9th Edition\Constitutional Law - Vol I\Law Society BC v Mangat
LAW SOCIETY OF BRITISH COLUMBIA V. MANGAT
(2001), 205 D.L.R. (4th) 577 (S.C.C.)
[The respondent M was an immigration consultant carrying on his work through an immigration consulting company ("Westcoast"). He had not studied law in Canada and was not a member of the B.C. Law Society. M and other Westcoast employees engaged in a number of activities involving immigration proceedings, including appearing as counsel or advocate on behalf of aliens, for or in the expectation of a fee from the persons for whom the acts were performed, before the Immigration and Refugee Board ( "IRB"). The Law Society brought an application seeking a permanent injunction against M and Westcoast to prevent them from engaging in the ongoing practice of law, in contravention of the B.C. Legal Profession Act. M and Westcoast admitted that they were engaged in the practice of law within the meaning of s. 1 of the Legal Profession Act, but contended that their conduct was sanctioned by ss. 30 and 69(1) of the Immigration Act, which permit non-lawyers to appear on behalf of clients before the IRB.]
The judgment of the court was delivered by
GONTHIER J.: -- [...]
III. Relevant Statutory Provisions
¶ 10 Legal Profession Act, S.B.C. 1987, c. 25 (subsequently R.S.B.C. 1996, c. 255, ss. 1, 26, 109; now S.B.C. 1998, c. 9, ss. 1, 15, 85(5)-(8))
1. In this Act
. . . . .
"practice of law" includes
(a) appearing as counsel or advocate [...]
[...] no person, other than a member of the society in good standing, shall engage in the practice of law [...]
Immigration Act, R.S.C. 1985, c. I-2
30. Every person with respect to whom an inquiry [by an adjudicator] is to be held shall be informed of the person’s right to obtain the services of a barrister or solicitor or other counsel and to be represented by any such counsel at the inquiry and shall be given a reasonable opportunity, if the person so desires, to obtain such counsel at the person’s own expense.
. . . . .
69(1) In any proceedings before the Refugee Division, the Minister may be represented at the proceedings by counsel or an agent and the person who is the subject of the proceedings may, at that person’s own expense, be represented by a barrister or solicitor or other counsel.
. . . . .
114(1) The Governor in Council may make regulations
. . . . .
(v) requiring any person, other than a person who is a member of the bar of any province, to make an application for and obtain a licence from such authority as is prescribed before the person may appear before an adjudicator, the Refugee Division or the Appeal Division as counsel for any fee, reward or other form of remuneration whatever [...]
A. Are Sections 30 and 69(1) of the Immigration Act Intra Vires Parliament? [...]
[Justice Gonthier considered the authorities and concluded:]
¶ 37 Both ss. 30 and 69(1) relate to the delineation of the procedural rights of aliens, as refugee claimants, permanent residents, or visitors. Since the pith and substance of these provisions is the rights that aliens possess in front of certain divisions of the IRB and the procedure before those divisions, they therefore fall under [Constitution Act, 1867] s. 91(25), given that section’s granting of jurisdiction over aliens and naturalization. [...]
¶ 38 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. Parliament itself has acknowledged that legal aspect by imposing certain quotas of lawyers’ membership in the Refugee Division and Appeal Division, as well as providing a right of representation by barristers or solicitors. Sections 30 and 69(1) relate to the legal profession and therefore to professions in general. The parties agree that the provinces have legislative authority to regulate the practice of law in the province under s. 92(13) as part of the provinces’ jurisdiction over professional regulation. [...]
¶ 41 Provincial law societies or bars are entrusted with the mandate of governing the legal profession with a view towards protecting the public when professional services are rendered. [...] This is the purpose behind s. 26 of the Legal Profession Act (s. 15 in the current incarnation). Insofar as appearing before the IRB in the capacity of counsel involves the practice of law, the subject matter is as much covered by s. 26 of the Legal Profession Act as it is by ss. 30 and 69(1) of the Immigration Act.
