BarTalk June 2004
Volume 16, Number 3

Mandatory CBA payments no longer serve the profession

By A Cameron Ward

A good first step in any debate is to define the question. The issue for consideration by the members of the Law Society of British Columbia in the upcoming referendum is not whether the Canadian Bar Association is a worthy recipient of our financial contributions. (For the sake of argument, I am prepared to acknowledge that it is.) Rather, the question is whether the Law Society ought to compel every one of its members to pay an annual amount to the CBA as a condition of maintaining his or her entitlement to practise law in the province. In my view, it is unfair and wrong for it to do so.

A bit of background is in order. The CBA is a venerable and respected national organization based in Ottawa. It describes itself as the “voice of the legal profession” and has branches in each of the provinces and territories; 13 in all. About 50 years ago, the law societies of British Columbia and New Brunswick decided to include CBA membership fees as a component of the practice fees payable by their members. In that era (just after the end of World War II) there were relatively few lawyers in those provinces and CBA membership fees were about $5.00 per year per lawyer. At least one Bencher of the Law Society of British Columbia expressed the hope that other provincial law societies would manifest their support for the CBA in the same fashion.

However, the other law societies did not follow suit. New Brunswick and British Columbia remain the only provinces where lawyers have been obliged to pay CBA fees to obtain a provincial practising certificate. In the other eleven Canadian jurisdictions, lawyers are free to choose whether to join or financially support the CBA. Ontario briefly flirted with a mandatory membership scheme in 2000, but the Benchers voted against exploring the idea.

Here in British Columbia, dissatisfaction with mandatory CBA fees can be traced back to about 1970. Since then, five separate lawsuits have been issued by lawyers who challenged the Law Society’s ability to force its members to join or pay the CBA. I filed one of them, alleging that the mandatory membership scheme violated the Legal Profession Act and the Charter of Rights. I agreed to settle the proceeding after the Law Society and the CBA permitted British Columbia’s lawyers to opt out of CBA membership. Law Society members were still obliged to pay “equivalent to membership” fees to the CBA, a practice that was challenged in a proceeding filed by former Law Society President Richard Gibbs, QC. On December 17, 2003, the Honourable Mr. Justice Taylor dismissed Mr. Gibbs’ Petition and Mr. Gibbs has appealed to the Court of Appeal. So, while the Supreme Court of British Columbia has decided (subject to appeal) that the Law Society can extract CBA payments from its members, the members themselves will be asked whether it should do so.

In my view, there seem to be two arguments in favour of retaining compulsory payments; tradition and need. That is to say, there is a 50 year tradition of all British Columbia lawyers funding the CBA and the CBA says it needs these contributions in order to do its work. Neither of these arguments seem particularly compelling to me. If society remained bound by tradition, women would be denied admission to the Bar and male lawyers would be wearing wigs in court. On the money issue, I am not aware of the CBA facing any budgetary challenges, even though lawyers in 11 of 13 national jurisdictions contribute to it on a purely voluntary basis. The CBA has about 38,000 members, about 10,000 of whom practise in British Columbia. If the average annual fee payment is, say, $400 per member, that means that the CBA receives about $15.2 million per year from Canadian lawyers, students and judges. Even though some of that money is shared with the branches, that is a pretty substantial budget. In the unlikely event that a third of this province’s lawyers stopped paying, the CBA should still manage to get by.

On the other hand, there are a number of reasons to allow members to choose for themselves whether to pay fees to the CBA. The Law Society and the CBA are, and should be, separate bodies. The Law Society has a distinctive regulatory role while the CBA is an advocacy group. If the demarcation between the two organizations becomes blurred, then the Law Society’s ability to perform its governance function could be attacked.

There may be members of the Law Society who disagree with some or all of the CBA’s policy positions. They should not have to pay up to $500 per year to support an organization whose views conflict with their own. There are plenty of advocacy groups that may be worthy of lawyers’ financial support. The Trial Lawyers Association of British Columbia (TLABC), the Legal Education and Action Fund (LEAF), the British Columbia Civil Liberties Association (BCCLA) are but a few examples of organizations who should enjoy more support from the legal profession. Why does the Law Society anoint only the CBA as the recipient of its members’ largesse? To be impartial, the Law Society should decline to be a fundraiser for anyone.

It is illogical for lawyers practising in British Columbia to have to pay CBA fees when lawyers elsewhere in the country do not. This is especially the case now that lawyers enjoy increased mobility between provinces. Imagine two lawyers living a mile apart on opposite sides of the provincial boundary between British Columbia and Alberta. Each may have similar practices that require them to spend about half the year in the other province, as permitted by the new interprovincial mobility protocol. The British Columbia lawyer would have to pay about $500 to the CBA to stay in business, while the Alberta lawyer would not. For a profession that prides itself on logic, that seems a bit perverse.

Any society that enjoys a guaranteed revenue stream may become complacent, lose touch with its members and lack accountability. If the CBA knows that it will get $4 million from British Columbia lawyers no matter what it does with the money, both the national and branch offices could cease to be accountable to the membership. As Mr. Justice LaForest said, “society cannot expect meaningful contributions from groups or organizations that are not truly representative of their memberships’ convictions and free choice.”

A vote against mandatory CBA payments is not a vote against the CBA; rather, it is a vote for free choice, progressiveness, fairness, logic, accountability and a stronger CBA.

A Cameron Ward, a Vancouver civil litigator, has been a member of the CBA since 1984.

This article was published in the June 2004 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.