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as enacted by SM 1987-88, c. 9 on July 17, 1987.
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R.S.M. 1987, c. L100
The Law Society Act
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act,
"admission" includes call to the bar; ("admission")
"attorney" means attorney-at-law; ("avocat")
"barrister" means barrister-at-law; ("avocat")
"bencher" means a member of the governing body; ("conseiller")
"board" means the board of directors of the foundation; ("conseil")
"books of the society" includes the rolls of barristers and the rolls of solicitors and the register of students; ("registres de la Société")
"director" means a director of the foundation; ("administrateur")
"election day" means the first Wednesday in May in the year in which an election of benchers is held; ("jour d'élection")
"foreign" means not included in the Commonwealth; ("étranger")
"foundation" means The Manitoba Law Foundation; ("Fondation")
"governing body" means The Benchers of The Law Society of Manitoba referred to in section 5; ("corps administratif')
"inquiry" includes a hearing before the judicial committee of the governing body; ("enquête")
"judicial district" means a judicial district of the province as those judicial districts were defined on July 1, 1983, and " Eastern Judicial District" means the Eastern Judicial District of the province as defined on July 1, 1983; ("district judiciaire")
"past president" means the person who has been president of the society during a term of office immediately preceding the term of the president of the society; ("ancien président")
"president" means the president of the society or his deputy; ("président")
"secretary" means the secretary of the society; ("secrétaire")
"society" means The Law Society of Manitoba; ("Société")
"solicitor" includes attorney-at-law; ("procureur")
"student" means a person who has been admitted by the society as a student and whose name is on the society's register of students; ("étudiant")
"treasurer" means the treasurer of the society; ("trésorier")
"vacation" means any vacation provided for by the rules of the Court of Queen's Bench; ("vacance")
"vice-president" means the vice-president of the society; ("vice-président")
"voting list" means the list referred to in section 17 as from time to time rectified. ("liste des électeurs")
The Law Society of Manitoba is continued as a body corporate.
The society has the powers, rights and privileges conferred upon and vested in corporations by section 15 of The Interpretation Act and in addition may
(a) purchase, acquire, take, hold, possess, and enjoy any lands, tenements, or hereditaments, and personal property, and sell, mortgage, lease or dispose of them;
(b) invest any money belonging to it, or held by it in trust, in investments and securities in which trustees are authorized to invest trust money under The Trustee Act, and lend any money belonging to it, or held by it in trust, upon the security of any such securities, or upon the security of any real property in Canada;
(c) subject to subsection (2), create and augment a relief fund by setting aside moneys of the society:
(d) at the discretion of the governing body, apply the revenue or the principal of the relief fund for the aid of indigent members of the society and surviving spouses and children of deceased members;
(e) administer the relief fund and the aid to be given therefrom;
(f) discontinue the relief fund in whole or in part, and transfer the whole or any part thereof, or of the revenue therefrom, to the general funds of the society;
(g) enter into, continue, or vary any arrangements with The University of Manitoba,
(i) for the establishment, by means of trustees or otherwise, under the name: "The Manitoba Law School", of a joint system for the instruction of the students entered or enrolled with either body in the law courses thereof;
(ii) for the examination of such students; and
(iii) for the imposition of fees for such instruction and examination, and, by such a system, to determine the status to be accorded to students in the law courses of the university or the society;
(h) provide for instruction in law and establish and maintain a law school;
(i) make rules for the attendance of students at classes of instruction and for their examination, and impose fees for such instruction and examination;
(j) print and publish and sell or distribute reports of decisions of courts and tribunals and such other information or material as the governing body may determine;
(k) establish and support, or aid in the establishment and support of, funds, trusts, and conveniences, calculated to benefit members, employees, or ex-employees of the society, or the dependants or relatives of such persons, and grant pensions and allowances, and make payments toward insurance or pensions;
(l) subscribe, apply, or guarantee payment of, money for the advancement of legal education or research, or for objects considered by the governing body beneficial to, or in the interests of the legal profession or the public;
(m) establish and award scholarships and prizes;
(n) enter into a contract on behalf of some or all members of the society other than students for the purpose of providing solely for such members any or all of the following; namely,
(i) life insurance,
(ii) accident insurance,
(iii) sickness insurance,
(iv) medical or hospital benefits;
(o) collect the premiums or other sums payable by the society under any contract made under clause (n), by adding to the fees payable by members on whose behalf the contract is made, the premiums or other sums paid or payable by the society in respect of those members, or their proportionate part of the premium or other sum paid or payable by the society in respect of the contract.
Clause (1)(c) does not oblige the society to create the relief fund to which the clause refers.
Sums added to fees for insurance.
Any sum added under clause (l)(o) to the fees payable by a member thereupon becomes fees payable by the member under this Act.
All persons whose names are on the rolls of the society, as barristers or as solicitors, or on the register of the society as students are the members of the society.
There shall be a governing body of the society which shall be called: "The Benchers of The Law Society of Manitoba".
The governing body shall consist of
(a) elective benchers;
(b) life benchers:
(c) ex officio benchers:
(d) four benchers appointed under section 10;
(e) a university bencher;
(f) a student bencher;
(g) a faculty bencher; and
(h) the Dean of the Faculty of Law of The University of Manitoba.
The elected benchers are
(a) 20 barristers habitually resident in the Eastern Judicial District of the province; and
(b) from each of the other judicial districts, one barrister habitually resident in that judicial district for every 20 members, or fraction thereof, who habitually reside in that judicial district on March 1 in an election year who has been elected or appointed as hereinafter provided.
Election of elective benchers.
An election of elective benchers shall be held as hereinafter provided in the year 1988 and in each second year thereafter.
The life benchers are
(a) every person who held the office of president; and
(b) every person who has been elected as an elective bencher at five elections of the society whether consecutively or not, and whether before or after the coming into force of this section, and who has completed five terms of office.
The ex officio benchers are
(a) the Minister of Justice and Attorney-General of Canada: and
(b) the Attorney-General of Manitoba.
There shall be four benchers who
(a) are not members of the society;
(b) are resident within the province; and
(c) are appointed by a committee composed of
(i) the Chief Justice of Manitoba or a judge of the Court of Appeal designated by him, who shall be the chairman of the committee,
(ii) the Attorney-General of Manitoba,
(iii) the president of the Manitoba Association of Urban Municipalities, and
(iv) the president of the Union of Manitoba Municipalities.
Subject to subsection (4), a person appointed as a bencher under subsection (1) shall serve for a term of two years or until his successor is appointed.
The appointments of persons under subsection (1) shall be made by the committee mentioned in subsection (1) before the day set for the election of elective benchers in each election year.
Where a person appointed as a bencher under this section dies or is unable or unwilling to fulfil his term of office, the committee mentioned in subsection (1) may appoint another person to fill the vacancy who shall serve for the remainder of the term.
A university bencher shall be a person who was enrolled in the second year of the Faculty of Law at the University of Manitoba for the university term immediately preceding the date of his election and who has been elected as a bencher by the persons who at the time of the election are enrolled in the first and second years of that Faculty.
Election and term of office of university bencher.
The election of a university bencher shall be held in each year on a date fixed by the benchers and, subject to subsection (3), the university bencher shall be elected for a term of one year or until his successor is elected.
University bencher ceasing to be enrolled.
Where a university bencher ceases to be enrolled in the Faculty of Law at the University of Manitoba, he ceases to be a bencher and the vacancy for the unexpired term of his office shall be filled by a person elected at an election held in the first month following the date on which the university bencher ceased to be a bencher and in which the Faculty of Law is in regular session.
A student bencher shall be a student who is enrolled in the Bar Admission Course conducted by the Society and who has been elected as a bencher by the students who at the time of the election are enrolled in the Bar Admission Course conducted by the society.
Election and term of office of student bencher.
The election of the student bencher shall be held in each year on a date fixed by the benchers and the student bencher shall be elected for a term of one year or until his successor is elected.
A faculty bencher shall be a person who is a full time member of the academic staff of the Faculty of Law at the University of Manitoba and who has been elected as a bencher by the persons who are at the time of the election members of the Faculty Council of the Faculty of Law at the University of Manitoba.
Election and term of office of faculty bencher.
Subject to subsection (3) the election of a faculty bencher shall be held on a date fixed by the benchers in each year in which there is an election of the elective benchers and the faculty bencher shall be elected for a term of two years or until his successor is elected.
Faculty bencher ceasing to be on Faculty Council.
Where a faculty bencher ceases to be a full time member of the academic staff of the Faculty of Law at the University of Manitoba, he ceases to be a bencher and the vacancy for the unexpired term of his office shall be filled by a person elected at an election held in the first month following the date on which the faculty bencher ceases to be a bencher and in which the Faculty of Law is in regular session.
Meaning of "member of faculty".
For the purposes of subsection (3), a person is a full time member of the academic staff of the Faculty of Law at the University of Manitoba at the end of a regular term shall be deemed to continue to be a full time member of the academic staff of the Faculty of Law until the day immediately before the first day of the following regular term.
