Green v. Law Society of Manitoba, 2015 MBCA 67

Citation: Green v. Law Society of Manitoba, 2015 MBCA 67 Date: 20150702 Docket: AI15-30-08363 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella BETWEEN: ) C. R. HubandSIDNEY GREEN ) for the Appellant ) (Applicant) Appellant ) R. H. Kravetsky ) for the Respondent- and - ) ) Appeal heard and ) Decision pronounced:THE LAW SOCIETY OF MANITOBA ) June 17, 2015 ) (Respondent) Respondent ) Written reasons: ) July 2, 2015 MONNIN J.A. (for the Court): [1] After hearing this appeal, we dismissed it with reasons to follow.

These are those reasons. [2] The applicant, a lawyer of over 60 years at the Bar of Manitoba, appeals from a dismissal of his application from adeclaration that certain rules of The Law Society of Manitoba (the Law Society), more particularly those requiring him to attendcontinuing professional development programs and exposing him to suspension if he does not do so, are illegal and invalid. [3] The grounds for his application are, firstly, that there is no statutory authority under the Law Society’s constituentstatute, The Legal Profession Act, C.C.S.M., c.

L107 (the Act), allowing it to do so, and secondly, in the alternative, that a suspension ofhis right to practice without a hearing or a right of appeal is contrary to the rules of natural justice and procedural fairness. [4] The application proceeded before a judge of the Court of Queen’s Bench (the motion judge) who considered botharguments. On the first issue, he concluded that the necessary statutory authority to enact the rules on the question could be found in anumber of provisions of the Act.

As to the second argument, the motion judge held that the Law Society was involved in anadministrative suspension akin to what would occur had the applicant failed to pay a prescribed fee. Such non-compliance did notinvolve a finding of professional misconduct, nor did it call into question the applicant’s character, conduct or competency and,therefore, did not fall within the provisions of the Act regarding suspensions for misconduct requiring a formal laying of charges and ahearing.

He concluded that such an administrative suspension was at the low end in terms of the duty of procedural fairness and was metby way of a written notice that included a warning as to the risks of non-compliance. Position of the Applicant on Appeal [5] The applicant’s position is two-fold. On the first hand, he argues that the Act contains no statutory authority wherebythe Law Society may make its continuing professional development program mandatory and no provision authorizing it to suspend amember for failing to adhere to that requirement.

His position is that, absent a clear legislative mandate, the Law Society may notimpose those restrictions on the applicant’s ability to practice his profession. [6] He argues that the only provisions in the statute authorizing a suspension are to be found in s. 68 (emergencysuspensions) and s. 72 (professional misconduct or incompetence). As well, for the first time on his appeal, he raises s. 19(5) of the Actwhich provides that the benchers may make rules respecting fees and assessments including rules that specify consequences for failing topay such a fee or assessment.

Those may include “a penalty, a fine, costs or a suspension, or any combination of them.” The applicantargues that failing such similar provision relating to mandatory continuing professional development, the Law Society is not empoweredto enact rules to that effect under its general rule-making power under s. 4(5) of the Act. He relies on three cases, namely, FairhavenBilliards Inc. v. Liquor and Gaming Authority (Sask.) (1999), (SK CA), 177 Sask.R. 237 (C.A.); Toronto TransitCommission v. Aqua Taxi Ltd., [1955] O.J. No. 280 (QL) (Sup. Ct.); and Ainsley Financial Corp. et al. v. Ontario Securities Commission

et al. (1994), (ON CA), 77 O.A.C. 155. Those cases stand for the proposition that absent a clear statutory authority,regulatory bodies cannot impose mandatory policies enforceable by sanctions. [7] The applicant also relies on the maxim as to implied exclusion: expressio unius est exclusio alterius – to express onething is to exclude another.

He argues that by setting out in specific sections suspension for professional misconduct or incompetence,the Legislature impliedly excluded suspension for a breach of other rules. [8] On the second issue, namely, procedural fairness, the applicant argues that the suspension of the applicant’s right topractice law is a punitive measure and fails to meet the appropriate standard of procedural fairness as the suspension occurs without ahearing and without a right of appeal to this court as would be the case for suspensions occurring under other provisions of the statutoryregime.

Such a drastic remedy, in his submission, cannot occur without the applicant having the ability to defend himself before acommittee of the benchers with a right of appeal to this court if that punishment is to be imposed.

Position of the Law Society [9] The Law Society’s position is that the provisions of the statute are sufficient to provide it with the necessary authorityto make rules requiring the continuing professional development program to be mandatory and to impose a suspension for the failure toabide by those rules. [10] While, before the motion judge, the Law Society relied upon different sections of the Act, it conceded on appeal that itsposition relies upon s. 4(5) (the general rule making power), and s. 65 (which allows the benchers to make rules establishingconsequences for contravening the rules).

