New Zealand Law Society - Canadian Supreme Court upholds CPD scheme rules

Canadian Supreme Court upholds CPD scheme rules

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Canada's Supreme Court has dismissed an appeal brought by a Manitoba lawyer who challenged the Law Society of Manitoba's Rules which required all lawyers to undertake 12 hours of CPD a year.

In Green v Law Society of Manitoba [2017] SCC 20 (30 March 2017), a Supreme Court majority dismissed an appeal from the Court of Appeal for Manitoba.

Sidney Green, the appellant, had been a lawyer for over 60 years, after being called to the Manitoba Bar in 1955. In spite of the Law Society's rules which required all practising lawyers to complete 12 hours of CPD a year, Mr Green did not report any hours in 2012 or 2013.

In 2014 the Law Society notified Mr Green that if he did not comply with the rules within 60 days, he would be suspended from practising law. He was also invited to correct any errors in his CPD record. Mr Green did not reply and eventually challenged the validity of some provisions of the Rules of the Law Society of Manitoba.

The first instance judge dismissed his application, finding that the rules were within the Law Society's legislative mandate. This was also the finding of the Court of Appeal.

The majority Supreme Court judgment was delivered by Wagner J. In a decision which upheld the right of the Law Society to make the rules, he began:

"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 their skills, and ensure they adhere to accepted ethical and professional standards in their practice."

The Supreme Court majority found that the standard applicable to a law society rule is reasonableness. A rule will be set aside only if it is one no reasonable body informed by the relevant factors could have enacted.

The impugned rules were reasonable in light of the Law Society’s statutory mandate. Wagner J said it was reasonable for the Rules to expose a lawyer to a suspension as a consequence for non‑compliance with the CPD programme.

The Legal Profession Act provided clear authority for the Law Society to create a CPD programme that could 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 showed that the impugned rules are reasonable in light of the Law Society’s statutory mandate.

A suspension, the purpose of which relates to compliance, not to punishment or professional competence, was 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.

Wagner J said the right to practise law was not a common law right or a property right, but a statutory right that depends on the principles set out in the Act and the Rules.

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