Part A of the NCA Syllabus on Canadian Professional Responsibility discusses the Law as a profession and the concept of professionalism. It is impossible to discuss the law as a profession without understanding the idea of self-regulation and the role it plays in today’s legal practice.

Self-regulation is the framework for regulation of lawyers in Canada, a regulation of lawyers by lawyers. It is defined in the prescribed text by Alice Woolley et al.^[1] as the control, direction, or governance of an identifiable group by rules and regulations determined by the members of the group, in the area of law. It takes on the form of autonomous governing bodies, known as law societies in the Common Law Provinces in Canada.

Professions are considered different from occupations in that they function with the public’s interest at their core, their services must be provided at the highest ethical standards by persons competent and qualified to offer such services. To ascertain this competence, various educational evaluations are undertaken as well as requirements fulfilled for licensing. This relationship between the profession, its members and the State creates a social contract that allows the profession to enjoy monopoly or dominate the market.

Various fields considered as professions enjoy these traits and exemplify similar characteristics to the legal profession, these characteristics are:

Continue reading “Self-Regulation: Its importance in the discussion of Lawyers Ethics” →

Every February, people across Canada, as in the United States, participate in Black History Month events and festivities that honour the legacy of Black Canadians and their communities. Few people in Canada are aware of the fact that African people were once enslaved in the territory that is now known as Canada, or of how those who fought enslavement helped to lay the foundation of Canada’s diverse and inclusive society.

Without a doubt, the celebration and recognition of the historic contributions of the Black People in Canada is a giant step towards integrating Black Canadians into the society, and combating the historic injustice against them. However, to make any meaningful impact, we need to do more to combat the systemic and institutional racism facing the Black people in Canada.

We know from our studies of legal realism and critical legal studies that law in the books is different from law in practice. While section 15 of the Canadian Charter of Rights and Freedoms and the Human Rights Codes across provinces guarantee equality rights and freedom from discrimination, let us face it, Black Canadians have not equally enjoyed these rights in practice.

Over the last two years, the revision to the Foundations syllabus has shifted its focus from institutional discriminations against other racialized groups and visible minorities such as Arabs and Muslims to anti-Black racism. This is a welcome development. As a practical matter, it is important for people aspiring to practice law in Canada to be aware of the daily societal issues confronting the Black communities in Canada so as to better represent them. Continue reading “Black History Month: Why It Should Matter to Foundations of Canadian Law students” →

It is trite that the Supreme Court of Canada’s decision in Vavilov v. Canada (Citizenship and Immigration) altered the standard of review selection process. To reiterate, the majority of the Court set out a simplistic approach to the law relating to standard of review which had been marred by several inconsistencies in approach and application. Based on the new approach, the presumptive standard is the standard of reasonableness which may be rebutted by one of the two major categories of rebuttals set out by the court – legislative intent or by the rule of law. These categories of rebuttals also have sub-categories under them, one of the rebuttals under the legislative intent category is the provision of a statutory right of appeal in the enabling statute of the administrative decision maker. The general sub-categories of rebuttals will not be the focus of our discussion.

The Supreme Court in Vavilov recognized the importance of statutory rights of appeal and how it can give the necessary effect to the intent of the law makers. Recall that in the past there has always been a sort of back and forth between the Courts and the law makers with regards to the decisions of the administrative decision makers. On the one hand, the law makers are trying to maintain their parliamentary supremacy while the Courts are seeking to maintain the rule of law. The shift in Vavilov to recognize legislative intent as a determinant of the selection standard signaled the fact that the Courts are now considering the impact of the decisions on the law makers. The Court described this shift in Vavilov as,

“necessary in order to bring coherence and conceptual balance to the standard of review analysis and is justified by weighing the values of certainty and correctness. First, there has been significant and valid judicial and academic criticism of the Court’s recent approach to statutory appeal rights and of the inconsistency inherent in a standard of review framework based on legislative intent that otherwise declines to give meaning to an express statutory right of appeal. Second, there is no satisfactory justification for the recent trend in the Court’s jurisprudence to give no effect to statutory rights of appeal in the standard of review analysis, absent exceptional wording. More generally, there is no convincing reason to presume that legislatures mean something entirely different when they use the word “appeal” in an administrative law statute. Accepting that the legislature intends an appellate standard of review to be applied also helps to explain why many statutes provide for both appeal and judicial review mechanisms, thereby indicating two roles for reviewing courts. Finally, because the presumption of reasonableness review is no longer premised upon notions of relative expertise and is now based on respect for the legislature’s institutional design choice, departing from the presumption of reasonableness review in the context of a statutory appeal respects this legislative choice.”

Continue reading “Vavilov and Statutory Appeals: Clarity or Complication?” →

If you are planning to write the NCA Foundations of Canadian Law exams in January 2021 and beyond, please note that the NCA has updated its syllabus as of November 2020.  Notably, the text Forcese, Dodek et al, Public Law: Cases, Commentary, and Analysis now has a fourth edition (v previous third edition). About 12 new articles and 5 new cases have been added, while about 8 articles have been deleted, markedly from chapters 2 and 10.  All articles relating to Bill C- 262 in Chapter 2 have been deleted. Chapter 10 saw all but 1 article replaced by new ones.

It is the responsibility of students to obtain the most UpToDate version of the syllabus. The NCA retains the right to update its syllabus at anytime without notice. Details of the syllabus as of November 2020 can be obtained on https://nca.legal/wp-content/uploads/2020/11/Foundations-2021-.pdf. NCA Guides remains committed to guiding students through the NCA process.

You can register for our intensive classes here.

Below are highlight of some the changes that were made:

Continue reading “Changes to the Foundations of Canadian Law Syllabus” →

Someone asked a question – In a question relating to Standard of Review, do we just have to fulfill the requirements of the Vavilov test, or do we have to get into the Dore/Loyola Framework as well?

According to Vavilov para 57, the standard of review where the issue on review is whether a provision of the decision maker’s enabling statute violates the Charter should be reviewed on a correctness standard but the Vavilov decision is silent on what to do when the effect of the administrative decision being reviewed is to unjustifiably limit rights under the Canadian Charter of Rights and Freedoms. We have seen this scenario play out previously when the Supreme Court revived the pragmatic and functional factors without clarifying the faith and future application of the assumptions under Dunsmuir. Just like it was done before, the principle continues to apply until the SCC clarifies its position on its application.

There are however a few issues to reconcile:

Continue reading “Dore/Loyola or Vavilov?” →