Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Staff Writer ............. Robert Todd Staff Writer ....... Michael McKiernan Copy Editor ......... Heather Gardiner CaseLaw Editor ..... Adela Rodriguez Art Director .......... Alicia Adamson Account Co-ordinator .... Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe Sales Co-ordinator ......... Sandy Shutt ©2011 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. May 2, 2011 • Law TiMes Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $165.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign address- es. Single copies are $4.00 Circulation inquiries, post- al returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Jacquie Clancy at: jacquie.clancy@ thomsonreuters.com or Tel: 905-713-4392 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 karen.lorimer@thomsonreuters.com, Kimberlee Pascoe at 905-713-4342 kimberlee.pascoe@thomson- reuters.com, or Sandy Shutt at 905-713-4337 sandra. shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Bad comments from Bay Street O sler Hoskin & Harcourt LLP unexpectedly landed itself in the news recently after it post- ed a note on its web site saying hospitals will want to cleanse their files in advance of new freedom-of-information rules. The firm raised the spectre of the dam- age caused by scandals such as the eHealth Ontario mess in suggesting hospitals purge their records before the Freedom of Information and Protection of Privacy Act starts applying to them on Jan. 1, 2012. The posting prompted an outcry, eventu- ally drawing Premier Dalton McGuinty to respond to the issue with comments that hospitals should respect both the let- ter and the spirit of the law. "There's the letter of the law and there's the spirit, and I would ask the people who work in our hospitals to re- spect both," The Canadian Press reported McGuinty as saying. "There's a legitimate expectation on the part of Ontarians that we get a better understanding of what is happening inside our hospitals. That does not justify, it does not authorize, it does not give licence to people in our hospitals to start destroying documents." As McGuinty hinted, hospitals may have the legal right to do what Oslers suggested (although it has since removed the reference to cleansing), but doing so would certainly run counter to their mandate to the public. Since then, hos- pitals have been tripping over themselves to get the message out that they won't be doing what Oslers originally said. But the firm's apparent logic in sug- gesting a purge reveals a broader problem. It seems to believe public agencies such as hospitals have the right to hide informa- tion given that their reputation "can be harmed through a [freedom-of-informa- tion] request." Using that logic, if eHealth Ontario had only found some way to purge its documents, the public wouldn't have learned of spending problems there and everything would be fine. That's unfortunate because, while there's an unfortunate tendency to exag- gerate the scale of some of the scandals that come to light, society is generally bet- ter off by knowing what governments and public agencies are doing. At the same time, contrary to what Oslers seems to think, the information doesn't belong to governments or hospitals. It belongs to the public subject to restrictions re- lated to individuals' personal informa- tion as well as a few other criteria. In the meantime, McGuinty, contrary to the spirit of his government's original move to apply freedom-of-information rules to hospitals in the first place, is now trying to scale it back with provisions that would allow them to refuse to release records related to quality of care. The change is currently before the legislature. In light of his comments about Ontar- ians' "legitimate expectation," McGuinty should reconsider the amendment. — Glenn Kauth advertising campaigns. A key question was whether N these factors would engage more lawyers in the Law Soci- ety of Upper Canada bencher elections last week. Turnout has been slipping for years. The profession is too big to vote on personal loyalties. There aren't many organized slates to rally support and get out the vote. Lots of lawyers just leave it to someone else. But have there ever been bencher elections where vot- ing caused big changes or even threatened to do so? Well, maybe two or three. 1871: Awaiting the apocalypse Until 1871, there were no bench- er elections at all. When vacan- cies at Convocation opened up, the benchers simply named whichever lawyers seemed right to them to lifetime appoint- ments. In 1870, the Canada Law Journal deplored the possibility of elections, "a system which is attended with so much evil." It ew online voting. Re- tirements that created lots of vacancies. Lively Bencher elections not always a snoozer That's feared the election of "men less competent, but more 'popular,' younger or more pushing." Then the Ontario govern- ment imposed bencher elec- tions by statute. The law society mourned "the dissolution of the corporation as constituted at the end of the last century." Benchers feared none of them would be returned to Convoca- tion, but treasurer John Hillyard Cameron said soothingly that "merit and position cannot fail to be recognized." Cameron's confidence was pre- scient. The first elected Convoca- tion was almost identical to the old appointed one. Indeed, law- yers continued to elect recognized leaders of the bar to Convocation for most of the next century. "The benchers in truth are not a repre- sentative body," the Law Journal said approvingly in 1880. Despite occasional rivalries related to Toronto and the out- lying areas and incursions by radicals or gadflies, leaders of big firms and barristers as op- posed to solicitors continued to dominate Convocation. "We looked on the benchers as beings on high," is how Nathan Strauss History By Christopher Moore recalled describing Convocation in the 1930s. He was a future bencher himself. The 1987 and 1991 elections: Women show up By the 1980s, running against the law society got a few critics into Convocation. Laura Legge, Strauss, and a few others suc- ceeded as representatives for the solicitor bar. The benchers were still mostly barristers rather than solicitors; mostly men rather than women; and mostly older rather than the average lawyer. But the idea that benchers could be representatives instead of be- ings on high was filtering in. Then in the late 1980s, women lawyers began to vote for women benchers. There were only three women out of 40 benchers up to 1987. By then, women were only a fifth of the profession but they must have voted heavily for www.lawtimesnews.com women bencher candidates as their numbers at Convoca- tion grew rapidly. In 1991, 10 of the 11 women who stood were successful. By 1995, the proportion of women bench- ers was actually larger than the percentage of women in the profession at large. The 1995 election: Mad as hell The early 1990s hit the profes- sion and the law society hard. The recession hurt lawyers' in- comes and provoked new fears about the endless growth of the profession. The near collapse of legal aid, then run by the law so- ciety, threatened many lawyers' incomes. At the same time, the difficulties with the errors-and- omissions plan, also run by the LSUC, caused enormous pre- mium increases. Benchers began to speculate that none of them would be re- elected in 1995. Several of them decided not to run. The election statements of new candidates were full of fury. "Mad as hell and not going to take it" was the elec- tion slogan of one of them. In the end, incumbency remained important. Sev- eral veterans who stood were successful. But 24 of the 40 elected benchers in 1995 were new to Convocation, the big- gest change ever. Represen- tatives of solicitors, the real estate bar, women, and other interest groups did well. Af- ter more than a century of elections, Convocation had become "no longer a bench of notables" but a body more representative of the diversity of the profession. What about 2011? It's hard to see the 2011 election leading to transformative changes. But one thing about it is notable. The class of 1995, the rebels, young Turks, gadflies, and change agents who arrived at Convoca- tion as the winners of that year's election, have now done their 16 years and are moving on. As a re- sult, if you didn't vote last week, you let someone else decide who would fill their shoes. Christopher Moore's newest book is The British Columbia Court of Appeal: The First Hundred Years. His web site is www.christopher moore.ca. Digital LT.indd 6 4/29/11 11:28:49 AM

• Cover
• Jury Hunt
• Contested Elections
• Focus On Personal Injury Law