Green v. Law Society of Manitoba

Green v. Law Society of Manitoba
Collection
Supreme Court Judgments
Date
2017-03-30
Neutral citation
2017 SCC 20
Report
[2017] 1 SCR 360
Case number
36583
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne
On appeal from
Manitoba
Notes
SCC Case Information: 36583
Decision Content
SUPREME COURT OF CANADA
Citation: Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360
Appeal heard: November 9, 2016
Judgment rendered: March 30, 2017
Docket: 36583
Between:
Sidney Green
Appellant
and
The Law Society of Manitoba
Respondent
- and -
Federation of Law Societies of Canada
Intervener
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ.
Reasons for Judgment:
(paras. 1 to 69)
Wagner J. (McLachlin C.J. and Moldaver, Karakatsanis and Gascon JJ. concurring)
Dissenting Reasons:
(paras. 70 to 98)
Abella J. (Côté J. concurring)
Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360
Sidney Green Appellant
v.
The Law Society of Manitoba Respondent
and
Federation of Law Societies of Canada Intervener
Indexed as: Green v. Law Society of Manitoba
2017 SCC 20
File No.: 36583.
2016: November 9; 2017: March 30.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ.
on appeal from the court of appeal for manitoba
Law of professions — Barristers and solicitors — Continuing professional development — Law Society suspending lawyer for failing to comply with Rules of the Law Society of Manitoba imposing mandatory professional development — Lawyer seeking declaration that impugned rules invalid because they impose suspension for non‑compliance without right to hearing or right of appeal — Whether rules valid in light of Law Society’s mandate under The Legal Profession Act, C.C.S.M., c. L107.
Law of professions — Barristers and solicitors — Law society — Rules — Standard of review — Statute governing legal profession empowering benchers of Law Society of Manitoba to make rules of general application to profession — Standard of review applicable to rules made by Law Society.
G was called to the Bar in 1955 and has been a practising lawyer and member of The Law Society of Manitoba (“Law Society”) for over 60 years. Despite the Law Society’s mandatory rules requiring all practising lawyers to complete 12 hours of continuing professional development (“CPD”) a year, G did not report any CPD activities for 2012 or 2013. Over a year after G’s failure to report the completion of any CPD hours, the Law Society notified him that if he did not comply with the rules within 60 days, he would be suspended from practising law. G was also invited to correct any errors in his CPD record and was informed that it was possible for the 60‑day delay to be extended. G did not reply, nor did he apply for judicial review of the decision to suspend him. Rather, he challenged the validity of certain provisions of the Rules of the Law Society of Manitoba (“Rules”) with respect to CPD, by applying for declaratory relief. The application judge dismissed G’s application, concluding that the impugned rules fell squarely within the Law Society’s legislative mandate. The Court of Appeal dismissed the appeal for similar reasons.
Held (Abella and Côté JJ. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Moldaver, Karakatsanis, Wagner and Gascon JJ.: The standard applicable to the review of a law society rule is reasonableness. A rule will be set aside only if it is one no reasonable body informed by the relevant factors could have enacted. This means that the substance of the rule must conform to the rationale of the statutory regime set up by the legislature. Reasonableness is the appropriate standard for several reasons. First, in making rules of general application to the profession, the benchers of a law society act in a legislative capacity. The standard of review must reflect a law society’s broad discretion to regulate the legal profession on the basis of policy considerations related to the public interest. Second, many benchers of a law society are also elected by and accountable to members of the legal profession, and applying the reasonableness standard ensures that the courts will respect the benchers’ responsibility to serve those members. Third, a law society acts pursuant to its home statute in making rules such as those challenged by G, and as a result, there is a presumption that the appropriate standard is reasonableness. A law society must be afforded considerable latitude in making rules based on its interpretation of the “public interest” in the context of its enabling statute. Finally, a law society is a self‑governing professional body with expertise in regulating the legal profession at an institutional level.
To determine whether the impugned rules are reasonable, the scope of the Law Society’s statutory mandate must first be construed. The purpose, words and scheme of The Legal Profession Act (“Act”), support an expansive construction of the Law Society’s rule‑making authority. The Law Society was given a broad public interest mandate and broad regulatory powers to accomplish its mandate — a mandate which must be interpreted using a broad and purposive approach. The wording and scheme of the Act are also indicative of the breadth of the Law Society’s authority and rule‑making power. In particular, it is empowered to establish consequences for contravening the Act or the Rules, such as a suspension, for failing to meet the educational standards it is statutorily required to put in place. Since the Law Society has the power to create a CPD scheme, it necessarily has the power to enforce the scheme’s standards.
