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The professionalization of BC notaries 1981-2010: from the brink of elimination to the brink of expansion.

I. INTRODUCTION

Notaries have deep roots in British Columbia. Since before Confederation, they have shared a sliver of lawyers' statutory monopoly over legal services. The Legal Profession Act (LPA) gives lawyers the exclusive right to "engage in the practice of law" specifically exempting "the lawful practice of a notary public" from the definition of "practice of law". (1) Notaries, too, have enabling legislation, but their rights are restricted to a short list of non-contentious tasks. (2) As such, BC notaries are unique in common law Canada, offering ordinary British Columbians a distinct choice for run-of-the-mill legal needs--like buying a home or making a simple will. In other common law jurisdictions, notaries may authenticate documents, but perform no substantive legal services. (3)

BC lawyers have not graciously shared their monopoly. (4) Since 1922, they have moved to gain exclusivity and eliminate the notaries. (5) Notaries have defended their independence, touted themselves as "specialists", and fought to expand their permitted legal services. For the most part, lawyers have contained the notaries by convincing legislators that since the education and training of notaries were inferior to that of lawyers, expanding notaries' services is not in the public interest. (6) But, in 1981, it was the notaries' turn for government support. After a protracted, acrimonious battle in the courts and the media with the very existence of the notaries at stake, legislators agreed that regardless of the "need" for notaries (as then required by the Notaries Act), it was in the public interest to keep the notaries alive and immune from lawyers' attempts to abolish them. Notaries provided both competition and choice; without them, lawyers would have an absolute monopoly over legal services. "Need" had nothing to do with it and was eliminated from the Notaries Act. (7) The trade-off was a freeze on the number of seals then outstanding (323), and each seal was tied to a particular territory. (8) There was controversy about whether the notaries voluntarily agreed to the limitations or were bullied into agreeing, but the new 1981 Act shielded notaries from lawyers' attacks and codified the limitations on numbers and locations. By 2010, the landscape between lawyers and notaries had changed substantially.

This research is a qualitative exploration of what happened to change the status of notaries from the brink of elimination as a legal services provider in 1981, to the brink of expansion with new types of work and greater shared jurisdiction with lawyers in 2010. What happened to motivate the notaries in the face of rejection by government, dismissal by the courts, indifference, and opposition from the lawyers, and the notaries' own consistent failure at expanding their jurisdiction ? How did the lawyers justify their resistance to the notaries ? This exploration raises fundamental questions about the public interest in competition and a free marketplace, and the role and responsibility of government in dealing with historic legislated monopolies.

Research data were gathered from a combination of publicly available sources (both archival and current, including clipping services, websites, and databases) and in-person interviews with fourteen key informants: one academic, five notaries, four lawyers, and four lawyers with one or two additional occupations during the study period (such as teaching notaries in the Master of Arts in Applied Legal Studies (M AALS), sitting as a member of the legislative assembly, or both). The public data revealed a series of significant events affecting notaries, and these events formed the framework for the interviews.

The context for this research is professionalization and interprofessional conflict, particularly the work of Witz, (9) Abbott, (10) Brockman, (11) and Adams. (12) Witz offers the concept of expansion efforts as professionalization "projects" and the various tactics and "sites" used by the players depending on their relative power: dominant (like lawyers) or subordinate (like notaries). (13) She recognizes that the location or "site" of the project affects the outcome, and identifies four common sites: the "heteronomous" sites that the aspiring professionals do not control (such as civil society and the state) and the "autonomous" sites where the aspiring professionals have partial or full control (such as professional organizations and educational programs). (14) Witz finds that subordinate groups with influential advocates or "proxy power" within the dominant group have a better chance of success in "heteronomous", rather than "autonomous", sites. (15) In contrast, government is the "weak link" for dominant professionals. (16)

Abbott looks at all professions as a unified system where the expertise and jurisdiction of one profession neatly abuts the expertise and jurisdiction of neighbouring professions without gaps or vacancies. "Greedy" professionals are always "on the prowl" to gain more jurisdiction and any attempt to do so is a disturbance. (17) Disturbances are short-lived, ending with one of several different types of "settlements" between the parties. (18) In a division of labour settlement with shared jurisdiction (as between BC lawyers and notaries), Abbott describes settlement as "functionally interdependent" with each party having exclusivity over certain tasks. (19) Like Witz's sites, Abbott recognizes the effect of location. He calls it the "audience", identifying three: the public, legal, and workplace arenas. (20)

Brockman points out that Witz's sites represent a continuum from least control at the heteronomous end to greatest control at the autonomous end. (21) She suggests that BC lawyers and notaries do not fit into Abbott's categories. His concept of exclusive jurisdiction for each profession as a prerequisite for settlement has never been the case between lawyers and notaries in BC. She says that a new category, "concurrent jurisdiction", should be added. (22) She distinguishes her concurrent jurisdiction settlement from Abbott's "division of labour" settlement as being not simply a rapidly evolving functional interdependence, but a functional independence and a true sharing of the work that continues in relative stability for a long period of time--in the case of BC lawyers and notaries, over 100 years. (23)

Adams suggests the professionalization process combines the pursuit of greater jurisdiction "embedded in ... the ongoing drive for status, social authority and privilege." (24) Jurisdiction and status are intertwined, and government has a fluid relationship with self-regulated organizations (SROs). (25) These two characteristics, ambition and tenacity, are also reflected in Abbott's description of "greedy" professionals, always "on the prowl" for more jurisdiction. (26)

This paper discusses the aftermath of the notaries' 1981 battle for survival, then looks at two status-enhancing events: the Trade, Investment and Labour Mobility Act (TILMA) and elevated credentials. Notwithstanding notaries' improved status, their failure during the study period to make any significant inroads into lawyers' exclusive jurisdiction is analyzed.

II. AFTER THE 1981 BATTLE FOR SURVIVAL

The new Notaries Act of 1981 saved the notaries from extinction, but did nothing to advance their professionalization. Legislative changes were restricted to the terms of the informal working agreement (called the Gentlemen's Agreement) between lawyers and notaries that had been in place since 1955. (27) The Society of Notaries Public of British Columbia (Notaries Society) had proposed tying the number of seals to population on the basis of one seal for every 5,000 people, rather than the municipal boundaries used in the 1955 agreement. (28) They

also wanted the power to set up new notarial districts and to deal with inactive seals. (29) The notaries got none of these things in the new legislation. Instead, the bill was moved quickly through the House and enacted, but not without public recognition in the House that the notaries were "under the gun" to agree. (30) The limitations on notaries (the number freeze and territories) were advantageous to lawyers and those notaries holding a seal in a profitable territory, but not to notaries as a whole, nor to the public interest in competition and freedom of choice for consumers and workers. The number of active notaries decreased significantly, while lawyers' ranks grew freely. (31) This in turn affected not only the notaries' viability as an organization, but also their bargaining power in Victoria. With no evidence of concern from the government or the lawyers, it seems fair to conclude that the public interest in competition and freedom of choice was not a priority for either of them, at least as far as ordinary legal services were concerned.

For the rest of the 1980s, while notaries' numbers continued to decrease, there was relative peace with lawyers. There were a few snipes as well as an articulate defence of notaries by lawyers. (32) The courts approved two new notarial districts without opposition by the lawyers. (33) The Law Society of British Columbia (Law Society) added "lay benchers" to its governance and instituted an extended review process for complaints against lawyers, both moves presented as providing greater protection for the public. (34) The notaries maintained enough political currency for two non-controversial administrative amendments to the Notaries Act, mimicking amendments to the Legal Profession Act. (35)

At about the same time as the ebb in BC notaries, the Quebec notaires were also in decline. Kay's study applied Abbott's theories to the notaires, finding that size matters. (36) Large law firms grew with their multinational clients, while solo notaires could not compete and remained static, much like the growth pattern between BC lawyers and notaries. (37) Kay, like Brockman, disagrees with Abbott's characterization of professionals in a shared jurisdiction. (38) Kay found that the large firms simply took over the work and pushed the notaires out. What Kay describes is more like annihilation than Abbott's uneasy truce. In BC in the 1980s, there was neither uneasy truce nor successful annihilation. Instead, once the notaries had their new Act, it was back to business and Brockman's concurrent jurisdiction.

III. THE NOTARIES GAIN STATUS: TILMA AND EXCELLENCE IN EDUCATION

During the study period, the notaries focused on improving their status and expanding their scope of work. They were quite successful at the former and remarkably unsuccessful at the latter.

