“A landmark decision for the independence of the bar”

Log in to listen to this article

For two years, much of the BC legal community has been warning that changes to the regulation of lawyers in that province risk making them answerable to the state rather than their clients. Last week, the BC Supreme Court upheld the changes as constitutional, despite noting the government’s “inability, or failure, to justify overturning 150 years of self-regulation.”

Connor Bildfell is First Vice President of the Canadian Bar Association’s BC Branch. He was part of a team from McCarthy Tétrault that argued against the changes on behalf of the CBA. On this episode, he discusses why the BC court’s recognition of the independence of the bar as an unwritten constitutional principle is an important silver lining.

Notes:

• CBA responds to BC Supreme Court decision on Legal Professions Act

 

Verdicts & Voices is a legal current affairs podcast presented by the Canadian Bar Association. With her retinue of expert guests, host Alison Crawford keeps listeners up to date on news, views, and stories about the law and the justice system in Canada.

Views expressed are not necessarily those of the CBA.

Transcript

Good day, everyone, and welcome to the Canadian Bar Association's Legal Affairs podcast, Verdicts & Voices. I'm your host, Alison Crawford. Last week, the Chief Justice of BC’s Supreme Court decided that the provincial government can proceed with its controversial Legal Professions Act that will overhaul the regulation of legal professionals in British Columbia.

Chief Justice Ronald Skolrood said, “There is no doubt that the cumulative impact of the various provisions constitutes a dramatic change in the way in which lawyers will be regulated, but I am not satisfied that the new regulatory structure is unconstitutional.”

The province has said the law passed in 2024 would modernize how all legal professionals are licensed, and that includes paralegals and notaries. Premier David Eby says this would improve access to justice by making some legal services more affordable to the public. The Law Society of BC and the provincial Trial Lawyers Association didn't agree, and they challenged the constitutionality of the law. And the Canadian Bar Association joined the challenge as an intervener. All shared the opinion that increased government control of the Law Society would fail to ensure the independence of the bar, which is essential to the rule of law.

Both the trial lawyers and the law society have suggested that they're inclined to appeal. So, joining me now to take a deeper dive into this decision and what this might mean for lawyers right across the country is the lawyer who represented the Canadian Bar Association at the hearing last year. Connor Bildfell is a partner at McCarthy Tetrault and joins me from Vancouver. Welcome to the podcast, Connor.

Connor Bildfell

Thanks for having me.

Alison

All right. So why did the CBA decide to intervene in this case?

Connor Bildfell

The CBA decided to intervene in this case because the case is all about the independence of the bar. The core issue in the litigation is whether this new Legal Professions Act respects independence of the bar and in particular what the court has now recognized to be an unwritten constitutional principle of independence of the bar. And as the voice of the legal profession, the CBA wanted to make submissions on independence of the bar, its significance to our justice system, and how this particular law infringes on independence of the bar.

Alison

So, you know, most of us are not really steeped in the inner workings of law societies. Generally, they're pretty kind of private organizations. But what would the law have changed that could affect the independence of the bar?

Connor Bildfell

I think it's important to take a step back and look at the history of the regulation of the profession in British Columbia. So, for 150 unbroken years, the Law Society of British Columbia has been an independent, self-governing society. We recognize the concept of self-governance, which is the idea of lawyers essentially regulating lawyers. That has been the case in our province for more than a century.

The new law changes that. So, for example, rather than having a majority of elected lawyers making up the governing body of this regulatory institution, there's now a change such that there are a higher number of government appointees who form part of the board of the regulatory institution. There are also a number of other changes that change fairly dramatically the way that the regulator does its job and the way that the regulator is constituted.

Alison

What would be an example of that?

Connor Bildfell

Yeah, so I've mentioned already the change in the board composition. There is also, for example, a regulation-making power that is given to the Lieutenant Governor in Council, which is in essence the Premier and cabinet. And that is a big change because generally speaking, throughout our history in the province, lawyers have been the ones deciding what should be the professional standards that lawyers need to adhere to. That is now changing such that the government has a much stronger hand in deciding what those standards are and whether lawyers have complied with them.

Alison

One thing that really stood out to me in the judgment is how the Chief Justice pointed out that the province had failed to really explain why this was happening. And I just wanted to quote that he said, you know, they “[failed] to justify overturning 150 years of self-regulation, in the face of widespread opposition from the bar.”

And even though that had no bearing on his decision about whether this law was unconstitutional, he really did point that out, that it didn't exactly make a lot of sense. What do you take from that?

Connor Bildfell

A couple of things, Alison. The first is, as you point out, the Chief Justice went out of his way to make the point that the government had not justified this very dramatic change from what had been a tradition for more than 150 years. And again, it wasn't actually relevant to the constitutional analysis in the court's view, but the court went out of its way to point that out and make that point. And I think that the court there was trying to send a signal to the government about just how dramatic this change is, and particularly how troubling it is that there is no real justification offered for it.

And the second point on that, and it's related, is just that the Chief Justice also pointed out that the process was concerning, in that there was not the level of engagement and consultation with the bar that one would have expected, given the very dramatic changes at play.

Alison

Yeah, and it happened quickly too.

Connor Bildfell

Right.

Alison

Yeah. Now, here we are, there was initial kind of shock and disappointment that was expressed by all of the parties initially after reading the decision. How are you feeling now that this decision has kind of steeped with you for a couple days?

Connor Bildfell

Yeah, a couple of reactions. The first is this is really a landmark decision for independence of the bar. This is the first time that the BC Supreme Court has formally acknowledged that independence of the bar is an unwritten constitutional principle. And that is significant for a number of reasons. One being that, you know, that decision and the recognition of independence of the bar as an unwritten constitutional principle enshrines independence as a constitutional construct. And that will in turn guide and limit the extent to which government can take action.

