Law Times

Law Times • sepTember 7, 2009 Facts, not feelings, should be basis for budget cuts A hh, the tyranny of the bean counters. Suffering the death of a thou- sand budget cuts is a trial many of us are going through these days and it often seems many of those savings are affected with little regard for long-term strategy. Of course, it's easy to be biased when the cuts affect you directly, and we can always muster an argument as to why our pet project should be spared the axe. The case before the Ontario Court of Justice now seeking judicial review of a financial decision af- fecting the Toronto Catholic District School Board, how- ever, does seem to have some intriguing arguments. It involves the elimination of a unique, and appar- ently successful, program to assist learn- ing disabled children to overcome their difficulties and eventually assimilate into the mainstream. The Arrowsmith program uses ex- Inside Queen's Park By Ian Harvey ercises to target the brain's ability to adapt and remap neural pathways to circumvent those that prevent them from learning. It can involve tracing objects wearing an eyepatch and other cognitive challenges. It's been run- ning since 1997 at TCDSB elementary schools, and many of the program's alumni have gone on to overcome multiple learning disabilities and on to university and college. Like any program for special needs it's kids, expensive. It's often those "luxury" programs which are targeted, of course. So it was with the TCDSB already deadlocked in a struggle to bal- ance its budget because trustees were going to the mat to protect their pet programs. The province stepped in and ap- pointed supervisor Norbert Hartmann who looked at the books and picked the Arrowsmith program as a cutback target arguing the $180,000 it cost to support up to 70 students was unnec- essary and the benefits dubious. The parents of the kids in the pro- gram, however, were outraged that a bean counter could make curriculum decisions. And that's the genesis of the case heading to court under the guidance of John E. Callaghan, a partner at Gowl- ing Lafleur Henderson LLP who is tak- ing the matter pro bono. "Our position is that they caught a very unique program through a budget process when, in fact, the Education Act provides specifically for kids with learn- ing disabilities," says Callaghan, who is a frequent lecturer on issues of proce- dure and trial advocacy and a member of the Civil Rules Committee. Further, he says, the budget savings are questionable, noting the $180,000 out of a $900-million budget don't add up to much — perhaps 0.2 per cent — and are a short-sighted cut since, over 12 years, these children will require the same, if not more, resources to help them through the system. "The goal of Arrowsmith is to help the kids move into the mainstream," he says. "And there are success stories." Once in the mainstream, the costs drop, making the cut seem like a short- term gain for long-term pain. The problem, he acknowledges, and one cited by Hartmann, is there's no data to back up the benefits because there's been no followup studies that aggre- gate the number of students who have been through the program and their outcomes, and no control group to compare it against. There is some data, more anecdotal than empirical, that says the average student stays about four years in the program and 69 per cent then integrate into the mainstream. That's a remarkable statistic. That's not to say more comprehensive data isn't available, just that no one has gone looking for it. Callaghan and the parents say at least that should be done before the pro- gram is cut, since a financial decision shouldn't impact an academic strategy, especially if there's any semblance of benefit to these vulnerable children. It's an argument encapsulated in an affidavit supporting the application for judicial review from University of Toronto professor Norman Doidge, a psychiatrist and author of The Brain That Changes Itself, which examines neuroplasticity. As a group, he says, these children tend to be bullied, have higher suicide and depression rates, and cost society more in the long term because we did not proactively deal with their disabili- ties during their formative years. Armed with 2002's Jimmo v. Ontario (Minister of Education), which Cal- laghan says is right on point, the parents are asking the court to review the cut in accordance with the Education Act regulations. Indeed, in Jimmo, the court ruled parents have full right of appeal under the act and until that appeal was heard, restored the status quo and negated $3.7 million in cuts to special education made by an Ottawa school board super- visor. Those cuts eliminated special edu- cation learning centres, teachers, and assistants without consultation. Ironically, of course, and as Callaghan points out, gearing up to fight the re- view will cost the province something in the order around $180,000, though as noted Gowlings is on it pro bono. Better, one would think, that the Ministry of Education find a scholar at the Ontario Institute for Studies in Ed- ucation or similar august institute, and task them with pulling the data from transcript records on the success or fail- ure of the Arrowsmith students over the 12-year history. It probably wouldn't cost that much, and the money it saves, one way or another, could be in the millions. If it works, then it's a program that could save costs over the long term in all school districts; if it