BC Court Upholds Broad Investigative Powers

The highest court in British Columbia has upheld the broad scope of investigative powers for the legal regulator there. In A Lawyer v. The Law Society of British Columbia, 2021 BCCA 437 (CanLII), https://canlii.ca/t/jkg5x, a routine audit of a lawyer’s practice raised concerns about their allowing trust accounts to be used for money laundering, among other concerns. The investigator was appointed and, in essence, took copies of the entire electronic records of the firm. The practitioner argued that many of the records were irrelevant to the concerns used to initiate the investigation. The regulator responded that the investigation was not limited to the initial concerns and, in essence, the entire practice was under investigation.

The Court of Appeal upheld that the regulator could investigate the entire practice of the practitioner. This view was supported by “the plain words of s. 36(b), their statutory context, and the overarching purpose” of the legislation. A narrower interpretation “would frustrate the Law Society’s ability to regulate the profession and protect the public effectively.” The Court also rejected the argument that such a broad approach to the regulator’s investigative powers made the provisions inconsistent with the protections in the Canadian Charter of Rights and Freedoms against unreasonable search and seizure. In the context of a lessened expectation of privacy, a reasonable basis to commence the investigation and an opportunity to challenge the investigation later in the process if discipline proceedings resulted, the seizure was reasonable.

The Court also agreed that the application for judicial review was premature as the practitioner had not exhausted all of the internal mechanisms for limiting the use of the information seized.

This decision, while based in part on the specific language in the statute, reinforces recent case law that regulatory bodies have broad authority to investigate practitioners.

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