Good governance

How does BC's new regulator affect lawyer independence? Plus adverse possession of government land and healthcare coverage for gender-affirming surgery.

OJ Simpson died yesterday. And Ford issued a recall notice.

If your recall is foggy, or you were born on this side of Y2K, you can relive OJ’s historic trip down the interstate here.

Have a great weekend.

— Dylan Gibbs


6-min read

  • What does it take to have an independent legal profession?

  • Taking government land with adverse possession

  • Healthcare coverage for gender-affirming surgery

  • Ontario’s housing reforms


Does BC’s new legal regulator give the government too much control?

Marionette doll, resembling a lawyer, in a courtroom settig

On Wednesday, the BC government introduced a new regulator for the province’s legal professions. The proposed Legal Professions Act brings lawyers, notaries, and licensed paralegals together under one roof. Some are excited about the reform and what it could do for access to justice. But others say it jeopardizes the legal profession’s independence from government.

Why change? The self-regulating legal profession tends to be fairly … self-interested. A 2021 report on the Law Society of BC’s governance structure said the LSBC “is too involved in responding to the interests of the legal profession.” The government wants a framework that puts public interest first.

The new structure limits lawyers’ control. The proposed regulator’s 17-member board only has nine lawyers — a majority, but not by much. And lawyers don’t get to elect all nine of their representatives. Here’s how the structure breaks down:

  • 7 elected directors: Lawyers elect five of their own. And notaries elect two of their own.

  • 3 merit-based government appointments: The government gets three picks after consulting with the board to figure out “the desired skills, attributes and experience of persons to be appointed.” One of the appointments needs to be a member of a First Nation.

  • 5 merit-based board appointments: The board, by majority vote, appoints four more lawyers and one more notary. One of those five appointments must be Indigenous.

  • 2 elected or appointed paralegal representatives: If there are more than 50 licensed paralegals in the province, paralegals get to elect two of their members. Otherwise, the board appoints those two directors based on merit-based recommendations made by the BC Paralegal Association.

The nine-lawyer majority (five elected, four appointed) can run the show, but only if they all show up to vote — any 12 of the 17 directors can form a quorum.

Lawyer organizations are sounding the alarm: Citing a risk of “government direction and intrusion,” the LSBC said it will challenge the legislation if it passes. The LSBC didn’t spell out its reasoning. But with only 3 government appointees on the 17-member board, the LSBC seems to hold the view that independence from government requires more lawyer control. President of the Canadian Bar Association’s BC branch, Scott Morishita, put it like this:

To be independent, lawyers must be self-regulated with more than a slim majority of lawyers represented on the regulator’s board. And those lawyers must be elected, not appointed.

CBABC Statement, April 10, 2024

But not everyone shares that view:

Comment by Joel V. Payne on LinkedIn: "Respectfully, you are conflating self-regulation with independence. Lawyers must be independent from government, not sovereign in their own domain. Why can't non-lawyers help regulate lawyers as long as they are also independent of government? There is no constitutional right to self-regulation, written or unwritten. Nor would such a right be necessary or desirable. Lawyers are human and as capable of acting inappropriately in their self-interest as anyone else. Everyone needs a check on their power and authority—including lawyers."

Big picture: The Supreme Court has already faced the argument that independence of the bar requires self-regulation. It didn’t have to decide the issue, but the Court did hint that the principle of lawyer independence isn’t as broad as some lawyers might like it to be:

According to the broad version, the independence of the bar means that lawyers “are free from incursions from any source, including from public authorities” …

In my view, there is considerable merit in the Attorney General’s submissions [that the broad version is not a principle of fundamental justice]. However, I do not for the purposes of this appeal have to finally determine that point.

Canada v. Federation of Law Societies, 2015 SCC 7 at paras 76-80



🔍 Following Quebec’s footsteps, Alberta tabled legislation that would require provincial approval of agreements between the federal government and municipalities. Calgary’s mayor doesn’t like it:

🪧 BC wants to ban protests and disruptions outside schools, proposing a 20-metre protection zone.

🏘️ Ontario introduced legislation to encourage housing development. Some of the changes include exempting university student housing from planning requirements, scrapping parking requirements near transit stations, and implementing a “use-it-or-lose-it” policy for development approvals to encourage developers to get moving.

💰 Quebec plans to fine people who threaten politicians.

🏳️‍⚧️ Ontario’s Divisional Court confirmed that the Ontario Health Insurance Plan covers the cost of gender-affirming surgery involving a vaginoplasty without a penectomy — at least in a case where OHIP neglected to argue that the procedure isn’t “generally accepted”.

👑 MPs broke out in song after voting to save their oath to the King.


Supreme Court weighing in on squatters’ rights to public land

A Google Maps screencapture, showing a disputed piece of property adjacent to a City park in Toronto

Yesterday, the Supreme Court agreed to hear an appeal about whether public land is immune from adverse possession. The case deals with a small piece of land in Toronto (shown above), wedged between a home and a city park. At some point between 1958 and 1971, the property owner fenced the area in. And owners of the lot have been using the land as a backyard extension ever since.

If the fenced-in land belonged to a private party, the homeowner would get to keep it. But the lower courts held that public land gets special treatment. According to the Court of Appeal, municipal parks are “generally unavailable for adverse possession,” unless the municipality waives its rights or acquiesces to the squatter taking the land away.

Justice David Brown disagreed, in a dissent with Lord Denning vibes:

Parks are good things. Every morning I look out my window and enjoy the sight of the sun rising over the tree canopy of one of Toronto’s oldest and largest parks. When at work, I can look out my window and see the residents of a green-space-starved, concretized, downtown Toronto core enjoying the small, construction-free patch of grass that remains of Osgoode Hall’s West lawn. Adequate parks are vital to maintaining one’s sanity and socializing with one’s neighbours in an urban sea of steel and glass. Parks give rise to pleasant thoughts and strong sentiments.

That said, a case such as this which involves a claim by homeowners to adverse possession of a small patch of a municipally-owned greenspace that has formed their backyard for decades cannot be decided on the basis of sentiments about parkland. The appellants are entitled to have their case decided in accordance with the governing principles of law.

Dylan Gibbs

That’s all for today. Govern yourself accordingly.

You can also find me on LinkedIn and X/Twitter @DylanJGibbs.

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