Jabour v. Law Society of British Columbia et al. and Attorney General of Canada et al.; Law Society of British Columbia et al. v. Attorney General of Canada et al. and Attorney General of Ontario et al., (1982) 43 N.R. 451 (SCC)

• Judge: Laskin, C.J.C., Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer, JJ.
• Court: Supreme Court (Canada)
• Case Date: August 09, 1982
• Jurisdiction: Canada (Federal)
• Citations: (1982), 43 N.R. 451 (SCC);[1982] ACS no 70;[1982] CarswellBC 133;66 CPR (2d) 1;137 DLR (3d) 1;1982 CanLII 29 (SCC);43 NR 451;[1982] 2 SCR 307;[1982] 5 WWR 289;37 BCLR 145;66 CER (2d) 1;15 ACWS (2d) 304;19 BLR 234;[1982] SCJ No 70 (QL)

Jabour v. B.C. Law Soc. (1982), 43 N.R. 451 (SCC)

MLB headnote and full text

Jabour v. Law Society of British Columbia et al. and Attorney General of Canada et al.; Law Society of British Columbia et al. v. Attorney General of Canada et al. and Attorney General of Ontario et al.

Indexed As: Jabour v. Law Society of British Columbia et al. and Attorney General of Canada et al.; Law Society of British Columbia et al. v. Attorney General of Canada et al. and Attorney General of Ontario et al.

Supreme Court of Canada

Laskin, C.J.C., Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer, JJ.

August 9, 1982.

Summary:

The Law Society of British Columbia disciplined one of its members, Donald E. Jabour, for placing certain advertisements respecting his practice. The disciplinary action resulted in an investigation against the Society by the Director of the Restrictive Trade Practices Commission under the Combines Investigation Act. The Society then brought an action against the Attorney General of Canada and Jabour brought an action against the Law Society for determination of whether the Combines Investigation Act applied to the Law Society of British Columbia and whether the Combines Investigation Act, if applicable, was intra vires the Parliament of Canada. The Society also raised the issue of whether the Federal Court of Canada, Trial Division, had exclusive jurisdiction over the relief claimed. Jabour also raised the issue of whether the restriction on his advertising of his practice contravened his right to freedom of speech. The British Columbia Supreme Court, Trial Division, held that the Combines Investigation Act was applicable to the Law Society and found that the Benchers had authority under the Legal Professions Act to regulate advertising but could not prohibit it. The British Columbia Court of Appeal disagreed and held that the Benchers had the power to prohibit the advertising in question and that the Combines Investigation Act was inapplicable to the regulation of the legal profession by the Society.

The Supreme Court of Canada dismissed the appeals of the Attorney General of Canada and Jabour, affirmed that the Combines Investigation Act was inapplicable in the circumstances, held that the Federal Court of Canada, Trial Division, did not have exclusive jurisdiction over the issues and held that Jabour's right to freedom of speech was not violated by the restriction of his advertising.

Barristers and Solicitors - Topic 7604

Regulation - General - Purpose of regulatory legislation - The Supreme Court of Canada held that the primary purpose of the B.C. Legal Professions Act was the establishment of protection of the general public with regard to the appraising of the need for and the effectiveness of legal services - See paragraph 40.

Barristers and Solicitors - Topic 7647

Regulation - Powers of governing bodies - Respecting advertising by members - The Supreme Court of Canada held that the Law Society of British Columbia had the power under the Legal Professions Act to regulate advertising by its members, which regulatory power included the power to prohibit - The court held that such regulation did not violate s. 32 of the Combines Investigation Act.

Civil Rights - Topic 1847

Freedom of speech - Limitations on - Regulation of advertising - The Supreme Court of Canada held that the regulation of advertising by lawyers by the Law Society of British Columbia under the Legal Professions Act was not an infringement of a lawyer's right to freedom of speech - See paragraphs 93 to 99.

Constitutional Law - Topic 3504

Paramountcy of federal statutes - General principles - Requirement of conflict or repugnancy - The Supreme Court of Canada held that, when a federal statute can be properly interpreted so as not to interfere with a provincial statute, such an interpretation should be applied in preference to another applicable construction, which would bring about a conflict between the two statutes - See paragraphs 67, 81.

