Law Times

Law Times • JuLy 23, 2018 Page 7 www.lawtimesnews.com Deeper look at the role of the OCL BY MARTA SIEMIARCZUK T he Ontario Court of Appeal heard an interesting case recent- ly, dealing with disclosure obli- gations related to documents in the possession of the Office of the Chil- dren's Lawyer. The case is a very interesting read as it highlights the tension between the con- cepts of a child-focused confidentiality approach versus litigation issues sur- rounding what is and isn't privileged. In Ontario (Children's Lawyer) v. On- tario (Information and Privacy Com- missioner), the original parties were sep- arated parents involved in high-conf lict litigation over custody and access. During that litigation, the Office of the Children's Lawyer was appointed to represent the children and investigate the parenting issues with a clinical assist pur- suant to s. 89 of the Courts of Justice Act. The matter was resolved by way of a final order, with primary care and sole cus- tody going to the mother and no access to the father. Two years later, the father brought the matter back before the court seeking a variation of the existing order. The OCL was again appointed, only this time without a clinical assist. In the context of that proceeding, the father made a freedom of information access request for documents in the pos- session of the OCL — namely, privileged and non-privileged reports relating to the children. The request included all documents filed with the court, including settlement reports, medical reports, psychological and education- al reports, all notes and social work reports, among others. The request was put before the assistant information and privacy commissioner who determined that yes, indeed, the OCL had to provide the information because it was part of the Ministry of the At- torney General and, therefore, the documents were in the care and con- trol of MAG. The commission's decision was up- held by the Divisional Court. The OCL appealed further to the Court of Appeal. The primary legal issues surrounded whether or not the OCL's documents were in the care and control of the MAG under the requisite legislation for pur- poses of having an obligation to provide the documents pursuant to a freedom of information access request. In conducting a very thorough and well-informed analysis of the role of the OCL in custody litigation, a unanimous court, per Justice Mary Lou Benotto, de- termined that no, the documents held by the OCL are not in the care and control of MAG for purposes of an access to in- formation request because, although part of the MAG's budget, the OCL was not a "branch of MAG" in this context. Quite rightly, Benotto held that while the relationship between a child and the OCL was not entirely the same type of relationship as true solicitor-client privilege, the relationship between a child and the independent law of- fice was "fundamental to the proper functioning of our legal system" and was a rela- tionship that required pro- tection to ensure the proper functioning of our legal sys- tem. And, notwithstanding that the OCL operates within MAG's budget and some of its working structure, in the current context, Benotto ruled the OCL "does and must operate separately and dis- tinctly from MAG. "When representing children, [the children's lawyer Mary Birdsell's] office is therefore not a branch of MAG," said the ruling. When children are represented by the OCL, they are promised confidentiality. If the OCL cannot then provide that con- fidentiality, its role could not be fulfilled properly as it would curtail the ability to obtain full and frank information. Benotto also noted that this relation- ship, shrouded in confidentiality, is not the same as the concept of privilege. The access to information legislation does create an exemption on the basis of privilege. But the court took a much deeper look into the specific role played by the OCL and its confidential nature. It is precisely at this point where I do see friction between the nature of litiga- tion, rules of evidence and discovery and the role of the OCL. It must be remembered that a child's lawyer is the child's lawyer — those com- munications would be privileged. But what of the collateral information gathered? Some may be covered by liti- gation privilege, but other information might not be covered by any privilege. Information received from teachers or other collateral third parties may be completely producible during the course of litigation, even if arising from the OCL's investigation. Given, however, that this decision only relates to freedom of information access requests and not in the context of liti- gation, which would require a different analysis, I think this decision is an im- portant one to ensure that confidential- ity is not breached by, as Benotto put it, "disgruntled parents." This decision, in my view, is a very worthwhile read for both family law practitioners and their clients about the nature and role of the OCL. LT uMarta Siemiarczuk is a lawyer practis- ing family law litigation and collabora- tive family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta.siemiarczuk@nelligan.ca. Networking and the #MeToo movement BY RENATA K. LAUBMAN T he #MeToo movement was brought to the forefront in 2017 following