In this case, the impugned rules are reasonable in light of the Law Society’s statutory mandate. It is reasonable for the Rules to expose a lawyer to a suspension as a consequence for non‑compliance with the CPD program. The Act provides clear authority for the Law Society to create a CPD program that can be enforced by means of a suspension, and the overall purpose of the Act, the words used in it and the scheme of the Act show that the impugned rules are reasonable in light of the Law Society’s statutory mandate. A suspension, the purpose of which relates to compliance, not to punishment or professional competence, is a reasonable and effective way to ensure consistency of legal service across the province and to guarantee that even lawyers who are not interested in meeting the educational standards will comply. 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.
Moreover, imposing a suspension on members for failing to comply with the impugned rules without giving such members a right to a hearing or a right of appeal is not unreasonable in light of the Law Society’s statutory powers. Rather, it is entirely consistent with the Law Society’s duty to establish and enforce educational standards. The suspension at issue is administrative in nature, and 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. Only they can end the suspension by complying with the requirements. Further, the rules permitting a suspension are not self‑applying. In addition to a lawyer’s common law procedural rights, the rules permitting a suspension expressly vest the chief executive officer of the Law Society with discretion to ensure that the effect of the Rules is not overly harsh. A lawyer’s failure to comply with the impugned educational rules, even after having been warned and given an opportunity to seek an extension, provides clear justification for the Law Society to impose a temporary suspension.
Per Abella and Côté JJ. (dissenting): 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.
A law society can only enact rules that are consistent with the purposes, scope and objectives of its enabling statute, and its authority to do so must be exercised in a reasonable manner. However, the fact that deference is owed does not mean that a law society has carte blanche; there are several grounds for finding delegated legislation to be unreasonable, such as where it is manifestly unjust.
In Manitoba, the Law Society’s purpose is to “uphold and protect the public interest in the delivery of legal services with competence, integrity and independence”. Those are the core values of a lawyer’s professionalism. Protecting the public interest necessarily involves not only ensuring that a lawyer delivers legal services in accordance with those core values, but also protecting the public’s perception in the professionalism of the delivery. While the primary goal of the Law Society is the protection of the public interest, it cannot do so without also protecting the ability of its members to practise law professionally. A law society must, as a result, exercise its mandate in a way that not only protects the ability of lawyers to act professionally, but that also reinforces the public’s perception that lawyers are behaving professionally. The flip side is that a law society cannot enact rules which unreasonably undermine public confidence in lawyers.
In this case, the Law Society’s rule that members who fail to complete 12 mandatory hours of continuing professional development activities in a calendar year are automatically suspended is unreasonable, because it is inconsistent with the Law Society’s mandate to protect the public’s confidence in the legal profession. When a lawyer is suspended, so is public confidence in him or her. That is why the Law Society takes such care in its investigation of complaints regarding professional misconduct or incompetence — it helps ensure that a suspension is imposed only after at least some minimal procedural protections have been provided, and then only after a range of lesser penalties has been considered. When a suspension is the result of such a process, the loss of public confidence is warranted. Where, however, a suspension is imposed automatically for the least serious disciplinary breach possible — failing to attend 12 hours of classes — the Law Society is in breach of its duty to protect the public from the needless erosion of trust in the professionalism of lawyers.
The economic costs of the suspension are manifest, as are the reputational ones, especially since the rules require the chief executive officer to notify every member of the Law Society and each of the chief justices of the courts in Manitoba of the name of a member who is suspended. This is the only competence matter 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, and it alone attracts an automatic suspension, regardless of justificatory circumstances. This makes it arbitrary. The absence of discretion, procedural fairness or remedial options stands in stark contrast to other provisions of the Act or Rules furthering the Law Society’s mandate to establish standards for the competence of lawyers. It also stands in stark contrast to the regulations, policies and by‑laws of the continuing professional development requirements of most other Canadian provinces and territories.
