2003BCSC1814

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	*Gibbs v. Law Society of BC,*
	2003 BCSC 1814

Date: 20031217
Docket: 18955/03

Registry: Prince George

Between:

Richard Charles Gibbs

Petitioner

And

Law Society of British Columbia, Canadian Bar Association and Attorney General of British Columbia

Respondents

Before: The Honourable Mr. Justice Taylor

Reasons for Judgment

Richard Charles Gibbs Q.C. Appeared on His Own Behalf
Counsel for Law Society of B.C.:	M.A. Clemens, Q.C.
Counsel for Canadian Bar Association:	D.G. Cowper Q.C.& W.S. Martin
Date and Place of Trial/Hearing:	July 9, 10, 2003
	Prince George, B.C.

[1] The petitioner is a member of the Law Society of British Columbia (Society) who has resigned as a member of the Canadian Bar Association (Association). He brings this petition to challenge the authority of the Society to require him to pay as a portion of his 2003 practice fee a sum of money that is equivalent to the 2003 annual membership in the Association.

[2] The Attorney General of British Columbia is named as a respondent but did not appear at the hearing and takes no position with respect to this application.

[3] The petitioner brings these proceedings under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, on the basis that the wording of s.23(1)(a) of the Legal Profession Act, S.B.C. 1998, c. 19 (“Act”) does not permit members of the Society to include in the setting of the annual practice fee an amount equivalent to the annual Association membership fee.

Likewise it asserts that s.24(1)(c) of the Act does not permit the Benchers who govern the Society to collect such fees as agents of the Association.

[4] Notwithstanding the basis upon which the petition is brought, the real issue is the proper construction of s. 23(1)(a)and 24(1)(c) of the Act in terms of the Society’s members to set a practice fee that includes an “equivalent annual fee” for membership in the Association and the power of the Benchers to collect and remit that fee to the Association.

[5] The essence of the petition is that those provisions of the Act be interpreted so as to prohibit the Society from charging him and paying on his behalf the Association’s annual membership fee.

[6] As stated by the petitioner in his argument at paragraph 3 the “sole or principle question [is] the construction of s.23 and s.24 of the Act.” Those sections are as follows:

Annual fees and practising certificate

23 (1) A practising lawyer must pay to the society an annual fee consisting of

(a) a practice fee in an amount set by a majority of the members voting on the resolution at a general meeting or in a referendum,

(b) a sum, set by the Benchers, to be placed in the special compensation fund continued under section 31(2), and

(c) an insurance fee set under section 30(3)(a), unless exempted from payment of the insurance fee under section 30(4)(b).

(2) The Benchers may waive payment of all or part of the annual fee or a special assessment for a lawyer whom they wish to honour.

(3) A lawyer who is suspended under section 38(5)(d) or the rules made under section 25(2), 32(2)(b), 36(h) or 39(4)(b) must pay the annual fee or special assessment when it is due in order to remain a member of the society.

(4) The executive director must issue to each practising lawyer a practising certificate on payment of the annual fee, if the lawyer is otherwise in good standing and has complied with this Act and the rules.

(5) A certificate purporting to contain the signature of the executive director stating that a person is, or was at the time specified in the certificate, a member in good standing of the society is proof of that fact, in the absence of evidence to the contrary.

(6) A lawyer who is suspended or who, for any other reason, ceases to be a member in good standing of the society must immediately surrender to the executive director his or her practising certificate and any proof of professional liability insurance issued by the society.

(7) The Benchers may make rules to do any of the following:

(a) set the date by which the annual fee is payable, subject to rules made under section 30(4)(a);

(b) permit late payment of the annual fee or a special assessment;

(d) determine the circumstances in which a full or partial refund of a fee or assessment may be made;

(e) deem a lawyer to have been a practising lawyer during a period in which the lawyer was in default of payment of fees or an assessment on conditions that the Benchers consider appropriate.

Fees and assessments

24 (1) The Benchers may

(a) set fees, other than the practice fee referred to in section 23(1)(a).