Benchers appointed under section 10 or elected under section 11, 12 or 13 shall take office on the date of the first meeting of the governing body following their appointments or elections.
Elections in accordance with rules.
The elections of university benchers, student benchers and faculty benchers shall be conducted in accordance with the rules made under clause 36(e).
Sections 16 to 35 apply to and in respect of elective benchers and an election thereof but do not apply to or in respect of other benchers.
Subject to section 19, each barrister or solicitor who holds a practising certificate on the first day of March in the year in which an election of benchers is to be held, may vote thereat, in accordance with this Act.
The secretary shall, on the first Monday in March in the year in which an election is to be held, prepare an alphabetical list of the persons entitled under section 16 to vote at the election.
Any such person may, at all reasonable times, examine the list, at the office of the secretary.
Complaints respecting and rectification of list.
Where a person entitled to vote complains in writing to the honorary secretary, prior to election day, of the improper omission from or inclusion in the voting list of any name, the vice-president shall forthwith inquire into the complaint; and, if in his opinion it is well founded, he shall forthwith rectify the voting list.
No person whose name is not on the voting list on election day is entitled to vote at the election.
On or before the second Monday in March in the year in which an election is to be held, a notice of the election, in Form A in the Schedule, shall be sent by the secretary to each member of the society whose name appears on the voting list.
Appointment of election officials.
Before each election the governing body shall appoint
(a) two persons to act as scrutineers at the election;
(b) a person to act as deputy for the vice-president in case the vice-president is absent or unable to act, or in the event of there being no vice-president.
Eligibility to be elective bencher.
Every person
(a) whose name is on the voting list on the first Monday in April next preceding election day;
(b) who has been nominated for election, as hereinafter provided; and
(c) who is not a life bencher or an ex officio bencher;
is eligible to be elected an elective bencher.
No person not eligible under subsection (1) is eligible to be elected an elective bencher.
Every nomination for election as a bencher shall be in writing and shall name one candidate only, whose consent shall be attached thereto or endorsed thereon.
Every nomination of a candidate who is habitually resident in the Eastern Judicial District shall be signed by at least five members of the society who are habitually resident in that district and whose names are on the voting list.
Nominations in other judicial districts.
Every nomination of a candidate who is habitually resident in a judicial district of the province other than the Eastern Judicial District shall be signed by at least two members of the society who are habitually resident in the same judicial district as the candidate and whose names are on the voting list.
Every nomination of a candidate must be in the hands of the secretary on or before the first Monday in April next preceding election day, otherwise it is invalid.
Decision as to eligibility, etc.
The vice-president shall decide as to the eligibility of any person to be elected an elective bencher and as to the validity of any nomination.
Where the number of candidates who have been nominated for a judicial district does not exceed the number of benchers who may be elected in that judicial district, the vice-president shall, on the day following the first Monday in April next proceeding election day, declare those candidates so nominated as elected benchers.
On or before the third Monday in April next preceding election day the secretary shall cause to be mailed to every person whose name is on the voting list
(a) a voting paper in Form B in the Schedule, listing under each judicial district the names, in alphabetical order, of all candidates nominated for that judicial district;
(b) a numbered envelope, herein called the "voting envelope", having printed thereon the declaration in Form C in the Schedule, and addressed to the secretary;
(c) a plain envelope.
For the purpose of voting, a member shall
(a) mark "X" on the voting paper opposite the name of each candidate for whom he desires to vote;
(b) not vote for more candidates for any judicial district than the number of such candidates to be elected for that judicial district;
(c) place the voting paper so marked in the plain envelope and seal the plain envelope and place it in the voting envelope;
(d) complete and sign the declaration on the voting envelope, and mail or deliver it to the secretary.
A voting paper that is not marked or dealt with in accordance with the foregoing provisions of this section or is not received before election day is invalid.
No vote cast for a candidate who is habitually resident in any judicial district other than the Eastern Judicial District shall be counted unless cast by a person entitled to vote who is habitually resident in the same judicial district as the candidate.
Custody of voting papers and counting of votes.
The secretary shall safely keep, unopened, all voting envelopes received by him before election day from persons entitled to vote, and on that day shall deliver them to the vice-president, who shall then, in the presence of scrutineers,
(a) examine the declarations and reject those envelopes on which, in his opinion, the declarations have not been completed in accordance with the requirements of this Act;
(b) remove from those voting envelopes which have not been rejected the plain envelopes and place them unopened in suitable receptacles in such a manner that the envelopes cannot be identified; and
(c) open the plain envelopes and scrutinize and count the votes and keep a record thereof in a book to be provided by the society.
Any person entitled to vote at the election is entitled to be present at the counting of the votes.
If the scrutiny and count cannot be completed on election day, it may be continued from day to day, but in no case beyond ten days.
If a scrutineer is absent, the vice-president and the other scrutineer may proceed with the scrutiny and count.
If both scrutineers are absent, the president, or in his absence, the vice-president, shall appoint two scrutineers to act in their stead.
Procedure on equality of votes.
If there is an equality of votes for two or more persons practising and resident in any judicial district, as a result of which the election of one or more of the elective benchers is undecided, the name of each such person shall be written on a separate paper and a scrutineer shall forthwith put the papers in a suitable receptacle, and the vice-president shall draw at random therefrom, in the presence of a scrutineer, a number of papers equal to the number of benchers practising and resident in that district still to be elected, and the person or persons named upon the paper or papers so drawn shall be declared elected.
The vice-president shall decide as to the validity of any vote.
Subject to section 32, in respect of each judicial district, the person or persons, up to the maximum number to be elected from the candidates nominated for that judicial district, receiving the highest number of votes at the election including those declared elected pursuant to the procedure set forth in subsection 26(6) are the elected benchers for the term referred to in subsection 33(1).
Declaration, certification, and report of result.
On completion of the counting of the votes and, where necessary, of the procedure set forth in subsection 26(6), the vice-president shall forthwith declare the result of the election and certify it to the president, who shall report the result to the governing body at its next meeting.
Effect of failure to comply with Act.
Any accidental failure on the part of the president, vice-president or secretary to comply with any of the provisions of this Act does not invalidate an election of elective benchers.
The voting papers at any election, together with all other papers in connection with the election, shall be retained by the secretary until after all petitions in respect of the election have been decided.
A petition against the election of any person may be filed with the secretary by any person who lawfully voted at the election not later than the third Wednesday in May in the year in which the election is held.
The petition shall contain a statement of the grounds on which the election is disputed; and no other grounds shall be considered on the hearing of the petition.
The petitioner shall, within five days after the filing of the petition, deliver a copy of it to the person whose election is disputed.
On the filing of the petition, the governing body shall appoint a day, time and place, for the hearing of it; and the secretary shall give notice thereof, in writing, to the petitioner and to the person whose election is disputed.
The governing body shall appoint a committee of its members to hear the petition.
After the hearing, the committee shall report to the governing body, which thereupon shall consider the report and declare whether the person whose election is disputed was or was not duly elected.
Action where election declared invalid.
Where the governing body declares that such person was not duly elected, it shall declare some other eligible person to be duly elected.
Subject to subsection (2), the benchers so elected shall take office on the date of the first meeting of the governing body following the election, and shall hold office until their successors take office.
Taking office after election petition.
A person against whose election a petition has been filed as provided in section 30 shall not take office until the governing body declares that he has been duly elected.
Effect of absence from meetings.
Where an elective bencher fails to attend three successive regular meetings of the governing body, he then ceases to be a bencher, unless he has been given leave of absence by resolution of the governing body, or unless his failure to attend is excused by resolution of the governing body.
In the case of the failure in any instance to elect the number of benchers required under this Act, or in case of a vacancy caused by the death or resignation of an elective bencher, or resulting from any other cause, the remaining benchers shall, with all convenient speed, appoint a person who is entitled to practise as a barrister or solicitor in the province to fill the vacancy.
Exercise of powers of society.
