The Power of Perspectives

The Canadian Bar Association

Yves Faguy

The fight over mandatory CPD: A waste of judicial resources?

April 18 2017 18 April 2017

 

Omar Ha-Redeye struggles to understand why anyone would take on mandatory CPD imposed by his law society as something worthy of a challenge all the way to the Supreme Court of Canada (in Green v Law Society of Manitoba, the top court ruled that law societies can suspend lawyers for not completing their mandatory credits)

Aside from the fact that he was being compelled to do it, I'm not exactly sure what the lawyer was objecting to with mandatory CPD. Granted, many lawyers simply complete it to check off a box. But many more actually benefit from CPD, gaining useful insight into strategy and techniques, obtaining copies of checklists and precedents, or learning about new and emerging areas of law.

Jim Middlemiss thinks he’s missing the broader point:

I interviewed Green about his appeal and he raised an interesting point that probably scares law societies and other professional governing bodies. That is whether or not mandatory education even amounts to an effective tool. Deeming that someone must attend a seminar to simply check a box, isn't necessarily the most effective method of ensuring competence.

Even so, Alice Woolley isn’t impressed:

Rarely have so many judicial resources been spent on a case worthy of so little.

[…]

The Court in 2014 granted leave in 50 cases, and refused it in 430 (10.4%). In 2015 it granted leave in 43 cases, and refused it in 424 (9.2%). In 2016 it granted leave in 48 cases, and refused it in 447 (9.7%) (see 2002-2016 statistics, here). It seems strange to think that Mr. Green’s claim to injustice, the legal merits of his argument, or the inadequacies in the reasoning of the courts below, were capable of putting his case in the top 10%.

Normally this would only mildly bother me, if at all. If the Supreme Court gets excited about an issue that seems so manifestly unimportant, it might even be endearing – a nerdy enthusiasm for things not of general interest.

But also in March an Ontario judge, Justice Pazaratz, was celebrated and called “magnificent” for excoriating poor people who asked him to adjudicate their dispute over a protection order. And so this is the legal system that I saw last month: a disgruntled octogenarian who refuses for no reason to comply with a reasonable regulatory requirement gets the respectful time and attention of the Supreme Court of Canada. Poor immigrants are pressured by a trial judge to settle a legitimate legal dispute and abused for wasting taxpayer resources. Could any clearer example exist of the difference between being a poor racialized immigrant and being a white wealthy professional in Canada’s legal system? Perhaps we can think on that next time we look smugly at our American neighbours.

 

 

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