¶ 42 While provinces may regulate professions as part of their jurisdiction over property and civil rights, the legal profession is also part of the administration of justice in the province, which s. 92(14) attributes to the provinces. [...]
¶ 47 The subject matter of the representation of aliens by counsel before the IRB has federal and provincial aspects. Parliament and the provincial legislatures can both legislate pursuant to their respective jurisdiction and respective purpose. The federal and provincial statutes and rules or regulations in this regard will coexist insofar as there is no conflict.
B. Double Aspect Doctrine
¶ 48 The Privy Council first enunciated the doctrine of double aspect in the case of Hodge v. The Queen (1883), 9 App. Cas. 117, at p. 130, where it was said that "subjects which in one aspect and for one purpose fall within sect. 92, may in another aspect and for another purpose fall within sect. 91". Dickson J., as he then was, canvassed the same doctrine in Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161, at pp. 180-82, 138 D.L.R. (3d) 1, where he said:
Because "[t]he language of [ss. 91 and 92] and of the various heads which they contain obviously cannot be construed as having been intended to embody the exact disjunctions of a perfect logical scheme" (John Deere Plow Co. v. Wharton, supra, at p. 338, per Viscount Haldane), a statute may fall under several heads of either s. 91 or s. 92. For example, a provincial statute will often fall under both s. 92(13), property and civil rights and s. 92(16), a purely local matter, given the broad generality of the language. There is, of course, no constitutional difficulty in this. The constitutional difficulty arises, however, when a statute may be characterized, as often happens, as coming within a federal as well as a provincial head of power.
. . . . .
I incline to the view that the impugned insider trading provisions have both a securities law and a companies law aspect and would adopt as the test for applying the double aspect doctrine to validate both sets of legislative provisions, that formulated by Professor Lederman:
"But if the contrast between the relative importance of the two features is not so sharp, what then? Here we come upon the double-aspect theory of interpretation, which constitutes the second way in which the courts have dealt with inevitably overlapping categories. When the court considers that the federal and provincial features of the challenged rule are of roughly equivalent importance so that neither should be ignored respecting the division of legislative powers, the decision is made that the challenged rule could be enacted by either the federal Parliament or provincial legislature. In the language of the Privy Council, ‘subjects which in one aspect and for one purpose fall within sect. 92, may in another aspect and for another purpose fall within sect. 91’." [Emphasis added.] [...]
¶ 50 Both the federal and provincial features of the challenged provisions are of equivalent importance, and so neither should be ignored in the analysis of the division of powers. Parliament must be allowed to determine who may appear before tribunals it has created, and the provinces must be allowed to regulate the practice of law as they have always done. Having determined that there are both federal and provincial constitutional aspects to the subject matter in ss. 30 and 69(1) of the Immigration Act, the sections are validly enacted by Parliament under the double aspect doctrine. Accordingly, the three-step test set out by Dickson C.J. in General Motors, supra, at pp. 666-72, is not applicable since no issue of intrusion into the provincial power arises.
C. Application of the Paramountcy Doctrine
¶ 51 There was much argument submitted by the parties regarding the respective preferability of the doctrines of paramountcy and interjurisdictional immunity in determining the manner in which the federal provisions would prevail over the provincial legislation. The latter doctrine has received its classical application in Bell Canada, supra. The authority for the former is Multiple Access, supra.
¶ 52 [...] Paramountcy is the more appropriate doctrine in this case. The existence of a double aspect to the subject matter of ss. 30 and 69(1) favours the application of the paramountcy doctrine rather than the doctrine of interjurisdictional immunity. While the role for provincially regulated lawyers is non-exclusive, it is nonetheless inconsistent with interjurisdictional immunity, which would exclude provincial legislation, even if Parliament did not legislate in the area. The application of the interjurisdictional immunity doctrine in such a context might lead to a bifurcation of the regulation and control of the legal profession in Canada. The application of the paramountcy doctrine safeguards the control by Parliament over the administrative tribunals it creates. At the same time, it preserves the principle of a unified control of the legal profession by the various law societies throughout Canada. By the very statutory scheme for immigration tribunals in the Immigration Act, Parliament contemplated a role for provincially regulated lawyers. While I have determined the pith and substance of the provisions in question to be in relation to aliens and naturalization under s. 91(25), immigration in general is subject to a joint federal and provincial jurisdiction. Section 95 establishes this and itself contains a paramountcy provision. Thus, there is no clear boundary between the federal and provincial jurisdiction in this matter generally. Finally, the immigration aspects of the legal affairs of aliens are not easily distinguishable from the non-immigration aspects of their legal affairs.