A. TILMA: Abolishing "Highly Unusual" Restrictive

Trade Practices

MLAs in 1981 were aware that notaries were pressured to accept restrictions on the number and location of seals, (39) but passed the legislation anyway. (40) In November 2007, 26 years later, the Ministry of Attorney General proposed removing those restrictions. (41) Benchers' minutes and interviews with key informants indicated that the government's proposal was a total surprise for lawyers and notaries alike. (42)

The proposal was based on the government's recent obligation to facilitate labour mobility between BC and Alberta, and pointed out how the cap and territory (both restrictive trade practices) were "highly unusual in today's society". (43) The notaries' reaction was mixed. There was a faction who regarded the proposal as "a move to try and increase [the Notaries Society's] income base" by allowing an unrestricted number of notaries to practice anywhere in the province. (44) Some of these notaries had paid significant sums to purchase a seal and a practice. (45) Notary practices would no longer be as valuable when the territorial monopoly was gone.

There were other notaries who thought the proposal was necessary to avoid a Charter challenge. (46) Some saw the proposal as a golden opportunity to get rid of the restrictions without battling lawyers, the government, or the courts: "It became a good way for the Campbell government to deal with an issue without having notaries and lawyers going like this [butting fists together]." (47)

Before responding, the Law Society solicited input from their 10,000 members. They received 10 replies commenting on "the potential economic impact on lawyers from increased competition by notaries" and "the perceived lack of professional training amongst notaries". (48) The CEO of the Law Society, Tim McGee, cautioned the benchers that notwithstanding the members' comments, "given the heightened degree of scrutiny self-regulating professions currently face, it is important that the Law Society's response be demonstrably in the public interest and not simply protection of lawyer's interests." (49) The members' self-serving comments were not included in the official response. Instead, the Law Society did "not oppose ... removal of the quantitative and geographic restrictions" and went on to demarcate their power and influence by warning the government that the proposed legislation should reconcile the differences between Alberta and BC notaries and ensure that the Notaries Foundation "is consistent with advancing the public interest." (50) The comments enhanced the Law Society's status as the whistleblower, while undermining the notaries' credibility with the Attorney General. The Law Society's tactics illustrate Adams' contention that status and jurisdiction are intertwined: the big dominant lawyers using their influence over government to keep the small subordinate notaries locked in their subordinate place, regardless of the effect of TILMA. (51)

The Notaries Act amendments came into force on 1 January 2009. (52) The cap and territories were gone and a gratuitous enhancement of notaries' social and professional status was added, but without effect on their scope of permitted work.

B. MAALS: THE NOTARIES'"SEXY" EDUCATION REVOLUTION

Education was a point of conflict for decades between lawyers and notaries. Notaries believed they were experts in their authorized tasks. (53) Lawyers believed notaries' education was inferior and that only lawyers' standards of education were in the public interest. (54) Notaries did not ignore the criticism, but made ongoing upgrades to the program for notarial candidates. (55) Between 1981 and 2008, the candidates' education was expanded and improved twice, once in 1988 and again in 1999. By 2008, education of a notary was 16 months of "intensive study" through the Sauder School of Business at the University of British Columbia (UBC), plus "numerous practical training sessions" delivered by the Notaries Society both before and after passing the statutory exams. (56) In addition, the Notaries Society had pre-empted the Law Society in making annual educational upgrading mandatory for all notaries beginning in July 2007. (57) The Law Society trailed with mandatory annual education requirements in January 2009. But the mandatory requirement was a non-event for the majority of notaries whose record of participation in continuing education was enviable. According to Wayne Braid (CEO of the Notaries Society since 2001) in 2007, "[f]or our Spring Seminars--where we offer 2 days of Continuing Legal Education, we consistently see over 60 percent of our membership enroll and attend." (58)

Early in the new millennium, Braid was casting about for the next iteration of notaries' education program. Neither the Sauder School of Business nor the law school at UBC were interested: "Notaries were just not on the radar." (59) Contemporaneously, the notaries and Dr. Rob Gordon from the School of Criminology at Simon Fraser University (SFU) were involved in developing new legislation on adult guardianship and estate planning. The decision about who would guide the public in dealing with the new legislation became highly controversial. Lawyers claimed that allowing notaries, with their inferior education, to be advisors would not be in the public interest. (60)

Braid acknowledged that there might have been some merit to the lawyers' criticisms, saying that "maybe if we were going to get into more complex areas of the law, our people needed to be trained and have a little more academic knowledge." (61) Braid and Gordon hit it off, with Braid saying "then I meet Gordon and he's a big personality ... he's a guy who can get things done," (62) and Gordon saying "we have a good relationship ... you know, he's like myself, he's very entrepreneurial, probably more so than I. He certainly is a go-getter." (63)

At some point in 2003, Braid and Gordon realized they were talking about something that might be mutually beneficial. Gordon observed that the Notaries Society "wanted to ... find a way of enhancing the educational standing of notaries." (64) Would SFU be interested in taking on the education program for notaries? Would it be undergraduate or graduate level? As Gordon recalls, "[a]nd I said which road are you on? And [Braid] thought the master's degree was quite sexy ... it carries a lot more weight." (65) The resulting M AALS program was "a genuine graduate degree program, fully sanctioned by Simon Fraser", (66) and a marked improvement over the previous UBC program. The quality of teaching was described as "unassailable", with "most of the lawyers teaching the program [being] QCs." (67) The Program Proposal to SFU justified the master's level as necessary for the role and social status of notaries:
   [T]here is a perceived need within the notarial profession to
   require an educational qualification commensurate with the status
   and role played by a Notary Public in contemporary society. (68)


Some lawyer-interviewees were quick to advocate that law school provides superior education to MAALS. (69) Others contended that MAALS provides equivalent or better education for the notaries' limited scope of practice than law school provides for the lawyers' unlimited scope of practice:
   ... so it was like you guys want to argue about our education when
   it comes to what we do? We're way better educated than you are.
   Because we're specialists. (70)

   I don't agree that [MAALS and the LLB/JD are] significantly
   different. I think [they are] very similar for the areas of law
   that we practice. (71)

   I mean those people [benchers who were also teaching in the MAALS
   program] were always on us to say be careful what you say about the
   education requirements because I teach in those areas and you the
   benchers should know at least from my perspective, they're very
   targeted and well-drawn programs that probably prepare the notaries
   better than the law students. (72)

   I do know that notaries now, with their education requirements,
   with their current training, can provide excellent service for
   people. (73)


In the fall of 2008, the new MAALS accepted its first cohort. In 2011, one year after the first cohort graduated, the MAALS program received an award of excellence, signalling an endorsement of quality and enhancement of status for notaries. (74) Significantly, MAALS and SFU gave notaries graduate credentials at a comparable level to lawyers, thereby opening the door to expanded jurisdiction. Lawyers' incompetence argument against notary expansion lost its appeal. But, like TILMA, notaries' elevated credentials did not affect their scope of services.

IV. THE NOTARIES STONEWALLED ON SCOPE

Except for one paltry windfall, the notaries' professionalization attempts to expand their scope of services were not successful. One was delayed for 22 years, and all attracted vociferous objections from lawyers who found an ally in the courts.

A. THE 1989 PROPOSAL: SHUNNED

In 1989, the Notaries Society made a formal request to the Attorney General to add simple, non-contentious probate and non-reporting incorporation services to their jurisdiction. They also asked that notarial districts coincide with school districts rather than the then-current municipal districts, and that notification of the Law Society with every application for issuance or transfer of a seal be deleted. The Notaries Society had previously asked the legislature for the latter two changes in the negotiation of their new Act in 1981, but without success. There is evidence that the CEOs, Stan Nicol from the Notaries Society and Bryan Ralph from the Law Society, had discussions on the subject during the latter half of 1988 and the first half of 1989. (75)

In July 1989, Nicol wrote a letter formally advising the Law Society of the notaries' intention to pursue legislative change, saying "we felt it appropriate to make you aware of our plans and to solicit your comments in regard to our proposal." (76) Several times, he mentioned the relationship between the two professions in a conciliatory manner, using words like "co-operation", "friendly atmosphere", and " [putting] to rest the areas which cause concern". (77) His olive branch was not acknowledged. From a theoretical perspective, Witz would say that the subordinate notaries were embarking on a professional project using a usurpatory strategy and choosing to locate their project in the dominant lawyers' laps. The notaries were politely laying claim to more legal services and attempting to expand their intrusion into lawyers' exclusivity. Given the legislature's well-known convention of consulting with lawyers about the regulation of legal services, Nicol knew that the Law Society would be involved eventually, so he voluntarily brought the project to the autonomous site of a professional organization (the Law Society) at the least favourable end of Brockman's continuum. (78) Witz and Brockman were right. Nicol's initiative was not rewarded.