The governing body may exercise in the name of, and on behalf of, the society, and as the act and deed of the society, any or all of the powers, authorities, and privileges, by this Act or any other Act conferred on the society, and, without restricting the generality of the foregoing, the governing body may
(a) govern the society and administer its affairs:
(b) make, or cause to be made, for the society any contract that the society may, by law, enter into;
(c) provide for the regulation and conduct of the meetings and proceedings of the governing body, including the fixing of the quorum necessary for the transaction of business;
(d) appoint, or provide for the appointment of, committees, and confer upon any such committee power and authority to act for the governing body in, and in relation to, such matters as it may deem expedient, and fix the quorum of any such committee for the transaction of business;
(e) make rules not inconsistent with this Act governing the election of elective benchers, university benchers, student benchers and faculty benchers, or any of them;
(f) make rules governing the appointment of honorary benchers, ex officio benchers and honorary members and prescribing their rights and privileges;
(g) regulate the procedure in respect of elections and contested elections;
(h) appoint a president, and a vice-president, and a person or persons to act for them, or any of them, in their qbsence, and prescribe their respective powers and duties;
(i) appoint editors and reporters of judicial decisions, readers and lecturers in law, a secretary and a treasurer and such employees as may be deemed necessary, and prescribe their duties and fix their remuneration;
(j) regulate the printing and publishing of the reports of judicial decisions, and the distribution thereof;
(k) prescribe the educational, moral, and other qualifications, and the examinations for admission, of persons as students and solicitors, and for call to the bar;
(l) authorize the granting of permission to a member in good standing of the bar of another province of Canada to appear as counsel in a court in Manitoba in a particular cause or matter, and prescribe the terms and conditions upon which he may so appear;
(m) regulate the call of persons to the bar and their enrolment as barristers;
(n) regulate the admission and enrolment of solicitors;
(o) in its discretion, issue or refuse to issue a practising certificate to a member or issue a practising certificate to a member subject to such terms and conditions as it may deem proper, where the member
(i) has not previously held a practising certificate, or
(ii) has not, since the date of his call to the bar or admission as a solicitor held a practising certificate free of conditions, or (iii) has not held a practising certificate for a period of twelve months or more immediately preceding the period to which the new practising certificate if granted would apply, or
(iv) after being invited by the discipline committee of the society to give an explanation respecting any matter affecting his conduct, fails to give an explanation sufficient and satisfactory in the opinion of the committee and is notified by the committee in writing of that failure, or
(v) is suspended from practise, or his name is removed from or struck off the rolls of the society, and the period of suspension has expired or his name has been restored to the rolls, or
(vi) is ordered by the discipline committee of the society to pay a penalty or costs or to be reprimanded, or
(vii) is an undischarged bankrupt or has a receiving order in bankruptcy in force against him, or
(viii) is adjudicated a bankrupt and obtains his discharge, or enters into a composition with his creditors or a deed of arrangement for the benefit of his creditors, or
(ix) is a patient in a hospital within the meaning of The Mental Health Act, or
(x) has an order of committal or an order for the issue of a writ of attachment made against him, or
(xi) has a judgment given against him involving the payment of money and being other than a judgment limited to the payment of costs, or in respect of the whole of which he is entitled to indemnity or relief from some other person, or evidence of the satisfaction of which has been produced to the society; or
(xii) has been found by the governing body or a committee to be incompetent;
(p) regulate the admission of persons as students and their service under articles, education, training, and examination, and the registration, filing, and assignment, of articles of service;
(q) fix the fees to be paid to the society for admission of persons as students and solicitors, and for call to the bar;
(r) fix the fees to be paid to the society by barristers or solicitors and the time for payment thereof;
(s) suspend from practice or strike off the rolls of the society any barrister or solicitor
(i) for non-payment of fees fixed under clause (r), or
(ii) for non-payment of any assessment levied under section 37 or 38, or
(iii) for non-payment of any deductible owing under the terms of a contract of insurance entered into under section 38, or
(iv) for non-payment of any fine, costs or expenses ordered under section 52;
(t) exercise disciplinary jurisdiction over barristers, solicitors, and students;
(u) exercise jurisdiction over barristers, solicitors and students in respect of their competence;
(v) subject to section 39, require barristers and solicitors to open and keep trust accounts for clients' moneys at banks or other institutions authorized to receive deposits;
(w) require every barrister and every solicitor to keep such accounts and records as the governing body from time to time may prescribe as to moneys and property received, held, paid, or delivered for, or on account of, clients or other persons in the conduct of his practice, and to produce on demand such accounts and records to any person duly appointed by the governing body or by a committee thereof:
(x) require every barrister and every solicitor, as a condition precedent to his being entitled to obtain a certificate entitling him to practise his profession, to furnish to the secretary of the society a certificate of a chartered accountant, certified public accountant, or accredited public accountant, or of a person approved by the discipline committee of the governing body, in the form prescribed by the governing body as to compliance by the barrister or solicitor with the rules of the society respecting accounts;
(y) suspend from practice or strike off the rolls of the society any barrister or solicitor who fails to furnish to the secretary of the society, within the time required by the governing body, any certificate required under clause (x);
(z) provide for inquiries or investigations by the governing body, or a committee thereof, or any other person, for the purpose of ascertaining whether the by-laws, rules, or regulations, of the society have been or are being complied with;
(aa) provide for inquiries or investigations and hearings by the governing body, or a committee thereof, of any charge or complaint of professional misconduct or conduct unbecoming a barrister, solicitor, or student, or any charge or complaint that a barrister, solicitor or student is incompetent;
(bb) require any barrister or solicitor to pay to the society the cost of any inspection or audit of his books and accounts if the by-laws, rules, or regulations of the society in relation thereto, or in relation to the opening and keeping of trust accounts for clients' moneys at banks, or other institutions authorized to receive deposits, have not been complied with:
(cc) prescribe the consequences of non-observance of any of the by-laws or the rules or regulations of the society, and in what cases such non-observance by any barrister or solicitor shall amount to professional misconduct;
(dd) prescribe the consequences of non-payment of a fine or costs and expenses imposed on or ordered to be paid by any barrister or solicitor;
(ee) authorize any committee of the governingbody to exercise and carry out any of the powers, authorities, rights, privileges and duties conferred or imposed upon the governing body by this Act;
(ff) make by-laws, rules and regulations for the exercise and carrying out of the powers, authorities, rights, privileges and duties conferred or imposed upon the governing body or the society by this Act;
(gg) in its discretion, vote from the funds of the society any sum for the relief of the employees of the society, or their dependants, or any of them; and the sum shall be paid at such times, and in such manner, as the governing body may by resolution direct.
The governing body may maintain and augment, by the levy of an assessment of such amount as may be fixed by it, from time to time, on the members of the society entitled to practise in the province, a special fund for the purpose of reimbursement in whole or in part of persons sustaining pecuniary loss by reason of the misappropriation or conversion, by any member of the society practising in the province, of money or other property entrusted to, or received by, him in his professional capacity; and may administer the special fund and for that purpose may make such rules and by-laws as the governing body deems necessary.
Deposit and keeping of special fund.
The special fund shall be deposited in an account in a bank or loan or trust company, separate and apart from all other funds of the society, and shall be property of the society.
Investment and administration.
The special fund and the proceeds thereof may be invested in such securities described in clause 3(l)(b), as the governing body, from time to time, determines; and shall be administered by the governing body in such manner as, in its discretion, it deems proper, and is not subject to any trust.
The governing body shall, not later than February 1 in each year, cause to be prepared a report as to the special fund and all dispositions thereof made during the last preceding calendar year; and it shall, not later than that date, cause a copy of the report to be delivered to the Attorney-General.
The society shall, upon making, or assuming liability for, any reimbursement under the provisions of subsection (1), be conclusively deemed to be an assignee of and subrogated to all rights and remedies of recovery of the person reimbursed, to the extent of the reimbursement, against all persons liable for the loss in respect of which the reimbursement is made or the liability for reimbursement is assumed.
The society may bring a separate action in its own name to recover the amount of the reimbursement.
If the society brings an action in its own name to recover the amount of the reimbursement, the person to whom, or for whose benefit, the reimbursement is made may bring an action in his own name for the amount by which the loss exceeds the amount of the reimbursement.
The society may bring an action in the name of and on behalf of the person to whom or for whose benefit the reimbursement is paid for recovery of the loss to the extent of the amount reimbursed.
Disbursement of moneys recovered.
When a person receives money from any person liable for a loss, in respect of which reimbursement is made or liability for reimbursement is assumed, pursuant to a judgment in an action or by a settlement or otherwise, that money shall be applied
(a) firstly, in payment of the legal costs and fees incurred in obtaining the money;
(b) secondly, in compensating the society for reimbursement paid;
and the balance, if any, shall go to the person by or for whom the money was recovered.
The society and a person to whom or for whose benefit reimbursement is paid may jointly bring one action in the name of the person for recovery of the loss, making such arrangements as to the apportionment of the costs of recovery as may be agreed upon.
Professional liability claims fund.
The society may establish and maintain a professional liability claims fund (in this section called " the claims fund") for the purpose of paying therefrom, subject to the provisions of this section and the rules made thereunder, professional liability claims against members.
"Professional liability claim" defined.
In this section, "professional liability claim" means a claim against a member for an amount of money that the member is legally obligated to pay as damages arising out of the performance of professional services for another person in the member's capacity as a barrister or solicitor and caused by the member or any other person for whose acts the member is legally liable.
The claims fund shall be kept separate and apart from all other funds of the society and shall be property of the society.
Investment and administration.
The claims fund and the income therefrom may be invested in such securities described in clause 3(1)(b) as the society may determine, and shall be administered by the society in such manner as in its discretion it deems proper, and shall not be subject to any trust.
