Court left the door open for the LSBC to reapply should there be a material change in circumstances
The BC Supreme Court denied the Law Society of British Columbia's (LSBC) request for an injunction to halt the implementation of the Legal Professions Act pending a constitutional challenge, ruling that no irreparable harm was demonstrated and emphasizing the law society's necessary role in the transitional planning process.
The LSBC sought to halt the implementation of the act’s transitional provisions and to prevent the Lieutenant Governor in Council from enacting the remaining sections of the act until the constitutional challenge is resolved. The act, passed by the British Columbia Legislature on May 16, establishes a single regulator for legal professionals in the province. This new regulator, the Legal Professions of British Columbia (LPBC), will oversee lawyers, notaries public, paralegals, and any new classes of legal professionals created by Cabinet regulation.
The court acknowledged the LSBC’s clear articulation of serious constitutional issues, noting a significant question to be tried. However, the court found that the LSBC would not have demonstrated irreparable harm if the transitional provisions had been implemented. The court emphasized the necessity of the LSBC's expertise in the transitional planning process.
The court received assurances from the provincial government that the transitional planning process must be completed before the substantive provisions of the act are enacted, a process expected to take 18-24 months. The Supreme Court concluded that the balance of convenience did not favour granting an injunction at this stage but left the door open for the LSBC to reapply should there be a material change in circumstances suggesting an imminent enactment of the substantive provisions
The court’s decision detailed the act's background and implications. The court noted that the act's transitional provisions, currently in force, established a transitional board and Indigenous council tasked with preparing for the implementation of the LPBC. The LSBC contended that these steps were intertwined with the substantive changes and posed an immediate threat to the bar's independence.
The court's analysis applied the RJR-MacDonald test for interim injunctions, which considers whether there is a serious question to be tried, whether the applicant will suffer irreparable harm without the injunction, and whether the balance of convenience favours granting the injunction. The court found that while the first criterion was met, the LSBC failed to demonstrate irreparable harm, and the balance of convenience did not support halting the transitional provisions.
The LSBC said it will continue its constitutional challenge, with the first stage of the litigation expected to begin in early 2025.
