 This singing of the Supreme Moved Court of Dalhousie at Halifax with the Honorable Justice John Podersa, the Honorable Justice M. Jill Hamilton, and Ms. Kerry Ricker, now for driving, is now open. All persons who have anything to do with it, draw near and give your attendance, and ye shall be heard. God save the dean. I'd just like to welcome everybody. It's one of the most prestigious moving events. I'll mention some previous speakers who have been a trailblazer such as Justice Christopher Wilson, first woman of the Supreme Moved Court of Dalhousie. Some other names that some students here might be familiar with including former dean of the Charles, professor of the Starship Hall, professor of the King, professor of the St. Thomas, and St. Pop. We're honored to have our bench with us this year, composed of the Honorable Justice M. Jill Hamilton from the Honorable Court of Dalhousie. The Honorable Justice John Podersa, the Honorable Moved Court of Dalhousie, and Ms. Kerry Ricker, who's the president of the Moved Court of Dalhousie Society. I thank each of them for lending their considerable time and their talents to the students today. Also, thank you to Stephen Kelly for funding this year's event. This year's representative, Mr. John Shanks, and all of us. And thank you also to my colleague Professor Andrew Martin for bearing this year's problem and for my sister, Ashley Pinching, and Elizabeth Stamper, who did really a ton of organizing for this event. Just to let you know that we're being recorded and audio taped and video taped, so now we have a good time to turn on the phones, which we haven't already done so. The follow-up in the Moved photos would be taken with everybody down here in the front and it would be kind of a long kit for a few minutes. Reception will then be held in the faculty lounge up on the third floor, and everybody's invited to do that. I should tell you that, unfortunately, we can't get Martin to do that reception, but anyway, it's still going to be fun. So, don't forget to bring in the ladies and gentlemen to our questions here today. Mark Lewis on the proctor, Raymond Langer and Mary Marston. So welcome everybody. This case that's being heard by the Supreme Court of Dalhousie this evening is this case of Steve Steele, the appellant, versus the Nova Scotia Barrister Society, and as counsel for the appellant is Mark Lewis and Tony Proctor, there for the appellant, and counsel for the respondent is Rayleen Langore and Marin Marsland. So I think, counsel, if there's no preliminary matters, we'll hear first from you, Mr. Lewis. Thank you, my lady. When the lower courts determined that the Nova Scotia Barrister Society did not owe a duty of care to its member, Mr. Steve Steele, in the tort of negligent investigation, it did the public a disservice. The appellant agrees with the respondent that the law society must fearlessly advocate in the public interest as a component of an independent and impartial judiciary. However, despite my friend's assertion, recognizing the duty of care for negligent investigation would not limit the law society's ability to self-regulate in the public interest. The appellant will show that recognizing a duty of care would benefit the public by incentivizing the law society to take care in its investigations. The harm Mr. Steele suffered was foreseeable. The relationship between himself and the law society was sufficiently proximate, and there are no residual policy considerations which would negate a prima facie duty of care. My friend has conflated the privilege of self-regulation with an absence of accountability. The law society cannot be answerable to the government, but it must be answerable to the public. With respect to foreseeability, it's plain and obvious that a negligent investigation could result in the society laying a false charge on the person being investigated, which would cause them harm. The foreseeability analysis poses no barrier to the imposition of a duty of care on these facts. At this very broad step of the test for determining whether or not we the court should apply a duty of care, there is nothing that meaningfully distinguishes this matter from the matter in Hill where negligent investigation was also recognized. Cooper, the leading case on what's been come to know as the ANS test, or the test for imposing a duty of care, considers policy factors particular to the specific relationship such that the tort freezer ought to have had the injured party in mind as someone who they may have harmed had they been careless. There are two strong factors that support the finding of a sufficiently proximate relationship in this matter. The first is the effect of the NSBS's statutory mandate to regulate the legal profession in the public interest. The second are the applicable common law factors that case law have genuinely considered to be relevant when determining whether or not to affix a duty of care on a particular relationship. At all times the proximity analysis focuses on whether the law society should have had Mr. Steele in mind as someone who would have been harmed had they behaved carelessly, and then this is the neighbor principle first articulated in Donahue v. Stevenson. Cooper held that if a statutory entity is to owe a duty of care to an individual, then it is essential that the proposed duty flow from the entity's enabling statute. The respondent states that distinct public bodies have distinct statutory mandates, and in this the appellant agrees. The NSBS is created under the Legal Profession Act, section four of which reads, the purpose of the law society is to uphold and protect the public interest in the practice of law. It's the appellant's contention therefore that if imposing a duty of care in the tort of negligent investigation on lawyers being investigated by the society upholds and protects the public interest in the practice of law, then a duty of care to the particularized suspect of an investigation flows through the LPA. The appellant submits that the public does not have an interest in a negligently performed investigation. The public wants a reasonable, prudent legal regulator. The public needs to be protected from incompetent and unethical practice in law. And in order to do this investigations into professional misconduct need to be effective. A duty of care would incentivize prudence by allowing consequences for recklessness. Council, would you say that it's effective for the Nova Scotia Barrister Society to essentially be investigating claims from lawyers or disgruntled lawyers who can then claim negligent investigation at any point in time? I mean, I see what your point is but at some point who is going to foot the bill for the society? Are you going to increase legal membership fees for lawyers? Well, it's the appellant's contention that the proposed duty of care isn't very broad and the fees would not need to substantially increase if at all. There are several factors that would, in fact, that suggest the proposed duty of care is quite narrow. One of the most important of which is the immunity provision in the LPA. The respondents highlighted this provision in their factum as evidence that it was the intention of the legislature to leave the law society immune from any and all private action in tort. This isn't entirely accurate. It's the appellant's contention that this is a mischaracterization. The Section 81 which provides the immunity provision is not an absolute immunity provision but it is a substantial one. Short of a breach of the standard of care amounting to gross negligence, the law society is immune from any action in tort. Therefore, the only people who would be subject, who would be able to access that remedy are those who were truly wronged and it is truly imperative to give them a remedy. Thank you. Thank you, my lord. Council, can I ask you a bit more about that and particularly about the subset of cases that you refer to and your suggestion that it would be relatively narrow? My concern in looking at this is the stage at which the investigation is being called into question. As happened in this case, that occurred at the point that charges had been laid but it had not yet gone to a final determination. So is there not a concern that to uphold the duty of care as you're suggesting in this case would allow for any