Abstract The recent Supreme Court of Canada decision in Green v. Law Society of Manitoba examined the standard of review applicable to a question regarding the validity of rules made by a law society as well as whether the impugned rules were valid in light of the Law Society’s mandate under provincial legislation. The Court held that the Law Society has statutory authority to create rules and that the standard of review in such circumstances is reasonableness. It found that the rules examined were reasonable in light of the provincial Act and, accordingly, an automatic suspension for failing to comply with continuing professional development requirements as set by the Law Society was appropriate and did not require a right to a hearing or an appeal, with no violation of procedural fairness. This article focuses on the Green case regarding the statutory interpretation applied in setting out the powers, authorities, and privileges of the Law Society, which invariably sets a national precedent in Canada and may be of interest to lawyers, legislators, and law societies elsewhere. 1. INTRODUCTION Lawyers belong to a self-governing profession under the direct authority of a law society or bar association. Enjoying broad freedom from government interference as part of a profession, by and large lawyers work within an autonomous environment with few restrictions and many privileges. That said, in order to qualify as a lawyer and to retain the license to practice their profession, lawyers must adhere to ethical and competency standards as set by their peers, that is, Benchers under the direction of the law society. The powers and authorities granted to a law society to govern the legal profession are granted through legislation which usually is wide-sweeping with few restrictions on the governing body. While for the most part lawyers accept the guidelines set under this model of governance, occasionally they are challenged, leaving it to the courts to examine the intention of Parliament and legislatures in devolving such wide authority to the law society within a self-governed profession. In 1991 in the case of Pearlman v. Law Society (Manitoba), the Supreme Court of Canada examined the powers, authorities, and privileges of the Law Society of Manitoba who took disciplinary proceedings against the appellant, a lawyer, on three counts of conduct unbecoming a barrister and solicitor. Under section 52(4) of the provincial Law Society Act (now called the Legal Profession Act), the costs of an investigation into professional misconduct can be awarded against a lawyer if he or she is found guilty by the respondent judicial committee. The Court of Queen’s Bench dismissed the appellant’s application for prohibition where it found that there was no laches or unreasonable delay since the society had proceeded with the charges with reasonable dispatch. It was decided that section 11(b) of the Canadian Charter of Rights and Freedoms, which guarantees the right to be tried within a reasonable time, did not apply. The Appellant’s submission that the proceedings against him were contrary to natural justice and the Charter, in that the law society had a pecuniary interest in finding him guilty, was also rejected. The Court of Appeal affirmed the judgment in a majority decision. The constitutional questions before the Supreme Court regarded whether section 52(4) of the Law Society Act infringed section 7 of the Canadian Charter (the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice). The appeal was dismissed. The Supreme Court concluded that, ‘the Law Society has total control over who can practise law in the province, over the conditions or requirements placed upon those who practise and, perhaps most importantly, over the means of enforcing respect for those conditions or requirements. Thus, the Manitoba legal profession is self-governing in virtually every aspect’.1 This was the main focus of the most recent case Green, in which the Court was asked to once again interpret a lawyer’s rights and obligations and the governing freedom and power of the Law Society, this time within the context of public confidence in the legal profession and protecting the public interest in regard to mandatory continuing professional legal education. 2. LEGISLATIVE AND HISTORICAL BACKGROUND Section 9(14) of the Constitution Act 1867 delegates power to the provincial legislatures to make laws in relation to matters of ‘The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts’. Acting on this authority, each province across the country has created legal profession acts, with a few minor variations. The Legal Profession Act (‘LPA’) of Manitoba devolves authority to the Law Society of Manitoba (‘LSM’) to establish standards for the education of practicing lawyers.2 It also bestows upon the Society power to make rules that ‘establish educational and moral requirements’,3 power to establish a ‘system of legal education’ including a ‘continuing professional development program’,4 and power to ‘take any steps they consider advisable to promote and improve standards of practice’.5 ‘In addition to any specific power or requirement to make rules under this Act, the benchers may make rules to manage the society’s affairs, pursue its purpose and carry out its duties’.6 The LSM, in accordance with the LPA, created a rule in February 2011 stating that, ‘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’.7 Moreover, ‘Where a practising lawyer fails to comply with [this requirement under] 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’. Suffice it to say that the Act grants extensive power and authority to the Law Society to create rules governing the education of lawyers in Manitoba. These powers came under the scrutiny of Sidney Green, a practicing lawyer in the Province taking his plight to the Supreme Court of Canada (‘SCC’), who questioned the powers and authority of the Society to suspend him from practice for failing to meet the LSM’s continuing professional development requirements (‘CPD’). The Supreme Court dismissed Green’s case upholding the right of the profession to set such standards. This article examines the various arguments put forward by Mr. Green, throughout his assent through the courts, regarding the powers, authorities, and privileges granted to the Law Society under Federal and Provincial legislation and the reasoning for