For the purposes of the claims fund, the society may levy assessments on such members or classes of members other than those who are in the full-time employment of
(a) the government; or
(b) an agency of the government as defined in The Civil Service Act except The Legal Aid Services Society of Manitoba; or
(c) a municipality;
and do not practise law in Manitoba outside the scope of their employment, and may exempt from the assessments such members or classes of members, as the society may determine.
Professional liability insurance.
The society may, on such terms and conditions as it deems proper, enter into any group contract of insurance with an insurer for payment by the insurer of any professional liability claim, in whole or in part and with or without the expense of adjusting, settling and paying the claim including legal fees and disbursements, where that claim or expense, if not for this subsection, would be payable out of the claims fund pursuant to subsection (7).
Subject to the rules made under subsection (8), the society may pay out of the claims fund
(a) subject to clause (e), any professional liability claim or any part of a professional liability claim that is not payable by an insurer under this section;
(b) any expense of adjusting, settling and paying a professional liability claim, including legal fees and disbursements, that is not payable by an insurer under this section;
(c) the expense of and incidental to negotiating and entering a contract of insurance under this section;
(d) any premium in respect of a contract of insurance entered into under this section;
(e) to any insurer, pursuant to the terms of a contract of insurance entered into under this section, reimbursement for all or part of any payment made by the insurer under the contract in respect of a professional liability claim:
(f) the expense of investing the moneys of and administering the claims fund;
(g) such other amounts, for the purposes of this section and not inconsistent therewith or with the rules, as the society may require.
The society may make rules, not inconsistent with this section, respecting
(a) the investment of the moneys of and the administration of the claims fund:
(b) the levy of assessments for the claims fund;
(c) the negotiation of and entry into a contract of insurance under subsection (6):
(d) the payment of professional liability claims out of the claims fund:
(e) the payment of professional liability claims by an insurer;
(f) the payment of the expense of adjusting, settling and paying a professional liability claim, including legal fees and disbursements;
(g) any other matter or thing that the society is empowered or required to do under this section.
Subject to subsection (4), all moneys received by a member in trust from or for any client shall be deposited in an interest-bearing account kept by the member for clients generally.
A member making deposits in an account under subsection (1) is deemed to hold any interest earnings resulting therefrom as trustee for the foundation, and shall direct the bank or other institution where the account is kept to remit the earnings, less accrued service or other charges pertaining to the operation of the account, to the foundation.
Member not required to account.
A member shall not be required to account to any client for interest remitted to the foundation under subsection (2).
Subsection (1) does not apply in respect of moneys received by a member in trust from or for any client
(a) where the moneys are not received by the member in his capacity as solicitor for the client;
or
(b) where the member deposits the moneys in a separate interest bearing account, or deposits or invests the moneys in a term plan of a bank or a guaranteed term plan of a trust company or a credit union and accounts to the client for all interest earned thereon.
Relief from liability for member.
Where
(a) it could not have been reasonably anticipated by the member that moneys received by him in trust from or for a client would be held long enough to earn interest for the benefit of the client: or
(b) the member could not reasonably have been expected to communicate with or obtain directions from the client, from or for whom the member received moneys in trust, respecting the deposit of the moneys:
the member is not liable for any loss to the client of interest or income on or from the trust moneys in respect of the failure of the member to deposit and hold the trust moneys in an account which would earn interest or income to which the client would have been entitled.
The officers of the society are the past president, a president, a vice-president, a secretary and a treasurer.
Election and term of office of principal officers.
The president, and the vice-president, shall be elected by the governing body from amongst their number at such times, and shall hold office for such periods, as the governing body by by-law or resolution determines.
Appointment of secretary and treasurer.
The offices of secretary and treasurer may be held by the same person who shall be appointed by the governing body, and who shall be designated as the Chief Executive Officer of the Society; and his duties and remuneration shall be prescribed by the governing body.
Persons entitled to practise as barristers.
Subject to this Act,
(a) every person who, at the time of the coming into force of this Act, is a barrister on the rolls of the society continues to be entitled to practise as a barrister;
(b) every person who, before or after the coming into force of this Act, has ceased, or ceases to be entitled to practise as a barrister, upon his name being restored to the rolls of barristers of the society, or upon the expiration of the period of his suspension, is entitled to practise as a barrister; and
(c) every person who is called to the bar under this Act, or any rules, regulations or by-laws of the society made under this Act, is entitled to practise as a barrister.
Persons entitled to practise as solicitors.
Subject to this Act,
(a) every person who, at the time of the coming into force of this Act is a solicitor on the rolls of the society continues to be entitled to practise as a solicitor;
(b) every person who, before or after the coming into force of this Act, has ceased or ceases, to be entitled to practise as a solicitor, upon his name being restored to the rolls of solicitors of the society, or upon the expiration of the period of his suspension, is entitled to practise as a solicitor; and
(c) every person who is admitted and enrolled as a solicitor under this Act, or any rules, regulations or by-laws of the society made under this Act, is entitled to practise as a solicitor.
The governing body may make such rules, regulations and by-laws as it may deem necessary or proper concerning the persons who may be admitted as students, and concerning their admission, service under articles, rights of appearance and practice, education, training, examination, and discipline, and the registration, filing and assignment of articles of service.
Oaths to be taken and forms thereof.
No person shall be called to the bar or admitted as a solicitor or a student or be entitled to carry on the practice or profession of a barrister or solicitor in Manitoba unless he is a Canadian citizen or a person who has been lawfully admitted to Canada for permanent residence and unless he takes in court before a judge of the Court of Queen's Bench the oath of allegiance in the form prescribed by law, and in the case of call to the bar, the oath of a barrister, and in the case of admission as a solicitor, the oath of a solicitor, in the forms following or to the like effect:
(a) The oath of a barrister:
"I, A.B., do swear that I will truly and honestly demean myself in the practice of a barrister according to my best knowledge and ability. So help me God".
(b) The oath of a solicitor:
"I, A.B., do swear that I will truly and honestly demean myself in the practice of an attorney-at-law and solicitor according to my best knowledge and ability. So help me God".
Undertaking by landed immigrant.
An applicant for admission to the Society who is not a Canadian citizen shall not be admitted unless he gives the Society an undertaking that he will become a Canadian citizen at the earliest possible date and if he fails to become a Canadian citizen within a period of four years after he has been lawfully admitted to Canada for permanent residence he shall cease to be entitled to carry on the practice or profession of barrister or solicitor in Manitoba.
Striking member off the rolls.
Where a member of the Society who is not a Canadian citizen does not become a Canadian citizen within four years of being lawfully admitted to Canada for permanent residence, his name shall be struck off the rolls of the Society and he thereupon ceases to be entitled to carry on the practice or profession of barrister or solicitor in Manitoba.
Appointment of Queen's Counsel.
The Lieutenant Governor in Council may, by letters patent under the great seal, appoint, from among the barristers on the rolls of the society, such persons as he may deem right to be, during pleasure, provincial officers under the name: Her Majesty's counsel learned in the law for the Province of Manitoba.
Limitation on number of appointments.
Except in the case of the appointment of a person who holds or has held the office of Attorney-General of Canada, or Solicitor-General of Canada, or Attorney-General of Manitoba, and except in the case of the appointment of a person in the place and stead of any person, theretofore appointed to be of such counsel, who has died or has been appointed a judge of any court in Canada, the appointments shall not exceed four in any one year.
Limitation as to persons who may be appointed.
No person shall be appointed to be one of Her Majesty's counsel learned in the law unless
(a) he has been
(i) entitled to practise for a period as a barrister or advocate in; or
(ii) enrolled for a period as an attorney-at-law or solicitor of;
any of Her Majesty's superior courts of law or equity in the United Kingdom or in any part of Canada;and
(b) the total length of the periods during which he has been entitled to practise, or has been enrolled as aforesaid, is at least 10 years.
Q.C.'s deemed appointed under this Act.
Any person who is or hereafter becomes a barrister on the rolls of the society, and who has been or is hereafter appointed to be one of Her Majesty's counsel learned in the law by the Governor-General under the great seal of Canada, or by the Lieutenant Governor of any province of Canada under its seal, shall be deemed to have been appointed as one of such counsel under this Act.
Appointment of Attorney-General as Q. C.
Notwithstanding subsection (3), upon the appointment of any person who is a barrister on the rolls of the society to the office of Attorney-General of Manitoba, if the barrister so appointed as Attorney-General is not one of Her Majesty's counsel learned in the law for the Province of Manitoba, the Lieutenant Governor in council shall, as provided in subsection (1), by letters patent under the great seal, appoint that person as one of such counsel.
Barristers on the rolls of the society shall have precedence in the courts and before other tribunals in the following order:
(a) the Attorney-General of Canada;
(b) the Solicitor-General of Canada;
(c) the Attorney-General of Manitoba;
(d) those persons who have held the office of Attorney-General of Canada or of Attorney-General of the province, according to seniority of appointment;
(e) those persons who have held the office of Solicitor-General of Canada;
(f) her Majesty's counsel learned in the law according to seniority of appointment, whether appointed by the Governor-General or by the Lieutenant Governor of any province of Canada; and
(g) other barristers on the rolls of the society in the order of their call to the bar of the province.