(b) set special assessments to be paid by lawyers and applicants for the purposes of the society and set the date by which they must be paid, and

(c) authorize the society to act as agent of the Canadian Bar Association for the purpose of collecting fees of that association from lawyers who are members of it.

(2) Fees collected under subsection (1)(c) form part of the practice fee referred to in section 23(1)(a).

(3) If the Benchers set a special assessment for a stated purpose and do not require all of the money collected for that stated purpose, they must return the excess to the members.

(4) On or before the date established by the Benchers, each lawyer and applicant must pay to the society any special assessments set under subsection (1)(b), unless the Benchers otherwise direct.

[7] The petitioner poses his questions in the guise of a question posed by Southin, J. (as she then was) in British Columbia (Worker’s Compensation Board) v. British Columbia (Council of Human Rights) (1988), 23 B.C.L.R. (2d) 72 at 81, 48 D.L.R. (4^th) 502 (B.C.S.C.):

Did the tribunal have the power under its statutory mandate and any other statute applicable to it to do what it did?

[8] The tribunal here suffice it to say, is firstly, members and secondly, the Benchers of the Society. The power is their entitlement to fix, collect and remit the Association’s annual fee on behalf of every member of the Society.

[9] The answer to this question is an answer to the judicial review.

[10] The basis of the petitioner’s application is the resolution of the members of the Society made on Friday, September 29, 2002, at a meeting of the Society by which the members set the fee to be paid by each member.

[11] As is customary at such annual meetings and pursuant to s.23(1)(a) of the Act, the members proposed that effective January 1, 2003, and for that year the “Practice Fee” would be in two stipulated amounts, one for members practicing for more than five full years (i.e. senior members), the second for those practicing less than five full years (junior members).

[12] A part of each practice fee was stated to be “an amount equivalent to the Canadian Bar Association fee” and that was to be in the amount of $441.44 and $272.44 respectively for the senior and junior members. To these sums would be added GST.

[13] At that meeting a motion to amend was then made by those opposing the inclusion of the “equivalent Canadian Bar Association fee” by which that fee, if passed, would be excluded from the total practice fee.

[14] The effect of that motion would have been to set the fees necessary to obtain a practice certificate as including only the following:

(a) Law Society fee $903

(b) Courthouse Library Society $130

(d) Advocate subscription $27.50

[15] The debate that followed this proposed amendment is clear evidence of the division between members of the Society who spoke in favour of the compulsory membership and/or fee paying to the Association and those who spoke against it.

[16] The draft minutes of the meeting show a lively debate on the merits of such a compulsory membership.

[17] The president of the Society, after the question was called, declared that a secret ballot would occur, the amending motion was defeated and the original motion which included in the annual practice fee the equivalent amount of the Association’s annual membership fee was passed by a majority vote.

[18] Following this, it is clearly evident that the issue of the compulsory membership and payment of an equivalent annual fee of the Association’s was not yet moribund. The following resolution was then put to the members:

BE IT RESOLVED that:

1. ...

2. The Benchers be instructed to direct the Executive Director to conduct a referendum of all members of the Law Society by mailing them a ballot containing the following question: “Should membership in the Canadian Bar Association be voluntary?” and

3. If a majority of respondents answer the said question in the affirmative, that the Law Society cease its practice of making payment of the Canadian Bar Association fee a condition of practicing law in the Province of British Columbia.

[19] However, because the motion was presented by reference to “respondents” as opposed to members, and there had been no notice of such change, the movers of the motion declined to pursue the motion in its original form and it was withdrawn. A further motion was then presented and voted upon in the following terms.

BE IT RESOLVED THAT the Law Society, the Benchers, and each of them, be directed to:

1. remit, upon receipt, to the Canadian Bar Association, at the direction of the Canadian Bar Association, the amount equivalent to the Canadian Bar Association fee, which the Law Society has collected as a portion of the 2003 practice fee; and

2. work cooperatively with the Canadian Bar Association to develop a protocol to address the subject of Law Society members who do not wish to be members of the Canadian Bar Association.

This motion was passed by a majority of the members of the society attending at that meeting.

