The Law Society Of British Columbia v The Society of Notaries Public of British Columbia: Intervener Granted Standing to Appeal Order

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On June 12, 2014, a panel of the British Columbia Court of Appeal delivered its oral reasons in The Law Society Of British Columbia v The Society of Notaries Public of British Columbia, 2014 BCCA 233, granting standing to an intervener to bring an appeal based on the generality of the language of the order.

On July 8, 2013, the British Columbia Supreme Court granted the Law Society of British Columbia an injunction prohibiting Ms. MacDonald, a notary public, from engaging in the practice of law not authorized by the Notaries Act, RSBC 1996, c 334, as it relates to the drawing, revising or settling of wills.

The chambers judge found that Ms. MacDonald had violated section 18(b)(i) of the Notaries Act by drafting a will which contained life estate clauses. As a result, the chambers judge found that Ms. MacDonald had violated section 15 of the Legal Profession Act. The order by the chambers judge tracked the language of sections 1 and 15 of the Legal Profession Act, but failed to explicitly state that a notary public is prohibited from drafting a will which includes a life estate clause by virtue of section 18(b)(i) of the Notaries Act.

The Society of Notaries of British Columbia, which intervened in the injunction proceeding, sought to appeal the chamber judge’s order and decision, particularly those parts of the order and decision which related to the interpretation of section 18 of the Notaries Act.

A panel of the British Columbia Court of Appeal stated that since the Society of Notaries of British Columbia was not a party to the litigation, but rather an intervener, it did not have a right to bring an appeal. As such, the court must determine whether or not the intervener should be granted standing to being an appeal. In order to determine the standing of an intervener, a division of the court is required. Indeed, as stated by the Court of Appeal:

[8] As the question of standing might lead to quashing an appeal, it is a question that must be determined by a division of the Court.

The panel decided to grant standing to the Society of Notaries of British Columbia on the basis that the language of the order did not track the detailed reasons for judgment.

[15]… In order for any notary to know what was specifically prohibited by the order, he or she would have to read the reasons for judgment. Similarly, to enforce the order, the Law Society would have to have reference to the reasons for judgment.

[16] …the fact that the form of the order could effectively bar an appeal from the underlying interpretation of the Notaries Act, even by a notary who is the subject of an injunction, suggests that this is an appropriate case to be heard by this Court, which may wish to consider whether the form of the order should be more particularized.

Finally, the panel of the British Columbia Court of Appeal noted that granting standing may be the most efficient means to bring the question of interpretation of the Notaries Act before this court. Indeed, without standing, the Society of Notaries of British Columbia would have to commence a petition seeking a declaration interpreting section 18 of the Notaries Act and would face the decision of the chambers judge which would never have been appealed.

Topics:  Appeals, Canada, Oral Argument

Published In: Civil Procedure Updates, Civil Remedies Updates, Constitutional Law Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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