Right of barrister to sue for fees.
A barrister is entitled to sue for, and recover, fees for his professional services.
Right to solicitor to sue for fees, etc.
A solicitor is entitled to sue for and recover, fees and disbursements due to him.
Where a barrister or a solicitor and a client thereof have agreed that interest may be charged on unpaid fees, charges or disbursements of the barrister or solicitor, the barrister or solicitor may charge and recover interest on the unpaid fees, charges or disbursements charged to the client calculated from a date that is at least one month after the day the bill is delivered to the client.
Interest on overpaid fees, etc.
Where, on a taxation of a bill of fees, charges and disbursements of a barrister or a solicitor, it appears that the client has overpaid the barrister or solicitor, the client is entitled to recover interest on the overpayment calculated from the date when the overpayment was made.
The rate of interest that may be charged and recovered under subsection (3) or (4) shall not exceed the rate that is established under section 161 of the Income Tax Act (Canada) on the day the bill is delivered to the client, or the day on which the overpayment is made, as the case may be.
The rate of interest that a barrister or solicitor is charging on unpaid fees, charges or disbursements shall be shown on every bill delivered to the client.
Change of interest on taxation.
On the taxation of a bill of fees, charges and disbursements of a barrister or a solicitor, the taxing officer may, where in all the circumstances of the case he considers it just to do so,
(a) disallow interest; or
(b) fix a rate of interest that is less than the maximum rate authorized under subsection (5);
in respect of the whole or any part of the amount of fees, charges and disbursements allowed on the taxation.
Nothing in this section limits the power possessed by the courts in regard to the revision or taxation of bills of costs.
Two rolls of barristers and two rolls of solicitors shall be kept by the secretary, one of each in his office and one of each in the office of the Registrar of the Court of Queen's Bench.
The rolls of barristers shall be signed by each barrister at the time of his call to the bar; and the rolls of solicitors shall be signed by each solicitor at the time of his admission as a solicitor.
Inquiry into conduct or competence and notice thereof.
Where an inquiry into the conduct or competence of a member of the society is deemed advisable by the governing body or a committee thereof, at least one week before the first meeting of the governing body, or committee thereof, to be held for the taking of evidence or otherwise ascertaining the facts, a notice shall be served upon the person whose conduct or competence is the subject of the inquiry; and the notice shall embody a copy of the charges or complaints made against him or a statement of the subject matter of the inquiry, and shall also specify the time and place of the meeting.
A notice to be served upon a person whose conduct or competence is the subject of inquiry may be served upon him personally, or may be sent to him by registered mail, postage prepaid, addressed to him at his post office address appearing in the records of the society.
Day of service of mailed notice.
A notice sent to a person by registered mail under subsection (2) shall be deemed to have been served on the person on the third day after the day it is mailed.
Proof of service of the notice may be by affidavit or statutory declaration.
Inquiry in default of attendance of person affected.
Where the person whose conduct or competence is the subject of inquiry does not attend, the governing body or the committee may upon proof of service of the notice in accordance with this section, proceed with the inquiry in his absence, and, without further notice to him, take such action as it is authorized to take under this Act.
The testimony of witnesses at the inquiry shall be taken under oath, and there is full right to cross-examine all witnesses called and to call evidence in defence and reply.
The governing body, or the committee, or any party to the inquiry, may obtain, on praecipe from the Court of Queen's Bench, subpoenas for the attendance of witnesses and the production of books, documents, and things at the inquiry; and disobedience thereof or refusal to give evidence shall be deemed a contempt of court.
Witnesses are entitled to the like allowances as witnesses attending upon the trial of an action in the Court of Queen's Bench.
Certified copies of convictions as evidence thereof.
For the purposes of the inquiry, a certified copy, under the seal of the court or under the hand of the convicting magistrate or justice of the peace, or under the hand of the clerk of the magistrate's court, of the conviction of a person of any crime or offence under the Criminal Code (Canada), or under any other statute, is conclusive evidence that the person has committed the crime or offence stated therein, unless it is shown that the conviction has been quashed or set aside.
Subject to subsection (11) an inquiry held under this section shall be held in camera.
Where the member into whose conduct or competence an inquiry is being made under this section requests that the inquiry be open to members, the inquiry shall be open to members.
Subject to subsection (13), no bencher or member shall disclose or publish outside the governing body or a committee thereof, any information concerning an inquiry conducted under this section.
Nothing herein prevents the disclosure of information necessary to permit an appeal as provided herein, or the publication, at the direction of the governing body or a committee thereof, to the members of the society, or the public, or both, of
(a) the name of a member with respect to whom an inquiry has been conducted;
(b) the charges or complaints against the member;
(c) the findings and resolution of the governing body or any committee thereof; and
(d) the terms and conditions to which the practising certificate of a member is subject.
Suspension or conditions of practice in case of conduct.
Notwithstanding anything herein, where the governing body or the discipline committee thereof has directed an inquiry into the conduct of a member, the governing body or the discipline committee thereof may, if it determines it to be in the public interest,
(a) suspend the member from practice and thereupon the member stands suspended from practice until the suspension is lifted, superseded, or annulled by the governing body or the discipline committee thereof; or
(b) impose conditions of practice on the member, and thereupon the member is subject to those conditions of practice until they are varied or rescinded by the governing body or the discipline committee thereof.
Powers in case of incompetence.
Notwithstanding anything herein, where the governing body or the standards committee thereof has directed an inquiry into the competence of a member, the governing body or the standards committee thereof may, if it deems it in the public interest,
(a) suspend the member from practice, and thereupon the member stands suspended from practice until the suspension is lifted, superseded or annulled by the governing body or the standards committee thereof; or
(b) impose conditions of practice on the member and thereupon the member is subject to those conditions until they are varied or rescinded by the governing body or the standards committee thereof.
Notice of suspension or conditions.
The secretary shall cause notice of the suspension of a member under subsection (1) or (2) or any conditions imposed on the practice of a member under subsections (1) and (2) to be served upon the member as soon as practicable after the suspension or the imposition of the conditions, and service may be made in the manner provided in subsection 49(2); and subsections 49(3) and (4) apply to the service.
The governing body, or a committee thereof, may direct the publication to be made to the members of the society, or to the public, or to both, of information relating to proceedings under this section including
(a) the name of a member who is subject to an inquiry;
(b) the nature of the inquiry;
(c) any suspension of a member, or conditions on the practice of a member imposed under this section.
The chairman, or acting chairman, of the governing body or of a committee thereof, may administer an oath to any person appearing before the governing body or the committee, respectively, to give evidence in any hearing, proceeding, or inquiry.
Consequences of professional misconduct, etc.
Where a barrister, solicitor, or student, is found by the governing body, or a committee thereof, to have been guilty of professional misconduct or of conduct unbecoming a barrister, solicitor, or student, the governing body may, by resolution,
(a) disbar the barrister and order that his name be struck off the rolls of barrister or suspend him from practising as a barrister for such period as it may deem proper;
(b) declare that the solicitor is unworthy to practise as a solicitor, and order that his name be struck off the rolls as solicitor or suspend him from practising as a solicitor for such period as it may deem proper;
(c) expel the student from the society and order that his name be struck from the books of the society or, for such period as it may deem proper
(i) refuse to admit the student to the prescribed examinations, or
(ii) defer his call to the bar and defer his admission as a solicitor, or
(iii) attach conditions to his call, or
(iv) do any one or more of the things mentioned in sub-clauses (i) to (iii);
(d) reprimand the barrister, solicitor or student;
(e) order the barrister, solicitor, or student to pay a fine;
(f) order that the practising certificate of the barrister or solicitor be cancelled and that a new practising certificate be issued to him subject to such terms and conditions as it may deem proper, and confirm, vary or remove any such terms and conditions as it may deem proper; or
(g) rescind or vary any order of suspension, expulsion, fine or other action taken under this subsection, and make application for the variation of any custodial order.
Where a barrister, solicitor, or student, is found by the governing body, or a committee thereof, to be incompetent, the governing body may, by resolution
(a) disbar the barrister and order that his name be struck off the rolls of barristers or suspend him from practising as a barrister until he has established to the governing body or committee thereof that he is competent to practise as a barrister;
(b) order that the name of the solicitor be struck off the rolls of solicitors or suspend him from practising as a solicitor until he has established to the governing body or a committee thereof that he is competent to practise as a solicitor;
(c) expel the student from the society and order that his name be struck from the books of the society or refuse to admit the student to the prescribed examinations or defer his call to the bar or defer his admission as a solicitor until he has established to the governing body or a committee thereof that he is competent to perform the duties and responsibilities of a student or to practise as a barrister or a solicitor as the case may be;
(d) order the barrister, solicitor or student to take such of instruction as it may deem proper, to undertake such studies as it may deem proper, or to submit to examinations in such aspects of the law as it may deem proper, or any or all of those things;
(e) order that the barrister or solicitor refrain from practising in respect of certain areas of the law until he has established to the governing body or a committee thereof that he is competent to practise in those areas of the law;
(f) order that the practising certificate of the barrister or solicitor be cancelled and that a new practising certificate be issued to him subject to such terms and conditions as it may deem proper until the barrister or solicitor has established to the governing body or a committee thereof that he is competent to practise as a barrister or a solicitor without having the terms and conditions attached to his practising certificate: or
(g) rescind or vary any order of suspension, expulsion or other action taken under this subsection.
