Law Times

LAW TIMES 6 COVERING ONTARIO'S LEGAL SCENE | MARCH 11, 2019 www.lawtimesnews.com COMMENT F or any reader who has checked out an issue of Law Times recently, you'll be aware that we've been cover- ing issues of interest regarding the upcoming bencher election. While turnout for the 2015 elec- tion was 33.84 per cent, this year, a record-setting number of can- didates is running and there is hope the turnout will be higher. In conversations I've had with bencher candidates — and re- viewing nearly 60 candidate pro- files that have been submitted to our dedicated bencherelection. ca site — some have expressed a sense of distance with the regula- tor when it comes to fees they are expected to pay or rules they are expected to follow, particularly within the scope of their practice. In fact, this is what led, in part, to a piece this week focused on how some candidates say Con- vocation needs a larger voice for solicitors, a comment I've heard echoed elsewhere before, often by those outside of Toronto. "I find that more and more, some decisions coming from the law society tell me how to practise law in the abstract . . ." says Sylvie Patenaude, a partner at Sicotte Guilbault in Ottawa. Ian Speers told writer Carolyn Gruske that, "litigators tend to dominate Con- vocation . . . so [solicitors] do tend to feel that when it comes to set- ting standards, they're being set by someone whose experience is litigating." Law Times has covered law- yers who are solo lawyers or sole practitioners who say their voices are needed or young lawyers who say Convocation needs to hear from those who are grap- pling with issues that affect newer members of the bar. In many of my conversations, what has moti- vated people to run is their sense of disconnect from the regulator and from the profession at large. This can be based on a sense of disconnect at fees they're being charged, their gender, their age, their background, their location, the type of law they practise or the training they received. Regardless of who is elected — as Convoca- tion is a chosen microcosm of the profession at large — I encourage you to listen as much as possible to all of those running. There is much to learn. LT BY FRED WU For Law Times E quality, diversity and inclusion has become a hot topic as bencher elec- tion campaigns mobilize. The Law Society of Ontario's statement of princi- ples requirement returns to the forefront of intra-professional debate. Licensees are required to "create and abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity and inclusion gener- ally, and in your behaviour towards col- leagues, employees, clients and the pub- lic," according to the LSO. An election bloc, calling itself StopSOP, has recruited bencher candidates running to reverse the SOP policy. The bloc alleges that the LSO's core mandate is to regulate competence and ethics standards and the SOP policy exceeds that purpose, especially with regard to an obligation "to promote" EDI. According to the group, the SOP is unconstitutional and compels speech within an inherently political sphere. To StopSOP, the SOP is tyranny — its word, not mine. There are a few reasons to raise an eyebrow here. First, every licensee drafts their own SOP, and the ambit of possible SOPs set by the policy is extremely broad. Dictionary.com defines "promote" as "to help or encourage to exist or f lourish." Our existing obliga- tions, for example, un- der Ontario's Human Rights Code and the LSO's Rules of Profes- sional Conduct, already help EDI to exist. In my view, a simple sentence affirming those existing obligations is a compli- ant SOP. It's difficult to imag- ine how that could be involuntary or, well, difficult. There is nothing stopping a concerned licensee from qualifying their SOP to ref lect their views. You can craft an SOP permitting the same views you had previously. While some of our col- leagues have written broad and aspira- tional SOPs, it can be trivial, if you want it to be. Second, and more obviously, Ontario lawyers were all already compelled to swear or affirm a prescribed statement at our respective calls. We took oaths to "champion the rule of law and safeguard the rights and freedoms of all persons" among other things. No one objects to these obligations, and these obligations already capture what one would write in an SOP. Third, while StopSOPers allege that the policy is unconstitutional, that claim is uncertain. The Supreme Court of Can- ada considered law societies' authority to regulate free speech in Doré v. Barreau du Québec, 2012 SCC 12. The court held that professional obligation can outweigh freedom of expression, and it refused to quash a law- yer's suspension for an uncivil letter to a judge. The Court of Appeal for Ontario considered the oath of citizenship as compelled speech in McAteer v. Canada, 2014 ONCA 578 (leave to appeal refused). There, the court ruled that the compelled oath did not in- fringe freedom of expression under the Charter, for one thing, because the com- plainants could still freely express their dissenting views. For many of us, EDI words are new, the language unfamiliar. We can all un- derstand StopSOP's initial misgivings. We do not all face equality barriers, we do not all live in diverse communities and we do not all ponder the inclusiveness of our everyday workplaces. For many of us, a gut feeling will give us pause and prompt us to ask why an SOP should apply to us. It's not obvious. But that's the point. Recently, it's come to light that men's and women's barristers' robing rooms at Osgoode Hall are appallingly mis- matched in size. Even in the heart of To- ronto, one of the most progressive cities in the world, among professionals devoted to upholding rights, among the most ardent of social justice advocates, women robe in a de facto broom closet, while men enjoy a lavish excess of full-length lockers and a lounge area, all smelling of rich ma- hogany. Women at large have been seek- ing equality for more than a century, yet, without anyone doing anything wrong, women in law still get less. The disparity exemplifies why some among us are impatient for this mere to- ken from the profession, something rec- ognizing that unequal treatment exists, that unseen and unspoken circumstances and assumptions mean that some get less for no good reason. We can all do better and it's not obvi- ous how. That's all the SOP is about. It's just a good thing to do. If you want your SOP to be about more, then do coffee or lunch with a col- league — woman, minority or anyone from somewhere different than you. Talk about experience. Talk about aspirations. If anything, that's the purpose be- hind the EDI initiatives broadly, to en- courage ref lection and discourse about how we can best conduct ourselves as licensees, irrespective of anyone else's background. LT Fred Wu is a litigator. He does not tweet legal advice from @effwu. Statement of principles is a good thing to do The great divide Editorial Obiter Gabrielle Giroday Gabrielle.Giroday@thomsonreuters.com ©2019 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. Publications Mail Agreement Number 40762529 | ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd. 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Anita Balakrishnan Anita.Balakrishnan@thomsonreuters.com Copy Editor . . . . . . . . . . . . . . . . . . . . . . . . Patricia Cancilla CaseLaw Editor . . . . . . . . . . . . . . . . . . . . . Laura Crawford Art Director . . . . . . . . . . . . . . . . . . . . . . . . . Phyllis Barone Production Co-ordinator . . . . . . . . . Jacqueline D'Souza Electronic Production Specialist . . . . . . . Derek Welford Thomson Reuters Canada Ltd., One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON M1T 3V4 | Tel: 416- 298-5141 | Fax: 416-649-7870 | lawtimesnews.com LT.editor@thomsonreuters.com | @lawtimes u LETTER TO THE EDITOR I just read [an item in Law Times, from the Feb. 25 edition] on gender neutral robing rooms. Firstly, the fact that Toronto has 12 lockers for the ladies and almost 70 lockers for the men is unbelievable. I work in Cayuga. We have two robing rooms, period. I fought for those two rooms like you would not believe. As the president of the Haldimand Law Association, we had no rooms. The fact that there are complaints about gender neu- tral rooms is crazy. We have one lawyer's room, with two change rooms and one toilet, all to share . . . like humans. I cannot believe that mature professionals have to fight for the ludicrous. I just wanted to make a point!!! Elaine Rosewell Arrell Law LLP Caledonia, Ontario Speaker's Corner

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