British Columbia’s trial lawyers and its self-regulating law society have launched constitutional challenges to the provincial government’s move to combine oversight of their profession with notaries and paralegals, a move they contend violates their institutional independence.
The Trial Lawyers Association of B.C. filed its lawsuit on Tuesday in B.C. Supreme Court, and the Law Society of B.C. filed its claim last Friday. These twin challenges could substantially delay the creation of a new regulator named the Legal Professions British Columbia, which is the core piece of Bill 21, passed last week on the final day of the legislature before the fall election.
The lawyers in both suits say the change means members of their profession will no longer have a “functional majority” of this new body that will set the rules for lawyers, law firms and articling students in B.C., as well as handle complaints against lawyers.
Under the current 32-person system of governance, the Law Society of B.C. is overseen by 25 lawyers elected by their peers in nine regions of the province as well as up to six non-lawyers appointed by the province and the Attorney General.
The new regulator’s board will shrink to 17 directors: nine lawyers, two other positions for both notaries and paralegals, three appointed by the province (at least one of whom must be Indigenous). However, the lawsuits note that only five of these directors will be elected by their peers in the legal profession, with the remaining four lawyers to be appointed along with one other director as part of a merit-based process voted on by all the other directors.
“Bill 21 eliminates the independence of the bar in British Columbia by, amongst other things: Effectively eliminating lawyer self-regulation of the legal profession in British Columbia by allowing for a functional majority of government-appointed lawyers and non-lawyers to control the board of directors,” the trial lawyers’ association wrote in their notice of civil claim.
The law society said in a statement the new law is an “unnecessary government direction and intrusion on the legal profession” that threatens the legal profession’s ability to serve the public.
B.C. Attorney General Niki Sharma was unavailable for an interview this week, but her office sent a statement saying she was reviewing the legal claims and her government still hopes to continue to work with the Law Society on a “smooth and effective transition.”
The statement reiterates the government’s rationale for the regulatory overhaul, saying it’s aimed at making access to legal services more attainable and affordable for people by expanding the services offered by notaries, which have their own self-regulating society in B.C., and paralegals, which have never had their own regulator.
An “intentions paper” the government published before proposing the law says shifting to one regulator for all three professions would also improve people’s access to legal advice by prioritizing the public interest “over the interests of the professionals it regulates.”
Ron Usher, who spent nearly nine years working for the Law Society before becoming general counsel for the Society of Notaries Public of B.C., said he was surprised by the “moral panic” the regulatory change created among many of his legal colleagues. He estimated the lawsuits could delay the policy shift by two years or more.
The Federation of Law Societies of Canada said it is watching these lawsuits and, as is its policy, only intervenes in cases once they reach their final appeals, which is typically the Supreme Court of Canada.
B.C. has long maintained that the legal profession has not done enough to make its services more accessible to more of society and that legal aid cannot completely fill this gap in access. A Law Society of B.C. survey done by Ipsos in 2020 found nearly two-thirds of people with legal problems don’t seek advice and, of those that do, less than half approach a lawyer.
The province said the society has attempted to make legal services more affordable by promoting projects run by non-lawyers through its “Innovation Sandbox,” but that approach has not done enough to impact the many people priced out of seeking such advice.
Julie Maciura, co-founder of the Toronto-based SML Law, said the new regulator would be unique in Canada if the majority of directors were non-lawyers. But Ms. Maciura, who also acts as independent legal counsel for the Ontario College of Teachers and the College of Optometrists of Ontario, said the independence of the legal system and the judiciary will remain as long as the process for appointing the other directors of B.C.’s new regulator is transparent and based on people’s competency.
She argued that a lot of qualified lawyers who would be great regulators don’t volunteer their time overseeing their provincial law societies because they refuse to put their name forward for the election process, which can become competitive with firms jockeying to get their own employees into director positions.
Mike Hager