lawyer who's subject to charges to essentially delay a hearing of those charges by alleging some deficiency in the investigation and even if not ultimately successful could delay for quite a long period of time through civil litigation a finding that ultimately serves the public interest? It is true that Mr. Steele brought his action before the matter was heard by the hearing committee but as was found in the lower courts, the damage Mr. Steele suffered was irreparable to the degree that judicial review and the other remedies that had he gone through the procedure he wouldn't have been adequately compensated. It's true that any lawyer disgruntled or otherwise could bring an action after they've been charged but as it currently stands right now, any lawyer can bring an action against the law society but that doesn't necessarily mean it would be successful. By recognizing the duty of care however, the court would be encouraging prudence in investigations and would incentivize the law society to behave more carefully and in behaving more carefully would mount a stronger defense against any allegations of negligence. Thank you. Lawyers also play a very unique role in society and our community gives significant personal there are significant personal interests that our community of legal professionals has around honesty and the importance of honesty to the legal profession. The charge of professional misconduct had profound implications for Mr. Steele's honesty and Mr. Steele's reputation and these are fundamental qualities for his ability to earn his living as a lawyer. A lawyer's professional role differs from that of a social worker or an orthopedic specialist or any other professional role to the degree which honesty and trust is the core foundation between the client and the lawyer. The solicitor-client relationship is built on an absolute bedrock of trust. If there is any allegation that the lawyer may not act in the fiduciary interest of the client and put the client's interest ahead of the lawyer, that will affect that client's ability to be candid with the lawyer. It's very important that a client feel comfortable to tell their lawyer everything about their story. The elements that make them look favorable and the elements that make them look disfavorable. If the lawyer doesn't know everything, the lawyer cannot act in that client's best interest by mounting their case or giving them advice. So had Mr. Steele eventually gone through his hearing and been cleared, the doubt that would remain in the minds of many is such that had he returned to professional work, they may not have been entirely candid with them and he may not have been able to provide the quality of legal representation that those clients deserved. Council, wouldn't the nature of the trust relationship and the importance of that honesty say that the Barrister Society should react quickly in an investigation situation, particularly where something like trust funds are at issue? And so shouldn't we be balancing that obligation to perhaps act quickly in the public interest, which might go against a more fulsome investigation? And isn't that a risk if we impose the duty of care? It is the appellant's position that there is a distinction between speed and negligence. It is imperative that the Barrister Society act quickly, but in the facts of the matter at hand, it was Mr. Steele who first alerted the Barrister Society of the Missing Funds and it was Mr. Steele who provided his explanation for what happened to them. The Barrister Society could have looked into his explanation for the Missing Funds just as quickly as it could have accused him of professional misconduct. It wasn't the speed of the investigation here that was the negligence, it was the lack of serious investigation that actually took place. Without any accountability to the individual being investigated, there is no accountability to the public and there isn't any balance, there's a distinct lack of it. And that is what an imposition of a duty of care would, that is the benefit that an imposition of duty of care would give investigations. Once a prima facie duty of care has been established, the court tells us in Cooper that we are to next look to residual policy considerations to determine whether or not any are sufficiently relevant to or important to negate that prima facie duty. Here the impellant puts the onus squarely on the respondent and suggests that the policy considerations the respondent has raised are speculative and not sufficiently likely to give rise to negate that prima facie duty. It's important that the respondent here proves on a balance of probabilities that it is more likely than not that what they say will happen will happen to the degrees such that we should negate the duty. The respondent asserts that flood gates will open and the Barrister society and the courts as a whole will be overwhelmed by the perspective litigation. In reality the proposed expansion of the duty of care is quite small. We are dealing with not individuals who have been charged with negligence who have been charged with professional misconduct. We are only interested in individuals who have been charged on an account of a negligent investigation. So this is a subset of an already privileged professional class coupled with the immunity provision as previously replied to. There is not a serious risk of massive expansion of liability on the part of the law society. Furthermore, the respondent alleges that the law society will be limited in its ability to self-regulate in the public interest should a duty of care be recognized. In this regard, it's the appellant's suggestion that there is a difference between the operational and policy creation functions of the Nova Scotia Barrister society. Hill highlighted the defining aspects of the investigatory process. Gathering and evaluating evidence, these are operational in nature and they go to policy and action rather than policy creation. It is true that the law society does have broad discretion to regulate itself and its members and creates its regulations with little oversight from the legislature. But the actual actions involved in collecting information, in evaluating whether or not there is a case of professional misconduct in relation to missing trust funds, these aren't the kind of broad policy-driven considerations that the respondent alleges they are. They're minor policy and action operational decisions. So by applying a duty of care to these actions, there is not a serious risk that the independence of the law society from the state and as a consequence the independence of the judiciary are threatened by the proposed duty. A remedy for Mr. Steele on these facts would be quite narrow. The respondent's position states that it is a risk of the practice of law to that catastrophe can strike you as a lawyer at any time. My friend states that to hold otherwise would be to upset the delicate balance that the legislature has created between the law society and the courts and the public at large. With respect to that position, without accountability, there is no balance. In order for the appellant to have any remedy, it is imperative that the court recognize the duty of care for the tort of negligent investigation. The respondent may feel that just because this duty, this category of a duty, has yet to be recognized that precedent is on its side. It's the appellant's assertion, however, that justice is on his. The public cares about fairness and effective regulation and is the interest of the public not of the society charged with protecting it that should be determinative in the matter. Thank you. Thank you, Mr. Lewis. Ms. Proctor. Good evening, Justices. My name is Tanya Proctor and I'm here tonight to represent the appellant, Mr. Steve Steele, in the second matter before the court this evening, which is whether the Nova Scotia Barrister Society has unjustifiably infringed Mr. Steele's Section 2B Charter Right to Freedom of Expression. The Barrister Society concedes that Rule 4.2-1 infringes Mr. Steele's Right to Freedom of Expression under the Charter, which means the matter that we're here tonight to resolve is whether the Barrister Society can demonstrate that this infringement and the right Mr. Steele has that's enshrined in the Charter is a reasonable limit that