Incompetence by reason of alcoholism, etc.
Without limiting the meaning of "incompetent" and without limiting the authority of the governing body or a committee thereof to find a barrister, solicitor or student incompetent, the governing body or a committee thereof may find a barrister, solicitor or student to be incompetent
(a) because, while his ability to perform legal services which he has undertaken to perform is impaired by reason of addiction to or excessive use or consumption of alcohol or drugs, he performs or attempts to perform those legal services; or
(b) because he is suffering from mental incapacity or infirmity which impairs his ability to perform legal services which he has undertaken to perform.
Payment of costs of investigation and inquiry.
A barrister, solicitor, or student, who is found guilty of professional misconduct, or of conduct unbecoming a barrister, solicitor, or student, or is found incompetent may be ordered by the governing body to pay, all or any part of, the costs and expenses incurred by the society in and about the investigation into, proceedings upon, and hearing of any subject matter of inquiry or any complaint or charge in respect of which he has been so found guilty or incompetent.
Order respecting costs as a judgment.
A copy of the order of the governing body made under subsection (4) certified by the secretary, may be filed in the Court of Queen's Bench, and thereupon becomes a judgment of that court.
All proceedings before the discipline committee of the governing body and all proceedings of the standards committee of the governing body are and remain confidential but either of those committees may designate an appropriate member thereof to instruct and assist counsel to the society in connection with proceedings before the judicial committee, or any appeal therefrom and in the course of giving those instructions or that assistance may disclose to the counsel the evidence or information placed before the committee and the source thereof.
Notwithstanding anything herein, where a charge is made by the secretary that a member has made an untrue representation to or concealed material facts from any investigation or inquiry conducted by the governing body, or a committee thereof, the judicial committee may compel the attendance of any member or members of the governing body or committee thereof before whom the offence is alleged to have occurred to give evidence and produce books, transcripts, minutes and documents pertaining to the charge.
Where the governing body or a committee thereof, has commenced an investigation of a charge or complaint that a barrister, solicitor, or student is incompetent, the governing body, or committee thereof, may request and is entitled to obtain any client files or records that it may reasonably require to further the investigation, whether or not the files or records, and the information contained therein are subject to a solicitor-client privilege.
A person, who in the course of carrying out any duties under this Act, becomes privy to information contained in the client files or records of a solicitor that are subject to a solicitor-client privilege, has the same obligations respecting the disclosure of that information as the member from whom the files or records were obtained.
Information obtained on appeal.
A person who, during the course of an appeal under subsection 54(1), becomes privy to information or records that are subject to a solicitor-client privilege, shall not disclose that information to any person, except for the purposes of the appeal.
Exclusion of public to preserve privilege.
The Court of Appeal, on an an appeal under subsection 54(1), and the Court of Queen's Bench on any application in a matter arising under this Act, may exclude members of the public from the hearing of the appeal or application if the court considers the exclusion is necessary to prevent the disclosure of information that could be subject to a solicitor-client privilege.
Disclosure of information in judgment.
In giving reasons for judgment on an appeal or application referred to in subsection (4), the Court of Appeal or Court of Queen's Bench, as the case may be, shall take all reasonable precautions to avoid including in those reasons any information before them on the appeal or application that is subject to a solicitor-client privilege and, as appropriate, order that the court records of the appeal or application or portions thereof, be sealed.
The governing body may make rules that it considers necessary or advisable for the purpose of ensuring that information which, except for the provisions of this Act, would be subject to a solicitor-client privilege, is not disclosed and the rules may be made applicable to any person who in the course of any proceeding under this Act becomes privy to such information.
In any legal proceeding except an inquiry into the competence of a barrister-solicitor or student, and except for appeals and applications incidental thereto, a witness, whether a party thereto or not, is excused from answering any question or producing any document in respect of information files or records obtained under subsection (1) and that are subject to a solicitorclient privilege.
A barrister, solicitor, or student, who has been disbarred, suspended, or struck off the rolls or books of the society, or reprimanded or fined, or ordered to refrain from practising in certain areas of the law or had his practising certificate made subject to terms and conditions, by the governing body, or whose application for the restoration of rights and privileges has been refused, may appeal from the act of the governing body to The Court of Appeal within 30 days from the date thereof; and the court, upon the hearing of the appeal, may make such order relating thereto, and as to costs, as to the court may seem meet.
Refusal of practising certificate.
A barrister or solicitor to whom the governing body refuses to issue a practising certificate, or a practising certificate that is not subject to terms and conditions, may appeal from the refusal to the Court of Appeal within two weeks from the date thereof; and the court, upon the hearing of the appeal, may make such order relating thereto, and as to costs, as to the court may seem just and proper.
The governing body, upon such grounds as it may deem sufficient, and upon such terms if any, as it may deem proper, may reinstate
(a) as a barrister a person who has been disbarred;
(b) as a solicitor a person whose name has been struck off the rolls of solicitors; and
(c) a student whose name has been struck off the books of the society.
Prohibition of practice by unauthorized persons.
No person who is not entitled to practise in the province as a barrister or solicitor shall, in the province,
(a) carry on the practice or profession of barrister or solicitor;
(b) act as a barrister or a solicitor in any superior or inferior court of civil or criminal jurisdiction or before any justice of the peace;
(c) sue out any writ or process or commence, carry on, solicit, or defend, any suit or proceeding in the name of any other person, or in his own name;
(d) hold himself out as, or represent himself to be, or practise as, a barrister, or solicitor, or for gain or reward act as a barrister or solicitor;
(e) on behalf of a creditor or person alleging himself to be a creditor of another, write, publish, or send, any card, letter, or notice, threatening legal proceedings for the recovery of money or property or containing an intimation to the effect that legal proceedings will be taken to recover money or property other than a card, letter, or notice, threatening or intimating that the matter will be handed to a qualified solicitor for legal proceedings;
(f) attempt to do any of the acts, matters, or things hereinbefore mentioned.
Actions deemed to be carrying on practice.
Without limiting the generality of the foregoing, every person shall be deemed to be carrying on the practice or profession of barrister or solicitor, and to be acting as a barrister or solicitor, or attempting to do so, as the case may be, who either directly or indirectly for, or in expectation of any fee, gain, or reward, direct or indirect,
(a) draws, revises, or settles
(i) any document relating to real or personal property; or
(ii) any document for use in any proceeding, judicial or extra-judicial; or
(iii) any document, including (but without limiting the generality of the meaning of the word "document") any petition, affidavit, minute, resolution, or by-law relating to the incorporation, administration, organization, reorganization, dissolution, or winding-up of a corporation; or
(iv) any will, deed, settlement, trust deed, or power of attorney, or any document relating to any guardianship, probate, or letters of administration, or the estate of any person;
or
(v) any document relating in any way to proceedings under any statute of Canada, or of the province; or
(b) solicits the right to negotiate, or negotiates, or attempts to negotiate, in any way for the settlement of, or settles, any claim for loss or damage founded in tort for a claimant; or
(c) agrees to place at the disposal of any other person the services of a barrister or solicitor; or
(d) gives legal advice.
Imitation of court process prohibited.
No person shall use in any manner whatsoever any document or writing that is not a court process or form and that simulates, or is intended or is likely to lead any person to the belief that it is a court process or form.
Employment of disbarred persons, etc.
No barrister or solicitor shall employ, in any capacity relating to the practice of law in the province, a person who at any time has been a barrister or solicitor and who is disbarred or struck off the rolls as a barrister or solicitor, or who is suspended from practice except, in the case of a person who was disbarred or struck off the roles or suspended under subsection 53(1) by reason of incompetence, with the approval of the governing body.
This section does not prohibit
(a) any public officer from drawing or preparing any document in the course of his duty; or
(b) any person appointed as a notary public or conveyancer from exercising the powers conferred upon him by law; or
(c) any incorporated loan or trust company authorized to carry on business within the province from doing anything that its act or charter of incorporation empowers it to do; or
(d) any chartered accountant from preparing for any person by whom he is employed any document or portion thereof, dealing with the accounting affairs of that person; or
(e) any corporation, authorized to act as general agent in the province for any incorporated land, loan, trust or insurance company that is not incorporated under the laws of the province, from doing anything on behalf of its principal in the course of the agency that the principal itself might do under the powers contained in its act or charter of incorporation; or
(f) any person from acting personally, for himself only, in a matter or proceeding to which he is a party.