upholding the Law Society’s position to govern the profession and, in particular, to set and maintain competency standards in the public interest. It explores what this decision means for individual lawyers, the legal profession in general, and for Law Societies across Canada which may of interest to lawyers and governments alike in other jurisdictions. The background and facts of the case are fairly simple. Not so simple, however, was the task of interpreting whether the Legal Professions Act does in fact grant the Law Society such powers as well as the degree of control the Society as a governing body actually has over apparently autonomous legal professionals. Mr. Green had been a member of the LSM since 1955 and indeed had served as a bencher for the LSM. In 2011, the benchers ‘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’.8 Mr. Green did not attend or report attending any CPD activities for 2012 or 2013. In 2014, the CEO of the LSM ‘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’.9 Instead of replying to the letter, Mr. Green applied directly to the Manitoba Court of Queen’s Bench to have the relevant rules declared invalid.10 In 2014, Green’s application to the Manitoba Court of Queen’s Bench, to have the CPD rules declared invalid, was dismissed. His appeal to the Manitoba Court of Appeal in 2015 was also dismissed, leading him to the Supreme Court of Canada where his appeal was dismissed in 2017. 3. THE SUPREME COURT OF CANADA DECISION (A) Legal Issues In the Supreme Court trial, two main issues were examined: ‘(1) What standard of review applies to a question regarding the validity of rules made by a law society? [And,] (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?’11 In earlier trials, Mr. Green made a more expansive claim, which appears to have been conceded as the case progressed through the courts. Specifically, in 2014 at the Court of Queen’s Bench, the court dealt with one question, ‘does [the LSM] have the statutory authority to establish rules mandating annual continuing professional development (“CPD”) requirements for its members and suspend members who fail to comply?’12 In that case, Mr. Green challenged the suspension on the grounds that the LSM had neither the authority to impose automatic suspension nor the authority to create a mandatory CPD programme. He also argued that the power to suspend a member without a hearing violated the principles of procedural fairness and the rules of natural justice. However, at the Court of Appeal in 2015, Mr. Green conceded that the LSM had the statutory authority to establish a CPD programme, but the Society should not be able to make it mandatory.13 At the Supreme Court, Mr. Green also conceded that the CPD programme can be mandatory; thus, the final question was whether the LSM has authority to impose automatic suspension for failing to comply with the mandatory CPD requirements without the right to a hearing or a right of appeal. (B) Legal Arguments Supreme Court Issue (1)—What is the standard of review for determining the validity of rules made by a law society? At all levels of court, there is agreement that the standard of review is reasonableness. That is, the court will not ask if the rules are correct or just when considered on their own, isolated from the scheme of the LPA. Rather, they will attempt to enter the mindset of the Law Society benchers and the framework of the Act examining the rules from the inside to determine whether they are consistent with the internal structure, principles, mandate, and authority of the LSM provided by the LPA. The Supreme Court arrived at this standard by comparing law society rules with municipal bylaws, which according to Catalyst Paper Corp. v. North Cowichan (District) 2012 SCC 2, (‘Catalyst’) are created by Municipal councillors who are given a broad discretion by the legislature to create laws that involve ‘social, economic, political and other non-legal considerations’.14 In the same way, the legislature gave the Law Society broad discretion to ‘regulate the legal profession on the basis of a number of policy considerations related to the public interest’.15 Reasonableness means that a rule will be set aside only if the rule ‘is one no reasonable body informed by [the relevant] factors could have [enacted]’: [Catalyst] at para. 24. This means ‘that the substance of [rules] must conform to the rationale of the statutory regime set up by the legislature’.16 The Court provides three other reasons for why reasonableness is the appropriate standard. Firstly, the benchers are elected and accountable to other members, thus the court will respect ‘the responsibility of elected representatives to serve the people who elected them and to whom they are ultimately accountable’.17 Secondly, the LSM acted according to the authority given by the LPA to create rules that protect the public interest in obtaining quality legal services, thus rules must be judged accordingly. Finally, the LSM has unique expertise that most self-governing bodies have in regulating their profession, thus they are best positioned to determine whether the rule is valid according to their own mandate.18 It is relevant to note that in Ryan v. Law Society (New Brunswick), the reasonableness standard for reviewing administrative decisions as opposed to rules, asked the question after a somewhat probing examination, ‘can the reasons given, when taken as a whole, support the decision?’