(First published on slaw.ca)
The Law Society of Ontario has a duty to maintain and advance the cause of justice and the rule of law. Does that mean that the Law Society is empowered to intervene in private litigation in order to advance the cause of justice? Is the Law Society is entitled to involve itself in judicial review cases where it is alleged that another administrative body has acted outside of its jurisdiction, or for improper purposes, in breach of the rule of law principle?
The Law Society has a duty to act so as to facilitate access to justice for the people of Ontario. Is the Law Society empowered establish a new family law tribunal to facilitate better access to justice? Is the Law Society is entitled to establish and fund new legal clinics to provide legal services in areas of unmet legal need?
The Law Society is authorized to prescribe the qualifications and other requirements for licensing as a lawyer or a paralegal in Ontario and to prescribe licensing terms, conditions, limitations and restrictions. Is the Law Society entitled to limit the number of licenses issued in order to limit competition? Is the Law Society entitled to require as a condition of licensing that licensees contribute some amount to the United Way or a comparable charity?
What legal analysis provides the answer to these questions?
Thinking about Mandate
In administrative law, it is conventional to examine the legal limits of delegated authority in terms of the scope of delegated mandate and the purposes for which that mandate has been delegated. As we know from Roncarelli v. Duplessis,  SCR 121, a delegated decision-maker cannot use its statutory mandate for a purpose for which that authority was not granted. Equally, a delegated authority cannot exercise an authority which has not been granted to it under its mandate even for a proper purpose.
For the most part, the mandate of the Law Society is obvious. For example, the mandate obviously includes determining what is and is not professional conduct. The mandate obviously includes determining what education is required for issuance of a license to practise law.
Equally, the purposes of Law Society regulation are mostly obvious as well. For example, the Law Society is charged with regulating in the public interest rather than in the interest of licensees.
But the mandate is not always so clear. One recent example was the Trinity Western University case. There is no question that the Law Societies have the responsibility to accredit Canadian law schools for licensing purposes. But what is properly taken into account in the accreditation decision was more controversial. The minority in the Supreme Court of Canada concluded that only competence of the graduates was properly considered. The majority took a broader view.
The Supreme Court of Canada addressed the mandate of the Law Society in Green. The majority concluded that “The legislature has given the Law Society a broad public interest mandate and broad regulatory powers to accomplish its mandate. This mandate must be interpreted using a broad and purposive approach”.
While we know that the mandate is a broad public interest mandate, there are necessarily limits to the mandate. This follows from the rule of law principle. As the Supreme Court of Canada said in Dunsmuir at para. 28 “By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution.” That there are legal limits to the authority of the Law Society is evident. Where those limits may be is less certain.
Context – The Legal System
Before directly considering the mandate of the Law Societies, it is useful to note its context.
There are many players in the legal system, each with their own role and responsibilities. Laws are promulgated by three levels of government. Judges and tribunal adjudicators decide civil, criminal, family and other disputes. Lawyers employed by federal, provincial and municipal governments prosecute criminal, quasi-criminal and regulatory matters. Law enforcement determines what conduct is investigated and is treated as serious enough to engage legal processes. Law schools provide legal education.
Lawyers, and in Ontario licensed paralegals, provide legal services to clients. Governments provide some legal assistance through legal aid clinics, staff lawyers and by legal aid payments for services rendered by private practitioners. Not-for-profit and charitable organizations provide legal information and other assistance.
The Law Society is but one part of this complex system. Its mandate presumably takes into account the roles of the other legal system players.
Governance of the Profession – The Traditional Mandate of the Law Societies
The traditional role of the Law Society is to regulate the legal profession. This traditional role continues to be reflected in modern jurisprudence.
In R. v. Cunningham, the Supreme Court of Canada observed that “Both [the role of the Law Society and the role of the courts] are necessary to ensure effective regulation of the profession and protect the process of the court.”
In CNR v. McKercher, the Supreme Court said that “[t]he purpose of law society regulation is to establish general rules applicable to all members to ensure ethical conduct, protect the public and discipline lawyers who breach the rules — in short, the good governance of the profession”.