Constitutional Law - Topic 5675

Federal jurisdiction - Regulation of trade and commerce - Maintenance of competition - The Supreme Court of Canada held that section 32 of the Combines Investigation Act respecting unlawful restrictions on advertising was inapplicable to the regulation of advertising by lawyers by the British Columbia Law Society under the Legal Professions Act.

Constitutional Law - Topic 6443

Federal jurisdiction - Criminal law - Matters criminal in nature - The Supreme Court of Canada held that s. 32 of the Combines Investigation Act respecting conspiracies or agreements to restrict trade or competition was criminal legislation - See paragraph 84.

Constitutional Law - Topic 7297

Provincial jurisdiction - Property and civil rights - Regulatory statutes - Professional associations - The Supreme Court of Canada held that the authority of the Law Society of British Columbia under the Legal Professions Act to regulate advertising by lawyers was within provincial jurisdiction and s. 32 of the Combines Investigation Act respecting illegal restraints on advertising was inapplicable to the Law Society - See paragraphs 53 to 89.

Courts - Topic 4028

Federal Court of Canada - Jurisdiction - Trial Division - Claims for relief against Crown - Federal Court Act, S.C. 1970-71-72, c. 11, ss. 2(m), 17, 18 - The Supreme Court of Canada held that ss. 17 and 18 of the Federal Court Act respecting the jurisdiction of the Federal Court of Canada, Trial Division, over claims for relief against the Crown did not restrict the jurisdiction of provincial Supreme Courts to entertain an action against the federal Crown for a declaration respecting the applicability of a federal statute - The court held further that a provincial Supreme Court could grant injunctive relief ancillary to declaratory relief without infringing the jurisdiction of the Federal Court of Canada, Trial Division, over injunctive relief - See paragraphs 17 to 32.

Courts - Topic 5688

Provincial courts - Jurisdiction - Federal legislation - Declaratory relief - The Supreme Court of Canada held that provincial Supreme Courts had jurisdiction to entertain actions for declarations respecting the constitutional validity or applicability of federal statutes - The court held further that a provincial Supreme Court could grant injunctive relief ancillary to declaratory relief without infringing the jurisdiction of the Federal Court of Canada, Trial Division - See paragraphs 17 to 32.

Trade Regulation - Topic 644

Competition - Advertising - Scope of federal legislation - Provincial professional associations - The Supreme Court of Canada held that s. 32 of the Combines Investigation Act respecting illegal restraints on advertising was inapplicable to the regulation of advertising by lawyers by the British Columbia Law Society under the Legal Professions Act.

Cases Noticed:

Dyson v. Attorney General, [1911] 1 K.B. 410 (C.A.), consd. [para. 21].

Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; 1 N.R. 225, consd. [para. 21].

R. v. Thomas Fuller Construction Co. (1958) Limited and Foundation Company of Canada Limited, [1980] 1 S.C.R. 695, consd. [para. 26].

Foundation Company of Canada Limited v. Canada and Thomas Fuller Construction Co. (1958) Limited, [1980] 1 S.C.R. 695, consd. [para. 26].

Attorney General of Canada et al. v. Canard, [1976] 1 S.C.R. 170; 4 N.R. 91, consd. [para. 27].

Denison Mines Limited v. Attorney General of Canada (1973), 32 D.L.R.(3d) 419, dist. [para. 29].

City of Hamilton v. Hamilton Harbour Commissioners, [1972] 3 O.R. 61, dist. [para. 29].

British Columbia Power Corporation Limited v. British Columbia Electric Company et al., [1962] S.C.R. 642, consd. [para. 31].

City of Toronto v. Bridgman, [1951] O.R. 489 (H. Ct.), consd. [para. 51].

R. v. Shamrock Fuel Company, [1924] 3 W.W.R. 454 (Sask. K.B.), consd. [para. 51].

Merchant v. Benchers of the Law Society of Saskatchewan, [1973] 2 W.W.R. 109, dist. [para. 52].

R. v. Chung Chuck, [1929] 1 D.L.R. 756, consd. [para. 69].

R. v. Simoneau (1935), 65 C.C.C. 19, consd. [para. 71].

Cherry v. The King ex rel. Wood (1937), 69 C.C.C. 219, consd. [para. 71].

Ontario Boys' Wear Ltd. v. The Advisory Committee, [1944] S.C.R. 349, consd. [para. 73].

