B.C. recommends single regulator, flexible licensing as part of legal governance modernization

By Ian Burns

Law360 Canada (September 22, 2022, 2:55 PM EDT) -- British Columbia is recommending a large-scale modernization of how the legal professions are governed in the province, and an expert is saying the proposals would represent a “quantum leap” for regulation in Canada if they are adopted.

In March, then-Attorney General David Eby wrote to the presidents of the Law Society of British Columbia (LSBC) and the Society of Notaries Public saying the government was seeking to modernize the regulatory framework for legal professionals in B.C., including lawyers, notaries and paralegals, aimed at helping to improve access to justice and better protecting people accessing legal services.

And now, the government has released an “intentions paper” on regulatory modernization, which proposes bringing all legal professionals under the umbrella of a single statute and by a single regulator, a clear mandate which communicates the regulator’s purpose to its licensees and the public and a modernized governance framework.

The paper said the rationale for change is simple — far too many people in B.C. cannot afford the cost of a lawyer.

“Access to legal services is at least in part a regulatory issue because rules around who is allowed to provide what services have an impact on the availability (and cost) of those services to the public,” the paper said. “Access to legal services is also at least in part a governance issue because it requires a governance framework that prioritizes the public interest over the interests of the professionals it regulates.”

The government said the modernized framework would include a governance board for the future regulator which would be composed of “licensee” directors who are elected by licensees, directors who are appointed by the other members of the board and those who are appointed by the government, which would constitute a minority of board members. The regulator’s statutory mandate would also include an express obligation to support reconciliation with Indigenous peoples, and consideration should be given to a statutory minimum requirement for Indigenous participation on the board.

“One of the benefits of at least some director appointments, responsive to identified, or anticipated, skill gaps, is that it enables a more intentional approach to the overall board composition,” the paper said. “Boards often establish a composition matrix that identifies the skills, experience, and backgrounds that the board as a whole should reflect. Appointments can then be made with a view to filling any identified gaps. Ensuring that a number of seats on the regulator’s board are filled by appointments will help ensure the board has the right mix of skills and diversity needed to fulfill its mandate.”

The intentions paper also recommended developing a flexible licensing framework which ensures the public has the ability to find the kind of legal services that meets their needs, whether through a lawyer, notary, licensed paralegal or otherwise. The paper said an “ideal future statute” will likely enable one or more classes of licensed paralegals with a common scope or scopes of practice in specific areas such as family law, with the government exploring whether the statute should enable the regulator to license paralegals and notaries on a case-by-case basis. This would allow the regulator to customize an individual licensee’s licence based on their specific training and expertise, who could then provide those customized legal services directly to the public.

And now the province is reaching out to the public for a response to the paper’s recommendations, launching a survey to gain feedback. A spokesperson for the provincial Attorney General’s Office said in an e-mail the B.C. government is “committed to improving the public’s access to legal services.”

“The feedback received through the consultation paper will help inform the refinement of a Ministry proposal for government’s further consideration,” the spokesperson said. “It is currently anticipated that a bill could be introduced in the Legislature as early as 2023.”

Robert Lapper, the Lam Chair in Law and Public Policy at the University of Victoria, said the recommendations, if adopted, would represent a “quantum leap” from other law society or legal professional governance in Canada, and even many other western jurisdictions.

Aleem Bharmal, Canadian Bar Association, B.C. Branch

Aleem Bharmal, Canadian Bar Association, B.C. Branch

“Australia and the U.K. have moved to a very much more governance and external oversight, but what this intentions paper suggests that they are really trying to consciously self-balance regulation with achieving public interest objectives,” said Lapper, a former assistant deputy attorney general in British Columbia and former CEO of the Law Society of Upper Canada. “If this were adopted, I think it would be very difficult for other jurisdictions in Canada to not look at something similar.”

Aleem Bharmal, the newly minted president of the Canadian Bar Association, B.C. Branch (CBABC), said regulatory reform will likely be a major focus for him over his term, and the CBABC is currently setting up round tables to get a view from the profession on the province’s recommendations.

“And one of the things that is already on our radar is making sure we hold the government’s feet to the fire on the issue of professional independence,” he said. “The intentions paper said the government is committed to that principle, so we will continue to advocate on that front — but the devil is in the details. We have to make sure that those that are governing the profession are majority elected or independent of government appointments, and the regulator has sufficient scope to create rules which aren’t already predetermined by the government.”
And Lapper said one important thing that needs to be fleshed out is how any new regulator would meet its diversity mandate.

“They talk about diversity in many different ways and I certainly support the idea that there should be guaranteed Indigenous participation in the regulatory body, but for diversity objectives beyond that I’m not seeing a lot of how that is going to be done,” he said. “It can’t be done if you have only a 15-member or 20-member board for two reasons — it isn’t enough board members, and then that tends to devolve them into representatives of a particular constituency which this model very much doesn’t want to see.”

The survey is open until Nov. 18. Written submissions can also be sent to PLD@gov.bc.ca.

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