In Law Society of British Columbia v. Trinity Western University, the majority of the Supreme Court of Canada stated “… where a legislature has delegated aspects of professional regulation to the professional body itself, that body has primary responsibility for the development of structures, processes, and policies for regulation. This delegation recognizes the body’s particular expertise and sensitivity to the conditions of practice. This delegation also maintains the independence of the bar, a hallmark of a free and democratic society …”
The traditional role of the Law Society is to govern the legal profession, to determine what is required to become a lawyer, to determine who may be licensed as a lawyer, to determine the professional competence and conduct that is required of lawyers and to enforce those standards – all to protect the public. This is the essence of delegated professional self-regulation.
Nearly 25 years ago, the Law Society of Upper Canada (as it then was) adopted the following role statement which nicely expresses this traditional role:
The Law Society of Upper Canada exists to govern the legal profession in the public interest by,
ensuring that the people of Ontario are served by lawyers who meet high standards of learning, competence and professional conduct; and
upholding the independence, integrity and honour of the legal profession,
for the purpose of advancing the cause of justice and the rule of law.
The changing legal services paradigm
While it may be pastoral myth, it appears that there was a time when lawyers were the only providers of legal services. While small claims courts existed so that “ordinary” people could advance small claims themselves, litigation in the courts was with the assistance of lawyers. The courts were the principal focus of the legal system, with administrative law being a relatively new phenomenon.
In Ontario, this started to change about 30 years ago when the Court of Appeal for Ontario determined in Regina v. Lawrie and Pointts Ltd. (1987), 59 OR (2d) 161 that “a paid agent acting for persons charged with traffic offences .. [could not be] be prosecuted for acting as a barrister or solicitor”. As Blair J.A. observed:
It is not the role of this court to determine whether, as a matter of policy, the operations of the respondents serve the public interest. It is obvious from the business they have attracted that they are providing an unmet need for service to the public.
While the Court of Appeal effectively recognized and accepted paralegals in Ontario in 1987, it took 20 more years for paralegal regulation to be implemented in Ontario despite the following observation by Blair J.A.:
While no reflection of any kind was made in this case on the respondents, there must be concern about the absence of any control over the education, qualification, competence and probity of all agents. They deal with serious matters because penalties of up to six months imprisonment apply to some offences under the Highway Traffic Act. No provision exists for disciplining or supervising agents and protecting the public from financial loss arising from the improper performance of their responsibilities by way of an insurance scheme like that of the law society.
… It is the responsibility of the Legislature to resolve these issues of policy. The task of this court is to determine whether, on a proper construction of the relevant statutes, they prohibit what the respondents were doing.
Paralegals found work in Ontario because there were unmet legal needs. But clearly there are still unmet legal needs despite paralegal regulation and the substantially increased number of paralegals in practice.
The changing mandate
The traditional mandate was premised on the assumption that only lawyers should be allowed to provide legal services. While Law Societies prosecuted unauthorized practice of law before the courts, their principal work was in licensing lawyers, supporting and regulating lawyer conduct and arranging for client protection in the event of lawyer negligence or dishonesty.
While unregulated paralegals were permitted to provide certain legal services in Ontario after the Pointts case in 1987, the mandate of the Law Society did not change until 2007 when the Law Society Act was amended so that the Law Society became the self-regulator of two professions.
The fact that the Law Society became the regulator of a second legal profession was obviously a significant change. But there was another important change that is perhaps not as well appreciated. The amended Law Society Act provided that no one can provide legal services unless licensed by the Law Society or unless the Law Society determined that a license was not required. The amended Law Society Act provided that the Law Society had the authority to determine the permitted scope of practice of its licensees.
Said another way, the self-regulator of two legal professions became responsible for determining whether other new licensed or un-licenced legal service providers ought to be permitted and became responsible for determining what legal services should be reserved only to lawyers and what legal services paralegals should be permitted to provide.
The traditional mandate did not require that the Law Society determine who, other than lawyers, could provide legal services. By 2007, the Law Society was given the responsibility to determine the extent to which paralegals could provide legal services and the extent to which other new licenced and un-licensed providers should also provide legal services. The Law Society regulates all categories of licensees. The Law Society once “merely” regulated a profession. This clearly is no longer the case.
