under

subsection (1), the vice-president may conduct an investigation of the

allegation and submit the results of the investigation to the complaints

authorization committee.

(2) Subsection 44(2) of the Act is repealed and

the following substituted:

(2) Where the allegation is not satisfactorily

resolved by the vice-president or through alternate dispute resolution under

subsection (1) and the vice-president does not conduct an investigation under

subsection (1.1), the vice-president shall refer the allegation and all other

allegations to the complaints authorization committee.

11. The Act is amended by adding immediately after

section 44 the following:

Fitness to

practice committee referrals

44.1

(1) Notwithstanding

anything contained in this Act or the rules, where an allegation concerns a respondent's

capacity, or where a person, in the absence of an allegation, raises concerns

about a respondent's capacity to the society, the vice-president may, with the

consent of the respondent, refer the matter to the fitness to practice committee

in accordance with the rules.

(2) Notwithstanding anything contained in this Act

or the rules, where the respondent, in the absence of an allegation, raises

concerns about the respondent's capacity to the society, the vice-president may

refer the matter to the fitness to practice committee in accordance with the

rules.

(3) The fitness to practice committee may refer a

matter to the complaints authorization committee or the vice-president in

accordance with the rules.

(4) The complaints authorization committee may,

with the respondent's consent, refer a matter to the fitness to practice

committee in accordance with the rules.

(5) Where a matter is referred by the fitness to

practice committee to the complaints authorization committee under subsection (3),

the matter shall be considered an allegation.

Fitness to

practice committee agreements

44.2

(1) Where

a matter has been referred to the fitness to practice committee by the

vice-president or the complaints authorization committee, the fitness to

practice committee may, where it is in the public interest to do so and the respondent

consents, enter into one or more agreements with the respondent.

(2) An agreement referred to in subsection

(1) may, with the respondent's consent, include one or more of the following terms

and conditions:

(

a) that the respondent submit

to a medical assessment to determine the respondent's capacity;

(

b) that the respondent undertake

to complete or complete a course of treatment approved by the fitness to

practice committee and designed to address any issues concerning the

respondent's capacity;

(

c) that the respondent authorize

the fitness to practice committee to receive reports from medical assessments

or treatment referred to in paragraphs (

a) and (b);

(

d) that the respondent accept practice

restrictions or conditions on the respondent's practice or withdraw from

(

e) that the respondent comply

to practice committee.

(3) Where a respondent fails to comply with an

agreement under subsection (1), the fitness to practice committee may refer the

matter to the complaints authorization committee or the vice-president, based

on who referred the matter to the fitness to practice committee.

(4) Where a respondent is subject to ongoing terms

and conditions of an agreement the fitness to practice committee shall monitor

the respondent's compliance with the agreement and may, at any time with the

where the fitness to practice committee determines that it is in the public

interest to do so.

(1) Paragraph 45(1 )(

a) of the Act is repealed and the following substituted:

(

a) refer the allegation back

to the vice-president for

(

i) an

investigation in accordance with the rules,

(ii) further investigation

in accordance with the rules where the vice-president conducted an

investigation in accordance with subsection 44(1.1), or

(iii) alternate dispute

resolution in accordance with the rules;

(2) Section 45 of the Act is amended by adding

immediately after subsection (1) the following:

(1.1) An investigation referred to in paragraph (1 )(

a) or (

b) may be delegated by the vice-president or the

complaints authorization committee to the staff of the society.

(3) Section 45 of the Act is amended by adding

immediately after subsection (4) the following:

(4.1) The president,

vice-president, executive director and chair and vice-chair of the complaints

authorization committee shall disclose to a law enforcement authority any

information regarding possible criminal activity on the part of a member that

is obtained during an investigation.

(4) Subsection 45(7) of the Act is amended by

deleting the words "Trial Division" and substituting the words

"Supreme Court".

13. Paragraph 49(2 )(

m) of

the Act is amended by deleting the reference "subsection 51(4)" and

substituting the reference "subsection 51(7)".

14. Paragraph 50(3 )(

m) of

the Act is amended by deleting the reference "subsection 51(4)" and

substituting the reference "subsection 51(7)".

(1) Section 51 of the Act is repealed and the

following substituted:

Filing and

publication of decisions

(1) An adjudication tribunal shall file a decision

or order made under subsection 49(2), 50(2) or 50(3) with the society and

provide a copy to the complainant, the respondent and the respondent's partners

and employers, as designated in the rules, and the minister.

(2) The society shall maintain a copy of a

decision or order filed under subsection (1) for a minimum of 10 years after

the day the decision or order is filed and shall upon receiving a request to

view the disciplinary records in relation to a respondent permit a person to

view the

summary prepared in accordance with subsection (7).

(3) The society shall publish a

summary of a

decision or order of an adjudication tribunal within 14 days of the expiry of

the appeal period provided in

section 55.2, where the decision or order

(

a) suspends the

respondent;

(

b) allows or directs the

surrender of the respondent's licence;

(

c) restricts the

respondents practice;

(

d) disbars the

respondent;

(

e) specifies conditions

for the continuing practice of the respondent; or

(

f) requires that a

summary of the decision or order be published.

(4) Where the society is required to publish a

summary of a decision or order under subsection (3), the society shall publish

the

summary of the decision or order on the society's website.

