Black & Company v. Law Society of Alberta, (1989) 93 N.R. 266 (SCC)

• Judge: Dickson, C.J.C., Estey, McIntyre, Wilson, Le Dain, La Forest and L'Heureux-Dubé, JJ.
• Court: Supreme Court of Canada
• Case Date: Thursday April 20, 1989
• Jurisdiction: Canada (Federal)
• Citations: (1989), 93 N.R. 266 (SCC);[1989] 4 WWR 1;[1989] 1 SCR 880;58 DLR (4th) 317;37 Admin LR 161;38 CRR 193;96 AR 352;66 Alta LR (2d) 97;[1989] 1 SCR 591;1989 CanLII 84 (SCC);[1989] RDI 263;93 NR 266;1989 CanLII 132 (SCC)

Black & Co. v. Alta. Law Soc. (1989), 93 N.R. 266 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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The Law Society of Alberta (appellant) v. Robert G. Black, G. Patrick H. Vernon, Basil R. Cheeseman, L. Thomas Forbes, James C. McCartney, Douglas S. Ewens, D. Murray Paton, Richard A. Shaw, Edward P. Kerwin, G. Blair Cowper-Smith, Peter D. Quinn, carrying on the practice of law under the firm name of Black & Company (respondents) and Attorney General of Quebec (intervenor)

(19889)

Indexed As: Black & Company v. Law Society of Alberta

Supreme Court of Canada

Dickson, C.J.C., Estey, McIntyre, Wilson, Le Dain, La Forest and L'Heureux-Dubé, JJ.

April 20, 1989.

Summary:

The Law Society of Alberta enacted rule 154, which prohibited resident lawyers from practising with nonresident lawyers, and rule 75(B), which prohibited resident lawyers from practising in more than one firm. A law firm practising in violation of the rules brought an action claiming that the rules were invalid, submitting that the rules were beyond the Society's jurisdiction, or at least were an unreasonable exercise of that jurisdiction, or invalid as an impermissible restraint of trade. The firm also submitted that the rules infringed lawyers' mobility rights and the right to freedom of association under ss. 6 and 2(d) of the Canadian Charter of Rights and Freedoms.

The Alberta Court of Queen's Bench, in a judgment reported 57 A.R. 1, held that the rules were valid. The court stated that (1) the rules were not an unreasonable exercise of the Society's jurisdiction; (2) that since the Legal Profession Act provided for restraint of trade the rules passed under that legislation could not be challenged as a restraint of trade; (3) that rule 154 infringed a lawyer's mobility rights under s. 6, but that the rule was a reasonable limit prescribed by law under s. 1 of the Charter and (4) that if the rules infringed the right to freedom of association under s. 2(d), which was conceded by the parties but disagreed with by the court, that infringement would also be valid as a reasonable limit prescribed by law. The Law Society appealed.

The Alberta Court of Appeal, in a judgment reported 68 A.R. 259, allowed the appeal and declared both rules invalid. The court held that rule 154 violated a lawyer's mobility rights under s. 6 and that both rules violated the right to freedom of association under s. 2(d). The court also held that the rules were not reasonable limits prescribed by law under s. 1 of the Charter. The Law Society appealed.

The Supreme Court of Canada, McIntyre and L'Heureux-Dubé, JJ., dissenting in part, dismissed the appeal. La Forest, J. (Dickson, C.J.C., and Wilson, J., concurring), held that both rules violated mobility rights under s. 6(2)(b) of the Charter and were not justified under s. 1 of the Charter. Accordingly, it was unnecessary to determine whether the rules violated s. 2(d) or were an unreasonable restraint of trade.

McIntyre, J. (L'Heureux-Dubé, J., concurring), dissenting in part, stated that neither rule violated mobility rights, but both rules violated the right to freedom of association under s. 2(d); that rule 154 was not a reasonable limit prescribed by law under s. 1, but rule 75B was.

Civil Rights - Topic 503

Mobility rights - Right to work in any province - The Law Society of Alberta passed rule 154, which prohibited resident lawyers from practising with nonresident lawyers and rule 75B, which prohibited resident lawyers from practising in more than one firm - The Supreme Court of Canada held that both rules violated a nonresident lawyer's right "to pursue the gaining of a livelihood in any province" under s. 6(2)(b) of the Charter - The court held that the combined effect of the rules seriously impaired the ability to maintain a viable association for the purpose of obtaining a livelihood and made such a business arrangement completely unfeasible - The court also held that the rules were not saved as laws of general application under s. 6(3)(a), because rule 154 clearly discriminated on the basis of residence and the effect of rule 75B was to discriminate on the basis of residence - The court held that the rules were not justified under s. 1 of the Charter as reasonable limits prescribed by law, because the limitations on s. 6(2) rights were completely disproportionate to the alleged legislative objectives sought and there existed many reasonable alternatives for obtaining the legislative purpose without so drastically affecting mobility rights.

Civil Rights - Topic 575

Mobility rights - Exceptions - Laws or practices of general application - [See Civil Rights - Topic 503 above].

Civil Rights - Topic 2204

Freedom of association - Denial of right - What constitutes - The Law Society of Alberta passed rule 154, which prohibited resident lawyers from practising with nonresident lawyers, and rule 75B, which prohibited resident lawyers from practising in more than one law firm - The Supreme Court of Canada, per McIntyre, J., (L'Heureux-Dubé, J., concurring), stated that both rules violated the right to freedom of association under s. 2(d) of the Charter of Rights and Freedoms; that rule 154 was not a reasonable limit prescribed by law under s. 1 of the Charter, but rule 75B was - La Forest, J. (Dickson, C.J.C. and Wilson, J., concurring), found it unnecessary to determine whether the rules violated s. 2(d).