Amendments to Law Society Act
A New Grant of Authority
The core amendment to the Law Society Act was the broad definition of “legal services” in subsections 1(5) and (6). Subsection 1(5), which is as follows, generally defined “legal services” while subsection 1(6) provides a number of examples for greater certainty:
For the purposes of this Act, a person provides legal services if the person engages in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person.
Subsection 1(6)(1) further generally provides that ” a person provides legal services if the person … [g]ives a person advice with respect to the legal interests, rights or responsibilities of the person or of another person”
Subsection 26.1(1) provides that “Subject to subsection (5), no person, other than a licensee whose licence is not suspended, shall practise law in Ontario or provide legal services in Ontario”.
Subsection 26.1(5) provides that ” A person who is not a licensee may practise law or provide legal services in Ontario if and to the extent permitted by the by-laws.”
Subsection 26.1(3) provides that “No licensee shall practise law in Ontario or provide legal services in Ontario except to the extent permitted by the licensee’s licence”.
By these amendments, the Law Society was given the mandate to determine who could provide legal services in Ontario and whether a license was required to do so.
New Legislative Direction
At the same time, the Law Society was given new directions. Section 4.1 of the Act provides that:
It is a function of the Society to ensure that,
(a) all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide; and
(b) the standards of learning, professional competence and professional conduct for the provision of a particular legal service in a particular area of law apply equally to persons who practise law in Ontario and persons who provide legal services in Ontario.
Notably, section 4.1 refers to “a function” rather than “the function”. But this is obviously the core function of the Law Society, namely to ensure law is practised and legal services are provided to appropriate standards of learning, professional competence and professional conduct. This is the traditional mandate of the Law Society.
What is more interesting is section 4.2 of the Act which provides that:
In carrying out its functions, duties and powers under this Act, the Society shall have regard to the following principles:
1. The Society has a duty to maintain and advance the cause of justice and the rule of law.
2. The Society has a duty to act so as to facilitate access to justice for the people of Ontario.
3. The Society has a duty to protect the public interest.
4. The Society has a duty to act in a timely, open and efficient manner.
5. Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized.
The structure of section 4.2 is interesting. The opening language of the section states that the Law Society shall have regard to the stated principles in “carrying out its functions, duties and powers under this Act”. Section 4.2 would appear to provide legislative direction to the Law Society as to the principles to be considered in carrying out its mandate, rather than adding to the mandate by adding additional functions, duties and powers. That said, there is a certain imprecision in section 4.2 in the inclusion the word “duties” in the phrase “functions, duties and powers”, then describing the contents of subsections 4.2(1) as “principles” and then using the word “duties” in subsections 4.2(1) to (4).
It is uncontroversial (but not always well understood) that the Law Society has a duty to protect the public interest in carrying out its mandate as subsection 4.2(3) requires. It makes good sense that the Law Society should act in a timely, open and efficient manner in carrying out its mandate as subsection 4.2(4) requires. It makes good sense that regulatory standards should should be proportionate to the significance of the regulatory objectives as subsection 4.2(5) requires.
The recent Trinity Western University v. Law Society of Upper Canada decision of the Supreme Court of Canada provides an important example of the impact of section 4.2. There is no doubt that the Law Society’s mandate includes determining whether or not to accredit a law school for licensing purposes. As the majority put it:
The LSUC has the statutory authority to establish requirements for the issuance of a licence to practise law in Ontario. In this context, it has set out a procedure whereby it accredits law schools for the purpose of recognizing degrees that will satisfy one of the requirements for a licence. This appeal requires us to address the scope of the LSUC’s statutory mandate.
The majority went on to say at paras 18 to 20 that:
By the clear terms of s. 4.2 of the LSA, the LSUC must have regard to the principles set out in that section — including its duty to protect the public interest — in carrying out all of its “functions, duties and powers” under the LSA. The LSUC, as a regulator of the self-governing legal profession, is owed deference in its determination as to how these principles can best be furthered in the context of a particular discretionary decision (see Law Society of B.C., at paras. 32 and 34-38).
