A PROUD PROFESSION
I have been a bencher for the last eight years, and have been practising for 30. I am just as proud to be a lawyer today, as I was some 30 years ago. Over the years, I have seen and experienced the many challenges that our members and our profession face. As a bencher, I have taken on these challenges, and have worked hard to improve the profession as a whole. I hope to be re-elected so I can continue to work for you, and for the betterment of the profession in these challenging times. I believe my track record and my past experience as a bencher speak for themselves.
For the last eight years as a bencher, I have served on the Law Society’s Government Relations Committee, and have chaired this committee for the last four years. As Chair of the committee, I have advocated for the legal profession to Queen’s Park and on Parliament Hill. We have had some important successes, such as:
- We persuaded the last government to provide an additional $100 million for Legal Aid Funding,
- We advocated for and obtained interim funding to cover the increased number of refugee hearings,
- We pushed back on the insurance industry’s attempt to limit the use of contingency fees, and
- We successfully advocated for the expansion of the Unified Family Court.
In this political and social climate, the Law Society`s voice must be strong and clear so as to ensure that public confidence in our profession is maintained, and the views of our members are considered by governments at both levels.
- Legal Aid
Over the last eight years, I have championed the need for sustainable legal aid. Legal aid is a critical component to access to justice in Ontario. This past term, I chaired a review of the Law Society’s role in respect of legal aid, and how the Law Society can enhance the delivery of robust and sustainable legal aid services. I have also petitioned both levels of government for a greater commitment to legal aid funding. This advocacy must continue, and in fact, needs to be ratchet up.
Through our government relations work and advocacy, we obtained a commitment from the last provincial government for $100 million more in funding. This added funding was crucial to ensuring that the least financially able among us are able to obtain access to legal representation. We must continue to advocate for sufficient funding. As I noted in my remarks to the Ontario Legislative Finance Committee this past spring:
“As we approach the 2018 provincial election, we are asking all political parties to commit to the 10-year funding commitment announced in 2014. There is also an urgent need to ensure predictable funding in the future. A regular tariff review mechanism would avoid past situations where the tariff was increased only in response to a crisis.
We are asking this committee and all political parties to commit to a permanent review process to provide reasonable remuneration in the future.“
In 2017/2018, I also chaired the Legal Aid Working Group which issued a report on the Law Society’s role in legal aid, called “An Abiding Interest”. The report recognized that although the responsibility for broader legal aid policies ultimately rests with the Legislature and the people of Ontario, the Law Society also has a role to play. It must champion the need for a robust legal aid system to both levels of government and to share the profession’s insights to ensure that the profession’s concerns are known. It must support the need for a strong and independent certificate bar to represent the less fortunate, particularly against the interest of the state. It must also continue to support the “unique and effective“ work that our clinic legal aid system does to support the economically disadvantaged of this province – truly a matter of great pride for the province. For more of my comments, follow the link to transcripts before the Federal and Provincial legislative committees. Also please see this link to the Agenda by Stephen Paikin in which I was part of a panel discussing legal aid issues.
- Legal Aid, Ottawa and Refugee Hearings
Along with other organizations, we also sought interim funding from the Federal Government to assist with the increase in refugee hearings, following the Federal Government’s shift in its refugee policy. Our advocacy resulted in interim funding. More sustainability, however, and thus more funding is needed. Last term, I went to Ottawa with both Treasurers Schabas and Mercer to urge the Government to provide funding increases when changes to government programs result in the need for more legal aid.
- Unified Family Court
After many years of advocacy, the Law Society, along with other participants, successfully petitioned Ottawa and the province to expand the Unified Family Court. In 2018, $72 million of funding was approved to pay for federally-appointed judges to sit in. Speaking to the Federal Finance Committee in Ottawa, I applauded this initiative:
“Outside criminal law, investments in our country’s courts rarely make headlines, but they should. No area of law affects Canadians more than family law. The 2018 federal budget took a big step to improving our family court system.
Last month’s federal budget included $77.2 million over four years and then $20.8 million per year ongoing to support the expansion of the unified family courts, creating 39 new judicial positions in Alberta, Ontario, Nova Scotia, and Newfoundland and Labrador.
In Ontario, funding will support phase one of Ontario’s plan to immediately expand unified family courts to Belleville, Picton, Pembroke, Kitchener, Welland, Simcoe, Cayuga, and St. Thomas. This is welcome news for a system many believe… needs significant improvement.”
As family law lawyers are well aware, without UFC, most couples and families seeking to divorce need to appear before two courts: the Ontario Superior Court of Justice and its federally appointed judges for divorce or for division of property, and the Ontario Court of Justice for custody issues.
As I said to the Committee:
“One family breakdown; two courts. This is a complex and confusing system, which adds unnecessary and additional financial and emotional toll to an already-taxed family unit. This is the fate of approximately 60% of all families dealing with family breakdown. One can only imagine the stress that goes on for self-represented litigants in this area, and of course, their number is only growing.”
This thorny federal problem has been a jurisdictional impasse since UFC was first piloted in the 1970s.
It has taken decades of work by many, including the Law Society, to get the political support to extend UFC throughout the province. The funding in 2018 was a big step forward. But in the end, funding was provided for some but not all jurisdictions in Ontario. In some areas of the province, the provincial government needs to build or finish new infrastructure to provide for UFC. Once this is done, we intend to go back to Ottawa and seek a further financial commitment to appoint the judges necessary to complete this important initiative. Stay tuned.