On receipt, the letter spurred the benchers into immediate action. A three-person committee was deputized to "develop and articulate the Law Society's position." (77) As Nicol expected, by September 1989, the Attorney General asked the Law Society to "express their views" on the notaries' proposals. (80)

The new Notaries Committee of the Law Society spent six months pursuing extensive disclosure from the Notaries Society on the premise of investigating notaries' competence to practise in the requested areas. (81) They asked for details of previous and present educational programs, insurance programs, and a comparison of the location of current and proposed seals. Benchers' minutes record that the Notaries Committee experienced "difficulties" in obtaining information from the notaries. (82) The benchers discussed their options, namely, "abolish notaries altogether ... 'grandfather' notaries ... [or] a political compromise between lawyers and notaries." (83) The Chair of the Notaries Committee called for an "urgent need to educate Ministers and MLAs about the Law Society's position." (84) One bencher wondered if notaries wanted to become solicitors, and was corrected by the Notaries Committee chair, who said that "notaries do not wish to become solicitors. They are fiercely independent and ... the notaries feel they do a good job, better than lawyers do." (85) Another bencher disagreed, warning that with better education, the notaries could be "doing all the work that solicitors presently do." (86) Another bencher downplayed the notaries' bid for expansion, reporting that the Attorney General had assured him the "notaries legislation issue was not as pressing as the paralegal licencing issue," suggesting that the benchers should decide both together since the "issues are inter-meshed." (87)

Witz might characterize this reaction from the Law Society as a professional project by a dominant group using classic demarcationary strategies. They chose legal tactics by directing their efforts at the legislature to build their case for maintaining lawyers' exclusive control over the requested areas of practice. They revealed their disdain for notaries by equating them to paralegals (mere employees of lawyers, not independent and self-regulated like notaries), and their fear that notaries with a broader education might be real competition. They also revealed their perception of their own dominance over government in considering abolition of notaries as potentially attainable.

The final report of the Law Society's Notaries Committee was a resounding rejection of the notaries' proposal. The Committee expressed "grave concerns" that the public would be at risk if notaries were allowed to proceed. (88) Appendix F to the final report showed comparisons of lawyers, legal assistants, and notaries in terms of the type and duration of education, and the number of hours of education by type (such as class hours and tutorial hours). (89) The Appendix compared the hours of education in three subject areas: real property-related courses, estate-related courses, and corporate law courses. In every case, the lawyers' education dwarfed the notaries'. Lawyers' education totalled 5,430 hours, while notaries' education totalled 891 hours. (90) The comparison to legal assistants was more favourable, showing that notaries spent four times as long studying real property and almost twice as long studying estates as legal assistants. (91) Neither the Appendix nor the final report of the Committee attempted to reconcile these comparisons with the substantial differences in jurisdiction between lawyers and notaries (present or proposed), or the relevance of comparing self-regulated, independent notaries with unregulated legal assistants who were completely controlled by lawyers.

The thrust of the lawyers' argument--incompetence--is remarkably similar to the argument made more than a decade later by Ontario dentists against dental hygienists. (92) In that case, the hygienists wanted to end the prerequisite "order" from a dentist before the hygienists could work on a patient:
   Dentists claim that their opposition to dental hygiene independence
   stems not from financial interests but rather from concerns about
   public safety. Dentists contrast dental hygienists' two years of
   college education with their own seven years of university to
   demonstrate that dental hygienists do not have the training,
   knowledge, or expertise to determine whether it is safe to proceed
   with treatment in every instance. It is becoming clear to dental
   hygienist leaders that if they are to defeat dentists' opposition,
   eliminate the order clause, and attain a broader scope of practice,
   they will need to change the way they are educated. Their claims to
   expertise and autonomy depend on it. (93)


In 1990, BC notaries were in much the same position as the Ontario dental hygienists in 2005: vulnerable to attack based on educational deficiency.

When the final report of the Law Society's Notaries Committee was delivered, the Treasurer reported that "the real issue here is competence, not turf protection and not competition." (94) He chastised the notaries for emphasizing the simplicity of the proposed services without recognizing the complex laws or setting out an "educational blueprint" for how notaries would transition into practice in the proposed areas. The Treasurer called for the report to be widely circulated, encouraging lawyers to participate in the discussion about notaries. In addition, lawyers were regularly reminded by notices in the Benchers Bulletin of the restrictions on advertising their services as notaries. (95)

The CBABC was more aggressive, calling for testimonials of dissatisfaction with notaries. Their own committee on notaries announced in the press that not only were notaries charging more than some lawyers, but that "horror stories" about notaries were being uncovered. Bar associations across BC were solicited for "examples of problems" and asked to "encourage members of the legislature to vote against any proposed expansion in the notaries' jurisdiction and numbers." (96) In September 1991, the CBABC passed a formal resolution opposing any changes in the Notaries Act in an effort to ward off any softening of governmental sympathy for the notaries. (97)

These steps by the Law Society and the CBABC illustrate Adams' link between jurisdiction and status, but as a function of degradation/diminishment rather than enhancement/elevation. Adams talks about how a group's motivation for improved status can mould interprofessional conflict over expanded jurisdiction. (98) In this case, the Law Society's and the CBABC's attack on the status and acumen of notaries was part of their defence against notaries' jurisdictional proposals. Jurisdiction and status seem to be linked on the defence as well as on the offence.

By 1993, the notaries were tired of being stonewalled by the government but had not given up hope. Notary Michael Carr wrote an article for the Vancouver Sun entitled "David and Goliath Revisited: Notaries vs Lawyers". (99) The article appeared on the front page of the opinion section under an illustration of tiny corporate David with a briefcase and a slingshot, standing at the enormous wingtip-clad feet of Goliath. Carr claimed notaries were being treated unfairly. There were no restrictions on lawyers' numbers or location, so according to Carr, notaries should not be restricted either. Besides, Carr pointed out, polls showed that the public wanted more services from notaries. Carr argued that it made no "common sense" not to respond to the public's wishes and that "public interest and need should not be subordinated by an antiquated notion of the power of a lawyer." (100)

The lawyers' demarcationary responses came from Robert Gourlay, President of the CBABC, and Brian Wallace, Treasurer of the Law Society. Gourlay claimed notaries were insufficiently educated to provide probate or incorporation services. (101) Wallace contended that notaries were form fillers while lawyers "[gave] essential legal advice." (102) Carr replied, admitting that notaries would need some additional education, but that notaries already had better education about probate since lawyers did not study it until articles. Wallace countered, saying lawyers learned the law of probate, essential for even the most straightforward probate matter. Carr indicated that the notaries were seeking publicity because "nothing had happened" in the three years since the notaries approached the government for an increase in their jurisdiction. (103)

The notaries waited almost four years for a government response before engaging the media, so the disturbance was not short-lived as predicted in Abbott's theory. Under Witzs framework, the notaries' choice to move their 1989 proposal into the media was foreseeable when the legislature did not respond definitively. The notaries clearly failed in their usurpatory tactics with the Law Society and appeared to have failed with legal tactics through the state, so they moved deeper into the advantageous heteronomous end of the continuum and engaged the public through the media. The media had helped in the 1981 confrontation with lawyers, so perhaps notaries thought it would work again. But the situation in 1981 was different from 1989. The former had an ethical issue at heart (lawyers reneging on the gentlemen's agreement). The latter had no such ethical aspect, being driven solely by the notaries' ambition to improve their lot, thereby illustrating Abbott's "greedy professionals" and Adams' "ongoing drive for status, social authority and privilege that characterizes professionalism." (104) This time, public support for the ambitious underdog was not forthcoming.

In June 1993, the government finally responded with complimentary words, but no action on notary jurisdiction. Attorney General Colin Gabelman introduced an amendment to the Notaries Act, saying the province had been "well served" by the notaries with their "long and unique history". (105) The amendment allowed notaries to practise through a corporation (as lawyers and other professionals were already doing) and corrected an error in the count of notary seals. (106) The government was sending mixed messages to notaries: flattering them in public and allowing them non-jurisdictional improvements, while contemporaneously ignoring their formal request for more scope.

The lawyers kept pressure on the Notaries Society to stay in their "box". Echoing the benchers' 1990 suggestion of abolishing notaries, the Law Society's annual general meeting in September 1993 moved to ask government to remove the self-governing powers of the Notaries Society and put the Law Society in charge. The Law Society was again demonstrating the ultimate Witzian demarcationary tactic by a dominant group: annihilation. The motion was defeated after assurances that the chair of the Notaries Committee would "continue to communicate ... to government" the Law Society opposition to any increase in the notaries' jurisdiction," (107) demonstrating once more lawyers' perception of their influence over government.

