SCC: Lawyers can be suspended for not doing CPD
The Supreme Court of Canada has ruled that law societies can suspend lawyers for not completing their mandatory continuing professional development. The top court held that the Law Society of Manitoba should enjoy “considerable latitude” in making rules that are the public interest.
Justice Richard Wagner wrote for the court:
To ensure that those standards have an effect, the Law Society must establish consequences for those who fail to adhere to them. As a practical matter, an unenforced educational standard is not a standard at all, but is merely aspirational.
A suspension is a reasonable way to ensure that lawyers comply with the CPD program’s educational requirements. Its purpose relates to compliance, not to punishment or professional competence. Other consequences, such as fines, may not ensure that the Law Society’s members comply with those requirements. An educational program that one can opt out of by paying a fine is not genuinely universal. I am mindful of the fact that in making these mandatory rules, the Law Society was responding to the reality that many lawyers in Manitoba had not complied with the CPD program when it was voluntary.
To ensure consistency of legal service across the province, the possibility of a suspension effectively guarantees that even lawyers who are not interested in meeting the educational standards will comply. Mr. Green submits that, in his opinion, the CPD activities that were made available to him would not have been helpful to him in his practice. But it is not up to Mr. Green to decide whether CPD activities are valuable or adequate. The legislature has decided that the Law Society must impose educational standards on practising lawyers (s. 3(2)) and that it is for the Law Society to determine the nature of those standards.
In their dissent Justices Rosalie Abella and Suzanne Côté argued that the sanction for failing to attend classes – an automatic suspension with no discretionary leeway – is arbitrary an unreasonable, especially when one compares the rule to those in other Canadian jurisdictions:
It is worth contrasting this with the regulations, policies and by-laws of most other Canadian provinces and territories that have Continuing Professional Development related rules. All of these expressly offer discretion to their respective regulatory bodies to deal with breaches of Continuing Professional Development requirements where there is a reasonable and justifiable explanation of why an exemption or a waiver would be required. These law societies explicitly grant their members the possibility of either exemptions or waivers from mandatory Continuing Professional Development requirements