doesn't, then we've answered the question through science, not personal assumptions. LT Ian Harvey has been a journalist for 32 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. COMMENT PAGE 7 A small, but significant, step in access to justice — the first in Canada in 35 years — at Thompson Rivers University in Kamloops is a small, but signifi- cant, step in the fight for access to justice. T As increasing numbers of litigants are unable to afford legal counsel and an aging population is drying up le- gal services in smaller communities, we need to turn our attention to con- straints on the supply of lawyers. The price of legal services is es- sentially a function of the demand for services and the supply of per- sons qualified and competent to render them. The demand for legal services es- calates as governments and regula- tors get bigger and enact volumes of legislation to cope with complex problems. Governments rarely sim- plify laws; more frequently, they complicate them. Complying with the enlarging body of law and regulation increases the demand for competent lawyers in civil, quasi-criminal, criminal, regulatory, and transactional proceedings. We cannot ex- pect much relief on the de- mand side. The supply side of legal services is within our control, but regulators, educators, and provincial ministries function in separate silos to constrain the number of lawyers. Law societies — essentially the modern version of medi- eval guilds — must govern in the public interest. The role of the regulator is to ensure the competence of lawyers and regulate their conduct within the parameters of the law. However, law societies effec- tively control all aspects of the sup- ply chain of potential lawyers: the number of law schools, academic re- quirements of domestic and foreign law degrees, articling, evaluation of foreign lawyers, and bar licensing examinations. There are 16 common law schools in Canada. With the exception of the University of Ottawa, Canadian common law schools have not mean- ingfully increased their intake of stu- dents in 30 years. Thus, the supply of domestic law students has been fairly constant for an entire generation. The Federation of Law Societies of Canada has an ad hoc commit- tee that advises on creating new law schools in Canada. In 2008, the FLSC effectively blocked the ap- proval of a new law school at Lake- head University in Thunder Bay. It is reconsidering the decision. It will also soon recommend the requirements of approved domestic law degree programs for entry into the legal profession. Thus, the domestic supply of lawyers is constrained by the stag- nant number of places in law schools. Some legal educators resist the creation of new law schools be- cause they are concerned that they will have to share the government's financial pie with more participants. The two existing B.C. schools — the University of British Columbia www.lawtimesnews.com he decision by British Co- lumbia to approve the cre- ation of a new law school Financial Matters By Vern Krishna and the University of Victoria — previously opposed the creation of a law school in the province. Thomp- son Rivers, however, quite astutely, linked with an existing law school at the University of Calgary and fi- nessed the regulators. The shortage of spaces in domes- tic law schools forces many qualified Canadians to go abroad to study law. Although this is a useful route for potential law students, they must go at a substantial cost to their families. There are now nearly 500 Canadians studying at foreign law schools. They will have to requalify, at additional cost, when they return to Canada. Clearly, this is an option only for those with economic flexibility in their family budgets. Of course, law societies rightly control the bar admission program We need more law schools, more law students, more law graduates, and more competent lawyers to increase the supply of service providers in order to reduce costs. that all law graduates must undergo in order to be called to the bar and the terms of the mandatory articling program. They also control the ac- creditation of internationally trained law graduates. Thus, the regulators effectively control the entry of all domestic and foreign law graduates into the legal profession. Access problems are likely to be- come even more critical as we en- dure a prolonged recession. Legal aid funding will diminish substantially as it relies on interest from lawyers' trust accounts. The Law Foundation of Ontario, for example, must remit 75 per cent of its revenues to Legal Aid Ontario. As commercial activ- ity slows, so will the interest on trust accounts. Legal aid funding will feel the pressure. We need a viable long-term eco- nomic solution to promote access to justice. We need more law schools, more law students, more law gradu- ates, and more competent lawyers to increase the supply of service provid- ers in order to reduce costs. We must lower the barriers of entry without compromising com- petence and serve the public inter- est by increasing the supply of legal services to cope with ever increasing demand. Absent a coherent eco- nomic model, two-thirds of Cana- dian society will never benefit from "equal justice for all." LT Vern Krishna is tax counsel with Bor- den Ladner Gervais LLP and executive director of the CGA Tax Research Cen- tre at the University of Ottawa. His e-mail is: vkrishna@blgcanada.com.

• Cover
• Ottawa Shutdown
• Access to Justice
• Focus On Class Actions