In reflecting on the failure of the 1989 proposal, the Secretary of the Notaries Society at the time said: "I don't think we were ever taken seriously on it." (108) One of the lawyer interviewees pointed to the apparent futility of the notaries' efforts, saying that the 1989 proposal was "a typical something that seems to come up every 10 years or so for the notaries and I guess it didn't get anywhere." (109) Even an advertising campaign in 1995 and a petition to the legislature in 1997 with more signatures than the petition in 1981 did not advance the notaries' case. Another lawyer interview put the lawyers' dismissive response down to four reasons. (110) First, characterizing the request as simple was "like red lights or red banners for lawyers", so the lawyers naturally responded negatively. (111) Second, he admitted that lawyers had been arrogant, saying "so much of the problems, historically and traditionally between lawyers and notaries is the fact that we lawyers... have not taken the notaries seriously ... we've ... essentially ignored our colleagues in the notaries' society." (112) Third, he raised the old "need" argument, saying that the notaries' requested expansion was "not areas that the public is having problems with access." (113) According to this lawyer, notaries should not be allowed to expand their services because incorporations and probate are already well served by lawyers. The comment is particularly revealing from a lawyer who ought to be aware that refusing expansion on the basis of access amounts to a restraint of trade that is out of step with Canadian public policy prohibiting monopolies and combines. Almost a decade ago, the federal Competition Bureau reviewed competition among the professions and concluded that there must be "compelling evidence of demonstrable harm to the public" before lawyers should be preventing others from "performing legal tasks". (114) So far, the literature has yet to show any such evidence. (115) Perhaps this comment demonstrates both the ingrained instinct to protect professional turf, and the provincial government's recalcitrance to challenge the powerful lawyers despite the obvious restraint of trade. Lastly, this lawyer advocated one standard for all: since lawyers had "the experience and the expertise to ensure that the public is properly protected in [the requested] areas ... then [notaries] should be subject to the same standards that lawyers are." (116) Abbott would call this last justification "reduction", a rhetorical justification for claiming jurisdiction and causing a disturbance. (117) Having one standard for a particular legal service is attractive logic. But in fact, the standards for notaries and lawyers have coexisted in BC for over 150 years with no apparent prejudice to the public interest in quality of legal service. Some say that lawyers' historic standards are no longer necessary or affordable in today's high-tech, fast-paced global environment, and it is lawyers' resistance to change that has played a part in the crisis over access to justice. (118) One lawyer admitted how difficult it was for lawyers to change, saying " [t]he fear of change. People don't like change. Lawyers are the worst. Lawyers are worse than notaries." (119)

Academics agreed: "Lawyers or former lawyers ... by training and disposition, tend to resist change. That resistance is particularly intense when the profession's own status and financial interests are at risk." (120) showed that formal strategies could be combined with informal strategies (like word of mouth and social networks) to control the quality of work in the public interest).

Contemporaneously with notaries' issues in the 1990s, the benchers continued exploring how to deal with other non-lawyer providers of legal services, but their response to the notaries remained consistently negative. When Attorney General Dosanjh visited with benchers in the summer of 1997, he confided that his predecessor decided the proposal was not in the public interest, reassuring the benchers that "there has been no change in Ministry policy and that [Dosanjh] has told the Society of Notaries Public that their proposal will not proceed." (121)

B. THE COURTS: NOTA SAFE HARBOUR FOR NOTARIES

At the end of the 1990s and the beginning of the new millennium, the Notaries Society and the Law Society were on opposite sides of three significant court cases. The lawyers prevailed in all of them. The first was Dorn v Law Society (British Columbia) in 1998, which involved an application for a new seal in the Westbank area. (122) Ms. Dorn got her seal, but lost it when the Law Society appealed. (123) The lower court found that despite existing service by lawyers in the area, need was demonstrated by three factors: first, a significant segment of the population wanted to use a notary; second, the area had a growing population; and third, the closest notary was "some fair distance" away. (124) In particular, the Court disagreed with counsel for the Law Society who argued that need "should not be equated with the desire" to have a notary, and was not "simply a matter of choice". (125) Instead, Mr. Justice Shaw's view was that "need is not as restrictive as that suggested by counsel for the Law Society." (126)

In 1999, the Court of Appeal agreed with the Law Society's argument made to the lower court in a two-to-one decision. (127) They held that real need could not be inferred from desire alone, and since there was only evidence of desire, there was no proof of need. (128) The majority also commented on the legislated jurisdictional distinction between lawyers and notaries, and attributed the restriction on the number and territory of each seal to "notaries, not having the same legal training as lawyers". (129) There is nothing to support this comment from the Court, and the Courts attribution became even more questionable when the government lifted the restrictions on the number and location of seals in 2009. The Dorn case was emblematic of the notaries' losing battle for credibility and expansion in the 1990s.

The second case was Law Society of British Columbia v Gravelle, an unauthorized practice claim by the Law Society against a notary for advising on probate of a will. (130) The Law Society won. The Notaries Act did not (and still does not) include probate in the list of services that may be provided by notaries. However, the judge found that the statute was not exhaustive of the powers of notaries. (131) Counsel for the Notaries Society provided evidence of notaries working on eight probate matters between 1882 and 1946, but the judge rejected the evidence as "anecdotal" and "not proof that the notaries acted in accordance with the law." (132) The case turned on whether notaries in England were probating wills in 1858 when the laws of England were incorporated into British Columbia. Mr. Justice Bauman found that English notaries were not engaged in probate at that time, so British Columbia notaries who practised in probate matters were committing unauthorized practice of law. (133) The inconsistency between the Notaries Society defence in this case (that is, that they were already doing probate) and their 1989 proposal to expand Notaries Society jurisdiction to include probate was not lost on the justice. (134)

The Notaries Society and Ms. Gravelle appealed. It would appear from the Court of Appeal judgment that the notaries' appeal arguments, based on one legal textbook and an attempt at distinguishing a precedent, were dwarfed by the lawyers' ample precedents, including several Supreme Court of Canada (SCC) decisions. (135) The Court of Appeal dismissed the appeal in May 2001, and the SCC refused leave to appeal in January 2002. (136) That left the Notaries Society with only one avenue to doing probate: they would have to convince the legislature to change their Act, and that was unlikely without acquiescence of the lawyers. The lawyers had illustrated Abbott's theory by successfully claiming exclusive jurisdiction with the courts as their legal audience. The notaries' claim to practice was subordinated to the lawyers' dominant intellectual jurisdiction, and a settlement (in Abbott's terms) was reached.

The Siegel case was another unauthorized practice action by the Law Society about whether notaries could provide registered and records office services for corporations. (137) All corporations must have an office of record where they keep their minute book and can be contacted for legal purposes, and all corporations must hold certain meetings and file certain reports every year with the Registrar of Companies. There are no restrictions on who can make the filings. Any member of the public may do so. Notary Julie Siegel was offering these services on the basis that the Notaries Act empowered notaries to prepare documents relating to property that can be registered in a public office. (138) Mr. Justice Sigurdson compared the definition of "the practice of law" in the LPA that expressly included those services to the authority of notaries under the Notaries Act that did not. (139) None of the general authority given to notaries in their Act clearly included corporate records. The judgment carefully weighed the evidence and did not shy from unflattering comments, such as: "I think that the [notaries seek] to make too fine and difficult a distinction" and "[i]n my view, the [notaries' argument] ... does not provide a principled basis for the interpretation which the [notaries seek] to make." (140) In any event, Siegel was found to have engaged in unauthorized practice of law and ordered to stop. The bizarre result of Siegel is that anyone except notaries can make filings with the Registrar: "You have to realize that most of the work that we're asking for, notaries always did in this province. But the Law Society keeps chipping away at it through unauthorized practice." (141) This sentiment is consistent with the findings of Brockman, to the effect that the Law Society's unauthorized practice cases did not usually involve any harm, but were "fulfilling an unmet need", (142) thus putting the public interest motivation for the prosecutions in question, which in turn raises reasonable concerns about whether the prosecutions could be motivated primarily to protect lawyers' jurisdiction. In any event, once the notaries finally got the message that their 1989 proposal was a dead end, it was 21 years before they formally requested any significant revisions to the scope of services in their Act. Even after 21 years, the lawyers' first reactions were rancorous as ever.

C. REPRESENTATION AGREEMENTS: A PYRRHIC VICTORY

As the stalemate over their 1989 proposal was evolving, community groups approached the Notaries Society to fund work on new legislation concerning adult guardianship and estate planning. The legislation was conceptually novel as was the process of creating it. Nicol described the circumstances, saying:
   The government was not then involved in the Project. This is what
   resulted in the process being developed from the ground up. The
   usual approach, to request changes in the law from government, with
   the public having little input into and even less control over
   timing of the changes, was sidestepped.