And so looking ahead, you can imagine scenarios where governments may take actions that impinge on independence of the bar in one way or another. This is kind of where the rubber hits the road. This particular challenge is, in some sense, an abstract challenge, in the sense that you're looking at the legislation in the abstract and saying, does it infringe independence of the bar in a manner that renders the legislation unconstitutional? But we also have to think about, you know, when the rubber hits the road and government actually starts taking actions and decisions are being made, how are we going to assess the constitutionality of those decisions and those actions? And the court makes a point that, you know, in the future, if there are individual actions or decisions that are made, those may be challenged, in part in relying on independence of the bar and its constitutional recognition.

Alison

Now, this is a decision that has interested lawyers right across the country, because of course there are other jurisdictions where governments have sought to make changes to how lawyers govern themselves, such as here in Ontario. Why do you think this is of such interest right across the country?

Connor Bildfell

A few reasons. The first is, you know, in Canada, we have an interprovincial mobility agreement, whereby lawyers can practice in other provinces with relative ease, up to a certain amount of days. And there's a recognition that, as lawyers in Canada, we can move from province to province fairly easily. And so, the independence of one regulator is significant to other regulators. Because we have an interconnected system where there's a recognition that lawyers will be providing services or may provide services in multiple jurisdictions within Canada.

And the other thing is that, you know, the practical reality is that different provinces have taken different approaches to their legal regulation and how they structure their regulatory bodies. And so, this decision is one example of courts scrutinizing a particular regime and setting out what the constitutional limits on these types of regimes may be. And that may be found to be influential in other provinces. And it may cause other provinces to think carefully about how they're structuring their own law societies. I just saw the other day that I believe that the Ontario Law Society is thinking about cutting down its convocation number pretty significantly. So, you can see that this is a time of real change, where there are different proposals being made about how to properly structure the regulatory regime. And so, this decision forms part of a broader trend of change within the profession.

Alison

Yeah, it sounds like there's going to be a lot more lawsuits over time.

Connor Bildfell

Yeah, that's for sure.

Alison

So, you know, there are some who might say cynically, well, isn't this just the law societies trying to protect their turf from notaries or paralegals who can provide some legal services at a more affordable rate? What would you say to those?

Connor Bildfell

To those people I would say the case is really about protection of the public interest. And the reason for that is that independence of the bar is absolutely integral to the public interest. In order for people to have confidence in the justice system and to decide to have recourse to lawyers and to courts, they have to have utmost confidence that their lawyer is out to protect their interests no matter what, within the bounds of their ethical constraints. And so, protecting independence of the bar is really about protecting independence and the interests of the public. It's about ensuring that they are adequately represented when they have to deal with a dispute in court. It's about ensuring that their interests are properly represented. And so, I would say it's not about protecting the interests of the bar. That's partly what this case is about. But ultimately that's to a greater end, which is interests of the public.

Alison

What are the concerns specifically when you think about the government appointing people to the board? Would these individuals be lawyers of their choice? Like, what do we know about the future composition and their intentions?

Connor Bildfell

Yeah, so under the new regime, the government is able to appoint a certain amount of individuals to the regulatory board. One of the concerns that had been expressed in the litigation is that those individuals may feel some degree of accountability to the government, or in other words, feel somewhat beholden to the government institution that appointed them. And therefore, their decisions and their actions may not necessarily be focused squarely on the interests of the public. So, that's why, ultimately, part of the reason why we have always had a self-governing profession, the idea that lawyers are electing lawyers to serve the public interest. And so that change is a relatively radical change in the way that we have historically conceived of our regulatory institution.

Alison

So where do you think this is going to go from here

Connor Bildfell

It's fair to say it'll go to the next level of court. That's the initial next step. I understand that both the Law Society of British Columbia and the TLABC have both expressed an initial tentative plan to appeal. And so, we can fairly expect to see an appeal. But also, this is opening up a broader dialogue about independence of the bar and about the regulation of professionals. And about how to ensure that a number of objectives, independence of the bar, protection of the public interest, efficiency, diversity, a number of different interests that governments and the profession and the public have raised, how those can be reconciled and how those can be embedded in a structure that works for everybody. And so, this case is really opening up a broader dialogue about that.

Alison

Yeah, because there are so many different factors at play too, right? Last year, we had Margaret Satterthwaite, who is the UN Special Rapporteur on the independence of judges and lawyers on the show. And she talked about, you know, trends that are happening in other places, including in the United States, of governments capturing the bar. You know, taking over regulation and the challenges that poses. And then you also have high-profile cases of lawyers who misbehave, and people are asking for more structure. So, there certainly is, this is certainly something of concern and that the public should be interested in.

Connor Bildfell

It's absolutely part of the public discourse right now. Independence of the bar, protection of the public interest, ensuring that government is properly held to account, and recognizing lawyers' role and independent lawyers' role in doing that, that's all very much top of mind.

Alison

Well, look, thank you very much for taking the time to explore this topic with us some more. It's been wonderful to have you on Verdicts & Voices. Connor Bildfell was counsel for the CBA in Law Society of British Columbia v. British Columbia. He's a partner in the Litigation and Dispute Resolution Group at McCarthy Tetrault in Vancouver. And for your information, we have included a link to Chief Justice Skolrood's decision in the show notes for this episode. It's been great to have you back for this episode of Verdicts & Voices. This legal affairs podcast is produced by the Canadian Bar Association, and I'm your host, Alison Crawford.