(5) Where the society publishes a

summary of a

decision or order in accordance with subsection (4), the society shall

(

a) advise at least 2

media outlets in or nearest to the community in which the respondent practices

that a

summary of the decision or order has been published; and

(

b) keep a

summary of the

decision or order on the website

(

i) for a period of not

less than 3 months, or

(ii) where one or more

of the following apply, for a period not less than the period referred to in

clause (A), (

B) or (C), as applicable:

(

A) where the

respondent is suspended for a period greater than 3 months, the period of

suspension,

(

B) where the

respondents practice is restricted for a period greater than 3 months, the

period of restriction, or

(

C) where conditions

are imposed for the continuing practice of the respondent for a period greater

than 3 months, the period during which conditions are imposed.

(6) Where the society publishes a

summary of a

decision or order in accordance with subsection (4), the society may also

publish a

summary of the decision or order in the society's annual report or

another publication approved by the society.

(7) Unless a court

orders otherwise, the

summary of the decision or order published under this

section

shall include

(

a) the name of the

respondent and the address where the respondent practises;

(

b) the date, location

and a brief description of the conduct of the respondent that was found to be

deserving of sanction;

(

c) the name of the

complainant, where requested by the complainant;

(

d) the contents of the decision

or order in relation to the actions referenced in paragraphs (3)(

a) to (e); and

(

e) other information

specified for publication in the decision or order.

(8) Where a decision or order, the

summary of

which is published under this section, is varied or set aside, the society

shall within 14 days of the filing of the subsequent decision or order publish

a

summary of the decision or order and subsections (3) to (7) apply, with the

necessary changes.

(9) The society may give notice of the decision or

order and information respecting the decision or order to the other persons the

benchers may direct and shall include a

summary of the decision or order in a

certificate of good standing issued in relation to the respondent.

(10) Nothing in this

section prohibits the society

from publishing a decision or order of an adjudication tribunal, including

publishing it in a database or repository for adjudication decisions approved

by the minister, provided that the name and any identifying information of the

complainant or witnesses is not published unless the complainant or witness

requests that it be published.

16. Subsection 52(3) of the Act is amended by

deleting the word "respondents" and substituting the word

"respondent's".

Section 55.1 of the Act is amended by deleting

the words "Trial Division" wherever they appear and substituting the

words "Supreme Court".

Section 55.2 of the Act is amended by deleting

the words "Trial Division" wherever they appear and substituting the

words "Supreme Court".

Section 56.1 of the Act is amended by deleting

the words "Trial Division" wherever they appear and substituting the

words "Supreme Court".

Section 57 of the Act is amended by deleting

the words "Trial Division" and substituting the words "Supreme

Court".

Section 59 of the Act is amended by deleting

the words "Trial Division" and substituting the words "Supreme

Court".

22. Subsection 62(3) of the Act is amended by deleting

the words "Trial Division" and substituting the words "Supreme

Court".

(1) Paragraph 65(2 )(

a) of the Act is amended by deleting the words "Minister of Justice" and

substituting the word "minister".

(2) Paragraph 65(2 )(

b) of

the Act is amended by deleting the words "Minister of Justice" and

substituting the word "minister".

(3) Subsection 65(3) of the Act is repealed and

the following substituted:

(3) The board shall elect a chair of the board and

a vice-chair of the board from the members of the board.

(4) Section 65 of the Act is amended by adding

immediately after subsection (5) the following:

(5.1) Where the term of a

governor expires, the governor continues to be a governor until reappointed or

replaced.

(5) Subsection 65(6) of the Act is repealed and

the following substituted:

(6) Where a governor holds office for a period of

8 consecutive years, the governor is not eligible for appointment as a governor

until the earlier of

(

a) the expiration of 12

months from the end of the year in which the governor was last a governor; or

(

b) where the governor's

term was continued in accordance with subsection (5.1), the expiration of 12

months from the end of the year in which the governor's term would have ended

had it not been continued under subsection (5.1).

24. (1) Subsection 69(2) of the Act is repealed and

the following substituted:

(2) A

member or professional law corporation who is credited by a bank, trust company

or other depository approved by the board with interest on money received or

held for, or on account of, clients generally holds that interest in trust for

the foundation and each year shall pay to the foundation the interest earned on

the members trust account .

(2) Section 69 of the Act is amended by adding

immediately after subsection 69(2) the following:

(3) A member or professional law corporation shall

not deduct administration and service charges imposed by a bank, trust company or other depository

approved by the board from the amount referred to in subsection (1).

25. Subsection 70.1(8) of the Act is amended by

deleting the words "Trial Division" and substituting the words

"Supreme Court".

26. (1) Subsection 74(10) of the Act is amended by

deleting the words "Trial Division" and substituting the words

"Supreme Court".

(2) Section 74 of the Act is amended by adding

immediately after subsection (14) the following:

(15) This

section applies to a lawyer practising in

the province under the National Mobility Agreement.

27. Subsection 75(1) of the Act is amended by

deleting the words "Trial Division" and substituting the words

"Supreme Court".

Section 80 of the Act is amended by deleting

the words "Trial Division" and substituting the words "Supreme

Court".

RSNL1990 cP-43 Amdt .

Schedule C of the Public Service Commission Act

is amended by deleting the reference " Law Society Act, 1999 ,

section 42(4) with respect to ministerial appointments

and paragraph 65(2 )( b)" and substituting the reference

" Law Society Act, 1999 , subsections 42(3.1), (3.2) and (4) with

respect to ministerial appointments and paragraph 65(2)(b)".

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