   The Project sought out information from individuals and groups all
   over BC to determine what changes would best meet the needs of the
   public and specific needs faced by certain constituency groups,
   such as the BC Head Injury Association, the Alzheimer Society of
   BC, and seniors' organizations around the province, thus ensuring
   the input of those facing planning for the elderly.

   The research and reporting of the Project caught the attention of
   the government. (143)


The government then sought to be included. (144) Few lawyers were involved as the project got off the ground, although the Law Foundation (like the Notaries Foundation) provided early funding. (145) One notary described the early days as follows:
   I was part of a working group because they wanted people from urban
   centers, rural centers and so on. And so I was asked and I think I
   probably participated in maybe four or five meetings and those
   meetings brought together people from all kinds of professions, all
   kinds of helping agencies if you will and so the idea of the
   legislation started to come together. (146)


At one point, the group convened at Notaries Society offices. (147) According to Gordon, who was involved from the earliest deliberations, a small working group of six people emerged, which was an amalgam of an interministry committee from government (three people, including the Public Trustee and a representative from the Ministry of Health) and the Project to Review Adult Guardianship (three people, including Gordon, a representative of community living interest groups, and a representative of elder abuse interest groups):
   We started working in September or October [1992] and we had it all
   in the bag for the first sitting of the House in the following
   year ... April, maybe May [1993]. (148)


When the first version of the Representation Agreement Act (along with the Adult Guardianship Act, (149) the Public Guardian and Trustee Act, (150) and the Health Care (Consent) and Care Facility (Admission) Act (151) came into force on 29 July 1993, it had been four years in the making. Somehow, on proclamation, only lawyers were authorized to consult on representation agreements. This successful claim to new work by the dominant lawyers might be regarded by Witz as a demarcationary strategy. Abbott might see it as a vacancy in the system of legal services, claimed by the dominant profession. Whatever the theory, notaries were locked out and offended. (152) There were at least two possible explanations for their exclusion: lawyers' influence over government was not just their own perception, but reality, and, lawyers' conviction (a cynic might say arrogance) that no one but their own members could be trusted to make sure they were competent. Mr. Sherk, President of the Notaries Society, expressed the notaries' indignation in their members' magazine:
   When the legislation was originally brought forward, our Society
   was assured that Notaries Public would be one of the "Prescribed
   Class" of persons able to sign the Section 9 Consultation
   Certificates.... [t]he Notary Foundation also provided substantial
   cash funding, and our Society and its members have provided even
   more "in kind".... Citizens of British Columbia will no longer have
   the opportunity to choose between a Notary Public and a lawyer for
   these services--they will be forced to use a lawyer. (153)


When notaries were again excluded in the 2000 amendments, they went public. The Second Vice-President of the Notaries Society told the Times-Colonist that "the notaries' society has been involved in ... the new legislation since 1989 and had full expectations to be named one, if not the only, of the prescribed class [allowed to consult on representation agreements] ". (154) The Canadian Press picked up the report and it was carried in local newspapers around the province.

The Public Trustee, Jay Chalke, responded promptly. (155) He confirmed the status of notaries was being reviewed and his goal was "that representation agreements be accessible, affordable and of high quality." (156) A few weeks later, Chalke spoke to the House, advising that former ombudsperson, Dulcie McCall urn, had been retained to recommend who should provide certificates and consultations. Her report was due the following month in June 2000. Opposition justice critic and lawyer Geoff Plant (later Attorney General) rose to support the notaries:
   I am someone who has a strong respect for the role which lawyers
   play.... What has over the last few weeks been equally if not more
   impressive to me is, really, the all-encompassing commitment that
   the notaries have shown to the process of educating themselves in
   this business of section 9 agreements. I'm told, for example, that
   three-quarters--80 percent--of the notaries in the province have
   taken the CLE courses.... It is, of course, contrary to my interest
   as a member of the legal profession to do anything to limit the
   jurisdiction of that [legal] profession. In the course of her
   research and the inquiry, what I hope Ms. McCallum is able to do,
   in addition to the other things around health care that the trustee
   talks about, is to look substantively and functionally at the
   education that is available for notaries and to ask the question of
   whether that might in fact be enough to protect the public interest
   ... ensuring that the representation agreements are quality
   instruments and also thereby ensuring that there is a higher degree
   of public access and perhaps at lower cost. (157)


The McCallum Report recommended that notaries be added as authorized consultants for section 9 representation agreements; Attorney General Andrew Petter announced that new legislation would be forthcoming to rectify the situation. (158)

In October 2000, the CBABC responded in their internal publication, BarTalk, criticizing inconsistencies in the McCallum Report and claiming that they (the lawyers) were "deeply concerned about the protection of the public interest" because representation agreements were so "complex." (159) A flutter of media attention followed. (160) Despite the Witzian "proxy power" from Plant, Chalke, McCallum, and the Attorney General, no rectifying legislation appeared and lawyers remained in control of representation agreements, demonstrating that even high-profile proxy power and the most advantageous site for subordinate professionalization (government) were no match for the influence of the Law Society during this study period. Finally, in 2007, new legislation allowed notaries access to representation agreements, but it was four more years before enactment occurred on 1 September 2011. Lawyers had successfully retained exclusivity over the new legal services for 22 years. Given the decades of time, funding, and personal commitment from notaries, derogation from lawyers, and repeatedly broken legislative promises, it was, at best, a pyrrhic victory.

D. WESA: ABONUS BUT "NOT GOING TO EXPAND THE TERRITORY OF NOTARIES" (161)

In 2009, the provincial government passed the Wills, Estates and Succession Act (WESA (162)) that overhauled and replaced four statutes. (163) WESA gave notaries a minor windfall by adding certification of international wills to their jurisdiction, (164) but otherwise did not extend notaries' power in the sense that they were already doing simple wills and other estate planning documentation (like health directives and representation agreements). (165) However, unlike the situation with representation agreements, notaries were included in WESA from the outset and were not forced to wait 22 years to participate in providing legal services under the new Act.

WESA did not provoke a reaction from the lawyers. As one lawyer put it, lawyers were savvy to preserve their firepower for the notaries' significant advances in jurisdiction, saying "JVESA was not going to expand the territory of notaries ... [Lawyers] will still be fighting notaries over the addition of probate." (166) Notaries may have gained a tiny jurisdictional advantage, but it was not at their own initiative, and the lack of lawyer opposition speaks to its insignificance.

E. THE 2010 CAMPAIGN BEGINS: DOES GOVERNMENT COOPERATION BODE WELL?

Near the end of the first decade in the new millennium, the Notaries Society hired a professional lobbyist to improve their relationship with government: "we found that was the way we needed to get the governments ear." (167) The notaries began working with the Attorney Generals office on amendments to the Notaries Act to update how the organization was structured, the disciplinary powers, and other regulatory matters: "A small part of the changes was to increase the scope of practice ... We felt it was quite reasonable that if anyone could incorporate companies, maybe notaries should be allowed to as well. And the same with registered and records offices for corporations." (168) In addition, the Notaries Society asked for the right to probate simple uncontested wills and prepare simple uncontested prenuptial, cohabitation, and divorce documents (the last being an area recognized as under serviced by lawyers). (169) By 2010, the notaries had draft legislation delineating the scope of each new service. The notaries believed their legislation would proceed through the House without a hitch:
   Around 2010, [Premier] Gordon Campbell told us it would be approved
   ... Outright statements that our requests for increased scope of
   practice would be approved by the government. (170)


It is unclear when and how the Law Society and the CBABC first became aware of the notaries' in roads with the Attorney General, but "[o]n September 8, 2010, the Ministry initiated a ... consultation process ... on the proposed legislative changes to the BC notaries' regulatory framework". (171) The Law Society did not respond since it was now restricting itself to purely regulatory functions. (172) The CBABC submitted their "Briefing Note" on 15 October 2010, advising the government that in essence, the notaries' proposals were "undeveloped" and ostensibly not in the public interest. (173) Despite assurances that notaries would receive proper education and training in the new areas, the CBABC trashed the notaries for "limited legal training and education" that resulted in notaries who were incapable of knowing when a matter was simple or complex, or "what to do when something is 'outside the norm'." (174) Following precedent, the CBABC was making the incompetence argument, apparently oblivious to the credibility of MAALS as the antidote for incompetence. They also raised the "access to justice" (175) red flag, arguing lawyers would abandon rural communities with competition from notaries. The Briefing Note did not mention that Canadians believe in competition in a free marketplace, (176) and that absolute monopoly with no competition is rarely paramount to freedom of choice in the public interest. (177)