In this case, the LSUC interpreted its duty to uphold and protect the public interest as precluding the approval of TWU’s proposed law school because the mandatory Covenant effectively imposes inequitable barriers on entry to the school. The LSUC was entitled to be concerned that inequitable barriers on entry to law schools would effectively impose inequitable barriers on entry to the profession and risk decreasing diversity within the bar. Ultimately, the LSUC determined that the approval of TWU’s law school, as proposed, would negatively affect equitable access to and diversity within the legal profession and would harm LGBTQ individuals, which would be inconsistent with the public interest.
In our view, the LSUC was entitled to conclude that equal access to the legal profession, diversity within the bar, and preventing harm to LGBTQ law students were all within the scope of its duty to uphold the public interest in the accreditation context, which necessarily includes upholding a positive public perception of the legal profession.
The Trinity Western case makes clear that section 4.2 guides the Law Society in the exercise of its mandate in that the Law Society properly takes into account the principles set out in section 4.2 in making decisions within its mandate.
Maintain and Advance the Cause of Justice and the Rule of Law
Subsections 4.2(1) and 4.2(2) perhaps contain the most interesting principles. If section 4.2(1) is a required goal of regulatory decision-making then this provision is easily understood. The Law Society is authorized by the Act to establish standards of professional conduct and to bring allegations of professional misconduct before the Tribunal for adjudication. It makes sense that the Law Society should be required to seek to “maintain and advance the cause of justice and the rule of law” in doing so given the fundamental importance of ethical conduct to the cause of justice and the rule of law. A recent example of this is the Groia case in which Justice Moldaver said for the majority that:
To achieve their purpose, it is essential that trials be conducted in a civilized manner. Trials marked by strife, belligerent behaviour, unwarranted personal attacks, and other forms of disruptive and discourteous conduct are antithetical to the peaceful and orderly resolution of disputes we strive to achieve.
By the same token, trials are not — nor are they meant to be — tea parties. A lawyer’s duty to act with civility does not exist in a vacuum. Rather, it exists in concert with a series of professional obligations that both constrain and compel a lawyer’s behaviour. Care must be taken to ensure that free expression, resolute advocacy and the right of an accused to make full answer and defence are not sacrificed at the altar of civility.
In establishing codes of professional conduct and in exercising prosecutorial discretion, it makes sense that the Law Society should be obliged to seek to maintain and advance the cause of justice and the rule of law by seeking to ensure professional conduct that advances those goals.
But does the Law Society have a new mandate to maintain and advance the cause of justice and the rule of law beyond its traditional mandate and its new additional mandate of determining who can provide legal services and to what extent? What would that mean? For example, is it now the mandate of the Law Society to provide legal services to those who wish to litigate alleged failures of the cause of justice and the rule of law? Should the Law Society, as litigant, take proceedings to challenge state action where it is alleged that the rule of law has not been honoured? Should the Law Society ordinarily intervene in administrative law cases on the basis that Dunsmuir makes clear that the rule of law principle requires that delegated authorities stay within their mandates? Should the Law Society be a political actor in Ontario in support of the cause of justice and the rule of law?
I think that the answer to these questions is clearly no. But there are questions at the margin. The Law Society of Ontario regularly writes to foreign governments raising concerns about “human rights violations that target members of the legal profession and the judiciary as a result of the discharge of their legitimate professional duties”. A credible argument can be made that, strictly speaking, this is outside of the mandate of the Law Society of Ontario. But pragmatically, doing so is ordinarily of limited practical concern and can be of significant benefit.
Facilitate Access to Justice for the People of Ontario
Subsection 4.2(2) raises similar issues. It makes good sense that the Law Society should exercise mandate “so as to facilitate access to justice for the people of Ontario”. Setting appropriate standards of learning, professional competence and professional conduct requires that the effect on access to justice of overly low, or overly high, standards be considered. Deciding what legal services may be provided by paralegals or other new types of licensee clearly requires that access to justice be considered in the decision-making. The same must be true in determining whether there are legal services than can be provided by un-licensed persons. Just as the Law Society must maintain and advance the cause of justice and the rule of law in fulfilling its mandate, the Law Society must facilitate access to justice for the people of Ontario.