can be justified under Section 1. The Barrister Society claims that the objective of Rule 4.2-1 is to uphold a high standard of professionalism in the public's best interest. Rule 4.2-1, however, doesn't say a lot about protecting the public. This rule that regulates advertising for lawyers, it precludes lawyers from lying in advertisements, it precludes them from misleading the public in their advertisements, but it doesn't do anything to protect the public directly. Particularly in the commentary of the rule, it sets limits for how lawyers are allowed to behave, how they're allowed to present publicly through their advertisements. Doesn't it protect the public to the extent that it prevents misleading advertising? Certainly it does. The public is already protected from misleading advertising and from false advertising by the Competition Act. Anybody who puts out false advertising is going to be charged with a regulatory offence. Which is all fine and well, except this is a self-regulating society. It wouldn't be within its power to bring a prosecution under the Competition Act. So doesn't it have to have something in its policy that it can bring the charge under? With respect, it's the appellant's position that Rule 4.2-1 is unnecessary in the Code of Conduct that without this rule the public would be best served by the Competition Act directly prosecuting any lawyers that participate in false advertising. Thank you. Some examples of behavior that is caught by Rule 4.2-1 show that this rule is unconcerned with protecting the public but more with the reputation that the legal profession has in the community. Mr. Steele's slogan, tougher than Steele, is an excellent example of this. Tougher than Steele, the slogan, if somebody sees this on an ad, if somebody sees this on the side of a bus, nobody's being hurt by this. Somebody can see it and roll their eyes and move along with their day and they'll be fine. If somebody retains Mr. Steele as a result of this slogan and they're disappointed with the lack of humor that he has when he gets into his office, they're free to go elsewhere. So do you see the slogan as being one of the frameworks of the legal profession being zealous advocacy? Is that your position? When you see tough as Steele, is that the interpretation that you assume the public is going to take that Mr. Steele is a zealot advocate and will go to the limits for his client? I would say that's one interpretation that people could interpret the slogan as, certainly. Zealous advocacy, yeah, I think many members of the public would look at that and see that Mr. Steele perhaps is tough, that he's able to provide a strong defense, that he is committed to his clients. These are good things, these are things that lawyers should be able to talk about in their advertisements. And if there's any concern, do you believe the Competition Act is the remedy? The Competition Act is an excellent remedy for false advertising, certainly. Anything below false advertising doesn't harm people. That's the limit that Parliament and Canadians as a society have decided that we are okay with infringing on freedom of expression. Anything that doesn't hurt people should be allowed. Isn't the Barrister Society's concern that there is harm to the extent that it reduces the trust and respect that people have generally for the profession? Your colleague spoke about lawyers having a different position than, say, social workers, that there is that honesty, that trust, that kind of privileged position. And so isn't there concern that it's a harm? Then if I agree with you that sort of on an individual basis, we might say, oh, it's kind of a joke that the society has a reasonable role to play in mitigating the harm of the public generally viewing lawyers as, you know, kind of not as professional as we would like. So your question is, I'm sorry, could you repeat the question? Absolutely. My question is, does the society not view the harm, not necessarily of an individual to Mr. Steele, but the harm overall to the profession? And that's the purpose of roll 4.2, so the one. Certainly. So the reputation of the profession is not at risk here with respect and with great respect. How so? Certainly. So the idea of professionalism that the Nova Scotia Barristers Society has decided on, that it is enforcing through this rule and its commentary, is one version of professionalism. This is a version of professionalism that was decided on decades ago when the bar was frankly quite a bit more homogenous than it is right now. This is a version of professionalism that not even every lawyer I would suggest to work with, let alone every member of the public. So in this regard, funny slogans on advertising, suggestions of being affiliated with an actor, these are not things that are going to make the public think more lowly of the legal profession. Things that could make the public think more highly of the legal profession are things like improving access to justice. Something that could be improved on by allowing lawyers to be a little bit more accessible with their advertising and to appeal to communities that they might not otherwise be able to appeal to now. Thank you. The objective of rule 4.2-1 is therefore to uphold a certain image of professionalism that the Nova Scotia Barristers Society has decided on. This is not a sufficiently pressing and substantial objective to warrant limiting Mr. Steele's section 2B charter rights. As I've just discussed, this image of professionalism is not only not important enough, but it is directly antithetical to the values of free speech that are enshrined in section 2B. As I've just said, this rule, not only it silences certain groups of people, it doesn't allow certain groups of people who don't fit within that circle of professionalism to express themselves in their advertisements. If we look at other cases where pressing and substantial objectives have been found to warrant limiting 2B rights, we can see situations like protecting children from being manipulated by advertising in Irwin Toy, protecting people from buying more cigarettes that give them lung cancer in R.J.R. McDonald, preventing a high school teacher from being able to spread lies in his classroom and hate speech. These are extremely important objectives. The objective of upholding one version of professionalism and holding all members of the bar to a uniform standard that they may or may not agree with is not a pressing and substantial objective. I might agree with you with respect to steel supreme advocacy or nothing's tougher than steel, but in terms of the official law firm of the Halifax Wanderers FC, would you say that is misleading? Which is, I mean, part of the regulation is to prevent misleading advertising. Is that the official law firm of the Halifax Wanderers FC? Is that misleading? It could be. It could be misleading. So isn't it important that the bar society regulate that for the public in the public interest? If the level that Mr. Steele's advertising is misleading doesn't approach the level that he could be prosecuted under the Competition Act, then it is not sufficiently significant to be regulated by the bar society. The suggestion of being affiliated with the Halifax Wanderers is a fairly common advertising technique. Canadians are smart. They see advertising all the time. They know how it works. They've likely seen this technique many, many times before. What enters their head is probably just some vague idea of a relationship. I would suggest that the average Canadian, when seeing this slogan, this relationship with the Halifax Wanderers, they wouldn't automatically think, okay, so Mr. Steele definitely represents them then. So that's why I want to go to Mr. Steele. I would suggest that they would spend a couple seconds thinking about this and then move on with their day. But does Hirm have to reach the level of an offense under the Competition Act before the profession is Hirm? With respect to advertising, yes. So should this Honorable Court not accept my proposition that the objective of professionalism for its own sake is not a pressing and substantial objective? The analysis under the Section 1 Oaks test moves to the balancing stage. So at this stage, the court will examine whether the objective of the rule is rationally connected to its effect, whether