Decision [11] We are all of the view that the appeal must be dismissed. [12] As with all modern self-regulatory constituent statutes, the Act is a public interest statute, not a penal one as submittedby the applicant. The purpose of the statute is not to preserve a monopoly for the members of the Law Society, but to provide protectionfor the general public that seeks the services of lawyers (see Law Society of British Columbia v. Lawrie et al. (1991), (BC CA), 3 B.C.A.C. 142; and Law Society of Manitoba v.

Pollock, 2007 MBQB 51, 213 Man.R. (2d) 81, affirmed on appeal, 2008MBCA 61, 228 Man.R. (2d) 273). [13] That this is the purpose of the Act and of the Law Society is set out at s. 3(1) of the Act itself. It provides as follows: Purpose 3(1) The purpose of the society is to uphold and protect the public interest in the delivery of legal services with competence, integrityand independence. [14] In order to meet that objective, the Law Society is required to meet certain duties which are set out in s. 3(2): Duties 3(2) In pursuing its purpose, the society must (

a) establish standards for the education, professional responsibility and competence of persons practising or seeking the right to practiselaw in Manitoba; and (

b) regulate the practice of law in Manitoba. [15] It is in that context that the rule-making power under s. 4(5) is to be viewed and to be construed. It must be given abroad and liberal

interpretation in order to achieve that objective. [16] Over a number of years, starting as far back as 2008, the Law Society gradually moved towards making its continuingprofessional development program mandatory. The issue was widely known amongst the profession and debated at a number ofmeetings of the Law Society’s committees and of the benchers. It culminated in the passing of The Law Society of Manitoba, Rules ofthe Law Society of Manitoba, r. 2-81.1 requiring that as of the calendar year 2012, practicing members complete 12 hours of professionaldevelopment eligible activities every year.

It also provided for the chief executive officer to issue a warning letter requiring the memberto comply within 60 days or face automatic suspension until such time that the requirement had been met. [17] The applicant has conceded that the Law Society has the power to make rules with respect to setting up a continuingprofessional development program. It specifically says so in s. 43(

d) of the Act. We are all of the view that to make such a program

mandatory for its members is well within the purview of the benchers of the Law Society. To set such a standard in order to maintain a practicing certificate which, in the benchers’ view, serves to protect the public, is in keeping with the duties given to the Law Society under the Act . [ 18 ] Having the power to make it mandatory, the Law Society clearly has the power under s. 65 to also make rules establishing the consequences – a suspension for failing to meet the requirement.

A rule allowing the chief executive officer to suspend until the requirement is met is also within the Law Society’s powers as set out in the statute. [ 19 ] The fact that the statute provides certain procedures with respect to conduct with respect to professional misconduct or incompetence does not take away the ability of the Law Society to deal with other situations using different procedures. Not all suspensions require the implementation of the procedure set out in s. 72 of the Act .

We disagree with the submissions by the applicant that the suspension brings his professional reputation or conduct into question. The suspension is simply what it is, the result of his failure to abide by a rule which the Law Society has democratically enacted within its jurisdiction. [ 20 ] Similarly, having concluded that there is statutory authority for the Law Society to make a rule with respect to mandatory continuing professional development, the jurisprudence relied upon by the applicant does not assist him. Those cases deal with situations where the rule making authority did not exist.

As well, the maxim relied upon by the applicant is not applicable in the circumstances of this case since we are of the view that in ss. 68 and 72, the Legislature was only setting out the particulars relating to professional misconduct or incompetence. It was not dealing with suspension for a breach of the rules. [ 21 ] Turning to the second argument, namely, that the applicant was denied procedural fairness, we are all of the view that the suspension is as a result of an administrative decision and, as indicated, does not require the implementation of the procedure set out in s. 72 of the Act .

It does not warrant an involved type of hearing which the applicant says must be commenced by the Law Society in order to suspend him. Conclusion [ 22 ] The applicant disagrees with the need for, and nature of, the mandatory continuing professional development program set up by the benchers. His disagreement is one which should be taken up in the proper forum. In our view, that is before the benchers of the Law Society. He did not avail himself of the opportunity to do so during the course of the extensive deliberations leading to making the program mandatory.

It is still open to him to have the matter considered by the benchers. That is where the matter should be dealt with. [ 23 ] As to costs, the motion judge reached the conclusion that the applicant was not a public interest litigant, but was advocating based primarily on his own situation. He awarded costs to the Law Society. We are not ready to interfere with the exercise of that discretion. As to this appeal, we are of the view that costs should follow the decision and, therefore, costs will be awarded to the Law Society of Manitoba on the Tariff B scale. J.A. J.A. J.A.