The lack of discretion in this case is fatal. A rule that leads to an automatic suspension for failing to attend 12 hours of continuing professional development is so far removed from ensuring the public’s confidence in lawyers that it is manifestly unjust, and therefore, unreasonable.
Cases Cited
By Wagner J.
Applied: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; referred to: Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135; Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247; Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, [2013] 2 S.C.R. 649; ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140; Culligan v. Miller, J. (1996), 178 N.B.R. (2d) 321; Shewchuk‑Dann v. Assn. of Social Workers (Alberta) (1996), 38 Admin. L.R. (2d) 19; Laferrière v. Canada (Attorney General), 2015 FC 612; Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, 609 A.R. 299; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Moreau‑Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249; Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504; Kruse v. Johnson, [1898] 2 Q.B. 91.
By Abella J. (dissenting)
Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810; Waddell v. Governor in Council (1983), 8 Admin. L.R. 266; Kruse v. Johnson, [1898] 2 Q.B. 91; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247; Law Society of British Columbia v. Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113; Canada (Attorney General) v. Law Society of British Columbia, [1982] 2 S.C.R. 307; Pett v. Greyhound Racing Assn., Ltd., [1968] 2 All E.R. 545; Joplin v. Chief Constable of the City of Vancouver (1982), 144 D.L.R. (3d) 285; Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105.
Statutes and Regulations Cited
By‑Law 6.1 — Continuing Professional Development [made under the Law Society Act, R.S.O. 1990, c. L.8], s. 2(4).
Interpretation Act, C.C.S.M., c. I80, ss. 6, 32(1).
Law Society Rules 2015 [made under the Legal Profession Act, S.B.C. 1998, c. 9], rr. 3‑29(1), (5), 3‑32.
Legal Profession Act, C.C.S.M., c. L107, ss. 3, 4(1), (2), (5), (6), 5, 12(2), 19(5), 43(c)(ii), 65, 68(b), (c), 72, 75(1), 76(1)(a)(i).
Règlement sur la formation continue obligatoire des avocats, CQLR, c. B‑1, r. 12, ss. 15 to 17.
Regulations [made under the Legal Profession Act, S.N.S. 2004, c. 28], r. 8.3.9.
Rules of the Law Society of Manitoba [made under The Legal Profession Act, C.C.S.M., c. L107], rr. 2‑81.1(1), (6), (8), (9), (12), (13), 2‑81.2(3), 2‑88, 2‑91, 2‑97, 5‑47(10), 5‑64(2), (3), 5‑65(1), 5‑66, 5‑72(1), (4), 5‑74(1), 5‑81(2), 5‑96(2).
Rules of the Law Society of Yukon [made under the Legal Profession Act, R.S.Y. 2002, c. 134], r. 95.3(5).
Rules on Mandatory Continuing Professional Development [made under the Law Society Act, 1996, S.N.B. 1996, c. 89], ss. 7(1) to (3), 8(1), (2).
Authors Cited
Barreau du Québec. Guide sur les dispenses de l’obligation de formation continue, édité en mars 2015, p. 10 (online: http://www.barreau.qc.ca/pdf/publications/guides‑fco/fco‑guide‑dispenses.pdf; archived version: http://www.scc-csc.ca/cso-dce/2017SCC-CSC20_1_fra.pdf).
Brown, Donald J. M., and John M. Evans, with the assistance of David Fairlie. Judicial Review of Administrative Action in Canada. Toronto: Thomson Reuters, 2013 (loose‑leaf updated December 2016, release 4).
Huscroft, Grant. “From Natural Justice to Fairness: Thresholds, Content, and the Role of Judicial Review”, in Flood, Colleen M., and Lorne Sossin, eds., Administrative Law in Context, 2nd ed. Toronto: Emond Montgomery, 2013, 147.
Law Society of Saskatchewan. Continuing Professional Development Policy, revised September 15, 2016, sections 16, 18, and 19 (online: https://www.lawsociety.sk.ca/media/61741/policy.pdf; archived version: http://www.scc‑csc.ca/cso‑dce/2017SCC‑CSC20_2_eng.pdf).
MacKenzie, Gavin. Lawyers and Ethics: Professional Responsibility and Discipline, 5th ed. Toronto: Carswell, 2009.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.: LexisNexis, 2014.