the rule is minimally impairing on the charter rates at stake, and whether the salutary effects of the rule outweigh the deleterious effects of the rule. I'm going to start with minimal impairment. Rule 4.2-1, even if the objective of the rule is professionalism, this rule catches all kinds of behavior that have nothing to do with professionalism. A professional lawyer is one that has excellent relationships with their clients, one that is prepared when they go to trial, one that will fight zealously on behalf of their client. Something like putting an advertisement out that says that he's tougher than Steele has nothing to do with how professional he is. Mr. Steele could be an excellent advocate and still put out this advertisement and find himself in a professional misconduct hearing. Doesn't the LPA essentially say that the Barrister's Society are the right people to determine that definition of professionalism? Yes, it does. Wrongly, I would say. Section 4.1 of the Legal Profession Act is based on this assumption that the Barrister's Society's definition of professionalism that it decided on a long time ago when it decided we had to wear these is... So are you warm as practice? Yes. Very warm. Yes, this is based on an assumption that the Nova Scotia Barrister's Society is correct and it's assessment of what is professional and it's the appellant's position that the Nova Scotia Barrister's Society has a lot of work to do to show that this infringement can be justified. Suggestions of aggression is also caught by this rule. This is what Mr. Steele is in trouble for here today with tougher than steel. Suggestions of aggression can be helpful to some people. Maybe some people feel wronged by the system. They need a lawyer that will fight for them, that will promise to fight for them. Perhaps some people wouldn't be willing to retain a lawyer that they didn't think was going to go to bat for them. So a lawyer can be extremely professional and also suggest aggression in his ads. Suggesting superiority among lawyers as well, which is part B of the commentary. Also, lawyers can be extremely professional and also suggest and tell the truth about their abilities that they are excellent lawyers. This is the entire point of advertising. This is why people put ads out to convince people to retain their services over those of another person. Again, Canadians are intelligent. They know how advertising works. They know that if somebody tells them that they're smart and this is the same person that says, please give me money for what I'm proposing to do, then maybe it's a good idea to double check that claim. So no Canadian is going to be harmed and a lawyer who suggests superiority can be extremely professional. In addition, it's open to the Barrister Society to write its code of conduct and this section in such a way that impairs the appellant's rights less, which is the definition of minimal impairment and the requirement of minimal impairment. In this case, it includes the regulation of advertising for the reason of upholding this version of professionalism. It's open to the Barrister Society to leave that to the Competition Act to take care of and to regulate what it does best, which is lawyer conduct in the courtroom towards clients between lawyers. It's also open to the Barrister Society to write this particular rule in a more narrow way, to remove these requirements of aggression, to remove these requirements of talking about superiority. The Barrister Society can write this code of conduct more narrowly to impede freedom of speech less and it needs to do so in order to justify this infringement. Lastly, the effects of this rule are significant on both lawyers and the public. In this case, as it is with this rule of 4.2-1, lawyer ads all look the same. The only thing they're allowed to put on their ads is things like a phone number, an address maybe, and the most benign of slogans that nobody could interpret as aggressive. The public also has protection under Section 2B. As we know, it protects listeners as well as speakers and in this case, the public is being wronged because it doesn't have access to the kind of information it needs to make a responsible choice about who to retain as counsel. Who to retain as counsel is a critical decision. When you find yourself in legal problems, you deserve to be able to find someone that you can communicate with and resonate with and somebody that you feel comfortable with. Or someone that could potentially rip you off. Yes, and... It's a fair comment. Yes, I see you know Mr. Steele. He says he's tough as nails, tough as steel. You get the individual comes, sees the advertisement, hires him, pays a substantial amount of money, and then ultimately is misled by that advertising. And you're saying that the remedy is that individual comes to the Bar Society, which is there to protect the public interest. The Bar Society says we're not in that business. Go file an action at the competition act. And that's the remedy that that individual has? So there's no allegation that Mr. Steele is incompetent. If a person were to see the slogan that says tough as steel and go to him under that, under the impression that he was tough enough to help him, I suppose, there's no allegation that they would be disappointed that they would not receive adequate legal services. So they would perhaps be disappointed that they didn't live up to their idea of what tougher than steel would count as. Well, I'm not saying this applies particularly to Mr. Steele. Maybe you will get good legal representation from Mr. Steele, but what I'm saying is you're looking to have that section struck. And so then what is to stop somebody else? Mr. Iron misses something else to come out and essentially mislead the public. And where I struggle with this, you're saying that an individual can advertise, but what would the individual who falsely advertises, and where I'm struggling is the remedy you're saying is that it's not for the society to step in. That individual is left out there on their own, and then they must go to the competition act, go through that litigation with the hopes of ultimately being successful. And I guess is that your position? Is that what your argument is? It is. Yeah, it is. If the misleading advertising was severe enough, the Crown would press charges and the individual would be subject to a regulatory charge. It wouldn't be up to the individual to start that on their own. It would be up to the Crown. In addition, over and above all of that, freedom of expression is a precious, precious value. If we're going to protect the value in Section 2B, there are probably going to be some people who mislead people. It's the appellant's position that this is a small price to pay. So to conclude, the objective of Rule 4.2-1 is to uphold an arbitrary vision of what professionalism means, which is not a sufficiently pressing and substantial objective. In addition, the rule is not minimally impairing, and the deleterious effects of the rule outweigh the salutary effects of this rule. The appellant would ask this Honorable Court to overturn the findings of the trial judge and declare that Section 4.2-1 is unconstitutional and of no force and effect. Subject to further questions, those are my submissions. No further questions, I don't think. No, thank you. Thank you. So thank you, Mr. Lewis and Ms. Proctor. Again, we will now hear from the respondents. My name is Raylene Langer. Is that how you pronounce it, Langer? Langer. Langer. Yes. Whenever you're ready. Good evening, Justices. My name is Raylene Langer, and I will be representing the respondent, the Nova Scotia Barrister Society, this evening. I will address the first issue, which involves whether or not the tort of negligent investigation should apply against the Barrister Society. The correct determination of this appeal requires this Honorable Court to recognize the unique and privileged position that lawyers hold in society, and the essential role of the Nova Scotia Barrister Society in regulating the legal profession. The right to practice law is not based in property and it is not based in common law. It is a statutory right that is entirely based on the principles outlined in the Barrister Society's governing statute, the Legal Profession Act. Through an application of the