The Briefing Note was ineffective. The Attorney General's office continued their work with the Notaries Society preparing for presentation to the legislature. By the end of 2010, the notaries were poised for success in gaining a greater share of the lawyers' monopoly. Two more years would pass before the lawyers realized what was really going on. (178)

V. CONCLUSIONS

Overall, 1981 to 2010 was a successful period for notaries with respect to their professional status, but a failure with respect to expansion of their scope of work. Neither of the improvements in status attracted lawyer opposition, probably because there was little prospect that opposition would be successful. Lawyers' objections were unlikely to stop an interprovincial fait accompli (TILMA) or the legislated autonomy of the notaries to decide their own admission standards (MAALS). Similarly, lawyers did not object to notaries preserving their relative status through administrative improvements (like allowing notaries to form a foundation and join other professionals practising through corporations), probably because these improvements did not intrude on lawyers' jurisdictional exclusivity and economic interests. Notaries may have expected their advancements in status to promote their quest for greater scope as suggested by Adams, but expansion was not in the cards for BC notaries during the study period. It appears from this data that the quest for status operates both independently and as an integral part of the quest for jurisdiction, and, absent prospects of detriment to the dominant profession, even substantial status enhancements for the subordinate profession may not provoke interprofessional conflict.

The notaries' difficulty in expanding their scope seems to be tied to two things: lawyers' influential objections to any substantial intrusion on their jurisdictional exclusivity, and the absence of moral high ground or a "fairness factor" favouring the notaries. The notaries' two advances in scope were in brand new areas of practice for which lawyers or any other advisor would need to become competent. One. (WESA) was so insignificant that to not allow notaries jurisdiction would have been patently unfair, and lawyers did not object. The other (representation agreements) involved potentially substantial lucrative work and provoked sustained lawyer objection, shutting the notaries out for 22 years. When notaries were finally allowed to advise on representation agreements, it was the only fair thing to do. Notaries had not only decades of participation in the working groups that crafted the legislation and repeated promises of inclusion from government officials, but also decades of providing funds to support the work. They had established an enviable record of member participation in ongoing legal education, thus supporting the likelihood that notaries would ensure their competency in the new area of practice. Notaries had a fair and reasonable claim to expertise. Denying them jurisdiction was no longer defensible (if it ever was). Interestingly, the fairness factor was also evident in TILMA's removal of restrictive trade practices that had been otherwise banned for years. The question is, why did the government ignore the notaries for decades on these latter two matters? Was the welfare of the diminutive notaries not worthy of attention? Was the influence of the Law Society over legislators more compelling than any particular lawyer's proxy power favouring notaries ? This study seems to suggest that competition and a free marketplace even in a novel area of expertise are a distant consideration by government when resisted by an historic monopoly. It is clear from the data that notaries' ambition, expertise (or promise of expertise), and the public interest in competition were not enough to gain government support for expanded scope. Unless the notaries also had fairness on their side (like they did with representation agreements, but did not with the 1989 proposal or in the courts), their professionalization attempts to expand into areas where lawyers had exclusivity failed. As a matter of public policy, should government give credence to lawyers' objections when their self-interest is involved? Some would say no and regard government's extended inaction as a dereliction of the duty to govern in the public interest and for public benefit.

The notaries' failure on scope might also be a result of being too small to afford to fight for jurisdiction. Lawyers, on the other hand, were plenty big enough to support and fund opposition to the notaries. Size not only mattered, as suggested by Kay and Witz, but may have been critical. Perhaps the size problem began with the first Notaries Act allowing lawyers to contest the "need" for notaries. Without the need clause, there may never have been the 1955 gentlemen's agreement restricting notaries' growth and location. It is possible that notaries' growth would have stagnated anyway, but with legislated restrictions until 2009, notaries failed to thrive. In the same period, unrestricted lawyers grew from 4,500 in 1981 (179) to approximately 12,000 in 2010. (180)

Since 1981, the notaries have survived stonewalls and dead-ends blocking their development. Their latest proposal from 2010 has not been resolved at the time of writing (April 2016). The major difference with the 2010 proposal is that the lawyers' previously successful incompetence argument is no longer believable. When the CBABC tried it anyway, the government ignored them. Thus, in 2010, notaries' leadership had reason to be optimistic about their prospects, while lawyers' leadership had reason for concern. Lawyers will need new tactics to preserve their jurisdictional exclusivity and dominance. Will the present government fulfill the Premier's 2010 promise and lead the notaries over the brink into their long-sought expansion of services? Or will the lawyers repeat history, protect their domain and find creative new tactics to reel the notaries back from the brink of expansion? (181)

(1) SBC 1998, c 9, ss 15(1), 1(1).

(2) See Notaries Act, RSBC 1996, c 334 [Notaries Act].

(3) In Quebec, Canada's only Civil Code province, notaires provide a broad range of non-licigious services similar to a solicitor's practice in common law provinces.

(4) For the history leading up to and including the 1981 battle, see Joan Brockman, "'Better to Enlist Their Support Than to Suffer Their Antagonism:' The Game of Monopoly Between Lawyers and Notaries in British Columbia, 1930-8T (1997) 4:3 Intl J Leg Profession 197 [Brockman, "Better to Enlist"]; Joan Brockman, "'A Cold-Blooded Effort to Bolster Up the Legal Profession': The Battle Between Lawyers and Notaries in British Columbia, 1871-1930" (1999) 32:64 Histoire Sociale 209 [Brockman, "Cold-Blooded Effort"]. A fourth article currently in progress will extend the series to the present.

(5) See Brockman, "Cold-Blooded Effort", supra note 4 at 221-23.

(6) See Brockman, "Better to Enlist", supra note 4.

(7) See ibid at 222. The "need" test remained for the creation of new notarial districts until 2009 when it was eliminated along with other restrictive trade practices in the Notaries Act, discussed infra.

(8) See ibid at 223.

(9) See Anne Witz, Professions and Patriarchy (New York: Routledge, 1992). Her analysis of professionalization by dominant (male) and subordinate (female) groups is relevant to dominant lawyers and subordinate notaries, regardless of gender.

(10) See Andrew Abbott, The System of Professions: An Essay on the Division of Expert Labor (Chicago and London, UK: University of Chicago Press, 1988).

(11) See Brockman, "Cold-Blooded Effort", supra note 5; Brockman, "Better to Enlist", supra note 4.

(12) See Tracey L Adams, "Inter-Professional Conflict and Professionalization: Dentistry and Dental Hygiene in Ontario" (2004) 58:11 Social Science & Medicine 2243 [Adams, "Inter-Professional Conflict"]; Tracey L Adams, "Education and the Quest for Professional Status: The Case of Ontario's Dental Hygienists" in Ruby Heap, Wyn Millar & Elizabeth Smyth, eds, Learning to Practise: Professional Education in Historical and Contemporary Perspective (Ottawa: University of Ottawa Press, 2005) 265 [Adams, "Education and the Quest"]; Tracey L Adams, "Legislating Professionals: Private Bills for Entry to Practise Professions in Ontario, 1868-1914" (2005) 18:3 ] Historical Sociology 173; Tracey LAdams, "The Changing Nature of Professional Regulation in Canada, 1867-1961" (2009) 33:2 Social Science History 217; Tracey L Adams, "Profession: A Useful Concept for Sociological Analysis?" (2010) 47:1 Canadian Rev Sociology 49 [Adams, "Profession"].

(13) Witz, supra note 9 at 3.

(14) Ibid at 58, 59.

(15) Ibid at 201.

(16) Ibid at 194,196.

(17) Abbott, supra note 10 at 98.18 Ibid at 69.

(18) Ibid at 69.

(19) Ibid at 25.

(20) Ibid at 59-60.

(21) Brockman, "Cold-Blooded Effort", supra, note 4 at 214.

(22) Brockman, "Better to Enlist", supra note 4 at 198.

(23) Ibid.

(24) Adams, "Profession", supra note 12 at 67.

(25) Adams, "Changing Nature", supra note 12 at 239.

(26) Abbott, supra note 10 at 98.

(27) Brockman, "Better to Enlist", supra note 4 at 223.

(28) Ibid at 222.

(29) Kayce White, "Notaries Close Ranks to Keep Lawyers at Bay", The Vancouver Sun (14 October 1980) D1.

(30) See the colourful speech to the House by MLA Hall: "Bill 28, Notaries Act", 2nd reading, British Columbia, Legislative Assembly, Official Report of Debates of the Legislative Assembly (Hansard), 32nd Pari, 3rd Sess, No 12 (26 June 1981) at 6459 (Ernest Hall) [Hansard (26 June 1981)].