.19 In that case, the Court took a similar approach of looking at the internal reasoning of the administrative body rather than judging the decision according to external rules of what seems correct or just to the courts. (i) Statutory Interpretation and Authority Issue (2)—Are the CPD rules reasonable and therefore valid in the light of the LPA? In order to answer this question, one needs to deal with questions of statutory interpretation, natural justice, and procedural fairness. At the Supreme Court, Mr. Green challenged the CPD rules by arguing that they were ‘unfair because they impose a suspension without a right to hearing or right of appeal’. He also appealed to the ‘implied exclusion rule’ of statutory interpretation to prove that the LSM lacks statutory authority to suspend. His argument was as follows. The LPA ‘specifically empowers the LSM with the authority to impose a suspension in four specific situations but not in the CPD context’.20 Therefore, one can deduce that the ‘legislature intended to exclude a suspension as a consequence in any situation other than those in which it is mentioned’.21 In other words, had the LPA intended to authorize the LSM to enforce automatic suspensions for not meeting CPD requirements, the legislature would have explicitly included such wording in the Act, just as it had done regarding four other situations. In the Court of Appeal Green relied on three cases that support his proposition that, ‘absent a clear statutory authority, regulatory bodies cannot impose mandatory policies enforceable by sanctions’. The cases are Fairhaven Billiards Inc. v. Saskatchewan (Liquor & Gaming Authority) (1999), 177 Sask. R. 237 (Sask. C.A.); Toronto Transit Commission v. Aqua Taxi Ltd.,  O.J. No. 280 (Ont. H.C.); and Ainsley Financial Corp. v. Ontario (Securities Commission) (1994), 77 O.A.C. 155 (Ont. C.A.). The court rejected the application of the above listed cases because in those cases the governing bodies did not have rule making authority and in the case at hand, it had already decided the LSM does indeed have the authority to create rules, so these cases did not apply to the facts of Mr. Green’s case. The problem with this dismissal of his argument is that SCC is not just dealing with a question about whether the LSM has rule making authority but whether it has authority to make any rule with any consequence. This implied exclusion rule of interpretation is a new approach introduced by Mr. Green at the Court of Appeal and considered at the Supreme Court. There are three relevant cases that explain this Latin maxim of statutory interpretation expression unius est exclusion alterius, which means to ‘express one thing is to exclude another’.22(Information Commissioner) v. Canada (Minister of National Defence) uses the rule to determine the intention of a Federal act: The legislature’s failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied....The obvious application of this rule of statutory interpretation is that if Parliament had intended to include the PMO and ministers’ offices in Schedule I, it would have referred to them expressly. This is evidence that Parliament intended to exclude the PMO and ministers’ offices from the government institutions subject to the Access Act.23 Another relevant case dealing with this rule is Canada (Attorney General) v. Canada (Public Sector Integrity Commissioner) at para. 90: Finally, the RCMP contrasts subsection 23(1) with paragraph 24(1)(a) to note that in paragraph 24(1)(a) the phrase ‘dealing with’ is qualified in that the Commissioner is to form an opinion of whether the subject matter has been adequately dealt with or could more appropriately be dealt with under another Act of Parliament but there is no such guidance or qualification in subsection 23(1). The RCMP says this means once another body is dealing with the subject matter the Commissioner may not deal with it. Applying the expression unius est exclusion alterius, the RCMP says under subsection 23(1) it does not matter how effectively or adequately the other body is dealing with the subject matter because, unlike section 24, Parliament did not give the Commissioner any discretion in subsection 23(1). As a result, he has no right to subjectively evaluate how the other body deals with the subject matter.24 A third case, Law Society of Alberta v. Beaver, 2016 ABQB 250 provides a relevant caution when using this principle and applies it to interpreting a Law Society Act at para. 36: Moreover, the Supreme Court of Canada has also advocated caution in relying on the expressio unius rule on several occasions: Congregation des frères de l’instruction Chretienne v. Grand’pre School Board (1975),  1 S.C.R. 429 (S.C.C.), at 435, 1975 CanLII 192; and Murray Bay Motor Co. v. Cie d’assurance Belair (1973),  1 S.C.R. 68 (S.C.C.), at 74, 1973 CanLII 180. Notably, Laskin C.J. stated that the expressio unius maxim ‘provides at most merely a guide to interpretation; it does not preordain conclusions’: Jones v. Canada (Attorney General) (1974),  2 S.C.R. 182 (S.C.C.), at 195–196, 1974 CanLII 164. 42 In A.Y.S.A. Amateur Youth Soccer Assn. v. Canada Revenue Agency, 2007 SCC 42 (S.C.C.), Rothstein J. (writing for the majority) re-iterated the caution that courts must employ, in the face of an expressio unius argument, an emphasized application of the modern approach to statutory interpretation (see paras. 15–18). Very recently, the Ontario Court of Appeal did just that in Fleming v. Massey, 2016 ONCA 70 (Ont. C.A.). Courts should not apply the expressio unius rule to one specific provision if doing so would fundamentally undermine what the Legislature is trying to achieve: Fleming at para. 45.25 This last caution could apply to the way Mr. Green argued the rule to undermine the rule making authority of the LSM and its powers to enforce CPD, which the LSM maintained, is in line with what the LPA is trying to achieve. That is to protect the public’s interest and to instil wider confidence in the legal profession by imposing mandatory continuing professional development post-call to the bar. The Court of Appeal also rejected the use of this maxim because in subsection 68 and 72 of the LPA ‘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’.26 In the Supreme Court decision, the majority appeals to the principles of interpretation found in Rizzo & Rizzo Shoes Ltd., Re. which essentially state that there is only one principle of interpretation today and that one cannot rely solely on the wording of the legislation. Instead, ‘the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament’27(emphasis added). They also look to section 10 of the Interpretation Act, R.S.O. 1980, c. 219 which provides that every Act ‘shall be deemed to be remedial’ and directs that every Act shall ‘receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit’.28 Both sources point to the central importance of considering the rule within the context of the whole Act and the overall purpose or intent of the Act. The object of the Act obligates the LSM 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))’.29 Considering the words of the Act, the Supreme Court examined section 43(c)(ii) and section 65 and came to the same conclusion as the lower courts: ‘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’.30 In 2014, Mr. Green simply argued