[20] As a consequence of the motion setting the annual practice fee, the petitioner was required to pay as a part of his practice fee the sum of $441.44 plus applicable GST in order to receive his practicing certificate. The petitioner did so under protest and subsequently filed this petition.

[21] The consequence of the petitioner succeeding would be the return to him of this sum plus the GST. The consequence of loss by the respondent Association would be profound in terms of its ability to fulfil its mandate which I shall subsequently discuss, given that in “non-compulsory” provinces, the proportion of lawyers who do not chose to join the Associate is some 42% of practicing lawyers.

[22] The Society remits to the Association some $2.7 million per annum, of which some $1.1 million is returned to British Columbia to directly fund the Association’s British Columbia branch operations.

[23] In order to give an historical matrix upon which this petition is advanced, it is necessary to set forth some history of the Association as well as the legislative history of the Act. As well, the relationship of both the Association and the Society is relevant particularly in terms of the working or operational relationship and the nature of the work done by the Association in terms of the objects and duties of the Society set out under the Act.

[24] In doing so, I do not intend to refer to the specific affidavit evidence as there is no controversy on such factual matters.

The Canadian Bar Association

[25] The Canadian Bar Association was founded in 1896 as a national Association for Canadian lawyers. Those who founded this Association include such luminaries as Wilfred Laurier, Charles Tupper and Robert Gordon.

[26] At that time the objectives of the Association were stated to be:

To advance the science of jurisprudence and international law, to promote the administration of justice, to secure proper legislation to uphold the honour and dignity of the profession of law and to encourage cordial intercourse among the members of the profession in Canada.

[27] By 1921, the Association had been federally incorporated by the Canadian Bar Association Act of Incorporation 11-12 George V chapter 79. Section 2 of that Act set forth objectives that expanded those of 1896.

Section 2

The objects of the Association shall be to advance the science of jurisprudence; promote the administration of justice and uniformity of legislation throughout Canada so far as is consistent with the preservation of the basic systems of law in the respective provinces; uphold the honour of the profession of the law, and foster harmonious relations and cooperation among the incorporated law societies, barristers’ societies and general corporations of the Bar of the several provinces and cordial intercourse among the members of the Canadian Bar; encourage a high standard of legal education, generally to do all further or other lawful act and things touching the premises.

[28] This statutory statement was further expanded upon by way of a “mission statement” adopted in 1992:

The mission of the Canadian Bar Association is:

- to improve the law;

- to improve the administration of justice;

- to improve and promote access to justice;

- to promote equality in the legal profession and in the justice system;

- to improve and promote the knowledge, skills, ethical standards and well-being of members of the legal profession;

- to represent the legal profession nationally and internationally; and

- to promote the interests of the members of the Canadian Bar Association.

[29] As will be noted as one moves from the first to last items, there is a shift from matters of broad public interest (which includes lawyers), to matters of specific private interest (that of only lawyers).

[30] These seven items include statements of both public and private interests. The first four items as I shall later discuss in essence mirror the provisions of s.3 of the Act.

[31] In 1997 the Association adopted a Vision Statement:

1. The Canadian Bar Association is the essential ally and advocate of all members of the legal profession. It is the voice of and for all members of the profession and its primary purpose is to serve its members. By representing all members of the legal profession with integrity, the CBA builds public understanding and respect for the legal profession and the law.

2. The CBA is the premier provider of personal and professional development and support to all members of the legal profession.

3. The CBA promotes fair justice systems and facilitates effective law reform.

4. The CBA promotes equality in the legal profession and is devoted to the elimination of discrimination.

5. The CBA is a leading edge organization committed to enhancing the professional and commercial interests of a diverse membership in the public and private sectors, and to protecting the independence of the judiciary and the bar.

[32] In the context of these various statements of purpose of the Association, the Association carries out a myriad of activities on both a national and provincial level. They include on a national level the sorts of things described in the Association’s executive director’s affidavit, including such functions as national conferences, scholarship funding, law reform, representations to the federal government on proposed legislation, and professional and personal issues affecting lawyers as a whole and individually. The activities also include intervention in cases of national importance at the Supreme Court of Canada level.