APPEAL from a judgment of the Manitoba Court of Appeal (Monnin, Cameron and Mainella JJ.A.), 2015 MBCA 67, 319 Man. R. (2d) 189, 638 W.A.C. 189, 75 C.P.C. (7th) 73, 386 D.L.R. (4th) 511, [2015] 10 W.W.R. 239, [2015] M.J. No. 175 (QL), 2015 CarswellMan 332 (WL Can.), affirming a decision of Rempel J., 2014 MBQB 249, 313 Man. R. (2d) 19, 66 C.P.C. (7th) 430, [2015] 5 W.W.R. 769, [2014] M.J. No. 350 (QL), 2014 CarswellMan 760 (WL Can.). Appeal dismissed, Abella and Côté JJ. dissenting.
Charles R. Huband and Kevin T. Williams, for the appellant.
Rocky Kravetsky and Jeffrey W. Beedell, for the respondent.
Neil Finkelstein and Brandon Kain, for the intervener.
The judgment of McLachlin C.J. and Moldaver, Karakatsanis, Wagner and Gascon JJ. was delivered by
Wagner J. —
I. Introduction
[1] A lawyer’s professional education is a lifelong process. Legislation is amended, the common law evolves, and practice standards change as a result of technological advances and other developments. Lawyers must be vigilant in order to update their knowledge, strengthen their skills, and ensure that they adhere to accepted ethical and professional standards in their practices.
[2] This appeal concerns a basic component of a lawyer’s education: continuing professional development (“CPD”). At issue is whether The Law Society of Manitoba (“Law Society”) can impose rules that couple a mandatory CPD program with a possible suspension for failing to meet the program’s requirements.
[3] I agree with the courts below that the Law Society has the authority to do so. The Law Society is required by statute to protect members of the public who seek to obtain legal services by establishing and enforcing educational standards for practising lawyers. CPD programs serve this public interest and enhance confidence in the legal profession by requiring lawyers to participate, on an ongoing basis, in activities that enhance their skills, integrity and professionalism. CPD programs have in fact become an essential aspect of professional education in Canada. Most law societies across the country have implemented compulsory CPD programs.
[4] But educational standards can ensure consistency of legal service only if lawyers adhere to them. If a lawyer fails to complete the required hours of training (“CPD hours”) even after having been warned, temporarily suspending him or her until those hours are completed is a reasonable way to ensure compliance. This suspension is administrative, not punitive, in nature.
[5] The appeal should be dismissed. 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.
II. Facts
[6] The appellant, Mr. Sidney Green, was called to the Bar of Manitoba in 1955. He has been a practising lawyer and member of the Law Society for over 60 years. Mr. Green has served as a bencher of the Law Society[1] and has also participated and lectured in many CPD activities. He has no discipline record and does not face any disciplinary charges.
[7] In this case, Mr. Green is challenging the provisions of the Rules of the Law Society of Manitoba (“Rules”) that make its CPD program mandatory. Manitoba’s program has not always been mandatory. In 2007, as a first step, the benchers approved rules requiring that all lawyers report their CPD hours. The Law Society collected and studied the CPD hours reported by its members over a two-year period. Many members had reported completing no CPD activities or less than one hour of such activities per month. Subsequently, the Law Society’s Admissions and Education Committee (“Committee”) recommended that the benchers move to a mandatory CPD program. At about the same time, the Chief Executive Officer (“CEO”) of the Law Society wrote a memorandum to the benchers in which he indicated that voluntary CPD was not working.
[8] From late March 2010 to May 2011, the benchers considered making the CPD program mandatory, consulting the members on that subject. Over that period, the benchers and the Committee each met several times and received a variety of comments and other input. Mr. Green made no submissions to the benchers on the proposed CPD requirements even though the Law Society had invited its members to do so.
[9] The benchers subsequently approved mandatory CPD and amended the Rules to require all practising lawyers to complete CPD hours (one hour per month of practice for a total of 12 hours a year). Failing to comply with this requirement may lead to the suspension of a lawyer’s licence to practise. The Rules specifically provide:
2-81.1(8) Commencing January 1, 2012, and subject to subsection (10), a practising lawyer must complete one hour of eligible activities for each month or part of a month in a calendar year during which the lawyer maintained active practising status. . . .
. .
2-81.1(12) Where a practising lawyer fails to comply with subsection (8), 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.