that the omission of the word ‘mandatory’ in the LPA demonstrates that CPD was never intended to be mandatory. In that court Justice Rempel offered a brief and succinct response, pointing to the mandate of the LSM in section 3(1), (2), and the rule-making authority in section 4(5), plus the further authority to ‘take any steps’ it considers advisable to promote and improve standards of practise.31 All these provisions adequately empower the LSM to make the CPD rule mandatory. The Court of Appeal agreed with the Queen’s Bench’s reasons; if the LSM has the power to make CPD mandatory according to section 43(d) of the Act, then under section 64 it also has power to ‘make rules establishing consequences—a suspension for failing to meet the requirement’.32 The Supreme Court concluded that it is reasonable for the rules to expose a lawyer to a suspension as a consequence for non-compliance with the CPD programme because the Act provides the authority to do so and that the establishment of standards and requirements is compatible with the LSM’s purpose and duties and serves to protect the public.33 To ensure that standards have an effect there must be real consequences for those who fail to adhere to them. A suspension is a reasonable and effective way to ensure adherence or compliance, such that even lawyers who are not interested in meeting educational standards will comply.34 Mr. Green also argued that the LSM had violated his common law right to practise law. In response to this argument, the majority concluded that the right to practise law is not a common law right at all, it is a statutory right that depends on the principles in the Act and the rules made by the Law Society. Accordingly, the right to practise law carries with it obligations to meet the requirements of the Law Society such that when a lawyer fails to meet such obligations, the right is suspended until the requirements are met. Mr. Green failed to meet one of the obligations, consequently, it follows that his right to practise should be suspended. (ii) Natural Justice Finally, the Supreme Court responded to the question of procedural fairness and natural justice. It is important to note that the Queen’s Bench rejected Mr. Green’s argument that the CPD rule violated rules of natural justice including his rights under section 7 of the Canadian Charter of Rights and Freedoms in part because they did not find a breach of procedural fairness.35 Thus, according to the Queen’s Bench, it is difficult or even false to conclude that section 7 of the Charter applies to disciplinary proceedings before a law society. Note that Mr. Green did not pursue the Charter argument in subsequent trials, so it would seem that he accepted that the Charter either does not apply to the Law Society outright or only that it does not apply to disciplinary proceedings of the Law Society. This is significant, since law societies are considered state actors to which the Charter applies, for example in TWU v. Nova Scotia Barristers Society36, TWU v. Law Society of Upper Canada37 and TWU v. Law Society of British Columbia.38 (iii) Procedural Fairness At all levels of court, Mr. Green argued that the CPD programme should at best be optional according to what is useful to individual lawyers at the time. Moreover, a penalty of automatic suspension for ‘failing to attend 12 annual hours of classes’39 would constitute a breach of procedural fairness. That said, the definition of eligible CPD activities by the LSM includes any learning activity that is ‘relevant to the professional needs of a lawyer; pertinent to long-term career options as a lawyer; in the interests of the employer of the lawyer; or related to the professional ethics and responsibilities of lawyers’. There is also an option to complete self-study that could include legal writing, online activities with an interactive component, telephone activities with an interactive component, or even ‘a self study activity that has been approved to accommodate personal circumstances’.40 It would appear that Mr. Green could have chosen some relevant writing activity or an assignment relevant to his practise and completed his CPD hours when it was most convenient for him and indeed tailored to his particular practice needs. Paradoxically, his legal research into this case and written arguments may have served as legitimate ‘self-study’ activity, as a purely academic exercise had it not been for trial purposes and had he applied for approval to do so. Mr. Green argued that the rule should allow for a hearing whereby lawyers could defend their positions by giving reasons or explanations for not complying and be given the option of other remedies. The Court of Queen’s Bench and the Court of Appeal rejected the argument that Mr. Green was denied procedural fairness since the suspension was the result of an administrative decision, which does not initiate the discipline procedure of a hearing required in section 72 of the Act. The lower courts’ arguments were basically similar. Non-compliance with the CPD rule is the same as not paying your annual fees on time; they can both be established with objective certainty and there is no room for reasonable people to disagree about whether the lawyer complied or not. There is no question about the lawyer’s character, conduct, or competence which engage the Discipline Committee and the possibility of a hearing.41 Thus, the CPD rules are distinguishable from 72 (1) and (2) because they impose an administrative suspension where members are given notice in writing that they have 60 days to comply. According to Lewis v. Canadian Society of Immigration Consultants, an administrative suspension requires a lower duty of procedural fairness because it does not require confirmation of evidence, testimony, or investigation; rather, it is a bare fact, easy to ascertain.42 In other words, there is no discretionary component or professional judgement applied. It is simply a matter of determining whether the lawyer reported his or her required quantity of hours by asking them. Whether or not it is authorized by the Act to do so, in actual practise, the LSM does seem to be open and willing to allow a lawyer to explain why he or she has not met the requirements.43 While Mr. Green has depicted the LSM in a stark light, providing no leniency with its rules, in reality it seems that the Law Society allows great