[33] On a provincial level, many of these activities are replicated. There is funding for a multitude of professional subsections. On its provincial governing body, in addition to elected members, there are members of the judiciary, the Society, Law Schools and such bodies as The Law Foundation, The Legal Services Society, The Courthouse Library Society and Continuing Legal Education.

[34] Also, at the provincial level various members of the Association are appointed to such bodies as the judicial advisory committee of the Judicial Council of British Columbia, which reviews applications for appointment to the Provincial Court, the Law Foundation and such societies as the Courthouse Library Society.

[35] The Canadian Bar Association has also undertaken such projects as the Lawyer Referral project, Dial Law programs and educational projects by organizing that lawyers attend in schools.

[36] In a private sense, in terms of the interests of member lawyers, the Association provides those lawyers with the opportunity to purchase group rate insurances and access group benefits from various suppliers. It is in this context that non-members of the Canadian Bar Association cannot derive a direct benefit.

The Law Society

[37] The Law Society is responsible for the administration of lawyers in the Province of British Columbia. In essence, its statutory responsibility and powers in this respect are in exchange for the monopoly given lawyers to engage in the practice of law pursuant to the Act.

[38] While I shall momentarily review some of the history of the Act relevant to the issues raised in the petition, s.3 in its current form defines the objects and duties of the Society in terms of the interests of the public and the interests of lawyers in so far as they affect the public and then subject to the public interest. Section 3 reads that:

It is the object and duty of the Society

(a) to uphold and protect the public interest in the administration of justice by

(i) preserving and protecting the rights and freedoms of all persons,

(ii) ensuring the independence, integrity and honour of its members, and

(iii)establishing standards for the education, professional responsibility and competence of its members and applicants for membership, and

(b) subject to paragraph (a),

(i) to regulate the practice of law, and

(ii) to uphold and protect the interests of its members.

[39] As will be seen in terms of the order of express interests, the public interest is given a priority over the private interests as expressed by s-s.(b) of s.3.

[40] The assignment of responsibilities of self management has over time become less specific in terms of the statutory responsibilities and more dependant upon the responsible functioning of the governing body of the Society, namely the Benchers, and in one respect, the members of the Society themselves.

[41] It is in the context of this latter observation that I wish to review some of the legislative history of the Legal Profession Act in terms of the setting of what is now called the “practice fee” and its relationship with the Association.

[42] In doing this review, I am mindful of the stricture of s.37(2) of the Interpretation Act R.S.B.C. 1996, c. 238:

The amendment of an enactment must not be construed to be or to involve a declaration that the law under the enactment prior to the amendment was or was considered by the Legislature or other body or person who enacted it to have been different from the law under the enactment as amended.

[43] It is of importance to review the “legal pedigree” of the Act from its earlier form when the legislature set the “practice fee” and over the five decades during which that power evolved to the members of the Society.

[44] I commence with the Act of 1924. Section 61 provided that there was to be an annual due paid by “every practicing barrister or solicitor” and that was in the sum of $30. The Act provided that the Benchers could reduce that by a sum not exceeding $20 if paid on or before the first Monday of October of each year. By 1936 under s.46(1) the annual dues were set at a sum “not exceeding $50 as determined by the Benchers.”

[45] Subsection 2 of s.46 of the 1936 version of the Act provided for the first time as follows:

(2) The Benchers may out of the annual fee paid by each barrister pay to the Canadian Bar Association the annual fee for his membership in that Association.

[46] The relationship of the Society and the Association was recognized by statute to the extent that the Benchers were given discretion to pay out of the annual fee the annual fee of each barrister’s membership in the Association.

[47] In 1955 the new legislation provided in s.65 that each member had to pay an annual fee of $50 “or such other sum as may be fixed by the members at any meeting of the Society.”

[48] For the first time the power to set fees was no longer yielded by the Legislature and amended downward as the Benchers might see appropriate. Rather the setting of fees was to be determined by the members of the Society themselves and only by the legislature in default of the members setting them.