Every person, including every officer, employee, or agent of a corporation, who violates any provision of this section is guilty of an offence and is liable, on summary conviction, for a first offence to a fine or penalty of not more than $100. or, in default of payment, to imprisonment for not more than one month, and for a second or subsequent offence to a fine or penalty of not more than $200. or, in default of payment, to imprisonment for not more than two months.
The fine provided for by this section may be recovered upon an information by the society or by a person authorized by the society, in the manner provided by The Summary Convictions Act, or upon application by the society to the Court of Queen's Bench by way of originating notice.
Place for beginning proceedings.
Proceedings taken by way of originating notice under this section may be commenced in the Eastern Judicial District.
The society is, in an action commenced by it or on application by way of originating notice, entitled to an injunction enjoining any person who has violated any provision of this section from practising as a barrister and solicitor and from violating further any provision of this section, as the case may require, notwithstanding that a fine or penalty has been or is imposed.
Where proceedings by way of originating notice are taken under this section, the rules of practice of the Court of Queen's Bench apply.
Enforcement, variation, or discharge of order, etc.
An order or judgment made under this section may be enforced in the same manner as any order or judgment of the Court of Queen's Bench and may be varied or discharged oh an application made by way of originating notice.
Disposition of fines recovered.
The fines and penalties recovered under this section shall be paid to the Minister of Finance of Manitoba.
Notwithstanding section 56, and subject to any regulations of the governing body, a student who is acting under the control, supervision and authority of a barrister or solicitor and who is
(a) under articles of service to a barrister or solicitor; or
(b) registered in an accredited clinical training program supervised by a barrister or solicitor under the auspices of the Faculty of Law of the University of Manitoba; or
(c) employed by a barrister or solicitor; or
(d) enrolled in the Faculty of Law at the University of Manitoba during the period he is registered and participating in a legal aid program operated under the auspices of the Faculty of Law or the Faculty of Law and The Legal Aid Services Society of Manitoba jointly;
may
(e) engage in the work of a solicitor;
(f) appear as a junior with a barrister or solicitor in the conduct of any proceedings; or
(g) appear, either alone or as a junior with a barrister or solicitor
(i) in any interlocutory application or motion in any proceeding, including, without limiting the generality of the foregoing, an application for bail or to examine for discovery,
(ii) to move an adjournment or hear judgment,
(iii) in any summary proceeding in The Provincial Court or before a judge of The Provincial Court, including, without limiting the generality of the foregoing, proceedings under The Highway Traffic Act, The Family Maintenance Act, The Child and Family Services Act, the Young Offenders Act (Canada) and the Criminal Code (Canada),
(iv) in any proceeding under Part IV of The Landlord and Tenant Act,
(v) in any proceeding heard under subsection 9(1) of The Court of Queen's Bench Small Claims Practices Act,
(vi) in any proceeding in which a judge of The Provincial Court has absolute jurisdiction to try an indictable offence,
(vii) in any proceeding before an administrative or public tribunal or commission,
(viii) in any proceeding in the Family Division of The Court of Queen's Bench for the enforcement of, or the recovery of any arrears payable under, orders made under The Family Maintenance Act or The Child and Family Services Act, or
(ix) in any other proceeding specified in any regulation of the governing body.
Meaning of "contingency contract".
In this section "contingency contract" means a contract made by a solicitor or barrister practising in the province, with a person (herein referred to as "the client"), as to the remuneration to be paid to, or retained by, the solicitor or barrister for services rendered or to be rendered to the client whereby, for those services, the solicitor or barrister is to receive or retain, in lieu of, or in addition to, any remuneration to which he might otherwise be entitled,
(a) a portion of the proceeds of the subject matter of the action or proceedings in which the solicitor or barrister is or is to be employed; or
(b) a portion of the money or property in respect of which the solicitor or barrister is or may be retained or employed, whether or not an action or proceeding therefor has been commenced or is contemplated; or
(c) a commission or a percentage of the amount recovered or defended or of the value of the property about which any transaction, action, or proceeding, is concerned.
Requirements on making contingency contract.
At the time of making a contingency contract the solicitor or barrister who is a party thereto shall deliver to, and leave with, the client a copy of the contingency contract with a copy of subsections (4), (5) and (6) attached thereto.
Effect of failure to comply with subsec. (2).
A solicitor or barrister who has not complied with subsection (2) is not entitled to any remuneration exceeding that to which he would have been entitled had no such contingency contract been made.
Application for declaration that contract unfair.
Where a contingency contract has been entered into, the client may, at any time within three months after payment to, or retention by, the solicitor or barrister of any remuneration provided for in the contingency contract, and whether before or after the payment or retention, apply by way of originating notice to a judge of the Court of Queen's Bench in chambers for a declaration that the contract is not fair and reasonable to the client.
Declaration avoiding contract.
Upon the hearing of the application the judge shall inquire into the facts: and, if it appears to him that the contingency contract is not fair and reasonable to the client, he shall declare it to be void and shall order the costs, fees, charges, and disbursements, of the solicitor or barrister in respect of the business done to be taxed in the same manner as if no contingency contract had been made.
Order for repayment of excess costs.
Where the remuneration has been received or retained by the solicitor or barrister and exceeds the amount so taxed, the judge shall order repayment to the client of the excess and may give all directions necessary or proper for the purpose of carrying any such order into effect or otherwise consequential thereon as to the judge seems meet.
For the purposes aforesaid the judge may take evidence either by affidavit or viva voce, as to the judge may seem just.
Rights of Crown, municipalities, and school districts etc. preserved.
A contract does not affect the amount of, or any rights or remedies for the recovery of, costs payable to the Crown or to any municipality or school district, school area, or school division by any other person; and the Crown, municipality, school district, school area, or school division, may recover such costs as if the contract had not been made, subject to any right of the other person to require the costs to be taxed according to the rules from time to time in force for the taxation of costs.
Maximum costs recoverable by Crown, municipality, etc., where contingency contract made.
Where the contract fixes or determines, with respect to any particular action or proceedings, the amount of costs payable by the Crown, municipality, school district, school area, or school division, as the case may be, to a solicitor or barrister, it is not entitled to recover in such an action or proceedings from any other person under an order for the payment of costs that are the subject matter of the contract, more than the amount payable by it under the contract.
In this section,
"custodian" means a person designated by an order to have custody of the property of a member; ("gardien")
"member" means a member, a suspended member, or a former member of the society; ("membre")
"property" means any chattels, files, records, securities, books of account, records of transactions, moneys in cash or on deposit, negotiable instruments, corporate seals, documents and papers, or any of them, whenever acquired, if they relate to the practice of the member or the business or affairs of his clients or former clients or any of them. ("biens")
Where
(a) the name of a member has been struck off the roils; or
(b) a member has been suspended from practising as a barrister or solicitor; or
(c) a member has absconded or is otherwise improperly absent from his place of business; or
(d) a member has neglected his practice for an unduly extended period; or
(e) a member has died or become mentally incapacitated; or
(f) by reason of illness or for any other reason a member has become and remains unable to practise as a barrister or solicitor; or
(g) other sufficient grounds exist;
a judge of the Court of Queen's Bench, if in his opinion it is just and proper to do so, may, upon summary application being made to him by the society either ex parte or on such notice as the judge may require, appoint a custodian and order the sheriff of a judicial district
(h) to enter from time to time upon any premises and cause to be opened any safety deposit box or any other receptacle, wherein the information or material filed on the application gives reasonable grounds for belief that any property is or may be kept; and
(i) to seize and take possession of any such property and to remove it and place it in the custody of the secretary of the society, a trust company or such other person as may be designated in the order.
The order shall be served within such time, and upon such persons, and in such manner, as may be provided in the order.
The judge may provide in the order that the member shall file with the custodian any claims for a solicitor's lien within 30 days after the service of the order.
A person served with a copy of an order made under this section shall retain, and shall not dispose of, any property of a member until directed by the sheriff or custodian, or in an order of the judge.
Where an order is made under subsection (2), a judge of the Court of Queen's Bench, upon application of the society or of any other person, may, by order made ex parte or upon such notice as the judge may require,
(a) remove any custodian appointed by the order and appoint another custodian;
(b) direct any bank or other depository of property of a member to deal with, hold, or dispose of the property in such manner as the judge may deem proper;
(c) give directions and advice to the custodian as to the disposition of the property in the hands of the custodian;
(d) give such directions or make such further orders as the nature of the case requires.
Where property of a member has been placed in the custody of a custodian pursuant to an order under this section, the custodian shall, by such notice as he thinks proper, inform such clients of the member or other persons as he may deem necessary
(a) that property in which the client or other person appears to have an interest is in the custody of the custodian; and
(b) that the client or other person may apply to the custodian to have the property in which he claims to have an interest dealt with as he may specify.
