Executive Summary: Key Legal and Evidentiary Issues

• The Law Society of Alberta’s authority to mandate continuing professional development (CPD) and amend its Code of Conduct was challenged as exceeding its statutory powers under the Legal Profession Act.

• The applicant, Yue Song, argued that the CPD requirements and anti-discrimination rules imposed “Political Objectives” and infringed his Charter rights under sections 2(a) and 2(b).

• The court limited its review to the vires of Rules 67.2, 67.3, 67.4, and Part 6.3 of the Code, as well as the Charter issues, finding other matters non-justiciable.

• The standard of review was reasonableness, with the court applying a presumption of validity to the Law Society’s subordinate legislation.

• The court found no Charter breach, as the requirements did not compel belief or expression contrary to the applicant’s rights, and lawyers were not required to adopt competencies they disagreed with.

• The application for judicial review was dismissed, with the Law Society of Alberta entirely successful; costs submissions were invited if the parties could not agree.

Facts of the case

Yue (Roger) Song, an active member of the Law Society of Alberta (LSA), filed an application for judicial review challenging the validity of certain actions taken by the LSA in developing a continuing professional development (CPD) program and amending its Code of Conduct. The LSA is a corporation created pursuant to the Legal Profession Act, RSA 2000, c L-8 (LPA), and is governed by Benchers. The Benchers have authority to establish a code of ethical standards and to make rules for the government of the Society and the management of its affairs.

The judicial review concerned the LSA’s decisions to enact Rules 67.2, 67.3, and 67.4 dealing with a CPD program and mandatory CPD, and to amend Part 6.3 of the Code dealing with discrimination, harassment, and sexual harassment. Rule 67.2 requires every active member to prepare and submit an annual CPD plan to the LSA, Rule 67.3 provides for automatic suspension for failure to submit the plan, and Rule 67.4 gives Benchers authority to prescribe additional CPD requirements, also with automatic suspension for non-compliance. The CPD program requires members to develop a learning plan referencing the Professional Development Profile for Alberta Lawyers, which sets out nine domains, including Cultural Competence, Equity, Diversity and Inclusion, and Truth and Reconciliation. Lawyers are required to select two or more competencies within the Profile for their learning plan but are not required to demonstrate competency in each domain.

The Benchers adopted Rule 67.4 in December 2020, and in October 2020, mandated Indigenous cultural competency training for all active Alberta lawyers, in response to the Federation of Law Societies of Canada’s recommendation following the Truth and Reconciliation Commission of Canada Call to Action 27. The LSA chose “The Path: Your Journey Through Indigenous Canada” as the method to deliver the mandatory training. Completion of the Path was a one-time requirement, with alternative options and exemptions available.

The Code of Conduct, based on the Federation’s Model Code, was amended in October 2023 to provide greater guidance on duties of non-discrimination and non-harassment, and to include guidance regarding bullying. The amendments to Part 6.3 clarified obligations and included updated commentary.

In January 2023, Song submitted a petition to the LSA requesting a special meeting to consider a resolution to repeal Rule 67.4. The resolution was defeated by a majority of 2,609 members voting against repeal.

Legal challenge and arguments

Song’s application for judicial review challenged the vires of Rules 67.2, 67.3, and 67.4, the Profile, the CPD Tool, and Part 6.3 of the Code, arguing that the LSA exceeded its statutory authority under the LPA. He sought orders declaring the rules and Code ultra vires, setting aside the rules and Code, and prohibiting the LSA from continuing its “Political Objectives.” Song defined “Political Objectives” as the LSA’s adoption and promotion of various postmodern applied theories, including critical race theory, critical legal theory, postcolonialism, gender theory, and intersectionality, as well as objectives related to diversity, equity, and inclusion.

Song also sought Charter remedies under section 24, including declarations and injunctions concerning the LSA’s pursuit of its “Political Objectives,” and an order under section 52 striking the impugned rules and Code.

The court found that the Profile, the CPD Tool, and the “Political Objectives” were not subject to judicial review, as they were not laws or actions of the LSA subject to resolution through the judicial process. The court limited the scope of review to the vires of Rules 67.2, 67.3, 67.4, and Part 6.3 of the Code, and the Charter issues.

Policy terms and clauses at issue

The court examined sections 6(l), 6(n), and 7 of the LPA, which grant the Benchers authority to establish a code of ethical standards and to make rules for the government of the Society. The court also reviewed the content of Rules 67.2, 67.3, and 67.4, and the amendments to Part 6.3 of the Code, as well as the process and rationale for their adoption.

Court’s analysis and outcome

Justice S.L. Kachur held that the LSA’s rule-making authority under the LPA was broad and not limited by the absence of an explicit “public interest” clause. The court found that the CPD requirements and Code amendments were reasonable exercises of the LSA’s statutory powers, supported by jurisprudence recognizing law societies’ mandates to self-regulate in the public interest. The court rejected Song’s argument that the LSA’s actions were ultra vires or improperly motivated by “Political Objectives,” finding these claims non-justiciable and unsupported by the record.

The court found that the impugned rules and Code amendments fell within a reasonable interpretation of the LPA, and that the LSA’s creation of mandatory standards for maintaining a practicing certificate was compatible with its public interest purpose. The court also found that the amendments to Part 6.3 of the Code, addressing discrimination, harassment, and sexual harassment, were within the LSA’s authority and consistent with human rights law.

On the Charter claims, the court found no infringement of Song’s freedom of conscience or expression. The CPD program did not compel belief or expression, and lawyers were not required to adopt competencies contrary to their beliefs. The mandatory Indigenous cultural competency training did not require affirmation of belief in its content, and alternative options were available. The anti-discrimination provisions in the Code were found to be clear, precise, and consistent with human rights law, and any potential impact on expression would be assessed in the context of disciplinary proceedings.

Ruling and overall outcome

The court concluded that the impugned rules and Code amendments were intra vires the LSA’s statutory authority and did not infringe the applicant’s Charter rights. The application for judicial review was dismissed, with the Law Society of Alberta declared completely successful. No specific amount was awarded, but the decision provided that if the parties could not agree on costs, submissions could be made within 30 days, with a response to follow within 15 days.