Case Summary: Standard of review for law society rules is reasonableness

  • February 22, 2018
  • Gerald Jewers

Green v Law Society of Manitoba, 2017 1SCR 360

Sid Green, a Manitoba lawyer who has been practising for 62 years, challenged the legality of rules enacted by the Law Society of Manitoba establishing a mandatory program of continuing legal education for members of the society and providing for an automatic suspension for failure to comply. He claimed that the law society had no authority to enact the rules under its governing legislation, the Legal Profession Act C.C.S.M. L101 He applied unsuccessfully to the Manitoba courts for a declaration accordingly.

A further appeal to the Supreme Court of Canada was dismissed by a seven-person panel with two judges dissenting. The court defined the issues as :

  1. Standard of review;
  2. Is the Rule valid?

The court held that the standard was reasonableness and that the rules were reasonable and consistent with the mandate of the society to protect the public by ensuring the competence of lawyers.

The court said that there should be a broad and purposive approach.

Mr. Green had argued that there was no express authority in the act to impose a suspension as a consequence for non-compliance and relied upon the principle of implied exclusion. He pointed out that the Act referred to suspension only with respect to proceedings for professional misconduct. However the court disposed of this argument by holding that the real issue was whether the rules were reasonable, and that they were reasonable in the light of the statutory mandate to protect the public interest by ensuring legal competence of those practising law. A contrary finding would not be consistent with a purposive approach.

The court concluded the rules were reasonable and therefore valid.

The dissenting judges held that the rules were not reasonable because the suspension was automatic with no provision for an explanation for non-compliance when there may be many good reasons for failure to comply in any given case. The majority said the suspension was only administrative, but the dissenting judges essentially said a “suspension was a suspension was a suspension” and not consistent with the mandate of the law society to protect public confidence in the legal profession because the rules “gratuitously and therefore unreasonably” impair public confidence in the lawyer. They would allow the appeal and declare the rules invalid.

The case is significant because it establishes that the standard of review of law society rules is reasonableness judged by a broad and purposive approach.

Prepared by Gerald Jewers, Q.C.