BC Supreme Court dismisses petition challenging CBA fee equivalent

The BC Supreme Court has dismissed the petition of Prince George lawyer and former Law Society President Richard C. Gibbs, QC, which challenged on judicial review the Law Society's authority to require BC lawyers to pay an amount equivalent to the CBA fee as a condition of obtaining a practising certificate: Gibbs v. Law Society of BC 2003 BCSC 1814.

Mr. Gibbs resigned his membership in the CBA in May, 2002. He launched his petition after a majority of members at the 2002 Law Society Annual General Meeting voted to include "an amount equivalent to the Canadian Bar Association fee" as part of the Law Society's 2003 annual practice fee.

Mr. Gibbs argued that the Legal Profession Act did not empower the Law Society to require a mandatory contribution by its members to the CBA as a requirement of obtaining a practising certificate. He sought an order, among other things, that "the proper construction of the enactment, namely sections 23 and 24 of the Legal Profession Act, is that the Benchers are limited to authorizing the Law Society of British Columbia to act as the agent of the Canadian Bar Association for the purpose of collecting Canadian Bar Association fees from members of the Law Society who are members of the Canadian Bar Association, pursuant to section 24(1)(c), but that the enactment does not permit the Law Society of British Columbia to impose 'an amount equivalent to the Canadian Bar Association fee' as a compulsory aspect of the practice fee required to be paid to the Law Society of British Columbia, pursuant to section 23(1), to engage in the paid practice of law in British Columbia for the calendar year 2003."

In dismissing the petition, Mr. Justice Taylor found there was nothing inconsistent between the obligations imposed on the Law Society by the Legal Profession Act and the functions of the CBA. Law Society members were entitled to vote at the AGM for a practice fee that included a CBA equivalent fee. He noted:

Here the members reasonably concluded through the use of a democratic process that support of the [Canadian Bar] Association's objects was compatible with those of the Society and should be supported on the principles of universality.

Having concluded as I do that the inter-relationship between the objects of the Association are substantially consistent with the objects and duties set out in s. 3 [of the Legal Profession Act], it cannot, therefore, be said that such a determination of universality was patently unreasonable or even unreasonable.

The judge rejected Mr. Gibbs' submission that s. 24(1)(c) of the Act - which authorizes the Law Society to act as agent for the CBA in the collection of CBA fees - prohibited the Benchers from remitting fees to the CBA on behalf of lawyers who are not CBA members.

Justice Taylor said s. 4 of the Act gave the Benchers a general power to govern the Law Society and that s. 24 did not limit that power.

The decision preserves the status quo and has no impact on the 2004 fee billing.