[49] In terms of the Association, the Benchers, under s.36(e) had the power to pay such fees:

36(e) To pay the Canadian Bar Association the annual fees for membership herein of the members of the Society.

[50] In the Act passed in 1955, the Legislature deleted the phrase “shall have the power” used in intervening forms of the Act to return to the former use of “may” in reference to what the Benchers might do i.e. under s.36(e) in terms of payment of the annual membership fee of the Canadian Bar Association for the members of the Law Society.

[51] What the Benchers “might do” was specifically enumerated in a non-exhaustive list of 12 responsibilities set forth in s.36.

[52] By 1987, the Legislature expanded upon the 12 enumerated powers of the Benchers to list 24 contained in s.24(2) which included

(f) use the fees, assessments and any other funds of the society, including funds previously collected or designated for a special purpose before this Act came into force, for the purposes of the society,

. . .

(t) authorize the society to act as agent of the Canadian Bar Association for the purpose of collecting fees of that association from members of the society who are members of it, Canadian Bar Association such fees to form part of the practice fee referred to in section 29(1)(a),

[53] The reference in s-s (t) to “such fees to form part of the practice fee referred to in s. 29(1)(a)” was a reference to the provision for the determination by the members of the Society of the amount of the “practice fee.”

29(1)Every member of the society, who is not a retired member, shall, in respect of each year, pay to the society an annual fee consisting of

(a) a practice fee in an amount fixed by a majority of the members voting on the resolution,

[54] The reference in 24(2)(f) to “for the purposes of the society” did not exist in a vacuum given the terms of s.3 which while not adorned with the title “mission statement,” set out the object and duty of the Society.

[55] The 1996 form of the Act did not alter the terms of the 1987 Act in any substantive manner.

[56] In 1998 though, the Act underwent further revisions which did provide changes from its predecessors.

[57] While retaining s.3 dealing with public interest, s.4 was substantially altered so as to deal with the Benchers in terms of whom and what they were to be:

4(1) The following are Benchers:

(a) the Attorney General;

(b) the persons appointed under section 5;

(d) the president, first vice-president and second vice-president.

(2) The Benchers govern and administer the affairs of the society and may take any action they consider necessary for the promotion, protection, interest or welfare of the society.

(3) The Benchers may take any action consistent with this Act by resolution.

(4) Subsections (2) and (3) are limited by any specific power or responsibility given to the Benchers by this Act.

(5) The Benchers may

(a) use the fees, assessments and other funds of the society, including funds previously collected or designated for a special purpose before this Act came into force, for the purposes of the society,

[58] This form of the Act, then set out as s.23(1), the requirement for the practicing lawyer to pay:

(a) a practice fee in an amount set by a majority of the members voting on the resolution at a general meeting or in a referendum,

(b) a sum, set by the Benchers, to be placed in the special compensation fund continued under section 31(2), and

(c) an insurance fee set under section 30(3)(a), unless exempted from payment of the insurance fee under section 30(4)(b).

[59] In this respect s-s(a) is no different in effect than any of the earlier forms of the Act since the Legislature had, since 1979, absolved itself of any further responsibility to fix the annual fee in the earlier legislation, leaving that power to the members.

[60] Section 24(1) set forth the power of the Benchers to set fees other than those referred to in s. 23(1). In s. 24(1)(c) it authorized the Society to function as the agent of the Association.

24(1)The Benchers may

(c) authorize the society to act as agent of the Canadian Bar Association for the purpose of collecting fees of that association from lawyers who are members of it.

[61] Section 24(2) provides as follows:

24(2)Fees collected under subsection (1)(c) form part of the practice fee referred to in section 23(1)(a).

[62] The petitioner argues that the legislation that creates the Society does not empower the Society (as it acts through its members), to require mandatory contribution by each of its members of a fee or equivalent fee equal to that of the annual Association membership as a requirement of obtaining an annual practicing certificate.

[63] The underpinning of this submission is the premise that s.3 of the Act is not so broad as to include mandatory contributions to the coffers for the purposes of the Association.