¶ 53 The respondent Sparling brought to the attention of this Court the decision of the Ontario Court of Appeal in R. v. Lewis (1997), 155 D.L.R. (4th) 442, where Rosenberg J.A. applied the interjurisdictional immunity doctrine in holding that provincial legislation could not limit the range of persons qualified to be auditors for the purpose of the Canada Elections Act, R.S.C. 1985, c. E-2. While the latter Act permitted a wide range of accounting practitioners, as defined by provincial legislation, to carry out an audit for federal election candidates, such a task was reserved for chartered accountants by the provincial legislation.
¶ 54 The result achieved in that case is certainly agreed with by this Court. However, the same result could have been achieved by the more supple paramountcy doctrine rather than the interjurisdictional immunity doctrine, especially since the federal legislation was itself resorting to provincial definitions of accounting professionals in determining the range of persons qualified to act, thus creating a role for provincial regulatory legislation.
1. Is Section 26 of the Legal Profession Act Constitutionally Inoperative to Persons Acting Under Sections 30 and 69(1) of the Immigration Act and its Associated Rules and Regulations? [...]
¶ 67 [T]here is no obligation for Parliament to regulate the "other counsel", even though it may be wise and advisable to do so. The enactment of ss. 30 and 69(1) and of s. 114(1)(v) illustrates Parliament’s intention to address the subject of who may appear before the IRB. Aside from the situations where Parliament refers to provincial legislation (as it does for barristers and solicitors), the federal government has defined "other counsel" as being "a person", and the provinces cannot intervene in that sphere. Moreover, by the enactment of s. 114, Parliament has demonstrated its intent to regulate such counsel if and when needed. It has not yet done so, but that does not mean that the provinces can enact conflicting legislation in the meantime. However, to the extent that Parliament refers to the provincial statutes and regulations or leaves the matter unaddressed, the provinces can regulate that matter in accordance with their own powers.
(b) Is There an Operational Conflict?
¶ 68 As I mentioned above, the controlling authority with respect to federal paramountcy is Multiple Access, supra. At pp. 189-91, Dickson J. (as he then was) explained that a central assessment to be made in the application of this doctrine is to ascertain whether there is a conflict between the federal and provincial legislation. If there is none, then paramountcy is of course not relevant.
¶ 69 There will be a conflict in operation where the application of the provincial law will displace the legislative purpose of Parliament. The test is stated at p. 191: "one enactment says ‘yes’ and the other says ‘no’; ‘the same citizens are being told to do inconsistent things’; compliance with one is defiance of the other".
¶ 70 In Bank of Montreal v. Hall, [1990] 1 S.C.R. 121, 65 D.L.R. (4th) 361, this Court reiterated the test of the "actual conflict in operation" and the rationale for the application of the doctrine of paramountcy. At p. 152, La Forest J. held that the question before the Court was reducible to asking whether there is an actual conflict in operation "in the sense that the legislative purpose of Parliament stands to be displaced in the event that the appellant bank is required to defer to the provincial legislation in order to realize on its security". The Court put a gloss at pp. 154-55 on the argument that compliance with both laws was possible by obeying the stricter one:
For, as we have seen, dual compliance will be impossible when application of the provincial statute can fairly be said to frustrate Parliament’s legislative purpose.
. . . . .
