complete his CPD hours. Mr. Green did not reply to the letter. However, he decided to legally challenge the validity of the CPD Rules and the pending suspension of his practising certificate. In light of this action his suspension was postponed until the outcome of the litigation.


The Manitoba Court of Queen’s Bench first heard his legal challenge. The judge concluded that the Rules in question were within the Law Society’s legislative mandate under The Legal Profession Act. It states that the Law Society is required to “establish standards for the education, professional responsibility and competence” of lawyers. He also dismissed Mr. Green’s natural justice and procedural fairness arguments regarding the suspension process. The Manitoba Court of Appeal dismissed his appeal to it for similar reasons. Mr. Green then appealed this decision to the Supreme Court of Canada (SCC).


The Supreme Court Decision:


In reaching a decision to uphold the appeal decision of the Manitoba Court of Appeal the Justices of the SCC were informed by their following observations:


• The standard applicable to the review of a Law Society Rule is reasonableness …..this means that the substances of the Rule must conform to the rationale of the statutory regime set up by the legislature. • The standard of review must reflect the Law Society’s broad discretion to regulate the legal profession on the basis of policy considerations related to the public interest. • 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.


• The right to practice law is not a common law right or a properly right but a statutory right and depends on the principles set out


FACEBOOK.COM/CCPA.ACCP


in the Act and the Rules.


The majority position of the Supreme Court Justices, written by Justice J. Wagner, is expressed in the following decision:


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 related 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.


There were two dissenting Justices to this decision. They had procedural fairness and natural justice concerns because the Society did not provide for an appeal of the suspension. They also saw the suspension for non-compliance as disciplinary in nature. However, the Court of Appeal found the suspension as administrative and therefore it did not require the procedural provision typically available when there is a charge of professional misconduct or incompetence. The majority SCC Justices also held this point of view. They also elaborated on their decision as follows:


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


TWITTER.COM/CCPA_ACCP WWW.CCPA-ACCP.CA 9


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15