Law Times - Newsmakers

2017 Top Newsmakers

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Law Society to change its name Vote to scrap the old name took place this fall, followed by member survey BY AIDAN MACNAB, FOR LAW TIMES AFTER THE Law Society of Upper Canada's govern- ing body voted to scrub the "Upper Canada" por- tion from its moniker, some lawyers say they still feel blindsided by the decision. Meanwhile, those in favour of the change say the decision fits the society's mandate to serve the pub- lic's interest. The 38-11 vote in favour of scrapping the old colo- nial title took place this past September. At Novem- ber's Convocation, benchers chose the "Law Society of Ontario" as the regulator's new name after it was endorsed by 83 per cent of the 17,000 licensees who responded to an LSUC survey. An information session at the June Convocation discussed the LSUC's strategic initiatives report, which had identified the society's lack of connection to the public. In 2016, the LSUC created the Strategic Commu- nications Steering Group to develop a plan to better connect with the public. They hired consultants to gauge public sentiment and found that the name Upper Canada was a barrier, says Julian Falconer, a bencher and chair- man of the steering group. Despite disagreement from some members, Falconer says the consultation process was sufficient and it was the LSUC's duty to act. "I do not believe that licensees or the public at large, have any taste, have any appetite for long, expensive angst over these issues. They expect us to do our homework, to be transparent and to make a decision and move on to the next important issue," he says. The LSUC was created in 1797 and was the first legal profession governing body in the British Empire. Bencher Peter Beach says he wonders why, after 220 years, the deci- sion could not be postponed temporarily. He says licensees were not adequately consulted. "I agree that there has to be much better communication, both with the public at large and certainly with the profession," he says. "Why don't we just put it off for a couple of months and make sure that everybody knows about it and then vote it through? Then the people who don't want it at least can't say we weren't told." The name change mirrors the statement of principles, Beach says, in that the LSUC did not obtain enough input from the profession. Last December, the LSUC decided to implement a statement of principles where li- censees would acknowledge "their obligation to promote equality, diversity and inclu- sion generally, and in their behaviour towards colleagues, employees, clients and the public." "As I said to convocation, I think this is another example of the law society and Con- vocation not properly addressing the membership on a number of issues," says Beach. Kimberly Whaley, founding partner at WEL Partners in Toronto, says she found out about the name change when she received the email survey about what the replacement should be. She says the information gleaned from public outreach should have been shared with lawyers and then they should have been asked if they wanted to make the change. "I was kind of surprised and upset that the change was already fait acccompli," she says. Southern Ontario ceased to be called Upper Canada in 1841. Falconer says the term also excludes much of what is now Ontario that was not part of Upper Canada, including most of northern Ontario and parts of Quebec. "220 years has to be respected as a matter of history and tradition," says Falconer. "But that doesn't mean we don't take the time to self-ref lect and ask ourselves important questions about where we go next. "To do otherwise, to simply rely on 220 years of history, would be to create an anchor out of history — that's not how you evolve or change or grow." While Beach says he has heard from many lawyers who say they were not given prop- er consideration on the name change, Falconer says the response from the public was more important. "We are not a trade association," says Falconer. "I don't agree that it's the licensees' call." In the LSUC's consultancy research, they found the public was not familiar with the LSUC and what it does and the name Upper Canada "contributes to numerous communications challenges and barriers to inclusion," according to a LSUC press release. "The numbers were overwhelming in terms of the public's view of the name," says Falconer. Falconer said at Convocation when the new name was chosen, that the LSUC's consultancy feedback was that Ontarians saw the name Upper Canada "inaccessible, outdated, pretentious and colonial." Beach says he questions the notion that the old name was confus- ing and that he sees the name change as an example of the LSUC's regional bias. "Frankly, I don't see why people would be that confused about it. One of the reasons I ran as a bencher was the law society, in many cases, seems very removed from the rank and file membership, par- ticularly I think, out of Toronto and that's certainly the impression one gets, if you speak to ordinary members of the bar," says Beach. David McRobert, a sole practi- tioner who works on environmen- tal and indigenous rights law based in Peterborough, Ont. and an ex- ecutive member of the Aboriginal Law Section of the Ontario Bar Association, says he first suggested the name change in law school in 1989 and has since advocated for the change, including in Law Times. McRobert says the change was necessary and overdue. "Why does Ontario's law soci- ety cling to an arcane tradition of insisting its name must remain as the Law Society of Upper Canada? It's 2017," said the column. "As a lawyer, I am required to pay membership fees to an organization whose title includes the name 'Upper Canada.' However, the fact it is the regulatory body for lawyers who live in northern areas of the province that never were part of the territory of Upper Canada is truly bizarre." McRobert says that nostalgia for the days of Upper Canada alien- ates indigenous people who may feel that the treaty-making in this period was unfair and its effects detrimental to the groups that made them. "It just seemed inappropriate given our desire to move in the direc- tion of reconciliation," says McRobert. He says he was "surprised at how quickly everything unfolded." The legal name will officially change to the Law Society of Ontario once the provincial legislature amends the Law Society Act. Peter Beach says members of the Ontario bar were not adequately con- sulted on the name change of the Law Society of Upper Canada. top stories 18 December 2017 © 2017 Thomson Reuters Canada Limited 00248LR-89365-NP Available risk-free for 30 days Order online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 Order # L7798-8107-65203 $124 Cerlox Softcover approx. 280 pages December 2017 978-0-7798-8107-9 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Compact and easily referenced, the 5th edition offers a quick refresher when evidentiary arguments arise unexpectedly, together with compelling authority for use in argument. This book is an indispensable tool for litigation counsel. Noteworthy new features include: • New references to the latest Supreme Court of Canada decisions • Expanded discussion on such topics as when an answer to a cross- examination question does not constitute evidence, circumstantial evidence, judicial notice, admissions, corroborative evidence, business records, drug recognition experts, foundation for expert opinions, confessions, the best evidence rule, the parol evidence rule, and solicitor- client privilege • Practical, easy-to-understand chapter headings and subheadings organized around the types of evidentiary objections often raised by counsel in court, in chambers, and before administrative tribunals New Edition The Portable Guide to Evidence, 5th Edition Michael P. Doherty, B.A., M.A., LL.B., M.Jur., Ph.D. David McRobert says a change to the name of the Law Society of Upper Canada was necessary and overdue.

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