Let's say you're retained by a nice young couple whose home has been impacted by a spill at the gas station next door. Is it unethical to send a demand letter to the gas station saying, clean up my clients' property or else I'll ask the Ministry of the Environment and Climate Change ("MOE") to issue an order?
Most environmental lawyers would probably say no. The tactic is not uncommon. And it is hard to see anything improper about it. If a lawyer believes approaching the MOE would be a more expedient way of getting the gas station to clean up the problem than launching an expensive and lengthy civil claim, why shouldn't the lawyer be free to write the demand letter?
Alas, recent amendments to the Law Society of Upper Canada's Rules of Professional Conduct should make us all think hard about whether that intuition is correct.
On October 1, 2014 the new Rules of Professional Conduct came into force. The new rules largely adopt the most recent Model Code of Professional Conduct developed by the Federation of Law Societies of Canada.
The former rule against threatening criminal or quasi-criminal proceedings to gain a benefit for a client has been broadened. Now threatening to make a complaint to a "regulatory authority" is prohibited as well. Curiously, it is the threat of a complaint, not the complaint itself, that is proscribed. (The full text of the new rule and commentary is set out in the appendix to this article.1)
There is an exception to the new rule: it "does not apply to an application made in good faith to a regulatory authority for a benefit to which a client may be legally entitled".2 The commentary below the rule explains the exception as follows:
Where a regulatory authority exercises a jurisdiction that is essentially civil, it is not improper to threaten to make a complaint pursuant to that authority to achieve a benefit for the client. For example, where the regulatory authority of the office dealing with employment standards covers non-payment of wages, it is not improper to threaten to make a complaint pursuant to the relevant provincial statute for an order that wages be paid failing payment of unpaid wages.
What does this mean for you in your hypothetical gas station case? Is asking the MOE to intervene merely an "application" for a "benefit" to which your client "may be legally entitled"? Possibly. But it seems that such an interpretation puts some strain on the ordinary meaning of those terms. There is certainly no MOE "application" form that can be filled out to request an order.3 And the order itself is not exactly a "benefit" that your client is "entitled" to in the same sense that an employee is entitled to unpaid wages. The issuance of an order is a matter of discretion on the part of the MOE – even where there are statutory grounds for an order, the MOE may decide not to issue one. 4
Moreover, it is debatable whether the MOE is a regulatory authority that "exercises a jurisdiction that is essentially civil" within the meaning of the commentary. In the sense that "civil" jurisdiction contrasts with criminal or quasi-criminal jurisdiction, then yes, the issuance of a cleanup order can be characterized as a civil matter. But is that really the sense the term was meant to connote? After all, if the rule against threatening proceedings were meant to be confined to threatening criminal or quasi-criminal proceedings, the old rule would have done the trick. It seems, rather, that the very purpose of the amendment was to capture threats to complain to regulatory authorities with a mandate that is not strictly penal.
Further complicating the analysis is the fact that the MOE wears more than one hat. In addition to its order-making jurisdiction, which may or may not be characterized as "civil", it also has the power to lay charges, which is clearly criminal or quasi-criminal. To return to the gas station example, the spill might give rise to a cleanup order or a prosecution for an unlawful discharge,5 or both. The lawyer advising the MOE of the contamination cannot control which if any of those tools the MOE will pick. If threatening the gas station with an MOE prosecution is clearly improper, why should threatening the gas station to notify the MOE of the mere facts of the spill – which could foreseeably lead to a prosecution – be any better?
All this is to say that the scope of the new rule is uncertain. The commentary, with its confusing reference to regulatory authorities with an "essentially civil" mandate, clouds more than clarifies.
It is not immediately obvious what problem the new rule is trying to solve. The old rule against threatening criminal proceedings seems to have been derived largely from concerns about abuse of process. As noted by the Ontario Court of Appeal in R. v. LeRoux  3 D.L.R. 688, "The criminal law was not enacted for the assistance of persons seeking to collect civil debts." 6 But complaints to a regulatory authority do not always trigger the same alarms.
The MOE's mandate, after all, clearly includes the protection of the property and health of spill victims such as the nice young couple in our hypothetical scenario. 7 Asking the MOE to fulfill its statutory mandate in such circumstances can hardly be characterized as an abuse of process. Threatening the polluter with making such a bona fide request just seems like good advocacy. By contrast, it would surely be improper – and quite possibly criminal8 – to threaten to go to the MOE to obtain an advantage for a client in an unrelated matter. A lawyer can't say, I will ask the MOE to issue a cleanup order against you unless you hire my client's nephew.
Unfortunately the new rule does not distinguish clearly between threats to ask a regulatory authority to exercise its powers in accordance with its statutory mandate for a legitimate purpose, and threats to use a regulatory process for collateral or ulterior motives. It therefore seems overbroad. Even threats that are not frivolous and would not result in an abuse of process risk being captured by the rule.
So should you write the demand letter to the gas station or not? I wouldn't. On the face of the new rule, threatening to ask the MOE to issue a cleanup order sounds like a threat to complain to a regulatory authority, and although there is a reasonable argument that it falls under the exemption as a good faith request for a benefit, the argument is far from watertight. Unless the rule is clarified by the Law Society, writing the letter seems like a big risk to be taking on personally.
1 The former rule 2.02(4) stated: "A lawyer shall not advise, threaten, or bring a criminal or quasi-criminal prosecution in order to secure a civil advantage for the client". It should also be noted that apart from the Law Society rules, there is a rule in the Canadian Bar Association's Code of Professional Conduct against threatening or bringing a criminal, quasi-criminal or disciplinary proceeding in order to secure a civil advantage for a client: Chapter III, rule 9. The CBA rule does not refer to complaints to a regulatory authority.
2 Rule 3.2-5.1. This exception does not appear in the Federation of Law Societies of Canada's Model Code of Professional Conduct; it was added by the Law Society of Upper Canada.
3 There is, however, a form that can be submitted to the Environmental Commissioner of Ontario to request an investigation into an alleged environmental contravention pursuant to section 74 the Environmental Bill of Rights.
4 For example, sections 17 and 18 of the Environmental Protection Act use the permissive "may" rather than the mandatory "shall" – the MOE may issue an order under those provisions but is not required to do so.
5 For example, under section 14 of the Environmental Protection Act.
6 The case is cited in a bulletin entitled "Criminal Law may not be Used to Collect Civil Debts" in the Law Society of Upper Canada Gazette (Vol. II, No. 4), December 1968. See also Wilson v. Law Society of British Columbia (1986), 33 DLR (4th) 572, where the British Columbia Court of Appeal, referring to the rule against threatening criminal proceedings, said, "The purpose of the rule is to prevent the criminal law from being used as a lever to enforce the payment of a civil claim".
7 For example, section 17 of the Environmental Protection Act authorizes the MOE to order a polluter, inter alia, to repair or prevent any injury or damage to property or human health or safety resulting from the discharge.
8 See section 346 of the Criminal Code (extortion). Note that there is an exemption from the extortion provision for threats to institute civil proceedings, but no such exemption for threats to make a complaint to a regulatory authority.
This article was first published by the Environmental Law Section of the Ontario Bar Association on Oct. 22, 2014.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.