2-81.1(13) Where a member is suspended more than once for failing to comply with subsection (8), the chief executive officer may also refer the matter to the complaints investigation committee for its consideration.
[10] Despite these mandatory rules, Mr. Green did not report any CPD activities for 2012 or 2013. On May 30, 2014, over a year after Mr. Green had first failed to report the completion of any CPD hours, the CEO of the Law Society sent Mr. Green a letter notifying him that if he did not comply with the Rules within 60 days, he would be suspended from practising law. The CEO also invited Mr. Green to correct any errors in his self-reported CPD record and informed him that it was possible for the 60 days he had to complete his hours to be extended.
[11] Mr. Green did not reply to the letter, nor did he apply for judicial review of the decision to suspend him. Rather, he applied for declaratory relief on June 25, 2014, challenging the validity of certain provisions of the Rules with respect to CPD (“impugned rules”). Although the Law Society subsequently suspended Mr. Green’s practising certificate effective July 30, 2014, it has agreed not to enforce the suspension until after the litigation has been resolved.
III. Decisions Below
A. Manitoba Court of Queen’s Bench, 2014 MBQB 249, 313 Man. R. (2d) 19
[12] The application judge dismissed Mr. Green’s application, concluding that the impugned rules fall squarely within the Law Society’s legislative mandate under The Legal Profession Act, C.C.S.M., c. L107 (“Act”). The Law Society is required to “establish standards for the education, professional responsibility and competence” of lawyers (s. 3(2)). As a result, the impugned rules are consistent with the Law Society’s broad power under s. 4(5) of the Act to make rules it deems advisable in order to pursue its statutory purpose and uphold the public interest.
[13] The application judge also dismissed arguments raised by Mr. Green with respect to natural justice and procedural fairness.
B. Manitoba Court of Appeal, 2015 MBCA 67, 319 Man. R. (2d) 189
[14] The Court of Appeal dismissed the appeal for reasons similar to those of the application judge. It noted that the Law Society’s constituent Act is a public interest statute designed to protect members of the public who seek to obtain legal services and concluded that the Law Society’s rule-making power must be given a broad and liberal interpretation in order to achieve that objective.
[15] Mr. Green conceded in the Court of Appeal that the Law Society has the power to make rules to set up a CPD program. The court held that the Law Society also has the power to make such a program mandatory and to establish consequences under s. 65 of the Act for failing to comply with the program.
[16] Further, the Court of Appeal found that the suspension of a lawyer for failing to complete his or her CPD hours is an administrative decision that does not require implementation of the more extensive procedures that apply where a lawyer has been charged with professional misconduct or incompetence (as set out in s. 72 of the Act).
IV. Issues
[17] This case raises two questions: (1) What standard of review applies to a question regarding the validity of rules made by a law society? (2) Having regard to the appropriate standard of review, are the impugned rules valid in light of the Law Society’s mandate under the Act?
V. Analysis
[18] Mr. Green has challenged the impugned rules because he has no interest in complying with them. Since these rules came into force in 2012, Mr. Green has not reported completing any CPD hours. He argues that the impugned rules are unfair because they impose a suspension without a right to a hearing or a right of appeal. Yet Mr. Green has not applied for judicial review of the Law Society’s decision to suspend him. He has not complained that the Law Society treated him unfairly. Mr. Green is challenging these rules on these procedural grounds, not for fear of injustice. He is simply not interested in attending a mandated number of CPD activities.
[19] Despite these motivations for Mr. Green’s challenge to the impugned rules, this Court must now determine whether those rules fall outside the Law Society’s statutory mandate. The Court has never addressed the appropriate standard of review to be applied when considering the validity of rules made by a law society. The standard of review framework from Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, applies in this case because it is applicable to “all exercises of public authority” and to “those who exercise statutory powers”: para. 28; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135, at para. 53.
A. Standard of Review Is Reasonableness
[20] In my view, the standard applicable to the review of a law society rule is reasonableness. 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, [2012] 1 S.C.R. 5, at para. 24. This means “that the substance of [law society rules] must conform to the rationale of the statutory regime set up by the legislature”: Catalyst Paper, at para. 25; see also Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810, at para. 25.