ANS test, I will first show that there is insufficient proximity between Mr. Steele and the Barrister Society to warrant the finding of a prima facie duty of care. Second, I will move to the second stage of the ANS test to show that even if this Court were to find a prima facie duty of care, it would be negated at the second stage due to residual policy considerations. So do I understand you to be saying that you agree that it's reasonably foreseeable? It's just not proximate? Yes, that's correct. The respondent does concede that the relationship is reasonably foreseeable. But based upon Cooper, we know that reasonable foreseeability alone is insufficient to establish proximity in the first stage of the ANS test. Following Cooper, something more is needed and that something more is proximity. Based upon Cooper, we must look at the reliances, representations and expectations of the parties in order to determine if it would be just and fair given the totality of the circumstances to impose a duty of care on the respondent. Cooper also says that when we are dealing with a regulatory body such as the Barrister Society, we must look to the statute to infer what reasonable expectations, reliances and representations exist. In this case, it is the Legal Professions Act. It is the respondent's assertion that neither the statute or the common law suggests that the Nova Scotia Barrister Society should owe a duty of care to a member under investigation. When we begin by looking at Section 4 of the Legal Professions Act, it outlines the purpose. And this purpose clearly shows that the legislature intended to give the Barrister Society all powers necessary to regulate the profession of law in the public interest. And this includes, following Perlman, the latitude to interpret the public interest when undertaking this public interest mandate. The legislature also included an immunity provision at Section 81, which further goes to show that the legislature intended to leave the regulation of the legal profession to lawyers. It is further evidence that the Barrister Society should expect and should be expected to be free from private actions in damages from either the public or from individual members. As a member of the society and as a lawyer, Mr. Steele ought to have known and to have reasonably expected the Law Society to be immune from damages. He ought to have known about the broad discretionary powers afforded to the society by the legislature. Even if he didn't, during the complaints investigation process, he would have had access to the Nova Scotia Barrister Society Complaints Investigations Committee Lawyers Guide, which again highlights that the primary purpose of regulatory investigations is to uphold the public interest in the practice of law. It also again reminds Mr. Steele of the broad discretion afforded to all members of the Barrister Society in undertaking their regulatory functions in line with the society's mandate. Given these circumstances and the expectations of both the Barrister Society and Mr. Steele, it is clear that it would be unfair and unjust in the totality of the circumstances to impose a duty of care on the Barrister Society. I will now move to the second stage of the ANS test. It is the respondent's assertion that even if a duty of care were to be found at the first stage of the ANS test, residual policy considerations would negate such a duty. Following Cooper, policy considerations that may negate a duty of care include the effect that a duty of care would have on the finances and resources of a body, the effect that a duty of care would have on the other legal obligations of the parties in question, and the effect that recognizing a duty of care would have on the legal profession, the legal system, and society more generally. My friend has correctly stated that in Hill, the court found that it was improper to negate a prima facie duty of care over mere speculation. It is the respondent's assertion that if this honorable court were to recognize a duty of care against the Barrister Society, it would be unable to contain the flood of destruction that such a duty would leave in its wake. There are two major interrelated policy considerations that in the respondent's position should negate any prima facie duty of care, and I will speak to both throughout this argument. The first is the effect that the duty of care would have in chilling the investigations undertaken by the Barrister Society, and the second is the effect that the duty of care would have on the independence of the legal profession. Beginning with the chilling effect policy consideration, my friend has outlined in paragraph 33 of the Factum of the Appellant that the court in Hill did not entertain the respondent's argument that imposing a duty of care on police would have a chilling effect on suspect investigations. The court in Hill did not go into great detail to explain why this was their position, other than to suggest that the respondent had failed to bring a sufficient amount of evidence to bring this fear out of the realm of speculation and into the realm of reality. It is the respondent's submission that unlike a police force, we are dealing with a small self-regulated profession that is not backed by the financial resources of the state, and therefore these chilling effect considerations are in fact very real and grounded in reality. But do we know what the cost would have been if the investigating committee had hired an IT person to just check to see if... I mean, we don't know what the cost of that would have been, do we? No, we don't know the specific cost, but we do know that the Barrister Society currently runs on a zero surplus budget. They have an annual revenue of $6 million with 5 million of which primarily coming from membership. It already spends one-fifth of its revenue on the professional regulation process with fees in that area increasing in the last few years due to the increasing complexity and length of formal hearings. So it is no speculation that increasing the amount of money having to be spent in the professional regulation process would have an effect on the overall budget of the Barrister Society. Thank you. Justice Ricker will take you to some notice of that. That's true. It is clear that given the financial constraints of the Barrister Society that the resources and manpower being spent on investigating every single possible defense at the investigatory phase that members bring forward would take away resources from the other public-focused areas of the Barrister Society. What you have to say with respect to Mr. Lewis' argument that this is a subset of a subset so we're actually looking at a very small number of individuals. It is the respondents position that the mere threat of litigation is enough to change the behavior of the Complaints Investigation Committee. Moreover, beyond the mere threat of litigation there is no line that the appellant has drawn to determine what negligence we are really dealing with and therefore any Complaints Investigation investigator would be over wary in terms of putting far more resources into an investigation than they normally would have thereby delaying investigations which is not in the public interest. Council, shouldn't there maybe be a chilling effect to an extent in that is the public interest is not best served by having at least a minimum degree of competence in the investigations because in this case there's been an acknowledgement that the investigation itself fell below a standard of care and so should there not be some chilling, some accountability even on an investigation? So it is the respondents submission that the accountability is from the public. At the end of the day the Barrister Society must regulate in the public interest. If it is to lose public confidence it has to answer to the executive branch of government and the fear of losing self-regulation does ensure that these minimum levels of competence are happening during the investigation stage. It is clear that given the financial constraints that I have already discussed faced by the Barrister Society that increasing the resources spent on the professional regulation process would take their focus and resources away from other areas. These public areas could include reducing the spending on innovative technologies