BarTalk February 2004
Volume 16, Number 1

Supreme Court upholds Law Society/CBA position

“...the specific merits of any particular program the members see fit to support...is not a matter that should be reviewed by the court.”

On December 17, 2003, a Supreme Court of B.C. ruling confirmed that the Law Society of BC is authorized under the Legal Professions Act to set and collect a practice fee which includes a fee to be paid to the Canadian Bar Association.

A ruling had been sought by Mr. Richard Gibbs, QC, that section 23(1)(a) of the Legal Professions Act does not permit members of the Society to include a CBA fee amount in the practice fee, and that section 24(1)(c) does not permit the Benchers to collect and remit to the CBA such a fee on behalf of all practising lawyers.

The Law Society of B.C. and the CBA argued that section 23(1) allowed the members of the Society to set the practice fee, including a universal CBA fee, and that the general power given to the Benchers by section 4 of the Act was not restricted by the specific authority to collect CBA fees in s. 24.

The petitioner argued that the setting of the fee for members of the Law Society “violated an overarching restriction imposed by the Legal Professions Act being that the setting of practice fees must include only purposes consistent with the objects and duties of the Society as enumerated in s. 3 of the Act.”

Mr. Justice Taylor held that the objects of the CBA were substantially consistent with those of the Society, and therefore the actions of the members in setting the practice fee, and the benchers in remitting such a fee to the CBA on behalf of all practising lawyers, was neither patently unreasonable nor unreasonable.

“In my view, provided that overarching restriction is respected, the specific merits of any particular program the members see fit to support, whether it be the Canadian Bar Association, the Lawyers Assistance Program or the British Columbia Courthouse Library Society is not a matter that should be reviewed by the court.”

Quoting MacDonald, J. in Beltz v. Law Society of British Columbia, Justice Taylor wrote: “On policy matters, honest and sincere people often hold different views, but the court is not the arbiter of the correctness of one view over another.”

“I agree with that statement and would add that the courts should not intervene when there is found to be reasonableness of a position taken by a majority of the members of the society that the work of the association is consistent with the objects and duties of the society.”

Richard Gibbs, QC appeared in person, the Law Society was represented by Murray Clemens, QC, and the CBA was represented by Geoff Cowper QC and Stanley Martin.

A full text of the decision can be found at www.courts.gov.bc.ca/jdb-txt/sc/03/18/2003bcsc1814.htm.

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