[21] Rules made by law societies are akin to bylaws passed by municipal councils. McLachlin C.J. explained the rationale for this standard of review in Catalyst Paper:
. . . review of municipal bylaws must reflect the broad discretion provincial legislators have traditionally accorded to municipalities engaged in delegated legislation. Municipal councillors passing bylaws fulfill a task that affects their community as a whole and is legislative rather than adjudicative in nature. Bylaws are not quasi-judicial decisions. Rather, they involve an array of social, economic, political and other non-legal considerations. [para. 19]
[22] Similar considerations are relevant in the context of rules made by a law society. In the case at bar, the legislature specifically gave the Law Society a broad discretion to regulate the legal profession on the basis of a number of policy considerations related to the public interest. The Act empowers the benchers of the Law Society to make rules of general application to the profession, and in doing so, the benchers act in a legislative capacity.
[23] Further, reasonableness is the appropriate standard because many of the benchers of the Law Society are elected by and accountable to members of the legal profession. While it is true that the public does not directly vote for the benchers, the rules the benchers make apply only to members of the profession. Thus, McLachlin C.J.’s comments in Catalyst Paper in the context of municipal bylaws are apt here as well: “. . . reasonableness means courts must respect the responsibility of elected representatives to serve the people who elected them and to whom they are ultimately accountable” (para. 19).
[24] Beyond the specific guidance provided in Catalyst Paper, which I find applicable in the instant case, the general principles developed by the Court in respect of the standard of review also support the argument that reasonableness is the appropriate standard. The Law 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: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at paras. 34 and 39. The Law Society must therefore be afforded considerable latitude in making rules based on its interpretation of the “public interest” in the context of its enabling statute: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 50 and 87.
[25] Additionally, the Law Society has expertise in regulating the legal profession “at an institutional level”: Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293, at para. 33. This Court has previously recognized that self-governing professional bodies have particular expertise when it comes to deciding on the policies and procedures that govern the practice of their professions: Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869, at p. 887.
B. Are the Impugned Rules Reasonable in Light of the Law Society’s Mandate Under the Act?
[26] To determine whether the impugned rules are reasonable, I am adopting 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] 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.
(1) Statutory Mandate
[27] The purpose, words, and scheme of the Act support an expansive construction of the Law Society’s rule-making authority.
(a) Object of the Act
[28] I will begin with the object of the Act. The legislature has given the Law Society a broad public interest mandate and broad regulatory powers to accomplish its mandate. This mandate must be interpreted using a broad and purposive approach: United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485, at paras. 6-8; The Interpretation Act, C.C.S.M., c. I80, s. 6.
[29] First of all, the Act contains an expansive purpose clause that obligates the Law Society to act in the public interest: “The purpose of the society is to uphold and protect the public interest in the delivery of legal services with competence, integrity and independence” (s. 3(1)). The meaning of “public interest” in the context of the Act is for the Law Society to determine. In pursuing this purpose, the Law Society must “(a) establish standards for the education . . . of persons practising or seeking the right to practise law in Manitoba; and (b) regulate the practice of law in Manitoba” (s. 3(2)).
[30] Moreover, the independence the legislature has given the Law Society under the Act is evidence of an intention to give the Law Society all necessary powers to regulate its members. As this Court once wrote, Manitoba’s legal profession “is self-governing in virtually every aspect”: Pearlman, at p. 886.
[31] Finally, construing the Law Society’s rule-making authority broadly is consistent with the approach taken by the Court in previous cases. For example, Iacobucci J. wrote in Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, that “[t]he Law Society is clearly intended to be the primary body that articulates and enforces professional standards among its members” (para. 40). Further, McLachlin C.J. wrote in Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, [2013] 2 S.C.R. 649, that “[t]he purpose of law society regulation is to establish general rules applicable to all members to ensure ethical conduct, protect the public and discipline lawyers who breach the rules — in short, the good governance of the profession” (para. 15). These expansive assertions are indicative of the breadth of the Law Society’s regulatory authority.
(b) The Words in Their Ordinary and Grammatical Sense
[32] The wording of the Act is also indicative of the breadth of the Law Society’s authority and its rule-making power. The Act imposes on the benchers a duty to “establish standards for the education . . . of persons practising . . . law” in Manitoba (s. 3(2)(a)). Sections 4(5) and 4(6) of the Act vest the Law Society with an open-ended rule-making authority to ensure that it can achieve this and its other public interest objectives. Section 4(5) provides that, “[i]n addition to any specific power or requirement to make rules”, the benchers may make rules to “pursue [the Law Society’s] purpose and carry out its duties”. Therefore, in addition to the powers already identified in the Act, the benchers can make rules furthering the Law Society’s purpose and duties. Section 4(6) provides that the rules made by the benchers are binding on all Law Society members.