Where the custodian is satisfied that a person is entitled to possession of any property in his custody and that no solicitor's lien is claimed thereon or appears to exist, or if any such lien is satisfied, he may deal with the property as the person specifies.
Where a member fails to file a claim for a solicitor's lien within 30 days after service of the order, any lien to which he might otherwise be entitled is thereupon extinguished.
Where a member files a claim for a solicitor's lien within the 30 day period, the custodian shall give notice to the claimant of the property, and thereafter the rights of the parties shall be determined according to law.
Notwithstanding anything in this section, a judge of the Court of Queen's Bench may at any time enlarge or shorten the time within which anything is required to be done under this section or dispense with any of such requirements.
Determination of validity of claims.
Notwithstanding anything in this section, a judge of the Court of Queen's Bench may summarily determine the validity of any claim to a solicitor's lien.
Neither the custodian, the society, its officers, the benchers, anyone designated by the governing body, nor anyone acting for any of them, incurs any liability or obligation as trustee or otherwise to the member or any of the member's clients or former clients or to the member's estate or to any other person by reason of any proceeding taken under this section.
No liability attaches to the persons enumerated in subsection (13) or any of them for any act done or omitted in good faith under this section.
A judge of the Court of Queen's Bench may fix and award the costs and fees to be taxed, allowed and paid by the member or any other person in respect of proceedings under this section; but no costs shall be awarded against the custodian, the society, its officers, the benchers or anyone acting for any of them by reason of, or in respect of, any proceedings taken under this section in good faith.
Payment of trust moneys to society.
Where a member has held money in trust for a client for not less than three years, the member may pay the trust money to the society if, prior thereto, the member has sent by prepaid registered mail to the client at his last known address written notice of the payment together with a copy of this section of the Act.
Liability for trust money extinguished.
Upon a member paying trust money to the society under subsection (1), his liability to pay the money to the client or the client's personal representative or successor is extinguished.
The society shall maintain a trust account for money paid to it under subsection (1) and shall hold money so paid to the credit of the client together with any interest that may accrue thereon.
Where a client, or a client's personal representative or successor, claims and establishes to the satisfaction of the society an entitlement to money paid to the society under subsection (1), the society shall pay the money to the client or the client's personal representative or successor, as the case may require.
Where a person makes a claim under subsection (4) and the society is not satisfied that the claimant has established an entitlement to money paid to it under subsection (1), the person may appeal the decision of the society to the Court of Queen's Bench within 30 days after the date the decision or notice thereof is sent to the claimant and the Court, upon hearing the appeal, may make such order relating thereto, and as to costs, as to the Court may seem proper.
Property converted to society.
After the society has held money paid to it under subsection (1) for 10 years, the money becomes the property of the society absolutely.
LAW FOUNDATION
Manitoba Law Foundation continued.
The Manitoba Law Foundation is continued as a body corporate.
The objects of the foundation are to encourage and promote
(a) legal education;
(b) legal research;
(c) legal aid services;
(d) law reform; and
(e) the development and maintenance of law libraries.
The foundation may
(a) receive the interest earned on trust accounts and paid to it under this Act;
(b) receive any gift, grant, devise or bequest made to it from any source;
(c) invest any portion of its funds not immediately required for its purposes.
The foundation shall pay from its funds, in each fiscal year,
(a) to The Legal Aid Services Society of Manitoba, 50% of the total trust account interest received by the foundation under section 39 in that fiscal year, or the amount of $1,007,629., whichever is greater; and
(b) to the society, for educational purposes, 18.75% of the total trust account interest received by the foundation under section 39 in that fiscal year, or the amount of $335, 383., whichever is greater;
and if the funds of the foundation, after paying the expenses of administering its affairs, are insufficient to make those payments, the payments shall be made in pro rata amounts.
The foundation may, in each fiscal year, after making or providing for the grants required to be made under subsection (1), make such other grants, consistent with its objects, as it deems advisable.
The affairs of the foundation shall be managed by a board of 10 directors,
(a) five of whom shall be appointed by the Attorney-General;
(b) three of whom shall be appointed by the governing body of the society;
(c) one of whom shall be appointed by the president of the Manitoba branch of The Canadian Bar Association; and
(d) one of whom shall be the Dean of the Faculty of Law at the University of Manitoba or a member of the Faculty appointed by the Dean.
The board may,
(a) in the name and on behalf of the foundation, exercise all or any of the powers of the foundation;
(b) make by-laws for its own procedure.
Subject to subsection (2), each director shall be appointed to hold office for a term of three years and may be re-appointed for one additional term of three years.
Of the directors appointed first, those whom the Attorney-General in consultation with the society may select shall each be appointed to hold office for a term of two years.
A director whose term of office has expired continues to hold office until a successor is appointed.
A director who
(a) fails to attend three consecutive regular meetings of the board, except where the board by resolution excuses the absences; or
(b) in the case of a director who is a barrister and solicitor, ceases to be a member in good standing of the society; or
(c) is found by a court to be of unsound mind; or
(d) becomes a bankrupt within the meaning of the Bankruptcy Act (Canada);
is disqualified from holding office as a director, and the office held by that director is thereupon vacated.
Any vacancy among the directors resulting from resignation, disqualification or death before the expiry of a term of office shall be filled by a new appointment for the remainder of the unexpired term made in accordance with section 66.
The directors shall receive, from the funds of the foundation, such remuneration for their services as the Attorney-General may approve, and reimbursement for reasonable expenses incurred in providing those services.
The Attorney-General shall designate one of the directors as chairperson, to preside at meetings of the board, and another as vicechairperson, to preside at meetings of the board in the absence of the chairperson.
The board shall meet at least four times in each year.
Six directors constitute a quorum for the purpose of holding any meeting of the board.
A director who is associated with a recipient or proposed recipient of a grant from the foundation, and discloses that association to the board, may vote on any question relating to the grant, unless the director has a direct pecuniary interest in the grant.
No later than 90 days after the close of each fiscal year of the foundation, the foundation shall cause to be prepared and to be submitted to the Attorney-General
(a) an audit of its books, records and accounts; and
(b) a report of its activities and financial affairs; respecting its immediately preceding fiscal year.
Tabling in Legislative Assembly.
The Attorney-General shall table each audit and report received under subsection (1) in the Legislative Assembly, forthwith if it is then in session or, if it is not then in session, within 15 days after the commencement of the next ensuing session thereof.
SCHEDULE
FORM A (Section 20)
The Law Society of Manitoba
NOTICE OF ELECTION
Notice is hereby given that an election of benchers will be held on the first Wednesday in May next. Your attention is called to sections 22 and 23 of The Law Society Act, as follows:
22(1)
Every person
(a) whose name is on the voting list on the first Monday in April next preceding election day;
(b) who has been nominated for election, as hereinafter provided; and
(c) who is not a life bencher or an ex officio bencher;
is eligible to be elected an elective bencher.
22(2)
No person not eligible under subsection (1) is eligible to be elected an elective bencher.
23(1)
Every nomination for election as a bencher shall be in writing and shall name one candidate only whose consent shall be attached thereto or endorsed thereon.
23(2)
Every nomination of a candidate who is habitually resident in the Eastern Judicial District shall be signed by at least five members of the society who are habitually resident in that district and whose names are on the voting list.
23(3)
Every nomination of a candidate who is habitually resident in a judicial district of the province other than the Eastern Judicial District shall be signed by at least two members of the society who are habitually resident in the same judicial district as the candidate and whose names are on the voting list.
23(4)
Every nomination of a candidate must be in the hands of the secretary on or before the first Monday in April next preceding election day, otherwise it is invalid.
23(5)
The vice-president shall decide as to the eligibility of any person to be elected an elective bencher and as to the validity of any nomination.
DATED at Winnipeg, Manitoba, this day of ,19.
Secretary.
WARNING
The only persons who may be candidates or who may nominate candidates are those whose names are on the voting list, which may be inspected at the office of the secretary.
Election of Benchers of The Law Society of Manitoba
VOTING PAPER
Use "X" Only
Eastern Judicial District - 20 to be elected.
Do not vote for more.
A.B., of the of □
C.D., of the of □
G.C., of the of □
etc. etc.
Central Judicial District - (Insert no.) to be elected. Do not vote for more.
C.H., of the of the □
F.C., of the of the □
Western Judicial District - (Insert no. ) to be elected. Do not vote for more.
A.D., of the of the □
C.F., of the of the □
G.H., of the of the □
Northern Judicial District - (Insert no.) to be elected. Do not vote for more.
G.M., of the of the □
R.W., of the of the □
Dauphin Judicial District - (Insert no.) to be elected. Do not vote for more.
C.Y., of the of the □
F.A., of the of the □
NOTICE: This voting paper must be in the hands of the secretary before the day of April 19 , in order to be counted.
FORM C (Section 25)
DECLARATION ON VOTING ENVELOPE
No..............
I,................(printname)of........, in the....................Judicial District, certify that
I have not submitted any other voting paper at this election.
DATED this day of ,19.
(Signature)