- Contingency Fees and the Right to Representation
This past term the insurance industry pushed to cap contingency fees. The complaint from the insurance industry was that contingency fees were driving up the cost of auto insurance. In reality, capping contingency fees would have resulted in fewer claims being pursued, and fewer accident victims being compensated for tort damages. After several representations to government by myself, Benchers Malcolm Mercer (as he then was) and Andrew Spurgeon, the Law Society prevailed in ensuring that the current contingency legislation was not amended. In return, the Law Society introduced new rules to ensure transparent and fair contingency fees. In doing so, the Law Society was able to balance public concerns about transparency with the need for continued representation.
EQUALITY AND DIVERSITY
I have been encouraged by the changes to our profession over the last 30 years. I have been particularly proud of the recent efforts that Convocation has made to enhance equality and diversity within the profession. But I also know that we still have more to do. Certainly, I consider it to be a personal responsibility, not just as a bencher but in my own practice, to help knock down barriers and afford opportunities to groups that historically did not have the same opportunities I had. I actively promote, mentor and train racialized lawyers who work with me in the advocacy department at Gowling WLG, and will continue to do so. I also believe the five strategies implemented by Convocation this past term will provide a blue print that ensures marginalized licensees can succeed on merit, and will have access to all the profession has to offer. The work continues.
ETHICS AND COMPETENCY
At its core, the Law Society has a simple mandate: regulate lawyers in the public interest. This mandate requires us to ensure that lawyers are properly qualified and providing quality services to the public. To ensure we meet this mandate, we need to put the majority of our focus on the competency and ethics of lawyers. Our core mandate requires us to ensure lawyers have sufficient access to training, and resources that assist them in their practice. It also requires a robust discipline process that can investigate and address complaints, in a manner that balances the rights of licensees and the larger public interest.
TECHNOLOGY IN PRACTICE
I am a member of the Technology Task Force. The Task Force is responsible for examining the future of our legal profession. As technology continues to evolve, the Law Society needs to ensure that it protects the public while ensuring it does not stifle innovation and competition. The use of technology by lawyers has yet to be fully addressed by the Law Society. We need to develop appropriate practice standards for the profession for the use of technology in legal practices, and need to ensure those standards evolve with technology.
Over the past eight years, we have struggled with the process by which lawyers are admitted into our profession. We worked hard this past term on this crucial issue. We undertook extensive consultation and debated the merits of both articling and LPP. We rightly left open both options to ensure our profession is accessible, particularly to equity seeking groups who had disproportionately been left out of articling. Through the process, however, I have come to believe that we look at admission into the profession the wrong way. We examine it solely as a post-LLB issue. That is, we look at the issues aspiring lawyers are about to face in their careers, with little thought to the financial burden created by seven or eight years of post-secondary education. Inflation and cutbacks in provincial funding for post-secondary education have significantly contributed to escalating costs. The result is that the cost of admission to the legal profession, both in time and money, is a significant barrier to entry for many. Moreover, the mounting costs to law students has had a real impact on the Law Society admittance policy. Jurisdictions such as Quebec and England have streamlined their admission process. We too must do better, starting with a consideration of educational options that not only ensure lawyers are competent, but also ensures that students do not have to enter the profession under the burden of a crushing debt.
In the meantime, Convocation needs to consider other paths to expedite admission to the profession. This might involve working closely with those Universities that are prepared to be collaborative, and create programs that provide practical experience similar to the LPP to its students during law school. In such a scenario, with a properly accredited program, it would be possible to graduate and call a student to the bar at the same time.
It is not only time to think outside the box but to look outside the box for longer term solutions.
We need to continue to ensure LSO fees remain reasonable. In the previous term, I served on the Audit and Finance Committee. At that time, we conducted extensive program reviews to ensure expenses were under control. We also sought cost recovery where appropriate. For example, service charges were levied for late payments and filings to cover the administrative costs. We need to continue program cost reviews and seek cost recovery where appropriate as part of the measures to keep LSO fees in check.
Related to fees is the prospect of a levy for justice. The concept of a levy requires careful consideration. First, the Law Society is not a taxing agency. The Law Society is a licencing and discipline body. It is permitted to charge fees to cover its mandate. While the Law Society has a statutory mandate to facilitate access to justice, we must approach the use of levies for that purpose, cautiously. The representation gap in Ontario is significant. In my view, this gap cannot be resolved with a lawyer’s levy. The solution to the representation gap requires political will and commitment to provide both the financial and legislative means to tackle the issue. Presently, through the Law Foundation and interest on lawyers’ trust accounts, over $70 million of funding has been generated, of which 75% is statutorily required to go to legal aid. The remaining 25% goes to other agencies, such as Pro-bono Law Ontario. With interest rates increasing, we expect that in the short term, the Law Foundation will be able to increase funding for worthy justice projects. While increased interest rates will provide short-term relief, the long-term prognosis is less clear. With evolving technology, financial institutions are seeking to do direct money transfers and thus, trust accounts may be bypassed resulting in dwindling interest resulting in diminished transfers to justice partners and LAO. While a levy may provide interim relief for some agencies, it is a concept which requires considerably more thought as both a short-term and long-term solution as to what may be a very large societal issue.
TIME TO RE-EXAMINE
When I first arrived as a Bencher, retention of women and the fate of sole and small practitioners was at the fore, and resulted in many reports on how we could better assist/serve these important segments of the profession. While reports are great first steps, in the end, results are what truly matter. The time has come for us to examine whether our efforts have produced meaningful results. Similarly, we must be bold in our efforts to ensure access to justice and meaningful diversity in the profession.
Some have asked me why I have dedicated so much time in the last eight years to this work, and why I want to spend the next four years working just as hard. The answer for me is simple: I am proud of our profession and understand the important role our profession has in making society a better place for all. But we cannot take for granted that our institutions will always serve the public good in the way they have in the past. If re-elected, I pledge that I will continue to work hard to make sure that we have a profession that is independent and that is a source of pride for our members. I hope you will re-elect me to do that work.