Reference Re the Farm Products Marketing Act, [1957] S.C.R. 198, consd. [para. 75].

R. v. Can. Breweries Ltd., [1960] O.R. 601, consd. [paras. 77, 79, 98].

Dickson v. Pharmaceutical Society of Great Britain, [1968] 2 All E.R. 686 (H.L.), dist. [para. 84].

Goldfarb v. Virginia State Bar (1975), 421 U.S. 773, consd. [para. 86].

Bates v. State Bar of Arizona (1979), 433 U.S. 350, consd. [para. 86].

Parker v. Brown (1943), 317 U.S. 341, consd. [para. 87].

Reference to Alberta Statutes, [1938] S.C.R. 100, consd. [para. 94].

James v. Commonwealth, [1936] A.C. 578, consd. [para. 96].

Dupond v. City of Montreal, [1978] 2 S.C.R. 770; 19 N.R. 478, appld. [para. 97].

R. v. Bradley, [1941] S.C.R. 270, consd. [para. 23].

Valin v. Langlois (1879), 3 S.C.R. 1, consd. [para. 26].

Statutes Noticed:

Barristers and Solicitors Act, R.S.B.C. 1979, c. 26 - see Legal Professions Act below.

British North America Act, 1867, sect. 92(15), sect. 96, sect. 100 [para. 26].

Combines Investigation Act, R.S.C. 1970, c. C-23, sect. 2 [para. 54]; sect. 8 [para. 60]; sect. 32(1) [para. 54]; sect. 32(2), sect. 32(3) [para. 55]; sect. 32(6) [para. 56]; sect. 36 [para. 98].

Federal Court Act, S.C. 1970-71-72, c. 1, sect. 2(m), sect. 17, sect. 18 [para. 18].

Legal Professions Act, R.S.B.C. 1960, c. 214, sect. 1 [para. 5]; sect. 2(3), sect. 36, sect. 36A [para. 4]; sect. 37, sect. 43 [paras. 5, 81]; sect. 48(b), sect. 71 [para. 5].

Authors and Works Noticed:

Lederman, W.R., The Nature and Problems of a Bill of Rights, 37 Can. B. Rev. 4 [para. 96].

Wade, Administrative Law (4th Ed.), p. 500 [para. 21].

Counsel:

W.I.C. Binnie, Q.C., L.A.W. Hunter and Morris Rosenberg, for the appellants;

D.M.M. Goldie, Q.C., D.G.S. Rae and W.S. Martin, for the respondents;

Ian G. Scott, Q.C., for the intervenants Prepaid Legal Services Program of Canada;

Lorraine E. Weinrib and John Cavarzan, Q.C., for the Attorney General of Ontario;

Henri Brun, for the Attorney General of Quebec;

Bruce Judah, for the Attorney General of New Brunswick;

E.R.A. Edwards, for the Attorney General of British Columbia;

John D. Whyte, for the Attorney General of Saskatchewan;

William Henkel, Q.C., for the Attorney General of Alberta;

Brendan O'Brien, Q.C., for the Law Society of Upper Canada;

Marcel Cinq-Mars, Q.C., and E. Neil McKelvey, Q.C., for the Federation of Law Societies of Canada;

Bryan Williams, Emilio S. Binavince and Michael Mangan, for the appellants;

W.I.C. Binnie, Q.C., and L.A.W. Hunter, for the respondents;

J.A. MacAulay and A.D. Treleaven, for the intervenants The Law Society of B.C. et al.;

Morris Rosenberg, for the Attorney General of Canada;

Lorraine E. Weinrib, for the Attorney General of Ontario;

Henri Brun, for the Attorney General of Quebec;

Bruce Judah, for the Attorney General of New Brunswick;

E.R.A. Edwards, for the Attorney General of British Columbia;

John D. Whyte, for the Attorney General of Saskatchewan;

William Henkel, Q.C., for the Attorney General of Alberta.

This case was heard on May 25, 26 and 27, 1981, at Ottawa, Ontario, before LASKIN, C.J.C., MARTLAND, RITCHIE, DICKSON, BEETZ, ESTEY, McINTYRE, CHOUINARD and LAMER, JJ., of the Supreme Court of Canada.

On August 9, 1982, ESTEY, J., delivered the following judgment for the Supreme Court of Canada: