Province's legal regulator holds meeting to debate resolution to remove rule mandating The Path
A motion to remove a Law Society of Alberta resolution mandating continuing professional education, including an Indigenous cultural competency course, was defeated by a 75 percent to 25 percent margin, with close to 3,500 provincially licenced lawyers casting votes.
At the end of a meeting lasting about two hours, in which the motion was vigorously debated for an hour, 864 “Yes” votes were cast to repeal the rule allowing the LSA to mandate CPD, and 2,609 “No” votes were cast to preserve the status quo.
To adopt the resolution 1,737 votes were needed. The final count showed 24.9 percent voted yes and 75.1 percent voted no.
After the vote, LSA benchers said in a statement they are"grateful" to Alberta lawyers for demonstrating their support. Maintaining the rule "allows the law society to continue to uphold the expectations that come with self-governance."
The statement added the LSA "must regulate in the public interest, which includes promoting and enforcing a high standard of professional and ethical conduct by Alberta lawyers." There is a balance to achieve between setting standards of competence to protect the public interest and allowing lawyers to choose their own continuing professional development.
Interest in the meeting was high, with more than one-third of the approximate 11,000 licenced Alberta voters participating in the Zoom webinar. The attendance at the virtual meeting "showed an unprecedented level of engagement that reflects well on our profession," the statement from the benchers said.
Votes taken during the meeting, including the final vote on the resolution, were done anonymously via Twitter’s “Twitter Poll” feature, despite a call from some that the vote should be recorded “in the public interest.”
On Oct. 1, 2020, LSA benchers carried a motion by a two-thirds majority to mandate Indigenous cultural competency training for all active Alberta lawyers. To do this, the benchers amended its rules to expand its authority by adopting Rule 67.4, which says the society can mandate Continuing Professional Development courses if it chooses.
Adopting Rule 67.4 allows the LSA to mandate a free, five-hour online course, The Path, which teaches Indigenous cultural competency. It was developed by NVision Insight Group. The LSA set an 18-month deadline for completing the course, ending on October 20, 2022. Since then, dozens of lawyers have been suspended for not completing the course.
Recently, 51 lawyers signed a petition asking for the removal of the rule, leading to Monday’s special meeting of the LSA. In an accompanying letter, opponents of this rule argue that benchers are only allowed to mandate an education course called the “bar course” as part of the process for being admitted to the bar. They say that under rule 67.1 (3), each lawyer has the freedom and the responsibility to determine whether a learning activity qualifies as continuing professional development.
While Canadian Lawyer and other media organizations were locked out of the meeting, those on the webinar used Twitter to describe what was happening in real time. This included Dennis Buchanan, an Alberta and Ontario labour and employment lawyer and blogger based in Edmonton.
For this meeting, LSA benchers amended the rules for motion consideration to 60 minutes from 20 minutes, with a maximum of two minutes per person.
One society member, Lubos Pesta, objected to the panel at the meeting, alleging “apprehension of bias.” The Chair of the meeting, Gowlings lawyer and LSA president Ken Warren, KC, said that was not a point of order but an allegation of impropriety.
Speakers at the meeting were recognized in alternating order, depending on whether they declared themselves for or against the resolution.
Organizers of the petition claimed in their letter that they “do not oppose it based on a belief that understanding Indigenous culture is unimportant.” Instead, “we oppose it because we do not believe the benchers have or should have the power to mandate cultural, political, or ideological education of any kind on Alberta lawyers as a condition of practice.”
Calgary Lawyer Roger Song, the first name on the petition and one of the petition organizers, spoke first, as he was regarded as the mover of the motion for this meeting. He called mandatory CPD “a dark path,” comparing it to mandatory communist indoctrination in China, adding that it is ultra vires and against the public interest.
The mandatory course is a direct response to the Truth and Reconciliation Commission of Canada’s call to action 27, which asks the Federation of Law Societies of Canada to “ensure that lawyers receive appropriate cultural competency training.” However, Song said these calls to action are not “legally binding.”
Since enacted, Rule 67.4 has been used only to mandate The Path. "We have not identified other courses that we believe should be mandatory," the benchers' statement said. "However, the flexibility granted in Rule 67.4 is critically important so that we can thoughtfully consider whether specific education courses are necessary to protect and advance the public interest."
Glenn Blackett, another lawyer who signed the petition, said at the meeting that while he acknowledges the importance of reconciliation, mandating The Path course is wrong and will make things worse and that it is not in the regulator’s place to make it compulsory. He also argued that the new Rule adopted to make CPD courses mandatory, Rule 67.4 is “not intra vires under the Legal Professions Act.”
Kent Teskey, President of the LSA when The Path course was mandated, told those on the Zoom webinar that the law society has the right to regulate in the public interest, including taking measures to address historical injustices against the Indigenous community.
The Alberta Lawyers Indemnity Association president, David Weyant, spoke in favour of the CPD requirements and argued in his two minutes that the law society has the right to impose them.
Brooks Archand-Paul, a Cree lawyer and candidate for the NDP in the riding of Edmonton-West Henday, spoke against the motion, saying the goals of the law society include equity, diversity and inclusion. He also noted the importance of acknowledging different cultures within the legal profession. Archand-Paul added that the injustices suffered by Indigenous peoples are contemporary, not merely historical.
Other lawyers, who wanted Rule 64.7 removed, questioned why it has been maintained, even after making all members go through The Path course. They also referenced the automatic suspension for not completing the course, saying this is a heavy-handed response. Some also wondered about the efficacy of mandatory CPD, saying the system is oriented toward attendance rather than learning. Others compared mandatory CPD to sending Indigenous children to residential schools.
Caitlin Cave of the Indigenous Advisory Committee of the LSA spoke against the resolution, saying it goes beyond attacking the LSA’s authority, but attacks the Path itself and is rooted in racism.
At that point, lawyer Louis Belzil, one of the lawyers who signed the petition asking for the Rule to be removed, raised a point of order about impugning the motives of the resolution. Meeting chair Warren sustained that point.
Lawyer Buchanan tweeted after the meeting, saying he was "very happy with the outcome - "not just that 'No' won, but that it wasn't close." And while there were a handful of remarks that were "appalling," it was "only a handful."
He added: "The distasteful hyperbolic characterizations of mandatory CPD was a very small part of that hour-long debate. "It's important to be aware of the existence of those views, but ALSO to remember - particularly given the result - they're not representative of the bar at large.
Buchanan also said he was happy to hear Indigenous lawyers giving their perspectives at the meeting. "Their voices need and deserve to be a major part of debates like this, but their community is very underrepresented in the profession."