The trial, which could pave the way for an overhaul of how BC lawyers are regulated, wrapped Tuesday
In separate submissions to a Vancouver court on Tuesday, lawyers for the Trial Lawyers Association of British Columbia and the Law Society of British Columbia accused the province of not adequately engaging with their arguments during a weeks-long trial that could overhaul how BC lawyers are regulated.
Both organizations sued the province last year to challenge Bill 21, or the Legal Professions Act. This bill is slated to replace the LSBC with a single regulatory body for lawyers, notaries, and paralegals. The governing board of that regulatory body will give lawyer-elected lawyers less power than they currently hold at the LSBC.
On September 26, the BC attorney general indicated that while BC Supreme Court Justice Ronald Skolrood’s judgment in the case is under reserve, no provision of the legislation will go into effect unless the LSBC and Society of Notaries Public of BC are given 30 days’ notice first.
There’s “not a lot of daylight between the parties,” Gavin Cameron, a Fasken Martineau Dumoulin LLP partner who represents TLABC, told Skolrood on Tuesday. Cameron argued this had become “abundantly clear” from multiple “concessions” counsel for the BC attorney general had made during the trial. These include concessions that the legislature must respect the independence of the bar, that the Constitution bars the legislature from undercutting the independence of the bar, and that the direct regulation of lawyers by a government branch would be inconsistent with the Constitution.
“Effectively, the defence has been forced by the overwhelming facts and the overwhelming jurisprudence to adopt my view of the world that an independent bar is a constitutional guarantee for every Canadian and every British Columbian,” Cameron said.
In a separate submission later, Lawson Lundell LLP partner Craig Ferris, who represents the LSBC, told Ronald Skolrood of the province, “We’re ships passing in the night here.”
Ferris posited that the province had misunderstood the LSBC’s arguments. The lawyer noted that the LSBC was neither trying to constitutionalize the law society nor arguing that “lawyers must enjoy complete and total immunity from any kind of democratic regulation.” The province is focused on arguments “the law society has never made,” Ferris said.
“Much of our case has not truly been responded to,” he added.
The province began presenting its arguments to the court on Oct. 22 and concluded Tuesday morning. The crux of its argument was that although lawyer independence is important, the Legal Professions Act does not infringe on that independence to a constitutionally impermissible degree. The province argued that this is because lawyers do not need to self-govern, as they currently do with the LSBC, to maintain their independence.
The province also noted that lawyers in some provinces and territories are regulated by legal provisions similar to – or that go further than – aspects of the Legal Professions Act to limit lawyers’ independence. While the LSBC had worried about the cumulative impact of having multiple provisions in a single law, the province argued that provisions that are constitutional in isolation do not become unconstitutional simply because they appear together.
In its reply submission following the province’s arguments on Tuesday, the TLABC rejected this stance. “It’s not only proper but it’s necessary to look at the cumulative effect or impact of Bill 21 as a whole,” Cameron said.
The lawyer also said that by his count, Skolrood had pressed the province at least twice during the trial on why it wanted to change how lawyers are regulated in BC. Still, there remained “a glaring absence of a clear rationale or explanation.”
Later, Cameron addressed several provisions of the Legal Professions Act that he argued violated the Canadian Charter of Rights and Freedoms. Under the 2024 law, the chief executive officer of the new regulatory body for lawyers, paralegals, and notaries can investigate whether a law firm or licensee has committed a professional misconduct violation or practised law incompetently. The law states that a licensee can be deemed to be engaging in the latter if they demonstrate that they have “a health condition that prevents a licensee from practising law with reasonable skill and competence.”
The Legal Professions Act also empowers the chief executive officer to order licensees to receive counselling or medical treatment – including treatment for substance abuse issues – if they are determined to have practiced law incompetently.
The TLABC has said that these provisions infringe on lawyers’ life, liberty, and security interests in violation of s. 7 because they dissuade lawyers from seeking help for mental health and substance use issues and impose forced treatment on lawyers.
“It’s accepted by the attorney general that mental health challenges are particularly prevalent among lawyers and there exists in the profession… stigma against seeking help,” Cameron said, adding that the province appears to be arguing that the Legal Professions Act would not exacerbate that stigma.
However, Cameron argued, “linking mental health with competence is stigmatizing.”
He added, “It’s not about parsing words. It’s about reality and what the ordinary reader of this legislation would conclude.”
Presenting the LSBC’s reply submission later in the day, Ferris said little had changed since the court heard from the province during the trial, and that the LSBC still believed the Legal Professions Act represents the first time in history that the province has imposed an unconstitutional regulatory scheme on lawyers.
“There’s a real problem with definition and nomenclature in this case,” Ferris said. “My friends talk about ‘lawyer independence.’ We talk about ‘independence of the bar.’ They are fundamentally different things. They can’t be used interchangeably.”
The lawyer argued that the province’s concept of lawyers’ independence – which hinges on their ability to freely provide clients with independent advice and advocacy – is limited. The province’s stance, he said, is that “unless you can actually show [that] someone’s getting between a lawyer and his or her client, that you don’t have a breach of independence.
“Its functional approach is all based on this extremely narrow definition,” he added.
Later in his submission, Ferris addressed the Legal Professions Act’s creation of a 17-person governing board of directors for the province’s new legal regulator to replace the LSBC. That board will include nine seats for lawyers, five of which would be elected by lawyers throughout BC. The board would appoint the remaining lawyer seats.
In contrast, the LSBC is currently overseen by a board of 25 lawyers and up to six non-lawyers. Other lawyers elect those lawyers, with the Lieutenant Governor in Council appointing the non-lawyers.
Underpinning this plan is a “mistrust of lawyers,” Ferris argued. “We can’t trust those elected lawyers on the board to do the right thing and act in the public interest, and so we need to reduce the number of elected lawyers with legislative changes to reduce their influence.”
Ferris argued that the law is designed to assume that lawyers will not regulate in a way that economically challenges them or that they will not fulfill their oaths because that is not in their interests.
“I think it’s sad that the government is taking that position,” the lawyer said. “It’s also wrong. That’s not how this should be approached. That idea that we can’t trust lawyers – that somehow they’ve done something wrong – comes through in the text of the act itself.”
The trial, which was initially scheduled to run through the end of the week, wrapped on Tuesday afternoon.
