Court of Appeal Recognizes Regulator's Robust Implied Power in Name of Public Protection
Professional Regulatory Alert
In Law Society of Alberta v. Beaver, 2016 ABCA 290, the Alberta Court of Appeal held that suspended lawyers are not entitled to act as “legal agents,” a limited status in which the agent can represent another person in Provincial Court or at tribunals where representation by non-lawyers is permitted. In coming to this conclusion, the Court of Appeal recognized regulators have robust implied powers to ensure that the primary objective of protecting the public is achieved.
Shawn Beaver was a criminal defence lawyer in Edmonton whose membership in the Law Society of Alberta was suspended on an interim basis during an investigation into professional misconduct. While suspended, Beaver began operating a website, “Beaver Legal Consulting,” in which he offered services as a “legal agent.” While the website provided a disclaimer that Beaver was “currently not licensed to practice law” and “facing an interim suspension imposed by the Law Society of Alberta,” the Law Society of Alberta was concerned that Beaver was acting as a barrister and solicitor contrary to the Legal Profession Act (“LPA”).
The Law Society applied for an injunction to prevent Beaver from practicing as a barrister and solicitor, from rendering legal services to any person, and from providing any of the services described on the “Beaver Legal Consulting” website. The Law Society argued that no lawyer, active or suspended, could act as a “legal agent.” Beaver argued that he was entitled to act as an agent just as any non-lawyer was entitled to do.
The injunction was granted and Beaver appealed. The Court of Appeal concluded that a suspended lawyer is not permitted to act as a legal agent. It found that Beaver, although not allowed to practice as a barrister and solicitor as a result of his suspension, remained a barrister and solicitor and subject to the LPA and the Law Society’s regulation. Because a suspended lawyer is still a “barrister and solicitor,” he or she is unable to take on the separate designation of “agent.” To allow a member of the Law Society to adopt two roles with vastly different obligations and duties was inconsistent with the primary objective of the LPA, namely the protection of the public. The public cannot reasonably be expected to understand the distinction between someone acting as a legal agent and someone acting as a barrister and solicitor.
This decision is highly specific to the language of the LPA and the context of the practice of law. As a result, it has limited application to other professions and regulators. However, the Court of Appeal also comments on the implied authority of regulators to prevent practice by suspended members and to seek injunctions.
The Court of Appeal concluded that even if the language of the LPA did not prevent suspended members from acting as agents, the Law Society had “jurisdiction by necessary implication” to prevent a suspended lawyer from acting as a legal agent. This authority would be practically necessary for the Law Society to ensure that the primary objective of protecting the public was achieved.
Similarly, the Court of Appeal concluded that, even if the LPA had not provided explicit authority for the Law Society to seek an injunction, the Law Society had implied standing. Public bodies like the Law Society are not ordinary litigants, as they are tasked with enforcing professional standards with the objective of protecting the public.
The Court of Appeal’s decision will have limited application to most regulators and professions since it is based on the specific language of the LPA and since most regulatory legislation explicitly prohibits suspended members from practicing and authorizes injunctions. Nevertheless, the Court’s decision is a robust interpretation of the implied powers of a regulator to protect the public even in the absence of explicit statutory language.
A careful case-by-case examination is required before interpreting legislation to imply a power. Regulators wishing to discuss this decision or implied powers are invited to contact any member of Field Law’s Professional Regulatory Group.