Canada: Supreme Court Of Canada Decides Green v. Law Society Of Manitoba: To Cpd Or Not To CPD

Last Updated: April 7 2017
Article by Jeff Beedell

On March 30, 2017, the SCC dismissed the appeal of Sidney Green, a lawyer called to the Bar of Manitoba in 1955 and a Life Bencher who did not comply with his Law Society's minimum 12 hours of annual continuing professional development ("CPD") requirement. The SCC decided 5-2 (Abella and Côté JJ. dissenting) that the applicable standard of review was reasonableness and the impugned CPD rules were valid in light of the Law Society's mandate under its Act.1

Failure to self-report compliance

Since 2008, lawyers in Manitoba have been required to file an annual report with the Law Society of Manitoba ("LSM") reporting their voluntary CPD activities.

Upon study of the uneven results of voluntary CPD, effective January 1, 2012, the benchers of the LSM imposed mandatory CPD.  Mr. Green failed to report any CPD activities in his annual report for 2012 and again for 2013. After the second year of non-compliance, the LSM sent Mr. Green a letter inviting him to advise if the information was incorrect and indicating that extensions of time would be considered but that if the CPD requirement was not fulfilled within 60 days and no extension was obtained, there would be an automatic administrative suspension until the CPD was met and a reinstatement fee paid. Such an administrative suspension involves no disciplinary charges or proceedings.

Mr. Green's sole response to this letter, warning of an administrative suspension sanction, was to bring an application for declaratory relief and to request a stay of the automatic suspension until its determination. Although the LSM initially suspended Mr. Green's practicing certificate, it then agreed to not enforce the suspension until the litigation was resolved.  Mr. Green was unsuccessful before both the Manitoba Court of Queen's Bench and the Manitoba Court of Appeal but the SCC granted leave to appeal in December 2015 and heard the appeal in November 2016.

Lawyer challenged validity and fairness of enforcing mandatory CPD

Mr. Green conceded in the Court of Appeal that the LSM has the power to make rules to set up a CPD program. In the SCC, Mr. Green, represented by Charles Huband and Kevin Williams of Taylor McCaffrey LLP, challenged the validity of the rules under which the LSM had suspended his practicing certificate on two grounds. First, he argued that The Legal Profession Act, C.C.S.M., c. L107 did not explicitly permit the LSM to enact mandatory CPD rules or to enforce those rules with the imposition of a suspension. Secondly, he argued that the rules violated the principles of natural justice because they gave the LSM authority to impose a suspension without a right of hearing or appeal.

Rocky Kravetsky, in-house counsel for the LSM, submitted that the CPD rules were an authorized and reasonable condition of the right to practice law as a profession. He argued that the object and purpose of the Legal Profession Act ("LPA") of Manitoba is to provide the delivery of legal services with competence, integrity and independence, and that the enactment of mandatory CPD is within the authority found in the ordinary meaning of the LPA, as are the consequences for failure to comply. The LSM saw no procedural unfairness in the application of its CPD rule which was not premised on a finding of misconduct or incompetence but simply non-compliance.

The Federation of Law Societies of Canada ("FLSC") was granted intervener status and made written and oral submissions in support of the authority of law societies to enforce such administrative suspensions as a necessary incident of law society regulatory jurisdiction. Neil Finkelstein and Brandon Kain, counsel for the FLSC argued that in exchange for the legal profession having the privilege of self-regulation, law societies have a statutory obligation to protect the interests of the public with respect to the services of their members. In pursuing their public protection mandate, the SCC has previously concluded that law societies are entitled to deference by the courts in respect of the articulation and enforcement of professional standards. As such, the FLSC argued that a law society's decision that it possessed a CPD-related administrative suspension power under its grant of power by legislation should only be set aside if unreasonable. And while only Ontario expressly authorizes a CPD-related administrative suspension power, the FLSC submitted that such a power is necessarily incidental to an effective CPD program in all the provinces and territories.

SCC Majority upholds the Rule

Wagner J. for the majority opens:

"[1] A lawyer's professional education is a lifelong process. Legislation is amended, the common law evolves, and practice standards change as a result of technological advances and other developments. Lawyers must be vigilant in order to update their knowledge, strengthen their skills, and ensure that they adhere to accepted ethical and professional standards in their practices."