(31) In 1981 there were 323 active seals; by 1990 the number had dropped to approximately 262. See Law Society of British Columbia, The Proposed Expansion of Notaries' Practice:

A Response From the Notaries Committee of the Law Society of British Columbia (Vancouver: LSBC, 25 September 1990) at 3 [LSBC, Proposed Expansion],

(32) See e.g. James I Reynolds, "Protest of Bills of Exchange" (1982) 40:5 Advocate 409; Keith R Hamilton, "Undertakings Given by Notaries Public" (1982) 42:1 Advocate 51 at 57.

(33) See Law Society of British Columbia, "Minutes" (6 December 1985) at 7 [on file with author].

(34) See Law Society of British Columbia, "Lay Benchers: Twenty Years of Bringing the Public to the Benchers Table", Benchers' Bulletin (Vancouver: LSBC, 3 July 2008).

(35) For example, one amendment permitted creation of the Notaries Foundation to collect interest on general trust accounts that otherwise would accrue to the banks, and to apply the funds for notary education, legal aid, and law libraries, among other things. See Stan Nicol, '"Ground up' Legislation Process" (1998) 7:1 Scrivener 6 at 6. The lawyers had established a comparable foundation in 1969 and it was copied in "almost every other jurisdiction in North America": Anthony BP DuMoulin, "The Law Foundation of British Columbia" (1998) 7:2 Scrivener 18 at 18. Notary-interviewees commented on notaries' high volume of real estate transactions that in turn creates substantial interest income for the Foundation.

(36) Fiona M Kay, "Intraprofessional Competition and Earnings Inequalities Across a Professional Chasm: The Case of the Legal Profession in Quebec, Canada" (2009) 43:4 L & Soc'y Rev 901 at 902.

(37) See ibid.

(38) Ibid at 932.

(39) Hansard (26 June 1981), supra note 30 at 6459 (Hall raising misgivings).

(40) Ibid at 6463.

(41) See British Columbia, Ministry of Attorney General, "Consultation Paper: Proposal to Amend the Notaries Act", by Strategic Planning and Legislation Office (Victoria: MAG, November 2007) ["Proposal"].

(42) Law Society of British Columbia, "Minutes" (14 December 2007) at 6 [on file with author] [Benchers Minutes, Dec 2007].

(43) "Proposal", supra note 41 at 3.

(44) Interview of notary (3 December 2013).

(45) Interview of notary (24 January 2014).

(46) Interview of notary (26 November 2013); interview of notary (24 January 2014).

(47) Interview of notary (26 November 2013).

(48) Personal communication with Law Society (27 March 2014).

(49) Ibid.

(50) Ibid.

(51) See Adams, "Inter-Professional Conflict", supra note 12 at 2243, 2245.

(52) The legislature passed third reading of the amendments on 28 May 2008 and, by its terms, the amendments came into force on 1 January 2009. See British Columbia, Legislative Assembly, Progress of Bills, 38th Leg, 4th Sess (2008), online: <www.leg.bc.ca/pages/bclass-legacy.aspx#%2Fcontent%2Flegacy%2Fweb%2F38th4th %2F4-4-38-4.htm >.

(53) See e.g. Wayne Braid, "Your Notary, Education, and You!" (2007) 16:2 Scrivener 7; interview of notary (26 November 2013); interview of notary (29 November 2013).

(54) See e.g. Law Society of British Columbia, "Responding to the Notaries", by Robert Guile in Benchers' Bulletin (Vancouver: LSBC, November 1990) at 2 [Guile],

(55) See e.g. Braid, supra note 52 at 7.

(56) Ibid.

(57) Ibid.

(58) Braid, supra note 52 at 7.

(59) Interview of notary (26 November 2013).

(60) See Canadian Bar Association of British Columbia, "Notaries Act Changes Proposed: Bar Calls on Government to Protect the Public" 12:5 BarTalk (October 2000) 1 [CBABC, "Notaries Act Changes"].

(61) Interview of Wayne Braid (26 November 2013).

(62) Ibid.

(63) Interview of Rob Gordon (2 December 2013).

(64) Ibid. This is a precise example of the link between pursuit of jurisdiction and pursuit of status as identified by Adams, "Inter-Professional Conflict", supra note 12 at 2251.

(65) Interview of Rob Gordon, supra note 63.

(66) David MacAlister, "Masters Degree Being Designed for BC Notaries" (2007) 16:4 Scrivener 40 at 40.

(67) Interview of lawyer (20 December 2013).

(68) School of Criminology, Simon Fraser University, "Program Proposal: Master of Arts Degree in Applied Legal Studies (Notaries Public)" (14 January 2008), at 1, online: <docushare.sfu.ca/dsweb/Get/Document-357653/S08-48.pdf>.

(69) See e.g. Interview of lawyer (2 February 2014); interview of lawyer (12 November 2013).

(70) Interview of notary (29 November 2013).

(71) Interview of notary (12 November 2013).

(72) Interview of lawyer (28 February 2014).

(73) Interview of lawyer (24 January 2014).

(74) Simon Fraser University, "MAin Legal Studies Wins National Award" (10 June 2011), Graduate Studies & Postdoctoral Fellows (blog), online: <www.sfu.ca>.

(75) LSBC, Proposed Expansion, supra note 31, Appendix A at 1, 3.

(76) Ibid, Appendix A at 1.

(77) See ibid.

(78) See Witz, supra note 9 at 208.

(79) Law Society of British Columbia, "Minutes" (4 August 1989) at 12 [on file with author],

(80) LSBC, Proposed Expansion, supra note 31 at 1.

(81) Law Society of British Columbia, "Minutes" (6 July 1990) at 10 [on file with author] [Benchers Minutes July 1990].

(82) Benchers Minutes July 1990, surpa note 81.

(83) Ibid.

(84) Ibid.

(85) Ibid.

(86) Ibid. Prophetic words describing the potential outcome of notaries' affiliation with SFU, as discussed above.

(87) Ibid.

(88) Benchers Minutes July 1990, supra note 81 at 3.

(89) LSBC, Proposed Expansion, supra note 31, Appendix F.

(90) Ibid.

(91) Ibid.

(92) See Adams, "Education and the Quest", supra note 12 at 275.

(93) Adams, "Education and the Quest", supra note 12 at 275 [citations omitted].

(94) Guile, supra note 54 at 2.

(95) See e.g. April-May 1991 at 6; April-May 1992 at 6; May-June 1993 at 8. All practising lawyers in BC were (and still are) also notaries public. Lawyers were (and still are) prohibited from advertising their services as a notary public without also advertising their status as a lawyer. See Law Society of British Columbia, Professional Conduct Handbook (Vancouver: Law Society of British Columbia, 1993) at ch 14, s 8, online: <www.lawsociety.bc.ca/docs/publications/mm/ProfessionalConductHandbook_2012 09.pdf>.

(96) "Branch Collects 'Horror Stories' About Notaries", The National (March 1990) at 14.

(97) "BC Branch Opposes Changes Sought by Notaries", The National (November 1991) at 34.

(98) Adams, "Inter-Professional Conflict", supra note 12 at 2251.

(99) Michael C Carr, "David and Goliath Revisited: Notaries vs Lawyers", The Vancouver Sun (15 January 1993) A19.

(100) Ibid.

(101) See Robert Gourlay, "Lawyers' Expertise Is Needed" The Vancouver Sun (23 January 1993) A16.

(102) Brad Daisley, "Battle Brewing Between Lawyers, Notaries in BC" The Lawyers Weekly (26 February 1993) 5.

(103) Ibid.

(104) Abbott, supra note 10 at 98; Adams, "Profession", supra note 12 at 67-68.

(105) "Notaries Amendment Act, 1993", British Columbia, Legislative Assembly, Official Report of Debates of the Legislative Assembly (Hansard) 35th Parl, 2nd Sess, Vol 11, No 19 (29 June 1993) at 8053.

(106) See ibid. One more seal had come to light in 1990 in response to enquiries from the Notaries Committee of the Law Society.

(107) Law Society of British Columbia, "Other Motions Debated...", Benchers' Bulletin (Vancouver: LSBC, October 1993) at 8.

(108) Interview of notary (24 January 2014).

(109) Interview of lawyer (11 December 2013).

(110) Interview of lawyer (28 February 2014) [Interview, 28 Feb 2014],

(111) Interview, 28 Feb 2014, supra note 110.

(112) Ibid.

(113) Ibid.