flexibility to ensure that CPD requirements are as easy to fulfil as possible and that they meet the needs of individual lawyers, including ‘self-study’. The Supreme Court assessed the way Green sees it differently, stating that the ‘common law duty of procedural fairness applies only to a specific decision made by the Law Society that affects a lawyer’s interests’.44 Since Mr. Green has attacked the validity of the rule instead of applying for judicial review of the decision to suspend him, ‘all he can do is allege that the impugned rules are not reasonable given the authority under the Act’.45 Effectively, the Supreme Court is saying that one can only raise the issue of violations of procedural fairness or natural justice when challenging an actual decision made by the Law Society, but not by challenging the rules that dictate the procedure for dealing with a breach of a rule, per se. In short, it would seem that one could only bring a Charter challenge when a government makes a decision based on a law and then argue that the decision was a violation of the Charter but cannot challenge the law itself as unconstitutional. Why is it not it possible to challenge the procedure embedded in the rules themselves? The court responded to this question stating that the rules are not exhaustive of common law procedural rights. In other words, the Law Society Rules are not the only source of procedural rights for a member and the LSM will not just apply the rules without considering procedural fairness in context with the ‘particular facts and reasonable expectations of the parties’.46 The Supreme Court concluded that the rules imposing administrative suspension without a right to a hearing or a right of appeal are reasonable. Firstly, the suspension is not disciplinary, it is administrative in nature relating to the educational standards, thus they do not relate solely to the competence of lawyers. In response to Mr. Green’s argument that this rule undermines the public confidence in the profession, the court concluded that: ‘A reasonable member of the public would understand that a temporary suspension for failing to complete CPD hours is not akin to a more serious disciplinary suspension. A lawyer’s competence in handling a case, to give one example, is not affected by a failure to comply with the CPD requirements’.47 That said, the judgement was not unanimous. Although it is merely an administrative and not a disciplinary suspension, questions remain as to whether all members of the public would understand this distinction. As Justice Abella states in her dissent, ‘a suspension, is a suspension, is a suspension’.48 The second reason the Court found the rule to be reasonable is because the CPD requirements are administrative in nature, the 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’.49 There appears to be nothing to gain from a hearing on the matter. This rule would only be considered unreasonable if it involves ‘such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men’.50 It is reasonable for the LSM to enforce compliance of requirements with a suspension because avoiding suspension is not particularly onerous. (C) Decision and Ratio The Supreme Court of Canada held that the Law Society has statutory authority to create rules. The standard of review is reasonableness. The rule is reasonable in light of the Act. The automatic suspension is reasonable and does not require a right to a hearing or an appeal because it is an administrative suspension, which does not engage a disciplinary procedure. Thus, the LSM did not violate procedural fairness and it was ‘entirely reasonable for it to make the impugned rules that vest its CEO with the discretion to impose an administrative suspension without a right to a hearing or a right of appeal’.51 This decision upholds the Law Society’s position to govern the profession by setting and maintaining competency standards compelling lawyers to adhere to these standards or face administrative suspension, effectively empowering Law Societies across Canada as supreme within their own domain. (D) Alternative Perspectives In the dissent, Justice Abella and Justice Coté argue that the automatic suspension for failing to comply with the CPD requirements is ‘inconsistent with the Law Society’s mandate to protect the public’s confidence in the legal profession because it gratuitously—and therefore unreasonably—impairs public confidence in the lawyer’.52 Mr. Green and the LSM disagree fundamentally about what impairs public confidence in a lawyer and about the seriousness of not attending CPD classes. The LSM argues that having the CPD requirement helps instill confidence in the public because it knows there are educational standards that every lawyer has to meet and that he or she must stay up to date on current developments in the law. The dissent and Mr. Green argue that automatic suspension for failing to meet the requirements for the ‘least serious disciplinary breach possible’53 which is ‘as close to a victimless breach as it is possible to imagine’,54 impairs public confidence in the lawyer because when suspended the public loses confidence in that lawyer for no good reason. This loss of confidence is unwarranted, given the fact the other more serious ‘competency breaches’ allow a lawyer to respond to a complaint, either by giving an explanation or defending him or herself against the allegations. Other breaches also allow the CEO or the Discipline Committee to resolve the issue by taking further action or not, which may include a reprimand, restrictions, examinations, revoking law corporation permit, suspension, or a fine.55 If every other competence breach provides procedural protections, a range of remedies and discretionary leeway for the CEO and the Committee, except the CPD rule, then by analogy, the CPD rule is arbitrary. There is no rational justification to give the least serious breach the most serious penalty. This rule ‘unjustifiably undermines public confidence in a lawyer’ which conflicts with the ‘Law Society’s duty to protect the public interest’.56 That said, public confidence is paramount and people may want to know that their lawyer is complying with Law Society standards (as set by the Benchers) and keeping up-to-date on new developments in the law. If members of the public knew that their lawyer was not fulfilling one of the requirements of the