to increase transparency for the public or to invest in technologies that create a risk focused regulation or this money could be taken away from educational grants given to members of society from diverse cultural and socioeconomic backgrounds giving them the ability to go to law school and thereby increase public representation in the legal profession. Given these factors the respondents submits that the fear of a chilling effect is firmly grounded in reality and it is not in the area of speculation. The next policy consideration that the respondents submits should negate a prima facie duty of care is the importance of upholding the independence of the judiciary, self-regulation and the independence of the Barr. The independence of the judiciary has been recognized by the Supreme Court of Canada as a constitutional convention with full legal force. Moreover, Justice McKinnon in LaBelle and the Law Society of Upper Canada recognized the importance of an independent Barr by stating, having an independent judiciary without an independent Barr would be akin to having a picture without a frame. The legislature granted the Barrister Society the privilege and power of self-regulation with this cornerstone of a free and democratic society in mind. If the tort of negligent investigation were recognized against the society the appellant is right the behavior would change but at what cost? It is the respondents submission that the behavior change would be at the cost to the public and at the cost of an independent Barr. With the behavior change priorities would change. Their priority would shift from serving the public interest to serving the individual interests of individual members which is the job of the Barr Association. The maintenance of an independent legal profession free from all incursions be it from the government or be it from individual members in negligence is essential to the maintenance of an independent and autonomous Barr. These concerns are also not speculative. The court in Ulet recognized that the court recognized that the law society did not owe a private duty in negligence to a member during a or in connection with a disciplinary hearing as owing such a duty would directly conflict with the society's overarching primary obligation to the public and to the regulation of the legal profession as a whole. I have real difficulty with trying to understand I agree with you that the independence of the Barr and the independence of the judiciary are key. I don't understand how that would be compromised by recognizing this. I read your factum. I've listened and I'm just missing it. Can you try and simplify it so I can understand it? Yes. The real fear here is the fear of losing self-regulation. So if the Barrist society had to spend all of these extra resources on professional regulation it would have no choice but to get funding from the government thereby losing its self-regulation. To get outside funding from another body would result in a destruction of independence and autonomy. For example, if it were the government that the Barrist society were to get its money from the government is a major litigant in the courts and therefore the public would lose confidence in the ability of the legal profession to remain neutral in those matters. Does that answer your question? I understand your argument. Thank you. To conclude, the primary purpose of the Barrister society is to regulate the legal profession in the public interest. The only way to achieve this mandate is to hold individuals who have been granted the privilege of membership to high standards of honesty, integrity and loyalty in both their professional and private lives. The legislature has granted the Barrister society the privilege of self-regulation and with this the ability to be agile in interpreting the public interest in the face of society's changing needs. It is for these reasons that the respondent asks this honorable court to defend the public interest, uphold the trial decision and refrain from harming the many by giving undue weight to the interests of the privileged few. Further to questions from the bench, these are our submissions. Thank you very much. Ms. Marsland, you have two-time helpers. Yes. Good evening, justices. My name is Marin Marsland and I represent the respondent in the second issue before the court today. The question of Section 2B Freedom of Expression Rights as they pertain to lawyer advertising is the rule 4.2-1 of the Code of Professional Conduct. I'm here today to ask you to uphold the decisions of the trial judge, the Nova Scotia Court of Appeal and the Supreme Court of Canada in their correct application of the Section 1 Charter Jurisprudence in finding the rule 4.2-1 is reasonable and justifiable. The careful regulation of the legal profession is essential for upholding the public interest. Legal services, like those of other professions, are fundamentally different from consumer activities where regulation under the Competition Act may be sufficient to protect the public. An advertisement for soap or for a movie or for a haircut that causes someone to pick one option over another that may have fit their needs better may be inconvenient when the stakes are low. A person can live with a less than perfect haircut for a few weeks. Not sure about that. When it comes to soap or movies or haircuts people know what they want and what they need. This is fundamentally different from the law or from other learned professions such as doctors or dentists or engineers. Those areas, the service provider or subject matter expert in a very specialized area or the average person in need of the service may not have the knowledge required to know how the service is actually in their interests. Additionally, there's a lot at stake. When a person is in need of legal services they often have something as fundamental as their livelihood or their family or even their liberty at the hands of the state These twin factors of the specialized nature of the field and the large amount that individuals have at stake create a need for advertising restrictions that are higher and specific to the field. It's in this context that the Nova Scotia Barrister Society created Rule 4.2 to protect the public's interest in line with their statutory mandate. This objective is pressing and substantial such that the rule can be justified under Section 1. Further, as I will demonstrate in meeting the objective the rule is proportionate. Each element of the rule and the attached commentary is rationally connected to this objective. The rule is minimally impairing in meeting this objective and the great importance of protecting the public interest and the risks if the objective are not met in a greatly outweigh the narrow impact the regulation has on narrowly limiting some of the advertisements that lawyers can use. The appellant contends that some elements of this rule are divorced from upholding the public interest. It is the position of the respondent that each element of the rule and the commentary directly impact and support the interests of the public. There are two elements of the rule that the appellant points to as not being directly in the public interest. The first one of these is commentary D advertising that applies a lawyer is aggressive. Not only is aggression frowned upon in the legal profession the Supreme Court of Canada in the case of Groya in 2018 has stated that it can hurt not just the client's case but the interest of justice as a whole. Justice Moldaver stated that aggression can hurt the client's case by prejudicing the decision maker against the client or distracting from the legal issues that are at play. More broadly, aggression diminishes the public's perceptions of the justice system as a fair dispute resolution mechanism. In his words, it can cause the parties and the public at large to question the reliability of the result. The justice system relies on trust in the system. Maintaining a justice system that works is clearly within the interests of the public. If people cease to trust the system to come to a conclusion that is fair and just and based on the law in front of them the system no longer serves a purpose in our society. What do you say to the appellant's lawyer that essentially aggression is to an extent in the eye of the beholder? What may