A showing that conflict can be avoided if a provincial Act is followed to the exclusion of a federal Act can hardly be determinative of the question whether the provincial and federal [A]cts are in conflict, and, hence, repugnant. That conclusion, in my view, would simply beg the question. The focus of the inquiry, rather, must be on the broader question whether operation of the provincial Act is compatible with the federal legislative purpose. Absent this compatibility, dual compliance is impossible.
¶ 71 In M & D Farm Ltd. v. Manitoba Agricultural Credit Corp., [1999] 2 S.C.R. 961, 176 D.L.R. (4th) 585, Binnie J. at para. 41 applied the reasoning of the Privy Council in Crown Grain Co. v. Day, [1908] A.C. 504, as "rationalized" by Hogg, supra, at pp. 16-6.1 to 16-7:
". . . on a superficial analysis, the dual compliance test is not satisfied: the two laws imposed no duties on the parties to litigation, and both laws could be complied with by the losing litigant in a mechanics lien case not taking an appeal to the Supreme Court. But if the laws are recast as directives to a court that has to determine whether or not an appeal to the Supreme Court is available, the contradiction emerges. A court cannot decide that there is a right of appeal (as directed by federal law) and that there is not a right of appeal (as directed by provincial law). For the court, there is an impossibility of dual compliance and therefore an express contradiction." [My emphasis.]
Applying this reasoning to the facts before him, Binnie J. concluded, "In summary, we have here an ‘express contradiction’ within the extended meaning of the relevant jurisprudence" where a federal farm act gives the farmer a short standstill period but the relevant provincial act allows for immediate foreclosure.
¶ 72 In this case, there is an operational conflict as the provincial legislation prohibits non-lawyers to appear for a fee before a tribunal but the federal legislation authorizes non-lawyers to appear as counsel for a fee. At a superficial level, a person who seeks to comply with both enactments can succeed either by becoming a member in good standing of the Law Society of British Columbia or by not charging a fee. Complying with the stricter statute necessarily involves complying with the other statute. However, following the expanded interpretation given in cases like M & D Farm and Bank of Montreal, supra, dual compliance is impossible. To require "other counsel" to be a member in good standing of the bar of the province or to refuse the payment of a fee would go contrary to Parliament’s purpose in enacting ss. 30 and 69(1) of the Immigration Act. In those provisions, Parliament provided that aliens could be represented by non-lawyers acting for a fee, and in this respect it was pursuing the legitimate objective of establishing an informal, accessible (in financial, cultural, and linguistic terms), and expeditious process, peculiar to administrative tribunals. Where there is an enabling federal law, the provincial law cannot be contrary to Parliament’s purpose. Finally, it would be impossible for a judge or an official of the IRB [who need not be a lawyer] to comply with both Acts. [...]
¶ 74 As this case dealt with hearings before the Adjudication and Refugee Divisions only, I would hold that the Legal Profession Act’s prohibition on non-lawyers from collecting a fee to act as representatives and to provide services in that regard is inoperative to that extent. The provision of services means document preparation and advice on matters relevant to the individual’s case. [...]
¶ 76 The Court finds that there is a basis to grant a declaratory order that ss. 30 and 69(1) of the Immigration Act and its associated Rules and Regulations are intra vires Parliament and that s. 26 (now s. 15) of the Legal Profession Act is inoperative to non-lawyers who collect a fee acting under ss. 30 and 69(1) for the purposes of representation before the Adjudication Division or Refugee Division and the provision of services to that end. [...]
¶ 79 I would answer the constitutional question as follows:
1. Is s. 26 of the Legal Profession Act, S.B.C. 1987, c. 25 constitutionally inoperative or inapplicable to persons acting under ss. 30 and 69 of the Immigration Act, R.S.C. 1985, c. I-2 and its associated Rules and Regulations and, if so, are the latter provisions ultra vires Parliament?
Section 26 of the Legal Profession Act is constitutionally inoperative to persons acting under ss. 30 and 69(1) of the Immigration Act and its associated Rules and Regulations. It is not necessary to determine whether this disposition is constitutionally inapplicable. The provisions are intra vires Parliament.
Appeal dismissed.