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BILL NO. 52
Private Member's Bill
3rd Session, 56th General Assembly
Nova Scotia
44 Elizabeth II, 1995-96
An Act to Amend Chapter 30
of the Revised Statutes, 1989,
the Barristers and Solicitors Act, and to
Amend
Chapter 58 of the Revised Statutes, 1989,
the Cape Breton Barristers' Society Act
CHAPTER 18
ACTS OF 1995-96
Bruce F. Holland
Timberlea-Prospect
AS ASSENTED TO BY THE LIEUTENANT GOVERNOR
JANUARY 11, 1996
Halifax
Printed by Queen's Printer for Nova Scotia
An Act to Amend Chapter 30
of the Revised Statutes, 1989,
the Barristers and Solicitors Act and
Chapter 58 of the Revised Statutes, 1989,
the Cape Breton Barristers' Society Act
Be it enacted by the Governor and Assembly as
follows:
1 Subsection 5(1) of Chapter 30 of the Revised
Statutes, 1989, the Barristers and Solicitors Act, is
repealed and the following subsection substituted:
(1) No person who is not a member of the
Society and entitled to practise as a barrister shall
carry on the practice or profession of a barrister.
2 Chapter 30 is further amended by adding
immediately after Section 5 the following Section:
5A (1) In this Section,
(a) "law corporation" means a
corporation that is issued a permit by the
Society;
(b) "permit" means a permit issued
pursuant to the regulations to a
corporation permitting the corporation to
carry on the practice or profession of a
barrister in the Province;
(c) "practising member" means a
person who is a member of the Society and
entitled to practise as a barrister in the
Province;
(d) "prescribed person" means a
person prescribed by the regulations.
(2) No corporation shall carry on, engage
or hold itself out as carrying on or engaging in the
practice or profession of a barrister except as
provided by this Act.
(3) Subject to the regulations, a law
corporation holding a permit that is not under
suspension may carry on the practice or profession
of a barrister in its own name or under a business
name.
(4) Notwithstanding anything contained in
this Section, a law corporation shall not be entered
on the roll as a barrister pursuant to this Act.
(5) All persons who carry on the practice
or profession of a barrister on behalf of a law
corporation shall be practising members.
(6) For the purpose of subsection (5), the
practice or profession of a barrister is deemed not
to be carried on by articled clerks, clerks,
secretaries and other assistants employed by a law
corporation to perform the services that are not
ordinarily considered by law, custom or practice to
be services that may be performed only by a
practising member, nor is the practice or
profession of a barrister deemed to be carried on
by articled clerks employed by a law corporation to
do anything in the course of their duties as articled
clerks if it is done under the direction or
supervision of a practising member and in
accordance with this Act and the regulations.
(7) The following principles apply to a law
corporation:
(a) all issued voting shares shall be
legally and beneficially owned by one or
more practising members or by a trust of
which all the trustees and all the
beneficiaries are practising members;
(b) all issued non-voting shares, if any,
shall be legally and beneficially owned by
prescribed persons or by a trust of which
all the trustees and all the beneficiaries
are prescribed persons;
(c) notwithstanding clause (a), issued
voting shares may be legally and
beneficially owned by a corporation of
which
(i) all the issued voting shares are
legally and beneficially owned by one
or more practising members or by a
trust of which all the trustees and all
the beneficiaries are practising
members,
(ii) all the issued non-voting shares are
legally and beneficially owned by
prescribed persons or by a trust of
which all the trustees and
beneficiaries are prescribed persons,
and
(iii) all the officers and directors are
practising members;
(d) notwithstanding clause (b), issued
non-voting shares, if any, may be legally
and beneficially owned by a corporation of
which
(i) all the issued shares are beneficially
and legally owned by prescribed
persons or by a trust of which all the
trustees and beneficiaries are
prescribed persons, and
(ii) all the officers an directors are
prescribed persons;
(e) no voting shareholder of a law
corporation shall enter into a trust
agreement, proxy or any other type of
agreement vesting in another person who
is not a practising member the voting
rights attached to any or all of the shares
of a law corporation;
(f) no shareholder of a corporation
owning shares of a law corporation shall
enter into a trust agreement, proxy or any
other type of agreement vesting in another
person who is not a practising member the
voting rights attached to any or all of the
shares of the corporation;
(g) no corporation holding voting
shares of a law corporation may authorize
any person to represent it at a meeting of
the shareholders of the law corporation
unless that person is a practising member;
and
(h) no corporation holding non-voting
shares of a law corporation may authorize
any person to represent it at a meeting of
the shareholders of the law corporation
unless that person is a prescribed person.