LSM, arguably they may well lose confidence in that particular lawyer. The public expects lawyers to be competent, ethically informed, and current with technological advances, best practices, and changes in the common law and legislation. After all, they want the best ‘qualified’ and ‘competent’ lawyer who is complying with professional standards. The CPD rule is meant to ensure lawyers’ knowledge is relevant. New laws are created in Parliament and new decisions are issued regularly in Manitoba and in the Supreme Court, which may affect how a lawyer approaches a specific legal issue.57 From the public’s perspective, it is imperative that a lawyer remains current with legislation and aware of such a developments in relation to areas of practice, highlighting the importance of CPD. The dissent, in contrast with the majority is that the LSM considers the CPD requirement serious enough to suspend a lawyer, even if it is simply an ‘administrative’ suspension that can be lifted merely by compliance. It would seem that the suspension is serious and for good reason, in that it is meant to protect the public as well as to instill confidence in the legal profession, hence protecting the integrity of the profession as a whole. Furthermore, the procedure required by the LSM when a CPD breach occurs seems sensible because the nature of the breach does not require a hearing; it only requires a lawyer to comply. As noted earlier, in practise, accommodations are made for people who give reasons for failing to meet the 12-hour requirements and demonstrate an intention or willingness to comply eventually. It was apparent that Mr. Green showed no willingness to do so. 4. SIGNIFICANCE It would seem that the Supreme Court of Canada decision means that lawyers are subject to any reasonable rules that fall within the mandate of their law society specified in the respective legal profession acts. Regarding statutory interpretation, it also seems that even though there are no specific penalties or consequences mentioned regarding education in the LPA, if an act or statute provides general rule-making authority, it does not need to give specific powers to enforce those rules or allow for specific penalties in order for the governing body to have that authority. In determining the meaning of the LPA, the Supreme Court considered the ordinary and grammatical sense of the words within the context of the object and scheme of the Act, and reasonableness of the specific rule. The majority also appealed to section 32(1) of the Interpretation Act of Manitoba, 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’.58 This decision may be applied to future disputes about how to interpret federal and provincial legislation throughout the country. This invariably provides more scope for self-governing bodies if they are permitted to make rules, to impose similar penalties for non-compliance even without explicit mention in the Act. Moreover, there are two firsts that emerge from this ruling. This is first time that the court has dealt with or determined the appropriate standard of review (reasonableness) for considering rules made by a law society.59 Consequently, this case sets the precedent for all future challenges to the validity of law society rules. Secondly, the result of this case seems that Mr. Green will be the first lawyer in Canada to be suspended for something other than misconduct, incompetence or conduct unbecoming of a lawyer. While this case points out the importance of continuing legal education for lawyers and the deference given to law societies in governing the legal profession, some, however, might feel that the decision gives too much authority to the Law Society. The case highlights the highly protected independence of the Law Society accorded by statute. This stands to reason as the legal profession is supposed to remain free from influence and intervention from the courts or from government to preserve ‘the blind scales of justice’. To borrow from a philosophical concept, the courts respect a kind of sphere sovereignty.60 The courts, the legal profession, the government and individuals all operate in separate spheres of authority such that other spheres or aspects of society must not overstep their respective jurisdictions. The Charter protects individuals and their private lives from the government, the courts are protected from individual tyranny or government intervention by the Constitution, and the Law Society is protected from the courts, the government and individuals by the LPA. Each sphere overlaps slightly and gains authority from a higher source, but if it overreaches too far into another sphere, it creates disorder, tyranny and an imbalance of power. 5. CONCLUSIONS: ‘SELF-GOVERNING IN VIRTUALLY EVERY ASPECT’ It would appear that the Legal Profession Act grants extensive power and authority to the Law Society to create rules governing its members. Indeed, these powers came under scrutiny in 1991 in the case of Pearlman v. Law Society (Manitoba) and most recently in Green when Sidney Green took his plight to the Supreme Court, questioning the authority of the Society to suspend him from practice for failing to meet the mandatory continuing professional development requirements. The Court dismissed Green’s case upholding the right of the profession to set its standards, further reinforcing the powers, authorities, and privileges granted to the Law Society under provincial legislation and affirmed in Pearlman. This article highlighted the Court’s reasoning for upholding the Law Society’s position to govern the legal profession and to set and maintain competency standards that are in the interest of the public and the integrity of the legal profession as a whole. In essence, the Supreme Court of Canada held that the Law Society has statutory authority to create rules regarding its governance with the standard of review as ‘reasonableness’. To that effect, the rule regarding mandatory continuing education was deemed reasonable in light of the powers allocated to the Law Society under provincial legislation as delegated under section 9(14) of the Canadian Constitution Act 1867. An automatic suspension is reasonable and does not require a right to a hearing or an appeal because it is considered an administrative suspension and does not engage a disciplinary procedure. Consequently, there was no violation of procedural