I will be appearing before the Court of Queen's Bench of Alberta with respect to a decision by the Credentials and Education Committee of the Law Society of Alberta refusing the appeal under Rule 50.2 of the Rules of the Law Society and Section 37(4) of the Legal Profession Act (LPA).
In essence, my client, a current member of the Immigration Consultants of Canada Regulatory Council (ICCRC), graduated with a common law degree from a University in the UK. To practise law in Canada, an applicant requires to establish that he or she either has a Canadian (common) law degree, or equivalent. Equivalency is determined by the National Committee on Accreditation (the NCA). The NCA's policy on distance learning results in a requirement of 8 upper year law school courses and 6 examinations.
Unfortunately the 8 upper year courses are not available in this province. An applicant can appeal an evaluation by the NCA (having exhausted the internal NCA appeal process) to the CEC under s.50.2(4) of the Rules. There is no appeal against the number of examinations required by the NCA. That means that an appeal does lie against the number of courses required. An applicant can also appeal to the Benchers for relief against any requirement imposed by the NCA under s.37(4) of the LPA.
The wording of s.50.2(4)(b) and s.37(4) of the Act is different. The former talks about whether the application of a policy or procedure may be "unreasonable or unfair due to special or unusual circumstances". The latter is broader, stating that the Benchers "may, in the case of a particular applicant, if they consider that special circumstances so warrant, waive or modify a requirement..."
Both the s.50.2(4)(b) and s.37(4) have been considered by the Court of Queen's Bench in the past. Justice Wilkins, in the Woods v. Law Society of Alberta decision, expects the CEC to exercise an equitable discretion. Justice Wilkins decision, and his suggested non-exhaustive framework of analysis found at paras. 51-56 of his decision have also been incorporated by the Law Society in its own policy, the Credentials and Education Committee Guideline:
In deciding an application...the decision maker shall determine whether or not the level of competence of the applicant poses a risk, which cannot be mitigated through the imposition of conditions, having regard to the standing of the profession and the best interests of the public.
The Standard of Review
The Applicant now seeks judicial review of the CEC decision. This Application will be heard by the Court of Queen's Bench. Judicial review is not an appeal. As long as the decision by the CEC/LSA is reasonable, it will not (and should not interfere). The rationale for non-interference is deference, which essentially means respect. However, respect is a two-way street; deference can only exist where inferior, statutorily created tribunals respect the Rule of Law and common law traditions which includes stare decisis, or precedent.
Justice Wilkins decision in Woods predated the Supreme Court of Canada's decision in Dunsmuir. Justice Wilkins found that the interpretation of the law; and thus no deference was due to an error by the CEC or LSA. That obviously sits uncomfortably with Dunsmuir and post-Dunsmuir jurisprudence which presumes reasonableness to be the standard where a tribunal is interpreting their own statute. That being said, even Dunsmuir indicates that there's no need to re-invent the wheel if the issue has already been decided.
If the Justice today goes on to re-state the appropriate standard then he or she should have regard to the fact that post-Dunsmuir jurisprudence is more complicated than simply stating that deference is owed and a court should not interfere where the decision "range of possible, acceptable outcomes which are defensible in respect of the facts and law". As Justices Bastarache and Lebel wrote in Dunsmuir, reasonableness "is one of the most widely used and yet most complex legal concepts." As Madam Justice Gleason notes in Diabate, "defining the content of the standard remains an elusive task". In Abraham, Justice Stratas of the Federal Court of Appeal explained that while reasonableness is a single standard, "asserting that there is a range of possible, acceptable outcomes begs the question as to how narrow or broad the range should be in a particular case" (at paragraph 42). The key is the context of the particular issue; it depends upon the nature of the decision being reviewed. The characterization of the question or issue being reviewed shapes the breadth of the range of interpretations that are rationally possible. Justice Gleason expounds on this issue at paragraph 23 of her decision in Diabate. For our purposes:
...where a court is reviewing a legislative interpretation, or the application of a legislative provision in the exercise of discretion, the range of reasonable decisions may be narrower...
Whether it is the correctness standard (established by the Court in Woods) that is applicable in the review of the CEC enunciation of the test under s.37(4) or whether it's reviewable on the reasonableness standard subject to fewer possible options given the high legal content of the question, it does not matter. The CEC approach to s.37(4) is both incorrect and unreasonable.
The CEC Decision is Both Incorrect and Unreasonable
There are a number of deficiencies in the decision by the Credentials and Education Committee. Any one of them results in the decision being unreasonable.
With respect to the request for relief under s.50.2 of the Rules, it appears that the CEC simply fettered their discretion by simply stating that they "must defer" to the NCA. The reality is that they are required to consider the appeal from the NCA on an individualized basis.
The CEC did not have regard to, and appears to have simply dismissed the Court of Queen's Bench decision in Woods. In the transcript, one Committee member remarkably states:
You have placed a great deal of emphasis on the Woods decision, and I've read it several times, and I do not find it to be as sterling a judgment -- I guess I get to say that -- as you do ...
Whether the Committee Member found the decision of a Superior Court of a Province sterling or not, is quite irrelevant. He is bound by it, unless he can distinguish it.
It's quite clear that the CEC did not follow their own Guideline which also incorporated the Woods framework of analysis. Policy and guidelines of course do not bind administrative tribunals (unlike the decisions of Superior Courts, for example) however, a departure without justification is a marker for a decision that is not defensible or justified.
There was no consideration in the CEC decision of the imposition of any conditions, or reference to the undertaking that the Applicant had offered to limit his practice after successful completion of the examinations, articles and a call to the Bar.
One of the factors that was submitted by the Applicant in support of his request for relief was the fact that he had engaged in the practice of law in a common law jurisdiction. That is, his advocacy before the various Divisions of the Immigration and Refugee Board. This was put squarely before the CEC at the hearing, and support for this proposition was the SCC decision in Mangat. The CEC did not "accept that Magnat [sic] stands for the proposition that an agent appearing before a tribunal pursuant to the provisions of the Immigration Act (Canada) is "practicing law in a Canadian common law jurisdiction". The CEC attempted to distinguish the SCC decision in Mangat and concludes that "...acting as an agent in proceedings under the Immigration Act, is [not] equivalent to practicing law..."
This of course, cannot be squared with the actual decision in Mangat:
Representation before a tribunal has as its object the determination of legal rights. It falls within the scope of legal representation and the practice of law...(paragraph 38)
Rather than rely on the guidance of their own policy and guideline and (more egregiously) rather than rely on the guidance of the Court of Queen's Bench in Woods, the CEC appears to make up their own test as to the scope of the discretion afforded under s.37(4):
The discretion of this Panel, pursuant to Section 37(4) should be limited to considering circumstances which are special or unusual insofar as they affect the competencies required for the practice of law, and not whether those circumstances result in personal or financial hardship to the Applicant.
No such restriction is found in their own Guideline, nor did Justice Wilkins qualify his expectation that the CEC would exercise equitable discretion. The CEC appears to have bound itself with imaginary fetters and improperly limited equitable discretion.