Black v Law Society of Alberta [1989] 1 S.C.R. 591: Mobility rights -- Employment -- Interprovincial law firm -- Lawyers members of both a law firm located in province and one located outside province -- In-province firm including non-resident lawyers -- Law Society rules prohibiting its members from entering into partnership with non-resident lawyers and from being members of dual or multiple firms -- Whether or not rules infringing Charter mobility rights -- If so, whether or not rules saved under s. 1

Constitutional law -- Charter of Rights -- Mobility rights -- Employment -- Interprovincial law firm -- Lawyers members of both a law firm located in province and one located outside province -- In-province firm including non-resident lawyers -- Law Society rules prohibiting its members from entering into partnership with non-resident lawyers and from being members of dual or multiple firms -- Whether or not rules infringing Charter mobility rights -- If so, whether or not rules saved under s. 1 of the Charter -- Canadian Charter of Rights and Freedoms, ss. 1, 6.

Constitutional law -- Charter of Rights -- Freedom of association -- Employment -- Interprovincial law firm -- Lawyers members of both a law firm located in province and one located outside province -- In-province firm including non-resident lawyers -- Law Society rules prohibiting its members from entering into partnership with non-resident lawyers and from being members of dual or multiple firms -- Whether or not rules infringing Charter right to freedom of association -- If so, whether or not rules saved under s. 1 of the Charter -- Canadian Charter of Rights and Freedoms, ss. 1, 2(d).

Respondents proposed to establish an interprovincial law firm. A Calgary firm was established and was to be made up of persons exclusively members of the Law Society of Alberta. Some members lived in Calgary, others in Toronto. As members, they would be required to meet all the qualifications for membership in the Law Society and be subject to its rules of ethics. All partners of the Calgary firm were also members of a Toronto firm.

The Law Society of Alberta enacted two rules in response to this situation. Rule 154 prohibited members of the Law Society who ordinarily reside and practise in Alberta from entering into partnership with anyone who was not an active member ordinarily resident in Alberta. Rule 75B prohibited the members of the Law Society from being partners in more than one firm. The validity of these rules is at issue.

Respondents brought an action against the Law Society challenging the validity of the two rules on administrative law and Charter grounds. Pending trial of the action, the respondents applied for and were granted an interlocutory injunction restraining the Law Society from enforcing these rules against them. The Law Society did not attack the injunction respecting Rule 154, but was successful in overturning the order restraining the enforcement of Rule 75B.

The trial judge upheld the rules but the Court of Appeal found that they violated the Canadian Charter of Rights and Freedoms and were not saved by s. 1. The constitutional questions stated in this Court queried: (1) whether these rules infringed or denied mobility rights guaranteed by s. 6(2)(b) of the Charter; (2) if so, whether they were justified under s. 1; (3) whether these rules infringed or denied freedom of association guaranteed by s. 2(d) of the Charter; and (4), if so, whether they were justified under s. 1.

Held (McIntyre and L'Heureux-Dubé JJ. dissenting in part): The appeal should be dismissed. The first constitutional question should be answered in the affirmative, the second in the negative.

Per Dickson C.J. and Wilson and La Forest JJ.: Before the advent of the Charter, mobility rights received some protection arising out of the structural elements of federalism. Section 6, however, is expressed in terms of the rights of the citizen. Inherent in citizenship is the right to reside wherever on wishes in the country and to pursue the gaining of a livelihood without regard to provincial boundaries. Like other Charter rights, the rights guaranteed in s. 6 must be interpreted generously and in a purposive manner.

A purposive approach to the Charter dictates a broad approach to mobility. Section 6(2) protects the right of a citizen (and of a permanent resident) to move about the country, to reside where he or she wishes and to pursue his or her livelihood without regard to provincial boundaries. The provinces may regulate these rights but, subject to ss. 1 and 6 of the Charter, cannot do so in terms of provincial boundaries. That would derogate from the inherent rights of the citizen to be treated equally in his or her capacity as a citizen throughout Canada. This approach is consistent with the rights traditionally attributed to the citizen and with the language of the Charter.

The section 6(2) right "to pursue the gaining of a livelihood in any province" does not require the physical movement of the individual to a province. A person can pursue a living in a province without being there personally. This approach is consistent with the heading "Mobility Rights" preceding s. 6. The wording of s. 6(3)(a), too, suggests that s. 6(2)(b) should have this meaning.

Both Rule 154 and Rule 75B violate s. 6(2)(b) of the Charter. The combined effect of the rules seriously impaired respondents' ability to gain a livelihood through the practice of law in Alberta.

Section 6(2) is subject to both s. 6(3) and to limitations under s. 1. Sections 1 and 6(3) are significantly different. Section 6(3) merely qualifies s. 6(2); it does not usurp the function of s. 1. and is not a legislative translation of how s. 1 is to be interpreted in the context of s. 6(2).

Section 6(3) of the Charter validates laws of general application but only if such laws do not discriminate primarily on the basis of province of residence. Rule 154 does not fall within s. 6(3)(a) of the Charter since it clearly discriminates on the basis of a lawyer's province of residence. Rule 75B and Rule 154 are intertwined. They are aimed at prohibiting residents and non-residents from associating for the practice of law. The effect of Rule 75B, is to discriminate on the basis of residence for it most severely affects those who would want to maintain an interprovincial law firm. Very few resident lawyers would have occasion to enter more than one partnership.

Nor are Rules 154 and 75B justified under s. 1. While regulating the competence and ethical standards of the legal profession constitutes a legitimate legislative objective, the limitations on s. 6(2) rights resulting from Rule 154 were completely disproportionate to the objective sought. Problems such as the assumption of responsibility for the work of a non-member, or the competence of a non-resident member in local matters, or discipline, were not so significantly greater in the case of interprovincial firms as to warrant prohibiting resident and non-resident members from associating for the practice of law. Many reasonable alternatives exist which would not so drastically affect mobility rights. Rule 75B, too, is much more sweeping than was necessary to control the problems, such as breaches of confidentiality and conflict of interest, at which the Rule is said to be directed.

Per McIntyre and L'Heureux-Dubé JJ. (dissenting in part): The right to freedom of association guaranteed in s. 2(d) of the Charter was infringed by Rules 154 and 75B. Rule 154 prevented resident members from forming associations or partnerships with non-resident members. Rule 75B prevented the forming of more than one association in the practice of law. Neither, however, infringed any mobility right under s. 6 of the Charter. No one was forbidden to enter Alberta or to practise law or to form a partnership there.

Both rules were aimed at a legitimate legislative objective -- the regulation and control of the legal profession. Rule 154, nevertheless, could not be justified under s. 1 of the Charter for it defeated, rather than supported, many Law Society's legitimate objects. Concerns relating to local customs and knowledge, discipline, and the insurance fund would be set to rest more effectively if residents and non-residents were to create partnerships and associations. Rule 75B, however, was justified under s. 1 for it was designed to maintain the ethical practice of law by preventing conflicts of interest and it impaired the right to free association as little as possible.

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