But does “the duty to facilitate access to justice for the people of Ontario” extend the mandate of the Law Society? Is the Law Society authorized by section 4.2 to become a legal service provider in order to facilitate access to justice? Is the Law Society authorized to subsidize legal service providers? Does section 4.2 authorize, or require, the Law Society to fund and provide legal aid?
The history of the involvement of the Law Society in Legal Aid provides an interesting context for this discussion. Prior to the early 1950s, the Law Society objected to “anything but traditional, informal legal aid”. In 1950, the Law Society established a formal legal aid plan under which pro bono legal assistance was provided “for needy persons”. The Law Society Act was amended to provide that “The benchers may establish a plan to provide legal aid to persons in need thereof” and that “the benchers may create a fund, to be called “The Legal aid fund”, which shall be made up of such moneys as the regulations provide for, including moneys recovered as costs and such moneys as the Society provides from its general funds”.
By the early 1960s, “the Ministry of the Attorney General began to investigate how to make legal assistance a right that would not depend on the benevolence of lawyers”. In 1966, the Legal Aid Act was passed. Section 2 of this Act provided that “Subject to the approval of the Minister of Justice and Attorney General, the Law Society is hereby empowered to establish and administer a legal aid plan in accordance with this Act and the regulations”.
Section 5 of this Act required the Law Society to establish and maintain a fund to be known as the Legal Aid Fund “into which shall be paid all moneys appropriated by the Legislature for the Fund”. This was the beginning of government-funded Law Society-administered legal aid.
In 1994, there was a legal aid crisis in Ontario. The problem wasn’t entirely new but the scale of the problem was. The cost of legal aid had risen from $6 million when founded, to $25 million in 1976 when an earlier crisis had occurred to a projected cost for 1995 of $285 million. As Christopher Moore put in in his book “Simply put, the ever-rising cost of legal aid was taxing government’s willingness to pay the bills”.
By 1999, the role of the Law Society as the administrator of legal aid came to an end. As described by the Law Society Legal Aid Working Group:
In 1997, the report of the Ontario Legal Aid Review (“McCamus Report”) recommended an independent body to govern the legal aid plan. The Law Society’s role as administrator came to an end in 1999 – after almost 50 years in that role — with the creation of Legal Aid Ontario as an independent agency under the Legal Aid Services Act, 1998. Since then, LAO has further expanded the mixed model of service delivery by adding staff offices, telephone hotlines and other new approaches.
The provision of legal aid, including originally organizing pro bono legal services, was part of the statutory mandate of the Law Society from 1951 to 1999. That mandate was removed from the Law Society Act with the passage of the Legal Aid Services Act, 1998 and transferred to Legal Aid Ontario which now has this responsibility.
What can we learn from this historical review? Firstly, there is a history of Law Society involvement with legal aid including funding the organization of pro bono legal services. Secondly, organized pro bono services were replaced by state funded legal aid presumably because the provision of legal aid to persons in need was seen as a societal responsibility. Thirdly, there was express statutory authority when the Law Society’s mandate included the funding and/or administration of legal aid.
While it seems clear to me that the “duty to facilitate access to justice for the people of Ontario” is a principle to be applied in decision-making within the mandate of the Law Society rather than the basis for a new and different mandate, it is fair to observe this principle (like the cause of justice/rule of law principle) seems to cause the Law Society to go somewhat beyond its mandate as strictly defined.
In 2012, the Law Society adopted a “policy related to external requests for support and funding to the Law Society”. The 2012 Policy started with the observation that:
The primary function of the Law Society of Upper Canada (the “Law Society”) as prescribed by the Law Society Act is to regulate the legal professions in the public interest. As it carries out this function, the Law Society Act further directs the Law Society to apply specific principles, as follows: the Law Society has a duty to maintain and advance the cause of justice and the rule of law, to act so as to facilitate access to justice for the people of Ontario, to protect the public interest and to act in a timely, open and efficient manner.