[64] By requiring this Association payment, the petitioner says that what the individual member is consequently required to pay results in a departure from the objects and duties of the Society enunciated in s.3. In short, it is argued that the requirement to pay such a fee is a clear departure from the purposes and objects of the Society or has “become alien in nature” to those objects as that term was used Clements, J.A. in Re Alberta Teachers’ Association and Board of Trustees of Edmonton School District No.7 et al. (1974), 39 DLR (3d) 528 at 531, [1973] 6 W.W.R. 261 (Alta. S.C.), a decision that involved a consideration of the appropriateness of a special levy on teachers to establish a strike fund.

[65] Mr. Justice Clements wrote at p. 531 as follows:

Such an assessment is alien in nature to membership fees which, I think it reasonable to assume, are intended to provide for the budgeted expense of the association and are controlled by the prescribed vote of the Annual Representative Assembly.

[66] Mr. Gibbs in this context argues that the power to set the practice fee must be exercised in the context of the objects and duties of the Society as enunciated in s.3. Thus, he argues, setting fees such as those that include an “equivalent fee” is “alien in nature” to the objects, duties and thus to purpose of the Society and would represent an unwarranted departure from the purposes for which the Society exists if the members are authorized to require its members to pay such an “equivalent fee.”

[67] The petitioner’s fundamental position is that in setting this “equivalent fee” the members of the Society have violated an overarching restriction imposed by the Act being that the setting of practice fees must include only purposes consistent with the objects and duties of the Society as enumerated in s. 3 of the Act.

[68] The respondents argue that if the members in setting the practice fee act reasonably then the members will have acted within their powers to set the practice fee of authorizing its amount of a majority vote, even if some lesser purpose of the Association does not fit within the objects and duties set forth in s.3 of the Act.

[69] In my view, provided that overarching restriction is respected, the specific merits of any particular program the members see fit to support whether it be the Canadian Bar Association, the Lawyer’s Assistance Program, or the British Columbia Courthouse Library Society is not a matter that should be reviewed by the court. That an aspect of the Association objects does not mirror itself in s.3 of the Act does not matter so long as those objects substantially and reasonably mirror the objects and duties of the society.

[70] That is a decision made in the “voting book” of the Society in which the members exercise their political discretion to support or not support the overall practice fee, which includes these various sub headings voted in the resolution to approve the setting of the practice fee.

[71] The raising of such a question thus engages a need to examine the objects and duties of the Society as enshrined in s.3 and how they relate to what the Association does.

[72] There is little question that more than one-half of the Association fees collected by the Society and remitted to the Association are retained for national purposes with less than one-half being returned to British Columbia for direct application to Association functions in this Province.

[73] The British Columbia branch of the Association functions under a set of bylaws which incorporate the branch’s objects and powers under s.3.

The objects of the Branch shall be and it shall have the power to:

1. Carry out the objects of the Association;

2. Enter into arrangements with the governing body of the Branch profession in the Province for the assumption by the Branch of such of its non-statutory functions as may be appropriate;

3. Participate in and promote law reform;

4. Further the interests of the members of the legal profession; and

5. Work for the total eradication from the legal profession of discrimination on the basis of race, colour, ancestry, place of origin, religion, marital status, family status, physical or irrelevant mental disability, sex, sexual orientation and age.

[74] I reviewed earlier the myriad of public functions performed by the Association on both a provincial and national level.

[75] These functions have two facets. The first is that the functions are directed toward the public in the sense that they deal with reform of the law and its administration, educate and update lawyers through such programs as the Continuing Legal Education program to, presumably, provide better serve to the public, engage members and staff in the reformation of the law, appoint representatives to various public bodies that directly or indirectly affect the public such as the Judicial Advisory Committee for both provincial and federal judicial appointments, the Legal Services Society and the Law Foundation, and also operate referral programs by which the public has access to legal advice.

[76] The second is a more strictly private function from which the public and non-members of the Association gain no benefit. It is in this context the Association operates an insurance brokerage function and provides product purchasing advantages to its members.

