Challenge to mandatory continuing professional development goes to Supreme Court of Canada
November 30, 2016
McCarthy Tétrault is representing the Federation of Law Societies (FLSC) as intervener before the Supreme Court of Canada in a decision that will decide whether the Law Society of Manitoba (the Law Society) can legally require licensed lawyers to participate in mandatory continuing professional development (CPD).
The matter relates to a Winnipeg lawyer, Sidney Green who has practiced for over sixty years and was served a suspension notice for failing to satisfy the Law Society's requirements for minimum CPD. He argued that the Manitoba Legal Profession Act does not explicitly permit the Law Society to enact mandatory CPD rules and enforce those rules with the imposition of a suspension. He also argued that the rules violated the principles of natural justice by failing to afford him a right of hearing or appeal upon the imposition of the suspension. Both the Court of Queen's Bench of Manitoba and the Court of Appeal of Manitoba disagreed, holding that the Law Society has the power to make CPD compulsory in order to be a practicing member. This includes the power to suspend a member for failing to meet the requirement.
In March 2017 the Supreme Court of Canada handed down its reasons. The court sided with the arguments put forward by the Federation of Law Societies, including that the standard of review for challenges to law society rules is reasonableness, and that the rule-making powers of law societies should be given a broad interpretation in light of their public interest mandate and self-regulation of the legal profession. The decision is important for law societies across Canada and how they regulate their members.
McCarthy Tétrault advises the Federation of Law Societies with a team led by Neil Finkelstein and includes Brandon Kain.