seem aggressive to one person is zealous advocacy and I may very much want from my lawyer and that the Bar Society is overreaching in how it defines aggression. The way that the term aggression is applied to our society is something that is done in a case specific context. In this particular context the phrase that is at question is the term tougher than steel. While the Bar Society has not yet come to a conclusion on this, it can be easily seen how this does promote a concept of aggression, combat and fighting in a way that is easy to draw the conclusion that that phrase does imply aggression. Aggression is not actually the client, but the client may not be able to make that determination themselves. A client may believe that an advertisement that says that a lawyer is aggressive is something positive and something they would seek out. Not being aware of the fact that ultimately the lawyer who is behaving in that aggressive way may actually be harming their interests. Because the client may not have the knowledge of the context of the legal field and the stakes that are there and what is important to bring forward in a context such as a legal dispute, they may be misled by the concept that aggression is positive. When in reality that aggression that they are seeking out may in fact harm their interests. So is it your position that aggression would always be harmful to the client? It's not that aggression would always be harmful, it's that projecting the concept of aggression does not allow the client to be able to make a determination based on what their actual needs are and how aggression will play out in the legal context. The second element of the commentary that the appellant takes concern with is commentary B, the restriction on implying qualitative superiority. The implication of qualitative superiority is one of the most common advertising techniques in the books. This speaks to its effectiveness in influencing consumer decisions. This effectiveness alone should raise red flags for this use of advertising in the legal profession. Law is an area where it is very difficult to determine true superiority and since there is so much at stake being misled by a statement as effective as I am the best is a very concerning element of advertising. Additionally it provides no information of actual value to the client. The client will hear that statement but there is no way to back that statement up. There is no such thing as a rating of the best lawyer of the day. We simply know that all lawyers are going to be able to go forward and present their client's case competently and effectively before a judge who will then make the decision based on the law and the facts in front of them. Additionally a qualitative statement such as I am the best lawyer to provide to that lawyer's ability to better meet the individual and unique needs of that client. These statements also go to the core of the justice system. It promotes the idea that what matters is not the law and the facts but that who has a better lawyer. This can undermine the faith in the fair resolution system that the justice system provides. If people believe that it is not the facts and the law that are being tried, but it is rather a game of best lawyering, the legal system, again, ceases to serve an actual role as a fair dispute resolution system. What you have to say with respect to the appellants argument that the bearer society is out of touch, it no longer, it's dodgy, it's archaic, it's not, it shouldn't be the arbiter of what is, you know, misleading advertising. Well, there is a history, a long history, of the law system being exclusionary. It is now established that the Nova Scotia bearer society is made up of an elected body that represents a wide range of lawyers in addition to having representation from the public themselves. This combination of having the voices of both the people who are on the front lines of providing legal services, along with the individuals who are receiving the services, the public, allows there to be a conversation in finding what is in the public interest and how that can be best established to serve the needs of the public and promote fair access to justice through communication of legal services. The Nova Scotia bearer society should also be given deference in making this sort of decision. Through that complementary role of the public and the lawyers, they are able to determine the complicated determination in this context where there are many complicated factors at play. There are issues such as access to justice and the rule of law that need a close balancing by people familiar with the system and with the tensions. This is a perfect example of the kind of situation that the Supreme Court of Canada had in mind when they established the cases of Harper and Bryan. In these cases, the court stated that it is in complicated policy decisions. It is those with specialized knowledge of the field who should be making the decisions as to where the lines should be drawn when there are balancing, when there's a balancing of rights required. The Supreme Court of Canada also discussed this in the case of R.J.R. McDonald. They stated that in a context when it can be difficult to measure the harm, logic and common sense can be relied on in establishing these restrictions. The exact degree of harm to the public through irresponsible advertising is one such area where scientific proof may be difficult to come by. However, common sense clearly points to the fact that advertising can affect the choices that people make. The people losing faith in the justice system undermines its role and the people not getting the legal services they need is not in their interest. Now wouldn't the competition bureau as a tribunal have a better understanding of what would be misleading advertising than the Nova Scotia Barrister Society made up of lawyers? That's the argument that the appellant is raising. Well the general advertising restrictions are sufficient in more broad contexts. The law is an area that is specific and therefore the rules around the law are best set by experts in the area of the legal profession. Providing legal services is different from other consumer areas where a general understanding of economic trends may be what is valuable. In the context of regulating around the legal profession it is an understanding of the tensions at play such as access to justice and the rule of law that are important to be able to keep in mind when creating the rules that are specific to people accessing legal services. In addition to the broader role that each of these elements can serve in society by promoting the public interest, the upholding the standards of professionalism generally is also in the public interest. Professionalism as opposed to pure commercialism serves the public. The Barrister Society is entitled to uphold the standards of professionalism that they have set. Assuming those standards are not discriminatory or exclusionary in which case they would be rightly challenged as being such. Setting standards in the name of professionalism at the exclusion of allowing pure commercialism to reign serves the public. Commercialism centers the goal of lawyering on profit and the personal interests of the lawyer. Professionalism centers itself on the service of the public and the service of the client. Protecting the public interest is the purpose and the statutory mandate of the Nova Scotia Barrister Society. And having legal services that can meet their needs is clearly in the interests of the public. Council, is there not a higher burden on the Barrist Society in this instance though versus competency standards, for example, because they are infringing on a section of the bill too, right? Because they are limiting that freedom of speech. So is maybe not something more than mere professionalism required to do that? The goal of the rules is not simply mere professionalism. It is professionalism in the public interest. The objective of protecting the public interest from advertising that can harm their interests is a pressing and substantial objective. Advertising that promotes commercialism over professionalism generally within the profession actively harms the public interest by decreasing the overall quality of legal services. Well it is important to make sure that