He characterizes the nature of Mr. Green's claim:

"[18]      Mr. Green has challenged the impugned rules because he has no interest in complying with them....He argues that the impugned rules are unfair because they impose a suspension without a right to a hearing or a right of appeal. Yet Mr. Green has not applied for judicial review of the Law Society's decision to suspend him. He has not complained that the Law Society treated him unfairly. Mr. Green is challenging these rules on these procedural grounds, not for fear of injustice."

Dealing first with the question of the applicable standard of review, and reasoning that the rules made by law societies are akin to bylaws passed by municipal councils, Wagner J. states that the legislature has given the LSM a broad discretion to regulate the legal profession  and its elected benchers are accountable to members of the legal profession. Citing Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 as specific guidance, he concludes that the LSM's rules reflect broad policy considerations and the benchers act in a delegated legislative capacity that is entitled to deference.

To determine whether the impugned rules are reasonable, he adopts a two-step approach: (1) considering whether the purpose, words, and scheme of the Act to support an expansive construction of the LSM's rule-making authority, and (2) assessing whether the particular rules are unreasonable because they permit the imposition of a suspension for failure to meet the minimum CPD requirement.

Having no difficulty finding that the establishment of mandatory CPD standards is compatible with the Law Society's public interest purpose and duties under the Act, a point conceded by Mr. Green contrary to his position in the courts below, Justice Wagner writes:

"[46] To ensure that those standards have an effect, the Law Society must establish consequences for those who fail to adhere to them. As a practical matter, an unenforced educational standard is not a standard at all, but is merely aspirational.

[47] A suspension is a reasonable way to ensure that lawyers comply with the CPD program's educational requirements. Its purpose relates to compliance, not to punishment or professional competence. Other consequences, such as fines, may not ensure that the Law Society's members comply with those requirements. An educational program that one can opt out of by paying a fine is not genuinely universal. I am mindful of the fact that in making these mandatory rules, the Law Society was responding to the reality that many lawyers in Manitoba had not complied with the CPD program when it was voluntary.

[48] To ensure consistency of legal service across the province, the possibility of a suspension effectively guarantees that even lawyers who are not interested in meeting the educational standards will comply. Mr. Green submits that, in his opinion, the CPD activities that were made available to him would not have been helpful to him in his practice. But it is not up to Mr. Green to decide whether CPD activities are valuable or adequate. The legislature has decided that the Law Society must impose educational standards on practising lawyers (s. 3(2)) and that it is for the Law Society to determine the nature of those standards.

[49].... The right to practise law is not a common law right or a property right, but a statutory right that depends on the principles set out in the Act and the rules made by the Law Society. As this Court has stated, "the Law Society has total control over who can practise law in the province, over the conditions or requirements placed upon those who practise and, perhaps most importantly, over the means of enforcing respect for those conditions or requirements": Pearlman, at p. 886.  The Law Society has not interfered with Mr. Green's rights. It is merely doing what the statute requires it to do: regulate the education of lawyers in the public interest."

Justice Wagner notes that the Rules do not automatically impose a suspension on a lawyer who fails to complete the necessary CPD hours. Instead, the CEO of the Law Society "may" send a letter to a member advising that the lawyer has 60 days to comply. In this case, the CEO waited a full year before exercising his discretion to send such a letter, effectively waiving Mr. Green's non-compliance for the first year of mandatory CPD, and had Mr. Green complied within the 60 days no suspension would have occurred. Moreover, the CEO held open the prospect of a time extension and had the discretion to withdraw the letter within the 60-day period if circumstances so justified.

Justice Wagner concludes:

"[52] In light of the administrative nature of the suspension and the discretion the CEO has under the Rules when imposing a suspension, I conclude that the fact that the impugned rules do not provide for a right to a hearing or a right of appeal does not make them unreasonable."

SCC Minority would have set aside the Rule

In Justice Abella's vigorous dissent, she accepts the LSM's authority to require 12 hours of mandatory CPD but finds the automatic suspension for non-compliance to be unreasonable "because it gratuitously ...impairs the public confidence in the lawyer." She finds it incongruous that for more serious complaints of professional misconduct or incompetence, a suspension can only be imposed after at least some minimum procedural protections are assured and a range of lesser penalties have been considered, whereas for what she considers to be "the least serious disciplinary breach possible – failing to attend classes" a suspension is imposed automatically.

