Sep 28, 2020

Do Additional Considerations Apply to Applications for Registration by Indigenous Persons?

Moore v The Law Society of British Columbia, 2018 BCSC 1084 (CanLII)

In Moore v The Law Society of British Columbia, 2018 BCSC 1084, http://canlii.ca/t/hssff, an applicant (Ms. Moore) had conditions imposed on her registration because of conduct concerns while practising in another province. Ms. Moore consented to the conditions relating to engaging a mentor and practising under supervision. However, those conditions did not work for Ms. Moore and she withdrew her consent to the conditions and sought to have them removed. The regulator refused. Ms. Moore sought judicial review on the basis that the conditions were unreasonable and that the conditions failed to take into account her background as an indigenous person. On the latter point Ms. Moore argued both that she could much to offer to the justice system because of her cultural competence in aboriginal issues and that the regulator had failed to consider her background when evaluating the significance of her discipline history in Alberta.

The Court held that there was no formal requirement on the regulator to consider her indigenous background when dealing with registration matters. However, the Court was concerned that the regulator could have done more in the circumstances:

However, there are moments where the Law Society and the Credentials Committee could have better supported and assisted Ms. Moore in the application process. It is likely that supports such as meeting with Ms. Moore in person, explicitly referencing Ms. Moore’s background and life experiences in the decisions or discussing them with her, or providing active support in creating conditions or proposals for mentorship, would have assisted in both protecting the public interest, and better supporting and assisting Ms. Moore in applying for transfer and fulfilling her duties in the practice of law. Improved communication from the Law Society would likely have had the effect of assisting Ms. Moore to find constructive solutions.

As Ms. Moore notes and I am sure the Law Society would agree, it is also in the public interest to have practising Indigenous lawyers who can provide culturally appropriate services to clients. Supporting Indigenous lawyers in the process of becoming admitted to the bar and remaining members of the bar, whether that is accomplished through future policies or other means, will foster the process of reconciliation that the Law Society has, on its own initiative, embarked upon.

The Court also found that the decision of the regulator was reasonable. It had considered the information provided and applied criteria relating to protecting the public interest that was specified in its enabling legislation. In particular the Court concluded that expressing misgivings about proposed conditions before consenting to them does not make that consent invalid. The Court also held that an applicant cannot withdraw consent once the final decision to register with conditions was made. The proper remedy was to apply to have the conditions removed.

After upholding the regulator’s decision as reasonable, the Court then took the unusual step of suggesting to the parties how they might consider a fresh application to vary the conditions in a different manner:

It may assist if Ms. Moore were to make another application to the Law Society to remove the conditions, that the parties engage in a form of mediation or conversation to resolve any issues that arise in that application, and in a manner that is sensitive to the issues discussed in this petition. There were opportunities in these circumstances for the Law Society to take further steps in recognizing the challenges that Ms. Moore as an Indigenous lawyer faced in entering and remaining in the profession. In addition, a conversation with the Law Society may assist Ms. Moore in finding a constructive route to the partnership she sought for her work on Indigenous justice issues.

The Court’s comments reinforce the need for regulators to approach registration cases individually and not routinely apply criteria without considering any special circumstances.

It is interesting to note that shortly after this decision the regulator adopted a report to promote training on indigenous matters for students, indigenous representation on committees and reviewing standards for systemic barriers:
https://s3.amazonaws.com/tld-documents.llnassets.com/0007000/7036/truthandreconciationactionplan2018.pdf. That report was obviously in the works well before this decision was released.