(8) All officers and directors of a law
corporation shall be practising members and
(a) no officer or director of a law
corporation or a corporation owning
voting shares of a law corporation shall
enter into a trust agreement, proxy or any
other type of agreement vesting in a
person who is not a practising member any
authority or voting rights as an officer or
director of a law corporation and any
attempt to do so is invalid to the extent
that it purports to vest such authority or
rights in a person who is not a practising
member; and
(b) no officer or director of a
corporation owning non-voting shares of
a law corporation shall enter into a trust
agreement, proxy or other type of
agreement vesting in a person who is not a
prescribed person any authority or voting
rights as an officer or director of the
corporation and any attempt to do so is
invalid to the extent that it purports to vest
such authority or rights in a person who is
not a prescribed person.
(9) Where there is any change in the
shareholders, shareholdings, officers, directors,
name or business name of a law corporation, the
corporation shall provide notice, in writing, to the
Executive Director within fifteen days of the
change.
(10) Every person who is a voting
shareholder of a law corporation and every person
who is a voting shareholder of a corporation
owning voting shares of the law corporation is
liable to every person for whom professional
services of a barrister are undertaken or provided
by the law corporation in respect of such
professional services to the same extent and in the
same manner as if such voting shareholders were
carrying on the practice or profession of a
barrister in partnership or, if there is only one such
voting shareholder, as an individual carrying on
the practice or profession of a barrister.
(11) The following principles apply to the
practice or profession of a barrister carried on by
a corporation:
(a) the relationship of a practising
member or of an articled clerk to a
corporation carrying on the practice or
profession of a barrister, whether a
shareholder, director, officer or employee,
does not affect, modify or diminish the
application to that person of this Act and
the regulations;
(b) nothing contained in this Section
modifies or limits any law applicable to
the fiduciary, confidential or ethical
relationships between a barrister and a
person receiving professional services of a
barrister;
(c) the relationship of a corporation
carrying on the practice or profession of a
barrister and a person receiving the
professional services of the corporation is
subject to all applicable law relating to the
fiduciary, confidential and ethical
relationship between a barrister and the
barrister's client;
(d) all professional responsibilities and
obligations pertaining to communications
made to or information received by a
barrister, or the advice of the barrister
therein, apply to the shareholders,
directors, officers and employees of a
corporation carrying on the practice or
profession of a barrister; and
(e) any undertaking given by or on
behalf of a corporation carrying on the
practice or profession of a barrister that,
if given by a practising member, would
constitute a specific undertaking, is
deemed to be a solicitor's undertaking
given by the corporation and the
practising members who give it, sign it or
authorize it.
(12) Notwithstanding anything contained in
this Section, all provisions of this Act and the
regulations that are applicable to practising
members apply with all necessary modifications to
a law corporation, and a law corporation is
deemed, for this purpose, to be a practising
member and, without limiting the generality of the
foregoing, proceedings that may be taken under
this Act or the regulations against a practising
member who is an individual may also be taken
against a law corporation, and any order that may
be made against an individual may be made
against a law corporation.
(13) Subject to this Act and the regulations,
a law corporation may commence an action and
sue to recover its account for the provision of any
services provided by it in the course of carrying on
the practice or profession of a barrister if those
services were performed while the law corporation
was a holder of a valid permit that was not under
suspension.
(14) A corporation shall not, while it is the
holder of a permit, carry on any business
prohibited by the regulations and no act of a
corporation, including the transfer of property to
or by a corporation, is invalid by reason only that
it contravenes this subsection.
(15) A permit may be refused, suspended,
revoked, cancelled or reinstated by the Society, a
committee established by the Society for that
purpose or the Executive Director as prescribed by
the regulations.
(16) The Council may make regulations
(a) prescribing the requirements for the
issue of a permit permitting a corporation
to carry on the practice or profession of a
barrister in the Province;
(b) prescribing the requirements for the
renewal of a permit;
(c) providing for the refusal,
suspension, revocation, cancellation or
reinstatement of a permit by the Society or
the Executive Director;
(d) prescribing forms necessary or
desirable to carry out the procedures
pursuant to this Section;
(e) regulating the practice or
profession of a barrister carried on by a
law corporation;
(f) regulating the name of a law
corporation and the name under which a
corporation may carry on the practice or
profession of a barrister;
(g) defining "prescribed person" for the
purpose of this Section;
(h) prescribing business and
undertakings that a law corporation is
prohibited from carrying on, engaging in,
or holding itself out as carrying on or
engaging in;
(i) providing for an appeal from any
decision of the Executive Director
pursuant to this Section;
(j) prescribing liability insurance to be
carried by persons carrying on, or
engaged in, the practice or profession of a
barrister;
(k) that the Council considers
necessary or advisable to carry out
effectively the intent and purpose of this
Section.