She writes that:

"[81] A Law Society must, as a result, exercise its mandate in a way that not only protects the ability of lawyers to act professionally, but that also reinforces the public's perception that lawyers are behaving professionally. The flip side is that a Law Society cannot enact rules which unreasonably undermine public confidence in lawyers.


[91] It is as close to a victimless breach as it is possible to imagine, yet it is the only breach that attracts the automatic loss of the ability to practise law. It alone attracts automatic suspension, regardless of justificatory circumstances. This makes it arbitrary.

She concludes that: "[97]...It is undeniably in the public interest to sanction lawyers for breaches of professionalism; it is in no one's interest to sanction them arbitrarily."

Decision consistent with other jurisprudence

In addition to the jurisprudence cited in the Reasons, this decision is consistent with the Court's previous upholding of administrative penalties in other regulatory contexts.

In Cartaway Resources Corp. (Re), 2004 SCC 26, the Court upheld the power of the B.C. Securities Commission to impose administrative penalties against regulated securities brokers for breach of prospectus requirements. The Court found this consistent with the mandate of the Securities Commission to protect the public interest and applied a reasonableness standard of review.

More recently, in Guindon v Canada, 2015 SCC 41, the Court upheld administrative monetary penalties ("AMPS") under the Income Tax Act for false statements made in donation receipts. Again, the Court accepted that the legislation authorized the imposition of such AMPs in the public interest in order to encourage honest tax reporting and that this was a reasonable scheme to maintain compliance within a limited sphere of activity.

This decision also reinforces the opinion of the Court in Ernst v Alberta Energy Regulator, 2017 SCC 1, a case in which Ms. Ernst claimed Charter damages for breach of her freedom of speech rights and argued the regulator's immunity clause was unconstitutional. In Ernst the SCC clearly  signaled that, where available, judicial review is a more timely and effective route to relief. As Justice Wagner states, Mr. Green's challenge of the procedural fairness of the CPD rules should have been pursued by way of judicial review of the specific decision by the Law Society and not by way of an application for a general declaration that the impugned rules were invalid under the Act. If the Law Society's decision were procedurally unfair, the decision could have been quashed as a normal judicial review remedy. In other words, questions of procedural fairness should be determined on a case-by-case basis and cannot be generically asserted in a vacuum.


Had the SCC gone so far as to say that LSM had no authority to impose mandatory CPD without express statutory wording, the effect would have been to invalidate these requirements virtually everywhere in Canada except Ontario, until legislative amendment. More generally, it would also have diminished the extent to which regulatory bodies can rely on a general authority to make rules to fulfill their stated purposes.

If the opinion of Justice Abella had prevailed and the SCC declared the automatic suspension power invalid, lawyers would have still had to meet their minimum CPD hours but the LSM and most other law societies in Canada would have had to establish different enforcement procedures that were proportional to the circumstances. Conceivably, law societies could have turned to their statutory disciplinary process which would necessarily leave non-compliant lawyers practising for a longer time without sanction and may have well lead to cases being resolved by lesser sanctions, essentially creating a licence cost to ignore the rules.

Instead, the SCC has upheld the LSM model and, subject to closer review by other law societies in Canada, it appears that mandatory CPD is here to stay and administrative sanctions including an automatic suspension will remain effective tools for enforcement of these requirements.


1.  Green v Law Society of Manitoba, 2017 SCC 20

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
23 Jan 2018, Seminar, London, UK

Join Gowling WLG's pensions team as they explain some of the biggest challenges facing trustees and employers in the coming year and provide practical ways of dealing with them.

25 Jan 2018, Seminar, Birmingham, UK

2018 is set to be another big year in employment, with employers set to face new challenges and responsibilities. At our event, looking ahead to next year, we will be discussing four key issues you might face in 2018, providing useful tips and answering your questions.

2 Feb 2018, Seminar, London, UK

2018 is set to be another big year in employment, with employers set to face new challenges and responsibilities. At our event, looking ahead to next year, we will be discussing four key issues you might face in 2018, providing useful tips and answering your questions.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions