B.C. court rejects law society's bid for injunction to pause Legal Professions Act implementation

Scales of justice. (Shutterstock)

B.C. lawyers' efforts to halt the implementation of a provincial law creating a single regulator for lawyers, notaries public and paralegals suffered a setback Wednesday, as the B.C. Supreme Court refused to grant a temporary injunction pausing the transition.

The Law Society of B.C. and the Trial Lawyers Association of B.C. are each suing the province over its recently enacted Legal Professions Act, also known as Bill 21.

The plaintiffs argue that the act eliminates self-regulation for lawyers in B.C., which violates the unwritten constitutional principle of the independence of the bar. The Trial Lawyers Association also argues that the act violates the Charter of Rights and Freedoms.

The decision issued Wednesday by Justice J. Miriam Gropper does not make any conclusions about those arguments. Rather, it addresses the plaintiffs' application for "injunctive relief" in the form of orders preventing the law from being implemented while their constitutional challenge to it remains before the courts.

Gropper declined to issue such orders, ruling that – although the case raises a serious issue for trial – allowing the implementation of the law to continue will not cause irreparable harm. Nor does the "balance of convenience" favour an injunction.

Three-part test

When deciding whether to issue a temporary injunction, courts use a three-part test, determining first whether there is a serious question to be tried, then whether irreparable harm will result without an injunction, and finally whether the balance of convenience favours such an intervention from the courts.

In this case, the province acknowledged that the plaintiffs had raised a serious question to be tried, according to Gropper's decision.

The case for an injunction fell flat when Gropper weighed the question of whether irreparable harm would result from not granting one.

The law society and the trial lawyers association argued that the act – which includes a transitional process that is currently in force and a variety of provisions that will come into force once that process is complete – must be viewed as a single, cohesive piece of legislation.

The irreparable harm that comes from allowing it to proceed, therefore, is the elimination of self-governance for lawyers complained of in the overall petition, according to the decision.

"The irreparable harm the law society says that it will suffer is its continued existence is in doubt, and its administrative programs will be irreparably interrupted," the decision reads. "It will be forced to discharge a duty to participate in the transitional planning process that does not uphold and protect the public interest in the administration of justice. It will have been forced to act against both the independence of the bar and its mandate."

Gropper was unconvinced by this argument.

"The transitional provisions do not threaten the existence of the law society," her decision reads.

"Its participation in such a process is vital in order to protect the independence of the bar, and ensure that its initiatives concerning access to justice and reconciliation are considered in the transitional planning process. Combining the regulation of legal professionals into a single regulator is supported by the law society and the trial lawyers. This transition will take place. The law society’s expertise is necessary to make such a transition. The law society says it is being conscripted into a planning process that they do not agree with. The law society can make its concerns clear from within the transitional planning process."

Regarding the substantive provisions of the law, Gropper concluded the plaintiffs' petition for an injunction was premature, noting that the province expects transition planning to take 18 to 24 months. That's likely to be enough time for courts to hear and rule on the constitutional challenge, the judge concluded.

Likewise, Gropper found that the balance of convenience did not weigh in favour of granting an injunction, again because the transitional process will benefit from the law society's participation and because it's premature to prevent the substantive provisions of the law from taking effect while the transition is still ongoing.

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Preview of trial to come?

While Gropper did not pass judgment on the parties constitutional arguments, she did summarize them in her decision.

The plaintiffs argued that the law "ends self-government and self-regulation in the legal profession," the decision reads.

"Instead of the current regime, lawyers, notaries public, paralegals as well as an Indigenous council will all be involved in regulating the legal profession," it continues, later noting that the law makes lawyers "subject to regulation by a functional majority of non-lawyers."

While acknowledging that these arguments spoke to a serious issue for trial, the province pointed out "some frailties" in the plaintiffs' arguments, according to the decision.

"These include whether unwritten constitutional principles can invalidate legislation and whether the independence of the bar means that lawyers must be 'free from influence or incursion by any source,'" the decision reads.

"The province says that lawyers are not and have never been 'free from influence or incursion by any source.' Lawyers have always been subject to some kinds of influence by non-lawyers and external regulation."

In an update on its website acknowledging Gropper's decision, the law society highlighted that the judge gave it leave to reapply if it appears that the government is proceeding with implementation of the law before the constitutional challenge is resolved.

"The law society will proceed with the challenge to the constitutionality of the act and we expect the first stage of that process will take place in early 2025," the LSBC's update reads.