[33] More explicitly, the Act provides that the benchers may “establish and maintain, or otherwise support, a system of legal education, including . . . a continuing legal education program” (s. 43(c)(ii)).
[34] Regarding a possible suspension, s. 65 specifically empowers the Law Society “to establish consequences for contravening this Act or the rules”. This language could hardly be clearer ― the Law Society can establish consequences, such as a suspension, for failing to meet the educational standards it is statutorily required to put in place.
[35] Mr. Green relies on the “implied exclusion rule” of statutory interpretation to argue that a suspension cannot be imposed under the Act. In his opinion, because the Act specifically empowers the Law Society to impose a “suspension” in four specific situations but not in the CPD context, the legislature intended to exclude a suspension as a consequence in any situation other than those in which it is mentioned.
[36] This argument is flawed for two reasons. First, it disregards the proper approach to assessing the legality of the impugned rules. 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.
[37] Second, Mr. Green’s argument is inconsistent with this Court’s purposive approach to statutory interpretation. An argument based on implied exclusion is purely textual in nature and cannot be the sole basis for interpreting a statute: R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at pp. 256-57. The words of the statute must be considered in conjunction with its purpose and its scheme. In my view, the purpose of the Act supplements the open-ended wording of the relevant provisions to indicate that the implied exclusion rule should not be applied in this case.
(c) Scheme of the Act
[38] The scheme of the Act further undermines Mr. Green’s position. It must be borne in mind that the Act does not require the Law Society to set up a CPD program. Rather, it provides that the benchers “may” establish and maintain such a program (s. 43(c)(ii)). It would be pointless for the legislature to establish consequences for failing to comply with a program that the Law Society is not even required to set up.
[39] While it is true that there are only four provisions of the Act that mention “suspension” as a potential consequence, each of them is responsive to a mandatory rule or procedure that is in fact provided for in the Act. A suspension for failing to pay fees is responsive to the obligation that members pay fees (s. 19(5)). A suspension imposed by the Complaints Investigation Committee is responsive to that committee’s obligation to investigate complaints (s. 68(c)). A suspension imposed by the Discipline Committee is responsive to that committee’s obligation to conduct disciplinary proceedings (s. 72(1) and (2)). The Act requires the payment of fees and the establishment of the committees in question and then establishes powers and consequences that are incidental to them.
[40] In contrast, the Law Society is not required to set up a CPD program (s. 43(c)(ii)). If the legislature had explicitly set out the possible consequences for failing to comply with CPD requirements, but the Law Society never imposed any such requirements, the provisions setting out these consequences would be superfluous. The legislature does not enact unnecessary provisions.
[41] In my view, the Act’s express references to “suspension” are not indicative of an intention to restrict suspensions to specific circumstances. Rather, these references show that where the legislature intended to confer disciplinary powers on a committee or specify the consequences for a breach of a legislated requirement, it did so expressly. Otherwise, the legislature gave the Law Society the discretion, in exercising its general rule-making authority, to establish consequences for contravening the Rules. This is clear from the broad scope of the authority to make rules and establish consequences that is provided for in ss. 4(5) and 65.
[42] In any event, since the Law Society has the power to create a CPD scheme, it necessarily has the power to enforce the scheme’s standards. Given the breadth of the statutory authority, the Act must be construed such that the powers it confers “include not only those expressly granted but also, by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime created by the legislature”: ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 51. This is consistent with s. 32(1) of The Interpretation Act, which provides that “[t]he power to do a thing or to require or enforce the doing of a thing includes all necessary incidental powers.”
(2) Is It Reasonable for the Rules to Expose a Lawyer to a Suspension as a Consequence for Non-compliance With the CPD Program?
[43] Having construed the Act, I will now turn to the reasonableness of the impugned rules. Mr. Green conceded in the Court of Appeal that the Law Society has authority to make rules to establish a CPD program. And he further conceded in this Court, contrary to his position in the courts below, that the Law Society can make that program mandatory. The question that remains is whether the impugned rules are unreasonable because t