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Can Professional Associations Mandate Their Members’ Speech?
Employment Law

Can Professional Associations Mandate Their Members’ Speech?

Most professionals like engineers, doctors, pharmacists and lawyers are governed by professional associations. These professional associations actively engage in regulating their respective licensees to ensure a minimum level of competency with a view to protecting the public interest. Associations are also empowered to protect members of the public by maintaining the capacity to discipline and sanction their members. For instance, the Law Society of Ontario regulates the more than 50,000 lawyers who practice in the province and can investigate and sanction lawyers who have been found to violate the Society’s Rules of Professional Conduct or its By-Laws.

Accordingly, these professional associations are often well-placed to instill ongoing training requirements and disciplinary measures for acts or omissions that range from unprofessional, to negligent. Associations regularly articulate and amend rules of professional conduct that set out sanctions for missing the minimum levels of competency and professional care required.

But can these powers to regulate become overbearing? One recent example suggests that the answer is “yes.”

In late 2017, the Law Society of Ontario adopted a controversial rule requiring all lawyers to adopt and abide by a “Statement of Principles” – a statement advocating for equality, diversity and inclusion. The initiative caused a rift in the province’s legal community, sparking both backlash and adamant support amongst practitioners. As divisive as it may have been, the resulting volcanic eruption may well spark earthquakes in other professional associations in their attempts to reform and ‘modernize’ their professional bodies.

While the Law Society’s proposal was eventually abandoned, had it been put in force, lawyers who took a principled stance and objected to having their beliefs and ideas made up for them would presumably have faced some sort of disciplinary sanction.

Shortly after the mandate was publicized, law professor Ryan Alford sued the Law Society of Ontario in the Superior Court, seeking a series of declarations, including declarations that:

  • The Statement of Principles was beyond the law society’s jurisdiction to enact;
  • That the law society acknowledged the requirement was vague enough to be “inoperative”; and
  • That the Statement of Principles requirement infringed freedom of conscience and freedom of expression and did not “constitute a reasonable limit as can be demonstrably justified in a free and democratic society.”

The case faced procedural obstacles as Mr. Alford brought his application to the Superior Court, arguing that his application was a matter of constitutional freedoms which is under the jurisdiction of that court. However, the Statement of Principles mandate was an exercise of statutory power and thus subject to an application for judicial review in Divisional Court. The Judge reiterated that in Ontario, the procedure for attacking decisions of public administrative bodies is by way of judicial review:

“Convocation derives its authority to impose requirements on its members from the Law Society Act and from its general powers to manage its affairs.”[1]

The Medicine Act,[2] the Pharmacy Act,[3] and the Professional Engineers Act,[4] are similar statutes that grant legal powers to each respective association. Therefore, if similar mandates are introduced in any one of the professional associations that govern these professions, such mandates would also be deemed exercises of statutory power. Accordingly, the procedure for attacking such measures would also require an application for judicial review in the Divisional Court.

The core of judicial review is examining the extent to which courts will set aside decisions made by statutory decision-makers, either due to procedural failures or concerns with the substantive merits of the decision. Most likely, if Mr. Alford’s application challenging the Law Society’s measures proceeded to the Divisional Court, the court would have looked at the substantive merits of the Law Society’s decision to implement such an initiative.

The Constitution places limits on delegated decision making such as that exercised by the Law Society.  A delegated decision-making power and the manner it is exercised must be in accordance with the Canadian Charter of Rights and Freedoms (“Charter”) unless it can be “saved” by Section 1. In Doré v. Barreau du Québec, the Supreme Court of Canada noted that an adjudicated decision will be viewed as unreasonable if it fails to proportionately balance the statutory objective with the Charter right claimed by the party.

One similar case of a professional organization’s exercise of statutory decision making power being challenged in the Divisional Court was The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario.[5] In that case, the College of Physicians and Surgeons of Ontario (the “CPSO”) made policies of general application requiring physicians to make referrals to other physicians in situations where they did not wish to provide medical services due to “reasons of conscience or religion”. The process the CPSO followed in developing and adopting the policies was analogous to the one used by the Law Society of Ontario in implementing the Statement of Principles.

Judge Wilton-Siegel concluded that the limit on objecting religious physicians imposed by the effective referral requirements of the CPSO policy infringed the applicants’ Charter rights but was justified under Section 1. The goal of ensuring access to healthcare, in particular, equitable access to healthcare, was pressing and substantial enough to justify the encroachment on the applicants’ freedom of religion.

The Supreme Court of Canada has a distinguished and notable history of protecting free speech, and, especially, of protecting against compelled speech. In its landmark decision, National Bank of Canada v. Retail Clerks International Union et al (1984),[6] the Court articulated that forcing a bank to express opinions that it did not have “is totalitarian and as such alien to the tradition of free nations like Canada, even for the repression of the most serious crimes.”[7] These sentiments are all the more salient when the person compelled to speak is an individual, not a bank.

Takeaways

Going forward, similar mandates enacted by other professional organizations may very well be challenged by conscientious objectors. A challenge would have to be brought as an application for judicial review before the Divisional Court. The resulting decision may shape how professional organizations legally approach their attempts to reform their professions for years to come.

 

[1] Alford v. The Law Society of Upper Canada, 2018 ONSC 4269 at para 36.

[2] 1991, S.O. 1991, c. 30

[3] 1991, S.O. 1991, c. 36

[4] R.S.O. 1990, c. P.28

[5] 2018 ONSC 579

[6] 1989 CanLII 92 (SCC)

[7] Ibid. at p. 296

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