fairness and it is ‘entirely reasonable’ for the Law Society ‘to make the impugned rules that vest its CEO with the discretion to impose an administrative suspension without a right to a hearing or a right of appeal’. In its deliberations, the Supreme Court majority points to the central importance of considering a rule within the context of the whole Act and the overall purpose or intent of the Act, whereby, ‘the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament’.61 In addition, section 10 of the Interpretation Act, R.S.O. 1980, c. 219 provides that every Act ‘shall be deemed to be remedial’ and directs that every Act shall ‘receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit’.62 In sum, the decision in Green upholds the Law Society’s position to govern the profession by setting standards and compelling lawyers to adhere to them or face administrative suspension, effectively affirming the power of the Law Society to govern the profession. In doing so, the Court seems to have advanced a sphere of sovereignty designated to the Law Society whereby it is supreme within its own domain. Effectively, the case of Green seems to provide further strength to the earlier decision in Pearlman where it was decided that the ‘legal profession is self-governing in virtually every aspect’.63 Footnotes 1 Pearlman v. Law Society (Manitoba),  2 S.C.R. 869 (S.C.C.) [‘Pearlman’] at p 886. Note that Mr. Sidney Green was the Solicitor for the appellant in this case. 2 Legal Profession Act C.C.S.M. c. L107 (‘LPA’) at section 3(2)(a). 3 Ibid at section 17(5)(b). 4 Ibid at section 43(c). 5 Ibid at section 43(d). 6 Ibid at section 4(5). 7 Rules of the Law Society of Manitoba [‘Rules’] at section 2–81.1(8). 8 Green v. Law Society of Manitoba, 2017 SCC 20 at para. 9, Carswell Man 136, [Green 2017]. 9 Green 2017, above n 8 at para. 10. 10 Ibid at para. 11. 11 Ibid at para. 17. 12 Green v. Law Society of Manitoba 2014 MBQB 249 at para. 1, 313 Man. R. (2d) 19, [Green 2014]. 13 Green v. Law Society of Manitoba 2015 MBCA 67 at para. 5, 319 Man. R. (2d) 189, [Green 2015]. 14 Green 2017, above n 8 at para. 21. 15 Ibid at para. 22. 16 Ibid at para. 20. 17 Ibid at para. 23. 18 Green 2017, above n 8 at para. 25. 19 2003 SCC 20 at para. 47, Carswell NB 145. 20 Green 2017, above n 8 at para. 35. 21 Ibid at para. 35. 22 (Information Commissioner) v. Canada (Minister of National Defence) 2008 FC 766 at para. 68. 23 Ibid. 24 Canada (Attorney General) v. Canada (Public Sector Integrity Commissioner) 2016 FC 886 at para. 90, 2016 CarswellNat 3456. 25 Law Society of Alberta v. Beaver, 2016 ABQB 250 at para. 36, 2016 CarswellAlta 846, [Beaver]. 26 Green 2015, above n 13 at para. 20. 27 Rizzo & Rizzo Shoes Ltd., Re,  27 SCC at para. 21, 1 S.C.R, [Rizzo]. 28 Green 2017, above n 8 at para. 22. 29 Green 2017, above n 8 at para. 29. 30 Ibid at para. 33–34. 31 Green 2014, above n 12 at para. 17–20. 32 Green 2015, above n 13 at para. 18. 33 Green 2017, above n 8 at para. 44–45. 34 Ibid at para. 46–48. 35 Green 2014, above n 12 at para. 36: ‘If there is no breach of procedural fairness there is no need to address Mr. Green’s argument that the disciplinary process of the LSM violated his rights under s. 7 of the Charter. Green uses Harvey v Law Society (Newfoundland) to support this argument but this decision was not followed by the MBCA. In Harvey, the court argues, the Supreme Court ‘simply assumed for the sake of convenience that sec. 7 applied to the proceedings in order to dispose of the appeal on the basis that there had been no breach of fundamental justice’. 36 Trinity Western University v. Nova Scotia Barristers’ Society, 2015 NSSC 25: ‘The NSBS as a state actor has to comply with the Charter. TWU and its students are protected by the Charter.’ at para. 9. The NSBS says that its actions here were mandated by the Charter. The Charter does not apply to TWU as a private institution. But the NSBS argues that in deciding to accept a law degree from TWU the NSBS, as a state actor must comply with the Charter and that indirectly implicates TWU in Charter compliance considerations. That would have potentially very significant implications. Most directly it would apply the Charter to private religious institutions that sought any government recognition of their actions. It would transform it into a tool in the hands of the state to enforce moral conformity with approved values.’ at para. 222. 37 Trinity Western University v. Law Society of Upper Canada, 2015 ONSC 4250 at para. 119: ‘As Dickson C.J.C. said, equality of opportunity is a value of fundamental importance to our country. It is a value that state actors (of which the respondent is one) are always entitled to respect and promote. As the majority in Loyola said, at para. 47: These shared values—equality, human rights and democracy—are values the state always has a legitimate interest in promoting and protecting. [...] Religious freedom must therefore be understood in the context of a secular, multicultural and democratic society with a strong interest in protecting dignity and diversity, promoting equality, and ensuring the vitality of a common belief in human rights’. 38 Trinity Western University v. Law Society of British Columbia, 2016 BCCA 423 at para. 150: ‘One such principle is the limited reach of the Charter (s. 32). It applies to government, and to the Law Society as a statutory delegate of government, but it does not apply to private persons and institutions. As the majority in TWU v. BCCT concluded, TWU as a private institution is exempted in part from human rights legislation and the Charter does not apply to it:’. 39 Green 2017, above n 8 at para. 96. 40 Allan Fineblit, Q.C. ‘MCPD MOMENT Don’t Be Afraid to Call’, Law Society of Manitoba newsletter Communiqué (June 2014) at p 5, [Communiqué June 2014]. 41 Green 2014, above n 12 at para. 31. 42 Ibid at para. 32. 