[77] From the material provided to me in this application this latter function is a minuscule aspect of the overall programs of the Association on both the national and provincial level.

[78] In the national and provincial sense, the Association performs functions that are broad in effect and reflect the “vision statement” adopted in 1992. In this respect, these national functions are succinctly summarized in the observations of Lamer, C.J.C., as he then was, in a preface to the Canadian Bar Association publication called A Century of Service

A foundation stone to any democracy is an independent Bar – which the CBA is – and that foundation is necessary for another important aspect of any democracy, an independent judiciary.

This chronicle makes it very clear that the Canadian public has benefited from the CBA’s commitment and contribution to the preservation of laws that protect and promote public legal education, and fairness in people’s rights and uniformity of provincial legislation. The Associations’ priority of involving lawyers from coast to coast and from sea to sea has guaranteed an extraordinary involvement and contribution by a cross-section of Canada’s lawyers.

[79] In determining whether the objects and purposes of the Association are consistent with the duties and objects of the Society it is important to distinguish between the power granted to the members of the Society and that granted to its Benchers. These powers are disparate.

[80] The exercise of each of those powers is either governed or restrained by s.3 of the Act, in the terms of the operation of mandated powers.

[81] In the context of this application, s.23(1)(a) gives the power to set the practice fee to members. That fee is evidenced by receipt for Mr. Gibbs’ 2003 fees and differentiates between different expenditures (net of GST) as follows:

· Practice fee, $903;

· Advocate, $27.50;

· amount equivalent to Canadian Bar Association (senior), $441.44;

· B.C. Court House Library fee, $130;

· Lawyers’ Assistance Program, $37;

· Special Fund fee, $600;

· Insurance first instalment $750.

[82] It is clear that despite the wording on the receipt the first five expenditures are those authorized pursuant the resolutions passed by the members under s.23(1)(a) as the practice fee, including those items in addition to that enunciated as “practice fee.”

[83] In my view, there is nothing inconsistent between the obligations imposed upon the Society by the Act and, in particular, s.3 and the functions of the Association as enunciated in its enacting legislation, particularly its current “vision statement” as an expression of how it views its statutory mandate. Indeed the duties and objects of the society are the mirror of much of the Association’s objects.

[84] More fundamental, however, to the issue raised by the petition, it cannot be said that the “membership’s resolution” in fixing the practice fee as including inter alia, an equivalent fee of the Association, is patently unreasonable where but a small portion of the Association’s functions relate to “private” interests.”

[85] As noted by MacDonald, J. in Beltz v. Law Society of British Columbia, [1987] 7 B.C.L.R. (2d) 353 at 360 31 D.L.R. (4^th) 685, in reference to the standard of reasonableness to be applied to such a review:

It is often expressed by saying that the decision is unlawful if it is one to which no reasonable authority could have come, or so unreasonable that it might almost be described as being done in bad faith. As Wade [here MacDonald J. refers to Wade, Administrative Law, 5^th. Ed. (1982) puts it, the doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the authority which Parliament appointed to make the decision.

[86] Here, the majority of those voting concluded that the universal contribution of lawyers practicing in British Columbia to the funding of the work of the Association is not inconsistent with the objects and duties of the Society.

[87] As observed by MacDonald, J. in Beltz (supra) at page 361:

On policy matters, honest and sincere people often hold different views, but the court is not the arbiter of the correctness of one view over another. . . .

[88] I agree with that statement and would add that the court should not intervene where there is found to be reasonableness of a position taken by a majority of the members of the Society that the work of the Association is consistent with the objects and duties of the Society.

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

[90] 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, it cannot, therefore, be said that such a determination of universality was patently unreasonable or even unreasonable.

[91] In terms of the Benchers collecting these fees “of the Association from lawyers who are members of it” the issue is whether the Benchers have the power to remit “the equivalent fees” from those members of the Society who are not members of the Association.

[92] The petitioner says that 24(1)(c) serves as a limit on the Benchers’ authority to remit fees collected only from Society members who are members of the Association.

[93] In my view, this section is not a limiting provision when read in the context of the Benchers’ general power to govern which is set out in s.4 of the Act, which in part I reiterate.

