The Supreme Court of Canada has dismissed the appeal of a Manitoba lawyer who was automatically suspended from the law society for his failure to comply with continuing professional development requirements.In Green v. Law Society of Manitoba, the majority of the Supreme Court found that a lawyer’s failure to comply with the society’s educational rules provided “clear justification for the Law Society to impose a temporary suspension,” Justice Richard Wagner wrote for the majority.
“The standard applicable to the review of a law society rule is reasonableness,” Justice Wagner wrote, with Chief Justice Beverley McLachlin and Justices Michael Moldaver, Andromache Karakatsanis and Clément Gascon concurring. “A rule will be set aside only if it is one no reasonable body informed by the relevant factors could have enacted.”
Sidney Green was called to the bar of Manitoba in 1955. In 2011, the Law Society of Manitoba established mandatory requirements for CPD for its members, which came into effect in 2012. Green took no CPD in 2012 or 2013, and in May 2014, the law society sent him a letter advising him of his obligations under the established rule and warning him that he had 60 days to complete his CPD requirements, with the possibility of an extension if required and the risk of suspension.
Section 2-81.1(12) of the Law Society of Manitoba’s rules state that, after receiving such a letter from the society, “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.”
Green was suspended on July 30, 2014, but the law society agreed not to enforce the suspension while Green litigated the matter. He argued that the impugned rules were unfair because they impose a suspension without a right to a hearing or right of appeal.
Charles Huband, a civil litigator at Taylor McCaffrey LLP in Winnipeg who represented Green, says he believes the real question before the Supreme Court was whether or not the law society had the right to impose a suspension without a hearing or right of appeal.
“The issue is a real one not only for law societies but any other professional bodies with a disciplinary bent,” Huband told Legal Feeds. “We never argued that [the law society] couldn’t have a mandatory educational program, but our position was that . . . if a person falters or fails in fulfilling it, there shouldn’t be an automatic suspension.”
Justice Rosalie Abella (also writing for Justice Suzanne Côté) agreed, writing in dissenting reasons that the “issue in this appeal is not whether the Law Society can impose a suspension for failing to complete the 12 annual hours of mandatory education courses, but whether it can impose an automatic one.”
The minority also found that this rule could undermine public confidence in lawyers.
But the majority found: “The purpose, words, and scheme of [The Legal Profession Act] support an expansive construction of the Law Society’s rule-making authority. . . .
“The impugned rules with respect to CPD are reasonable in light of the importance of CPD programs and the Law Society’s broad rule-making authority over the maintenance of educational standards,” wrote Justice Wagner.
“In my view, the Act provides clear authority for the Law Society to create a CPD program than can be enforced by means of a suspension.”
“We’re pleased that the Supreme Court has confirmed the broad rule-making authority of the law society over the educational standards for lawyers,” Kris Dangerfield, CEO of the Law Society of Manitoba, told Legal Feeds. “From a regulator’s perspective, we’re pleased to see that the court has weighed in, . . . said these rules are reasonable and that we haven’t overstepped our boundaries [and] allowed us to take steps to protect the public.”
Green could have opted to challenge the law society’s decision to suspend him, but he opted to challenge the rule itself, said Dangerfield (who was not the law society’s CEO at the time of Green’s suspension). The majority of the court found that had Green “challenged the law society’s decision to suspend him instead of simply challenging the impugned rules, this Court could have examined the specific procedure that the Law Society followed in making its decision.”
In her dissenting reasons, Justice Abella looked at law society rules for CPD requirements in other provinces and territories, noting that in Ontario, for example, the law society can exempt a lawyer from mandatory CPD, or reduce the number of hours, and that the executive director of Nova Scotia’s Barristers’ Society can waive the requirements if the waiver is “in the public interest.” In British Columbia, if there are “special circumstances,” a lawyer can apply to the Practice Standards Committee to not be suspended for failing to comply with CPD requirements.
“There’s no question that there are some distinctions across Canada,” says Dangerfield, adding that in Ontario an automatic suspension would also follow a lawyer’s failure to comply with CPD requirements, which is expressed in the Law Society of Upper Canada’s statute. She said she didn’t believe Manitoba’s legislation was more stringent than that of other jurisdictions.
For his part, Sidney Green has decided to retire — at age 87, after 62 years of practising law that has included arguing successfully before the Supreme Court of Canada — rather than take mandatory CPD courses.
“I’m being forcefully retired,” Green told Legal Feeds. “But I have no intention of being required to go to a program which is of no value to me.
“The program was voluntary for many years; I participated for many years,” says Green, who practised mostly civil litigation. “I not only attended, I delivered presentations at these programs . . . But there was no legislation that empowered the law society to make the program compulsory, and there was no legislation which gave the law society the right to suspend an honest and competent lawyer because he didn’t go to a lecture.”
Unlike Ontario, for example, where continuing professional development is mandated in provincial legislation, Manitoba has no such legislation.
“There were several sections of [The Legal Profession Act of Manitoba] that permit the law society to suspend a member,” says Green. “In each case, the member is entitled to a hearing or an appeal. To my knowledge, I am the only lawyer in Canada who has been suspended by the law society without a hearing or without a right to appeal.
“I consider that I am being honorably discharged.”
Updated on Mar. 31, 2017 at 12:40 p.m. to include comments from Sidney Green.