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Applications - Exceptions - Reasonable limits prescribed by law - [See Civil Rights - Topic 503 above].

Cases Noticed:

Reference Re Compulsory Arbitration (1984), 57 A.R. 268 (C.A.), refd to. [para. 18].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 24 C.C.C.(3d) 321; 50 C.R.(3d) 1; 26 D.L.R.(4th) 200, consd. [paras. 20, 108].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; [1985] 3 W.W.R. 481; 13 C.R.R. 64, appld. [para. 26].

Lawson v. Interior Tree Fruit and Vegetable Committee of Direction, [1931] S.C.R. 357, refd to. [para. 34].

Murphy v. Canadian Pacific Railway Co, [1958] S.C.R. 626, refd to. [para. 36].

Attorney-General for Manitoba v. Manitoba Egg and Poultry Association, [1971] S.C.R. 689, refd to. [para. 37].

Union Colliery Company of British Columbia v. Bryden, [1899] A.C. 580, refd to. [para. 38].

Cunningham v. Homma, [1903] A.C. 151, refd to. [para. 38].

Winner v. S.M.T. (Eastern) Ltd., [1951] S.C.R. 887, refd to. [para. 39].

Toomer v. Witsell (1948), 334 U.S. 385, refd to. [para. 44].

Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169; 3 O.A.C. 121, consd. [paras. 45, 105].

Malartic Hygrade Gold Mines Ltd. v. The Queen in Right of Quebec, [1982] C.S. 1146; 142 D.L.R.(3d) 512, refd to. [para. 50].

Basile v. Attorney-General of Nova Scotia (1984), 62 N.S.R.(2d) 410; 136 A.P.R. 410, refd to. [para. 52].

Skapinker v. Law Society of Upper Canada (1983), 145 D.L.R.(3d) 502 (Ont. C.A.), refd to. [para. 53].

Re Mia and Medical Services Commission of British Columbia (1985), 17 D.L.R. (4th) 385 (B.C.S.C.), refd to. [para. 56].

Wilson v. Medical Services Commission of British Columbia (1987), 9 B.C. L.R.(2d) 350, refd to. [para. 56].

Kerr v. Superintendent of Income Tax, [1942] S.C.R. 435, refd to. [para. 63].

Supreme Court of New Hampshire v. Piper, 470 U.S. 274, refd to. [para. 65].

Supreme Court of Virginia v. Friedman (1988), 56 U.S.L.W. 4669, refd to. [para. 65].

Ordre des Avocats au Barreau de Paris v. Klopp, [1985] 1 C.M.L.R. 99, refd to. [para. 66].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 78].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al. Frazier v. Heebe (1987), 96 L.Ed. 2d 557, refd to. [para. 85].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 2(d) [para. 1]; sect. 6 [para. 30]; sect. 63 [para. 69].

Legal Profession Act, R.S.A. 1980, c. L-9, sect. 93, sect. 96 [para. 82].

Constitution Act, 1867, sect. 121 [para. 35].

United States Constitution, art. IV [para. 44].

Authors and Works Noticed:

Creighton, D., British North America Act at Confederation: A Study Prepared for the Royal Commission on Dominion-Provincial Relation (1939), p. 40 [para. 34].

Safarian, Canadian Federalism and Economic Integration (1974) [para. 40].

Trebilcock, Federalism and the Canadian Economic Union (1983) [para. 40].

Trudeau, P.E., A Time for Action - Toward the Renewal of the Canadian Federation (1978) [para. 40].

Canadian Bar Association Committee on the Constitution, Towards a New Canada (1978) [para. 40].

Quebec Liberal Party Constitutional Committee, A New Canadian Federation (1980) [para. 40].

Canadian Unity Task Force, A Future Together - Observations and Recommendations (1970) [para. 40].

Chretien, Jean, Power Over the Economy: Securing the Canadian Economic Union in the Constitution (1980) [para. 40].

Hogg, Peter W., Canada Act 1982 Annotated (1982), pp. 25, 26 [para. 68].

Lee and Trebilcock, Economic Mobility and Constitutional Reform (1987), 37 U. of T. L.J. 268, p. 301 [para. 68].

Counsel:

R.A. McLennan, Q.C., B.R. Burrows and J.P. Rossall, for the appellant;

J.E. Redmond, Q.C., and T.W. Wakeling, for the respondents;

Yves deMontigny and Julien Frenette, for the Attorney General of Quebec.

Solicitors of Record:

McLennan Ross, Edmonton, Alberta, for the appellant;

Milner & Steer, Edmonton, Alberta, for the respondents;

Attorney General of Quebec, Ste-Foy, Quebec, for the intervenor.

This appeal was heard on March 22 and 23, 1988, before Dickson, C.J.C., Estey, McIntyre, Wilson, Le Dain, La Forest and L'Heureux-Dubé, JJ., of the Supreme Court of Canada.

On April 20, 1989, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

La Forest, J. (Dickson, C.J.C., and Wilson, J., concurring) - see paragraphs 1 to 102;

McIntyre, J. (L'Heureux-Dubé, J., concurring), dissenting in part - see paragraphs 103 to 110.

Estey and Le Dain, JJ., did not take part in the judgment.