(2) The Benchers govern and administer the affairs of the society and may take any action they consider necessary for the promotion, protection, interest or welfare of the society.

(3) The Benchers may take any action consistent with this Act by resolution.

(4) Subsections (2) and (3) are not limited by any specific power or responsibility given to the Benchers by this Act.

(5) The Benchers may

[94] I am of the view that the submission of the Society that the section creates an overriding authority that “trumps the specific suggestions or discretions found in individual sections” of the Act is sound.

[95] Subsection 5(a) is similar to s. 24(1) in that it refers to specific discretionary powers of the Benchers, but those discretionary powers do not limit the general powers of governance contained in subsections (2) and (3) of s.4.

[96] To construe s.24(1)(c) as a limiting, as opposed to an authorizing, provision would render the general powers contained in s.4 as meaningless in the context of the Society’s objects and duties expressed in s.3.

[97] The effect of s. 24(1)(c) is nothing more than the creation of an agency relationship in regards to fees for the Association collected by the Society from “members of the Association.”

[98] Given the wording of s. 4(4), s.24(1)(c) does not limit the powers of the Benchers to also remit “equivalent fees” collected as a part of the practice fee from those who may choose not to be members of the Association.

[99] In essence the provisions of s. 24(1)(c) are superfluous to the powers of the Benchers under s. 4 to govern the Society in accordance with the mandated duties and objects of the Society.

[100] Thus, I conclude that in setting the “practice fee” under s.23(1)(a), the members could not be said to have acted “patently unreasonably.” I also conclude that the actions of the Benchers in collecting and remitting the equivalent fees of the Association cannot be said to be patently unreasonable given the mandate encapsulated in s.3 that governs the operations of the Benchers found in s.4.

[101] In the course of submissions, reference was made to the further resolution passed by the members of the Society present on September 20, 2002, after the practice fee had been determined. That resolution provided as follows:

BE IT RESOLVED THAT the Law Society, the Benchers, and each of them be directed to:

(1) remit, upon receipt, to the Canadian Bar Association, at the direction of the Canadian Bar Association, the amount equivalent to the Canadian Bar Association fee, which the Law Society has collected as a portion of the 2003 practice fee; and

(2) work cooperatively with the Canadian Bar Association to develop a protocol to address the subject of Law Society members who do not wish to be members of the Canadian Bar Association.

[102] In my determination of the issues before me, nothing turns upon this resolution as it was nothing more than a statement of policy by a majority of members in respect of their continued support of the continuing relationship with the Society’s members and the Association on the basis of universality of contribution of funding.

[103] It did not add to the authority of the members to set a practice fee that included a sum equivalent to the Association’s annual fee nor did it add to the authority of the Benchers to collect and remit those fees.

[104] The members are not without recourse if they are dissatisfied with the Benchers exercising power under s.4 by which in conjunction with s.24(1)(c) “equivalent fees” are collected and remitted to the Association.

[105] Section 13 of the Act provides a form of check/balance by its provision that while the Benchers are not bound by resolutions passed by the members there is a mechanism that if the Benchers do not act on a resolution passed by the members, a referendum may occur which if passed under specific conditions would be binding on the Benchers.

[106] At the time of submissions that procedure had not yet occurred and it would remain available to the petitioner, unless as suggested in the September 29, 2002, resolution and was initiated by the Benchers themselves.

[107] Such a procedure under s. 13 is an example of what counsel for the Association described was a “highly democratic process” enshrined within the Act by which the relationship of the members and the Benchers may be determined.

[108] For these reasons the petition is dismissed.

[109] Although counsel for the Society in its written submission raised the question of costs, it was not raised by counsel for the Association. No argument was made with respect to that issue by any counsel.

[110] If counsel should wish to raise the issue of costs following upon consideration of these reasons, they may do so in written submissions with those of the respondents to be followed in two weeks by those of the petitioner and replies a week after receipt of the petitioner’s written submission.

“J.D. Taylor, J.”
The Honourable Mr. Justice J.D. Taylor