43 An excerpt from Communiqué June 2014 p 4–5 explains what happens when lawyers fail to meet CPD requirements: ‘Lawyers often contact us about their shortage of CPD hours. These calls come as the calendar year is drawing to a close, in January when they receive notice of the Annual Member Report or just before or after the April 1st due date for filing the Annual Member Report. So far, none have offered the excuse that their dog ate their CPD hours! Instead, the explanations for the inadequate hours have been genuine. We try to deal with each situation on its merits, and when appropriate we accommodate a lawyer’s individual circumstances. Here is a sampling of the calls: Unfortunate Personal Circumstances Life happens, and not always for the good. We understand that when life throws curveballs at a lawyer, CPD is rightfully not at the top of the lawyer’s to-do list. At an opportune time, the lawyer or someone on the lawyer’s behalf should contact us to explain the situation and discuss compliance options. Without this discussion and ignorant of the circumstances, we likely will send the lawyer a “60-day comply or you’re suspended” letter. This will cause the lawyer more, yet avoidable, stress. Procrastination A few variations fall under this heading: “I planned to attend the Pitblado Lectures to get my CPD hours, but by the time I sent in my registration, the program was sold out.” “I need to do 10 hours in the next month and none of the upcoming programs relate to my practice.” Our typical response is, “Give us a plan for making up these hours next year, in addition to next year’s hours.” Then, we will monitor that you fulfil your plan. If you don’t, you’ll get the “60-day comply or you’re suspended” letter. In the future, plan to register early for the activities that you are counting on to fulfil your requirements. If you have a limited area of practice, watch carefully for activities in your field and register early for them. Confusion Again, there are a few variations: “I thought I had until April 1st to do my CPD.” [The MCPD requirement is for the calendar year, not the practising year. You must complete the annual requirement by December 31.] • “I thought the legal research on my client’s file would count as CPD.” [It doesn’t.] • “I thought 50 hours of reading The Lawyer’s Weekly counts as CPD.” [It doesn’t.] • “I attended the MBA Mid-Winter, so I should have enough hours.” [The MBA Mid-Winter is not a Law Society activity. We don’t know about the participation unless the lawyer reports it.] Requests to Approve Activities Lawyers ask us to approve activities in an effort to complete their hourly CPD requirements. The Law Society does not approve or accredit activities. It is up to each lawyer to decide whether a particular activity meets the definition of eligible CPD activity in the lawyer’s particular circumstances’. 44 Green 2017, above n 8 at para. 51. 45 Ibid. 46 Green 2017, above n 8 at para. 55. 47 Ibid at 59. 48 Ibid at 94: ‘It does not provide comforting attenuation of the severity of the penalty to say it was not for “serious” incompetence or misconduct. A suspension is a suspension is a suspension. As Lord Denning noted in Pett v. Greyhound Racing Assn. Ltd.,  2 All E.R. 545 (Eng. C.A.), a decision to suspend someone, or not renew a licence to practice a profession, “concerns his [or her] reputation and his [or her] livelihood” (p. 549). (See also Joplin v. Vancouver (City) Commissioners of Police (1982), 144 D.L.R. (3d) 285 (B.C. S.C.), at pp. 298–99.) That is why Dickson J. in Kane v. University of British Columbia,  1 S.C.R. 1105 (S.C.C.), held that “[a] high standard of justice is required when the right to continue in one’s profession or employment is at stake” (p. 1113).’ 49 Green 2017, above n 8 at para. 95. 50 Ibid at para. 95. 51 Ibid at para. 68. 52 Ibid at para. 72. 53 Green 2017, above n 8 at para. 74. 54 Ibid at para. 90. 55 Ibid at para. 87–88. 56 Ibid at para. 97. 57 For example, a very recent case Saadati v. Moorhead, 2017 SCC 28, will directly affect how a lawyer will approach a tort claim asking for recovery for a mental injury Saadati v. Moorhead, 2017 SCC 28 at para. 2: ‘Just as recovery for physical injury is not, as a matter of law, conditioned upon a claimant adducing expert diagnostic evidence in support, recovery for mental injury does not require proof of a recognizable psychiatric illness’. 58 Green 2017, above n 8 at para. 42. 59 Ibid at para. 18. 60 This idea comes from Lawyer/Philosopher Herman Dooyeweerd. He writes in The Contest about the Concept of Sovereignty in Modern Jurisprudence and Political Science (H.J. Paris Amsterdam 1950) at 15: In typical state-law we therefore meet with the correlation of two typical spheres, namely civil law and public law, the first of which being a state-law regulating the civil partner relations of men as such, the latter being an inner social law of the state as a public community. These are the two original spheres of competency of the state in the domain of the creation of law, which are materially demarcated by their inner structure and idiosyncrasy. In accordance with their typical constitution internal law of trades or internal ecclesiastical law cannot ‘assume the character of public law or civil law. Non-state law, it is true, will as ius specificum be subjected to a typical binding in civil and public law, and therefore it would seem as if the state had absolute sovereignty as to the creation of law. These false appearances are strengthened when the internal structural principles of the social spheres and their typical legal spheres are not seen and the juridical forms in which positive law is laid down, such as acts, ordinances, contracts, statutes, jurisdiction, etc. are exclusively paid attention to. For just as social forms proved to be the nodal points of the mutual intertwinement of social orbits, so in the juridical aspect the formal sources of law are the nodal points of the mutual intertwinement of the original orbits of competency. But even in the closest mutual intertwinements each of the latter maintains its sovereignty in its proper orbit. (emphasis added) For a full explanation of the philosophical concept of sphere sovereignty, see WS Young, DH Freeman (trans), H Dooyeweerd A New Critique of Theoretical Thought: The Necessary Presuppositions of Philosophy (2nd edn The Presbyterian and Reformed Publishing Company 1969) http://www.dbnl.org/tekst/dooy002newc05_01/colofon.php. 61 Rizzo & Rizzo Shoes Ltd., Re,  27 SCC at para. 21, 1 S.C.R, [Rizzo]. 62 Green 2017, above n 8 at para. 22. 63 Pearlman v. Law Society (Manitoba),  2 S.C.R. 869 (S.C.C.), [‘Pearlman’] at p 886. © The Author 2017. Published by Oxford University Press. All rights reserved. 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Statute Law Review – Oxford University Press
Published: Nov 20, 2017
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