This came in a report submitted to the Law Society of Ontario (LSO) by its Professional Regulation Committee during the LSO’s May 23 Convocation — a meeting that also featured an at-times tense debate between some benchers on whether to spend a quarter of a million dollars on a new diversity research project.
It also involved a bencher letting slip that as much as $200,000 will possibly be put into the LSO’s Osgoode Hall Restaurant, which has been closed since the COVID-19 pandemic started.
At the start of the meeting, the regulation committee submitted its “for information” report, Increased Transparency — Licensee Reporting and Disclosure to the Public.
Among other things, it asks the LSO to consider making it so licensees would be required to disclose to the regulator if they have been the subject of any charges or findings of guilt under the Criminal Code, the Controlled Drugs and Substances Act or the Income Tax Act.
Currently, licensees must report to the LSO only “certain criminal charges” and the “disposition of those charges.” And, as it stands, the regulator does not make public any information about charges.
The report then recommends that these charges be disclosed to the public through the LSO’s lawyer and paralegal directory and that the regulator make public findings of guilt when it comes to the Criminal Code, the Controlled Drugs and Substances Act or “any other offence that is required to be reported to the law society.”
The committee’s report notes that such a change would make the LSO a leader of sorts, in that “[n]o Canadian law society currently discloses to the public if a licensee has been charged or found guilty of criminal or other offences.”
“In the Committee’s view, the fact that licensees are not required to report all information that may be relevant to their practice, and that the Law Society only discloses some of the information that is reported, does not ensure transparency or serve the Law Society’s public protection mandate,” the report states.
“This lack of transparency interferes with the public’s ability to choose their legal representative based on full and complete information about the licensee’s professional business, their interactions with their regulator, and with the justice system generally.”
But the making of the report did not come without disagreement among committee members. After consulting various stakeholder groups, most committee members felt it was most appropriate to limit the disclosing of charges to some of the most serious to the functioning of the profession, such as financial crimes, violence, sex offences or “crimes undermining the administration of justice.”
Some others felt that all criminal charges “under the defined Acts” should be disclosed while others felt that “the test for disclosure remains too broad” and “no disclosure of criminal charges should be made.”
LSO treasurer Jacqueline Horvat
“Enhanced disclosure would include more information about licensees’ business contact information, discipline history, review outcomes and information about certain charges and convictions under the Criminal Code and other statutes,” Horvat told benchers. “The proposals being considered by the committee are intended to protect the public — first, by ensuring that the law society has all relevant information about licensees, and second, by disclosing some of that information to the public where it is in the public interest to do so.”
Horvat said consultations with licences, justice sector stakeholders and the public on expanding disclosure started that day and would run until Nov. 30.
In other matters, the LSO’s Equity and Indigenous Affairs Committee asked benchers to approve the use of $250,000 from the regulator’s 2024 budget for “research grants to individuals and organizations in the legal community” to complete projects to be presented at an “equity summit” next year.
The money would fund five to 10 projects.
In his presentation to benchers, committee co-chair Gerald Chan said this is “part of an effort to develop a new, proactive and long-term plan on equity.”
“What are the most pressing barriers facing licensees today? What will they be over the next 10 years? How can the legal professions ensure that we are equitable, diverse and inclusive so that we can better serve the public?” said Chan, a criminal defence lawyer based in Toronto. “These are the questions that we … need to answer because they are central to our mandate.”
But the idea of sinking money into this new equity project did not sit well with a small handful of benchers.
Murray Klippenstein, LSO bencher
“We’ve been through this before, and we’re going through this again,” Klippenstein told benchers before talking about what he felt were shortcomings of the past reports.
At one point, Horvat interjected, saying that those reports were not the subject of the day’s discussion. But Klippenstein stood his ground.
“I understand that my views are wanting to be suppressed by some people, but other people have referred to these reports repeatedly … I have no confidence … that … this will be done in an intellectually acceptable way because this is not done for that. Studies are supposed to bring knowledge, but that’s not the purpose of this exercise. … This is not about getting scholars, this is about helicoptering out there and dropping money on certain preferred groups to produce reports which we know what they’re going to say.”
Klippenstein said the project will not be about “knowledge, evidence, truth [and] facts,” but about a “political viewpoint.”
There is some controversial history between the LSO and Klippenstein in this regard, with the latter having sued the regulator in 2022 in a bid to gain access to internal documents on equity and diversity.
Bencher Annamaria Enenajor disagreed with Klippenstein’s stance: Failing to embark on this research project, she said, would do nothing to break down existing barriers.
“If we want to have a solution to this problem that we are experiencing — that racialized, Indigenous, female, disabled and other marginalized groups that are underrepresented in the legal profession — if we are going to find solutions, we have to run the tests; we have to do the methodologically sound work in order to explain why and how these things are happening. … I agree with [Klippenstein] that we need to be careful about ideologically motivated and methodologically flawed ways of approaching this, but the only way we can control that is by controlling the process ourselves.”
Bencher Stephanie Sutherland voiced support for the funding but, in doing so, may have overstepped what she is able to say publicly.
Stephanie Sutherland, LSO bencher
At this point, treasurer Horvat cut Sutherland off, first saying something inaudible and then telling Sutherland to “continue without reference …”
Sutherland said she was “sorry” before continuing.
“I think that what we’re willing to spend money on — I don’t see how we can dispute this amount for this incredibly important initiative when we are willing to spend similar funds on much less … important initiatives,” she said.
According to the LSO website, the Osgoode Hall Restaurant, which was run by the regulator, “continues to be closed and catering services are not available.”
After Convocation, the LSO was asked about Sutherland’s slip-up.
“The Law Society did run a restaurant prior to the COVID-19 pandemic and is continuing to consider whether it may have a restaurant in the future,” said Amy Lewis in an email to Law360 Canada. “Given that the matter referenced by Stephanie Sutherland was considered in the absence of the public, we cannot provide further information.”
The restaurant was subject to some debate during the run-up to the law society’s 2023 bencher election, with at least one candidate pledging to reopen it.
Closing the meeting, Horvat noted this would be her last time chairing Convocation, saying that it was “an honour and a privilege to serve as treasurer for almost the last two years.”
However, Horvat, who was first elected as a bencher in 2011 and became treasurer in 2022, also referred to it as some “bizarre” times — likely referring to frequent dustups and squabbles between benchers over various issues throughout the years.
Recently, there was the Klippenstein lawsuit and the debate over the disclosure of information to benchers. Before that was the war between benchers over the LSO enacting a Statement of Principles (SOP), a required acknowledgment by all licensees of the need to promote diversity and inclusion. One side saw the SOP as an initiative to further diversity in the profession, while the other viewed it as an unjust form of compelled speech.
During her exit speech, Horvat called out certain benchers whom she accused of being bullies.
“For those of you who treat the staff here as your enemy, and question their motivations, you’re wrong,” said Horvat, who chose not to name names. “These amazing people at the [LSO] do not have the time to conspire against you. And to those benchers present and past who have bullied the staff and bullied other benchers, it is highly inappropriate — particularly in light of your ethical obligations and your positions as ethical leaders of this profession. It is simply wrong for you to abuse your power imbalance — especially when you hold such a special place around the bencher table.”
At this point, bencher Klippenstein cut in.
“Treasurer, point of personal privilege, you’re taking this opportunity to attack me. That’s not —“
But Horvat wouldn’t have it.
“You are not permitted to interrupt the treasurer; that’s the one tiny power I have, Murray. And it is now up to the rest of you to recognize the obligation that you have to stand up against this harmful behaviour when you witness it or hear it from your colleagues.”
Convocation, which was live-streamed, was ended shortly thereafter.
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