This is consistent with the thesis of this column that the principles in section 4.2 guide the Law Society in respect of its mandate rather than establishing new mandates.
The 2012 Policy went on to stay that:
The Law Society is not a funding agency and is mindful of its statutory duties, its obligations to responsibly manage its members’ fees and its budget planning process. Therefore, the Law Society will, at its discretion and only in exceptional circumstances, consider requests for financial support by external organizations for programs or projects that advance the Law Society’s mandate. The program or project must also align with the Law Society’s current priorities for the bencher term …
This has not meant that the Law Society has not supported external organizations using funds obtained from lawyer and paralegal licensing fees. The Law Society spends significant monies supporting the provision of legal information, most notably in supporting the county courthouse library system and CanLII. The Law Society contributes to the Federation of Ontario Law Societies and the Law Commission of Ontario.
Perhaps more notably, the Law Society contributed in 2018 to the Lawyers Feed the Hungry and will continue to contribute in 2019 to the Ontario Justice Education Network, Pro Bono Ontario and Innocence Canada. Strictly speaking, these contributions may not be within the mandate of the Law Society even though they may fit within the 2012 Policy.
The Law Society Act is explicit about the mandate of the Law Society. Part I.1 of the Act authorizes the licensing aspect of mandate. Part II of the Act addresses the professional conduct, professional competence and capacity aspects of mandate. Part III of the Act addresses the Compensation Fund, the Law Foundation and mandatory professional insurance. Sections 62 of the Act provides a by-law making power.
Section 4.2 provides statutory purposes which must be taken into account in performing the mandate.
There are some functions which are in support of the primary aspects of the mandate. For example, legal information in local law libraries (LibraryCo) and on the internet (CanLII) supports professional competence. Similarly, the Member Assistance Program supports professional conduct and capacity. The Law Society Practice Management Helpline supports professional conduct. The Coach and Advisor Network supports professional conduct and competence. Law Society CPD supports professional competence.
So how can we summarize all of this? While not the focus of the reasons, the majority of the court in Groia said as follows at para. 114 (emphasis added):
Under its statutory mandate, the Law Society has a duty to advance the public interest, the cause of justice and the rule of law by regulating the legal profession …
This seems to me to be an apt but incomplete formulation. To restate:
Under its statutory mandate, the Law Society has a duty to advance the public interest, the cause of justice and the rule of law and facilitate access to justice by regulating licensees … and by determining the legal services, if any, that may be provided by non-licensees.
The rule of law principle, which has special salience for the Law Society, requires that the Law Society think and act in a clear and principled way about the power given to it by society. This is not always easy especially if a valuable social purpose can be advanced by acting outside of the delegated mandate. But the rule of law does not only limit doing bad things outside the delegated mandate.
 Law Society Act, supra., s. 4.2(2)
 Law Society Act, supra., s. 62(0.1)(4) and (4.1)
 For example, Katz Group Canada Inc. v. Ontario (Health and Long-Term Care, 2013 SCC 64 at paras. 24 to 25, Green v. Law Society of Manitoba, 2017 SCC 20 at paras. 27 to 42 and Reference re Pan-Canadian Securities Regulation, 2018 SCC 48 at para. 88
 The following are personal reflections.
 This is not to say that determining what is in the public interest is always straightforward. But that is what must be done.
 The Law Society of Upper Canada and Ontario’s Lawyers 1797 to 1997, Christopher Moore, at page 241.
 The Law Society Amendment Act, 1951 SO 1951, c 45
 The Law Society of Upper Canada and Ontario’s Lawyers 1797 to 1997 at p. 274
 Legal Aid Act, SO 1966, c. 80
 The Law Society of Upper Canada and Ontario’s Lawyers 1797 to 1997 at pp. 274 to 277
 The Law Society of Upper Canada and Ontario’s Lawyers 1797 to 1997 at p. 334
 Report of the Legal Aid Working Group: An Abiding Interest, January 25, 2018 at p.9
 $25,000 for Ontario Justice Education Network, $50,000 for Pro Bono Ontario and $25,000 for Innocence Canada