Mandatory CPD Survives Its Day in Court

Since 2012, practising lawyers in Manitoba have been required to complete 12 hours of continuing professional development programming annually and to report on those activities as part of the annual Member’s Report. Failure to do so, pursuant to Law Society Rule 2-81.1(12) may result in issuance of a warning letter from the Law Society CEO, advising the member to comply within 60 days or face automatic suspension until the requirements have been met.

Recently, a long-time member of The Law Society of Manitoba challenged those provisions as being outside the statutory authority of The Law Society, and as lacking in procedural fairness with respect to the suspension, which can occur without hearing and without right of appeal.

Green v. Law Society of Manitoba, dismissed at first instance by the Manitoba Court of Queen’s Bench, was recently heard by the Manitoba Court of Appeal. The Court of Appeal dismissed the appeal on the following basis:

The applicant has conceded that the Law Society has the power to make rules with respect to setting up a continuing professional development program. It specifically says so in s. 43(d) of the Act. We are all of the view that to make such a program mandatory for its members is well within the purview of the benchers of the Law Society. To set such a standard in order to maintain a practicing certificate which, in the benchers’ view, serves to protect the public, is in keeping with the duties given to the Law Society under the Act.

Having the power to make it mandatory, the Law Society clearly has the power under s. 65 to also make rules establishing the consequences – a suspension for failing to meet the requirement. A rule allowing the chief executive officer to suspend until the requirement is met is also within the Law Society’s powers as set out in the statute.

The fact that the statute provides certain procedures with respect to conduct with respect to professional misconduct or incompetence does not take away the ability of the Law Society to deal with other situations using different procedures. Not all suspensions require the implementation of the procedure set out in s. 72 of the Act. We disagree with the submissions by the applicant that the suspension brings his professional reputation or conduct into question. The suspension is simply what it is, the result of his failure to abide by a rule which the Law Society has democratically enacted within its jurisdiction.

….Turning to the second argument, namely, that the applicant was denied procedural fairness, we are all of the view that the suspension is as a result of an administrative decision and, as indicated, does not require the implementation of the procedure set out in s. 72 of the Act. It does not warrant an involved type of hearing which the applicant says must be commenced by the Law Society in order to suspend him.

Conclusion

The applicant disagrees with the need for, and nature of, the mandatory continuing professional development program set up by the benchers. His disagreement is one which should be taken up in the proper forum. In our view, that is before the benchers of the Law Society. He did not avail himself of the opportunity to do so during the course of the extensive deliberations leading to making the program mandatory. It is still open to him to have the matter considered by the benchers. That is where the matter should be dealt with.

It remains to be seen whether Mr. Green, himself a life bencher of The Law Society of Manitoba, will in fact bring this issue to the benchers for consideration.

In the meantime, the question of the efficacy of mandatory CPD in enhancing competence of lawyers and reducing claims against lawyers remains unanswered. Does mandatory CPD in fact serve any purpose beyond the increase of revenue streams to CPD providers? I can’t help but wonder what the court might have made of the remarkable paucity of evidence in this regard.