(114) Canada, Competition Bureau, Self-Regulated Professions--Balancing Competition and Regulation (Ottawa: CB, 2007) at 70, online: <www.competitionbureau.gc.ca>.

(115) See e.g. Joan Brockman, "Money for Nothing, Advice for Free: The Law Society of British Columbia's Enforcement Actions Against the Unauthorized Practice of Law" (2010) 29:1 Windsor Rev Legal Soc Issues 1 [Brockman, "Money for Nothing"]; Michelle Lee Maroto, "Professionalizing Body Art: A Marginalized Occupational Groups Use of Informal and Formal Strategies of Control" (2011) 38:1 Work & Occupations 101 (Maroto's study of tattoo artists showed how governments and their delegates are not the only viable watchdogs for preventing harm to the public. Her study

(116) Interview, 28 Feb 2014, supra note 110.

(117) Abbott, supra note 10 at 98.

(118) See e.g. Richard Susskind, The Future of Law: Facing the Challenges of Information Technology (New York: Oxford University Press, 1996); Lance Finch, "Access to Justice: The Elephant in the Room" (Address delivered at the Canadian Bar Association BC Branch at Scottsdale, Ariz, 20 November 2010), online: <www.courts.gov.bc.ca>.

(119) Interview of lawyer (24 February 2014).

(120) Deborah L Rhode, "Reforming American Legal Education and Legal Practice: Rethinking Licensing Structures and the Role of Nonlawyers in Delivering and Financing Legal Services" (2013) 16:2 Leg Ethics 243 at 243-44 [citations omitted].

(121) Law Society of British Columbia, "Attorney General Speaks to the Issues", Benchers' Bulletin (Vancouver: LSBC, June-July 1997) at 1, 3.

(122) 1998 Can LII 3066, 1998 Carswell BC 1283 (BCSC) [Dorn BCSC].

(123) Dorn v Law Society (British Columbia), 1999 BCCA 300, 201 WAC 304 [Dorn BCCA],

(124) Dorn BCSC, supra note 122 at para 11.

(125) Ibid at para 9.

(126) Ibid at para 11.

(127) Dorn BCCA, supra note 123.

(128) Ibid at para 12.

(129) See ibid at para 13.

(130) (1998), 166 DLR (4th) 723, 1998 CanLII 3215 (BCSC) [Gravelle BCSC], During most of the study period, the Law Society investigated (sometimes with private investigators) and responded to complaints about those suspected of unauthorized practice (notaries and others). They gathered evidence that was used to obtain either an undertaking to stop from the offender or a court injunction. See Brockman, "Money for Nothing", supra note 115 (for examples from 1998 to 2006).

(131) Gravelle BCSC, supra note 130 at para 29.

(132) Ibid at para 98.

(133) Ibid at paras 105, 106.

(134) Ibid ax para 104.

(135) See Law Society (British Columbia) v Gravelle 2001 BCCA383 at paras 17,18, [2001] 7 WR 15.

(136) See ibid at para 39; Law Society (British Columbia) v Gravelle, 2002 CarswellBC 11,280 WAC 46, leave to appeal to SCC refused.

(137) Law Society (British Columbia) v Siegel, 2000 BCSC 875,76 BCLR (3d) 381 [Siegel].

(138) See Notaries Act, supra note 2, s 18(a).

(139) Siegel, supra note 137 at paras 31-46.

(140) Ibid at paras 27-28.

(141) Interview of notary (26 November 2013).

(142) Brockman, "Money for Nothing" supra note 115 at 39.

(143) Nicol, supra note 35.

(144) Ibid.

(145) See interview of lawyer (11 December 2013); interview of notary (24 January 2014); interview of notary (3 December 2013).

(146) Interview of notary (26 November 2013).147 See interview of lawyer (11 December 2013).

(147) See interview of lawyer (11 December 2013).

(148) Interview of Gordon, supra note 63.

(149) RSBC 1996, c 405.

(150) RSBC 1996, c 383.

(151) RSBC 1996, c 181.

(152) See interview of notary (29 November 2013).

(153) KenSherk, "Representation Agreement Legislation Denies British Columbians' Right to Choose!" (1999) 8:4 Scrivener 5 at 5 [emphasis in original],

(154) King Lee, "New Power of Attorney Law Threatens Notaries Public", Times-Colonist (20 March 2000) C2.

(155) See Jay Chalke, "Clarifying Representation Agreements", Times-Colonist, (25 March 2000) A14.

(156) Ibid.

(157) British Columbia, Legislative Assembly, Official Report of Debates of the Legislative Assembly (Hansard), 36th Pari, 4th Sess, Vol 19, No 15 (11 May 2000) at 15584 (Geoff Plant).

(158) See CBABC, "Notaries Act Changes", supra note 60.

(159) CBABC, "Notaries Act Changes", supra note 60.

(160) See e.g. Janice Mucalov, "Bar Opposes Expanded Role Proposed for BC Notaries" The Lawyers Weekly, (3 November 2000) 8; Michael Kane, "Facing the Future: The Issue of Who Will Act on Your Behalf If You are Incapacitated Has Taken On a New Urgency Because Time is Running Out in BC for Creation of an Enduring Power of Attorney", The Vancouver Sun (9 April 2001) C11.

(161) Interview of lawyer (16 January 2014).

(162) SBC 2009, c 13 [WESA].

(163) The four statutes were the following: Wills Act, RSBC 1996, c 489; Wills Variation Act, RSBC 1996, c 490; Estate Administration Act, RSBC 1996, c 122; Probate Recognition Act, RSBC 1996, c 376.

(164) WESA, supra note 162, para 83 (3)(b).

(165) The British Columbia Law Institute recommended that both notaries and lawyers be authorized to complete a certificate required by international conventions. See British Columbia Law Institute, Wills, Estates and Succession: A Modern Legal Framework, by Members of the Succession Law Reform Project, BCLI Report No 45 (Vancouver: BCLI, 2006) at 52, online: <www.bcli.org/sites/default/files/ Wills_Estates_and _Succession_Report.pdf>.

(166) Interview of lawyer (16 January 2014).

(167) Interview of notary (12 November 2013).

(168) Ibid.

(169) Canadian Bar Association BC Branch, Briefing Note: The Proposed Changes to the Scope of Notarial Services in BC, (Vancouver: CBABC, 15 October 2010) at Appendix A, online: <www.cbabc.org> [CBABC, Briefing Note],

(170) Interview of notary (12 November 2013).

(171) CBABC, Briefing Note, supra note 169 at 2.

(172) The decision to drop "upholding and protecting the interests of its members" fostered "spirited debate" around the benchers' table: Jeremy Hainsworth, "Law Society for Public, Not Just Members", The Lawyers Weekly (17 September 2010) 2. The Law Society claimed it was now solely a regulatory body, regulating in the public interest. The CBABC would do the advocacy. However, the minutes of the 2010 benchers' meeting reveal that the legislative change was characterized as no change at all and that the Law Society would still have the power to look out for its members (see Law Society of British Columbia, "Minutes" (2 September 2010) at 4-5), comments which seem to undercut the Law Society's desire to be perceived as unbiased in their regulatory functioning.

(173) CBABC, Briefing Note, supra note 169 at 2.

(174) Ibid Ml.

(175) The words "access to justice" have become buzzwords for the clogged court system, but do not usually refer to the mixed bag of legal services that rural lawyers provide.

(176) See e.g. John Pecman, "The Competition Bureau: Past, Present and Future" (Remarks delivered at the 2014 Competition Law Spring Forum in Toronto, 21 May 2014), online: <www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03739.html>.

(177) Even the evil firewater is now available from more than one source.

(178) A separate article presently in progress explores the novel, evolving relationships among government, lawyers, and notaries from 2010 to the present.

(179) Brockman, "Better to Enlist", supra note 4 at 197.

(180) Federation of Law Societies of Canada, 2010 Statistical Report (Ottawa: FLSC, 2010) online: <flsc.ca/wp-content/uploads/2015/03/2010-statistical-report.pdf>.

(181) The forthcoming article referenced supra note 178 explores answers to these questions, among others.

ANN GOURLEY M([dagger])

([dagger]) BA, LLB, M A. The author was a practising lawyer and member of the Law Society of British Columbia for over 20 years. Research for this article was funded in part by a grant from the Social Sciences and Humanities Research Council and a graduate fellowship and travel grant from Simon Fraser University, all of which are gratefully acknowledged. Deepest appreciation goes to Joan Brockman, whose generosity, wisdom, acumen, humour, and engagement remain inspirational.
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Title Annotation:British Columbia
Author:Gourley, Ann
Publication:University of British Columbia Law Review
Date:Aug 1, 2016
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