the rules are limited and not infringing the rights of lawyers more than is necessary. There is also a great importance in making sure that the legal services that are provided are up to the standards that people expect and that the commercialism is not allowed to undermine the standards that this society has set in the concept of professionalism as a whole, as that is tied to upholding the client interest over the general interests of individual lawyers' economic goals. As the appellant pointed out though, competency doesn't appear to have been an issue here. It's more about the nature of the advertising. So does that make a difference? Well the competency is not an issue in this case. The context is that generally an undermining of professionalism as the center of what the legal profession is aimed at can decrease the competency of the legal profession as a whole or individual legal practitioners misleading clients with using the type of advertising that is discussed in this rule. It can just be an area where there is just a small gap in need of additional training or an individual lawyer may have the wrong priorities in terms of placing their own financial gain over the interests of the client. Something that's not quite far enough to engage the competency requirements but may harm the interests of an individual client. Well these less competent service providers may eventually be selected out by the market. A low quality of service to even a small number of clients is greatly harmful to the interests of those clients and not in the interest of the public generally. With this in mind, the Barrister Society has through their delegated authority seen fit to limit the types of advertising that they have in the way that they have found is a balancing of the needs of lawyers to be able to communicate, the needs of the public to be able to receive communication about legal services and the needs of the public for that communication to not harm their interests. Would the public be overall better served if those lawyers that are misleading the public through the free market society they will eventually cease to exist? You know the public whether it be a rating, a Yelp rating or something like that individuals will then learn which lawyers are truthfully, are truthful in their advertising versus which ones are misleading and then in the free market society, you know, those that are untruthful would cease to exist over time. You know there may be some harm in this short interim but if the long term goal to protect the public of the interest we would eliminate those lawyers or at least to some extent their advertising would change. Yes, well in the long term some of these lawyers may be selected out by the powers of the market and the fact that this rule does not actually limit the reputation of a lawyer to be perpetuated. Those forces can still come into play to make sure that the public is eventually protected from lawyers who are advertising in a misleading way. However, in the short term the Barrister Society has also determined that limiting these advertisements from occurring in the first place can protect those original people who would be harmed by the misleading advertisements or the advertisements that are misleading them in terms of being, seeking out services that are aggressive or implying superiority. Those people can be protected in the first place in addition to the broader market playing for longer term elements. The role of the market is not excluded by the inclusion of these narrow rules. To conclude, each element of the rules here directly serves the public interest. More broadly, upholding standards of professionalism as set by the Barrister Society is itself in the public interest. Since the purpose of the rules is the protection of the public interest there is a pressing and substantial objective. Each part of the rule is rationally connected to this objective because of the high deference that should be given to the Barrister Society in deciding what is in the public interest and because each element of the rule is narrowly tailored, the rule is minimally impairing. And finally, the rules are proportionate because of the twin factors of the specialized nature of the field and the large amount that is at stake. The risk to the public should advertising harm their interests greatly outweighs the limited restriction this place is. Therefore, Rule 4.2-1 is reasonable and justified under Section 1 of the Charter and so should be upheld by this court. Subject to any further questions from the bench, that concludes our submissions. No questions. Thanks very much. Thank you. Are the appellants wanting to make a reply? Thank you, my lady. The appellants wish to briefly reply to my friend's comments on the nature of the chilling effect that an imposition of a duty of care may have on the investigations by the Barrister Society. The appellant wishes to reiterate the importance of self-regulation and the dependence of the Barrister Society on self-regulation as a means to advocate in the public interest. What self-regulation means is a willingness to participate from all members of the Barrister Society. The facts at hand indicate that Mr. Steele himself reported the missing trust funds to the Barrister Society immediately upon learning of their disappearance. My friend spoke to expectations in her proximity analysis. Mr. Steele was an active participant in his investigation. It's natural for him to have expected that the Barrister Society would have taken the missing funds as seriously as he did himself. It was somebody else's money that had gone missing. It is true that the Law Society regulations call to a lawyer's honesty and call to a lawyer's good character. However, lawyers are human beings. And when somebody's livelihood, somebody's reputation, and somebody's ability to keep a roof over their head are on the line, it would be natural to expect hesitation. Hesitation in these circumstances could have resulted in irreparable loss to the public. Because of the importance of trust in self-regulation, honesty should be incentivized and the public should not lose because of a person's understandable fear. Subject to further questions from the bench, the appellants have spoken their submissions. Thank you, Mr. Lewis. Thank you. So we will recess for as long as it takes to make up our moments. Thank you, Council, for your patience while we were deliberating. The Court would like to acknowledge each and every one of you for the amount of work that you put into your presentation and your ABLE arguments to date. They were fantastic. Your ability to respond to questions was excellent. It was an enjoyable time for us as a panel. And I must admit that your responses to the questions were sharp, incisive, and I think it made for a very invigorating debate and an invigorating argument. Without any further ado, though, I think it's an opportunity now for us to present the runner's up prize. And these are the recipients of the Leonard A. Kitts Prize in Advocacy for Skills and Legal Oral Argument. And the runners up are Mark Lewis and Tawny Proctor. Very impressed by your advocacy, and you did an excellent job. So thank you for your presentation, which now brings us to the opportunity to announce the winners of this year's Smith's Shield. Patilo Prize in Advocacy goes to Rayleen Langer and Marin Meyerslund. Congratulations. Keep your time this evening. I was very delighted. We are all very pleased to be given the opportunity to come here. It's always a wonderful opportunity to come back to Dalhousie Law School, the Shure School of Law, and see what wonderful students that this school is producing, the excellent advocacy. And I, for one, look forward to seeing some of you in my court some day. And hopefully, you may not. You may be successful. And going to the courtroom of appeal. I look forward to seeing each and every one of you. It was a very difficult decision. As Justice Muneertha said, it was very evident that you had spent a lot of time and effort. To my amazement is your coolness and calmness. I mean, this is tough. You're standing up. You've put a lot of thought into it, and you're making your case to three strangers. And each of you did an excellent job. Thank you. Now we get our photos taken. Photos taken? So once again, thank you.