3 Subclause 8(1)(e)(ii) of Chapter 30 is repealed
and the following subclause substituted:
(ii) any contested matter, with the consent in
writing of the client and either of the barrister to
whom the clerk is articled or of the barrister who
is responsible for the file, other than a hearing
involving custody of or access to a child;
4 Chapter 30 is further amended by adding
immediately after Section 10 the following Section:
10A Notwithstanding Sections 4 and 5, the
Society may grant approval to a person, who is
qualified to practise law in a country other than
Canada or an internal jurisdiction of that country,
to practise in the Province the law of that country
or internal jurisdiction, as the case may be, subject
to any conditions required by the Society, including
the payment of a fee.
5 (1) Subsection 32(5) of Chapter 30 is amended
by striking out "been convicted" in the second line
and substituting "pleaded guilty to or been found
guilty".
(2) Subsection 32(9) of Chapter 30 is amended
by striking out "and" in the seventh line and
substituting ", receiver, custodian or".
6 Chapter 30 is further amended by adding
immediately after Section 35 the following Sections:
35A (1) A person who, in the course of
carrying out duties pursuant to this Act or the
regulations, becomes privy to information, files or
records that are confidential or are subject to
solicitor-client privilege, has the same obligation
respecting the disclosure of that information as the
barrister from whom the information, files or
records were obtained.
(2) Notwithstanding subsection (1), a
person who becomes privy to information pursuant
to subsection (1) may disclose the information to
the Society or a committee for the purpose of an
investigation or inquiry under this Act or the
regulations.
(3) Where a barrister, former member of
the Society or articled clerk required to produce
information, files or records to a person carrying
out duties pursuant to this Act or the regulations
does not object to the production of a document on
the grounds that the document is subject to
solicitor-client privilege, the person carrying out
duties pursuant to this Act or the regulations is
deemed not to have breached any duty or
obligation not to disclose information protected by
solicitor-client privilege.
35B (1) Where a barrister, former member
of the Society or articled clerk is required to
produce information, files or records to a person
carrying out duties pursuant to this Act or the
regulations and the barrister, former member of the
Society or articled clerk objects to the production
of a document on the grounds that the document is
subject to solicitor-client privilege and that a client
objects to its disclosure, the document shall be
sealed, without inspection or copying, and placed
into the custody of the prothonotary.
(2) The prothonotary shall return the
document to the barrister, former member of the
Society or articled clerk unless the Society delivers,
within thirty days, to the prothonotary
(a) a written waiver of solicitor-client
privilege signed by the client; or
(b) a certification by the Executive
Director that the client has been contacted and
has given an oral waiver of solicitor-client
privilege,
in which case, the prothonotary shall deliver the
document to the Executive Director.
7 (1) Subsection 40(7) of Chapter 30 is repealed
and the following subsections substituted:
(7) No payment shall be made out of the
Reimbursement Fund unless notice of the loss
is received by the Executive Director within six
months after the loss came to the knowledge of
the person sustaining the loss.
(7A) Notwithstanding subsection (7), where
a notice is not received within the time period
referred to in subsection (7), the Council may
extend that period for a further period of six
months, but in no case shall a claim be filed
more than twelve months after the loss came to
the knowledge of the person sustaining the
loss.
(2) Section 40 of Chapter 30 is further
amended by adding immediately after subsection (10)
the following subsection:
(11) The Society may annually contribute
an amount to a fund established by the
Federation of Law Societies of Canada for the
purpose of compensating claimants who
sustain a financial loss arising from the
misappropriation or conversion of moneys or
property by a member while engaged in the
practice of law outside the Province.
8 (1) Subsection 50(1) of Chapter 30 is amended
by striking out "the sum of three dollars" in the last
line and substituting "a sum determined by the
Governor in Council".
(2) Subsection 50(2) of Chapter 30 is amended
by striking out "the sum of three dollars" in the
second and third lines and substituting "a sum
determined by the Governor in Council".
9 Clause 59(1)(e) of Chapter 30 is amended by
adding "investigation of the standards of practice of
barristers," immediately after "including" in the
second line.
10 (1) Subsection 7(1) of Chapter 58 of the
Revised Statutes, 1989, the Cape Breton Barristers'
Society Act is amended by striking out "the sum of
three dollars" in the last line and substituting "a sum
determined by the Governor in Council".
(2) Subsection 7(2) of Chapter 58 is amended
by striking out "the sum of one dollar" in the last line
and substituting "a sum determined by the Governor
in Council".
11 Sections 8 and 10 come into force on such day
as the Governor in Council orders and declares by
proclamation.