The CBA and the latest legal challenge
by Howard R. Berge, QC
Compulsory CBA membership in BC, or at least compulsory fee payment, has been canvassed in exquisite detail over the past year, at Law Society and CBA (BC Branch) meetings, in issues of the Advocate, the Benchers' Bulletin and BarTalk and in other forums. I do not propose to revisit the arguments for and against, however intriguing and passionate a debate this might rekindle.
But what is new, what lawyers should know, is that a legal challenge is ahead. A petition brought by Richard C. Gibbs, QC in BC Supreme Court on April 1 - naming the Law Society, the Canadian Bar Association and the Attorney General for BC as respondents - challenges the authority of the Law Society under the Legal Profession Act to include as part of the annual practice fee an amount equivalent to the CBA fee. The Law Society is retaining counsel in the matter.
You may recall that the 2003 practice fee, including an amount equivalent to the CBA fee, was approved by a majority of lawyers attending the Law Society Annual General Meeting in September, 2002 under section 23 of the Legal Profession Act.
The Gibbs petition seeks a declaratory order 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."
The petition seeks other declaratory relief, including an order that declares as unauthorized or invalid "the decision deciding or prescribing the legal right, power or privilege of the Petitioner, Richard Charles Gibbs, amongst others, to engage in the paid practice of law in British Columbia in 2003, which decision, made in the purported exercise of the statutory power of decision contained in section 23(1) of the Legal Profession Act, by the majority of the members of the Law Society of British Columbia voting on the resolution at the annual general meeting of September 20, 2002, was to establish a practice fee which imposed an amount equivalent to the Canadian Bar Association annual fee as part of the Law Society of British Columbia's practice fee."
A full copy of Mr. Gibbs' petition is on the Law Society website (www.lawsociety.bc.ca)
If the court determines in favour of Mr. Gibbs, the Law Society's authority to collect a CBA equivalent fee in the future will depend on amendments to the Legal Profession Act, and there is clearly no guarantee of these moving onto the legislative agenda. If the court does not agree with Mr. Gibbs' statutory interpretation, the issue remains, as it has for years, politically thorny. What is the right future course of action? Should the issue be part of new consultations within the profession, more polling, a referendum or even politicized Bencher elections?
Whatever the outcome of the current court proceeding, and what flows from it, we should all keep in mind that the Law Society and the BC Branch of the CBA each have certain responsibilities to serve the interests of the same members.
As the principle of voluntariness is important to Mr. Gibbs, I would not be in the least surprised, should he be successful in his proceeding, if he were to then rejoin the CBA. I know of no Benchers who do not hold in high regard the services of the CBA. Nor can I name any Benchers who have not "done their time" with the CBA. If the CBA fee (or fee equivalent) were dropped from the Law Society practice fee, and any financial strains within the CBA resulted, I believe the current Benchers would support the worthwhile progams of the BC Branch. This is my assessment, of course. You might do well to ask one of your Benchers whether he or she agrees.
At a recent meeting of the Federation of Law Societies of Canada, Benchers and former Benchers from across the country discussed their relationships with the CBA National and the Provincial Branches. Without exception, all expressed close and positive relations with the elected representatives of the CBA. I am glad to say such relations prevail in BC.
During the resolution of this latest legal challenge, we should avoid assuming this is some kind of a "turf war" or potential threat to CBA existence or viability in this province. The continued goodwill and cooperation of the leaders of both the Law Society and the CBA must continue for the good of our profession.