the allega- tions against Hollywood producer Harvey Weinstein. The movement is alive and well in Canada. Patrick Brown resigned as Ontario Progressive Conservative leader in January 2018 over allegations of sexual impropriety toward two young women. Kent Hehr, federal minister of sport and persons with dis- abilities, stepped down from cabinet over sexual ha- rassment allegations. Even Prime Minister Justin Trudeau recently has been under fire for allegedly acting inappropriately toward a female journalist at a music festival 18 years ago. Thanks to the #MeToo movement, women, in par- ticular, have been encouraged to speak up about sexual harassment. The #MeToo movement has implications on net- working. Networking has been described by work- place trainer Brad Karsh as "tapping into connec- tions you have to help you get the opportunity to get a job." Networking is particularly important in the field of law. If you practise law, odds are that you have spent countless hours at dinners, baseball games, charity golf tournaments, cocktail hours or other events do- ing just that — networking, making connections or tapping into existing contacts to get that new file or client. It is worth considering what, if any, impact the #Me Too movement has on how lawyers approach network- ing in the legal profession. Possible concerns around how to approach net- working are not limited to practising lawyers and their would-be clients. Articling recruitment will be upon us as of Aug. 13, and with it, the articling recruitment dinners and cocktail meetings. In the context of the #MeToo movement, it would be prudent to approach networking events, not nec- essarily with trepidation, but certainly with alertness and care. One possible impact of the movement is that there may be additional thought given to whom to invite to events such as baseball games and golf tournaments, particularly if you plan to invite a smaller group of people. In particular, additional thought may be given as to whether to invite someone of the other gender to these networking events. What implications that decision process and even- tual decision may have cannot be understated. In par- ticular, there is a strong concern among women that they will be deliberately excluded from networking opportunities. So, how do we approach the issue of networking in the #MeToo environment? The first step should be knowing and complying with the Rules of Professional Conduct. For example, s. 2.1-1 holds that a lawyer "has a duty to carry on the practice of law and discharge all re- sponsibilities to clients, tribunals, the public and oth- er members of the profession honourably and with integrity." The commentary further indicates that "a lawyer's conduct should ref lect favourably on the legal profes- sion, inspire the confidence, respect and trust of clients and of the community, and avoid even the appearance of impropriety." Section 6.3 specifically deals with sexual harass- ment, defining it as "one incident or a series of inci- dents involving unwelcome sexual advances, requests for sexual favours, or other verbal or physical conduct of a sexual nature." The commentary regarding s. 6.3 is quite clear that the Law Society of Ontario expects lawyers to "respect the dignity and worth of all persons and to treat all persons equally without discrimination." Working within the Rules of Professional Con- duct is a good place to start. However, do these general guidelines and prin- ciples translate to the practice of networking? Do we all run in fear and never invite anyone (and particularly anyone of the other gender) to any event, ever? Do we limit all contact to minimal handshakes or no contact at all? Of course not. Networking should, and can remain, a significant part of the lawyer's ar- senal. A prudent and responsible approach to network- ing entails starting simply and being mindful. Make an extra effort when interacting with others. Assume not everyone is a lover of introductory hugs, kisses and even handshakes. Think about how your actions may be interpreted, and if you are unsure, err on the side of caution. Be mindful that people have different boundaries and recognize that what one person may be comfortable with might make someone else very uncomfortable. Read your room. If you know the group of people you are with and are in a less formal work setting, it may be fine to initi- ate or engage in physical contact. Otherwise, you may want to limit physical contact. When considering the issue of who to invite to net- working events, a prudent and responsible approach to avoiding even "the appearance of impropriety" may be as simple as including everyone (what a novel con- cept!) rather than just one gender over another. It is important to remember that the basic tenet of networking remains the same. It is simply tapping into connections. Connections are not limited by one gender or the other. Inclusivity — tempered with a specific recogni- tion of trying your best to make everyone comfortable — will achieve the goal of networking in a responsible way. LT uRenata K. Laubman is a litigation lawyer with Bell Temple LLP. She has more than 14 years of litigation experience. u SPEAKER'S CORNER COMMENT Family Law Marta Siemiarczuk

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