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Page 6 March 3, 2014 • Law TiMes www.lawtimesnews.com COMMENT Report a breath of fresh air ith the collapse of Heenan Blaikie LLP sparking de- bates about the future of the legal profession, the Law Society of Upper Canada report on alternative business structures released last week was a breath of fresh air. e report from the LSUC's alternative business structures work- ing group proposed four models that represent a major change to how fi rms operate: • Permitting up to 49-per-cent ownership by non-licensees in enti- ties only providing legal services. • Restricting fi rms to providing legal services but with unrestricted ownership. • Allowing up to 49-per-cent non-licensee ownership and permit- ting fi rms to provide legal and non-legal services except those identifi ed as posing a regulatory risk. • Permitting unlimited non-licensee ownership and the provision of legal and any other services except where there's a suffi cient regulatory risk identifi ed. ey're only proposals and the law society will, of course, take it s time in reviewing and consulting on them. And while it's unclear what the best option is right now, the report is at least forthright in asserting that the status quo isn't an option. " e existing right regulatory restrictions on business structures are not justifi able given the lack of evidence that liberalization will hat do you get when you have a roomful of lawyers debating an issue as contro- versial as who fi ts the legal requirements to sit on the bench of the Su- preme Court of Canada? Well, if it's the mid-winter gathering of the Canadian Bar Association, you risk getting in way over your head on some- thing that may insult the very people you want to impress with your legal arguments in a future court of law. A week ago, several hundred lawyers from across Canada gathered in the his- toric ballroom at the Fairmont Château Laurier. One resolution questioned whether, without naming him, Prime Minister Stephen Harper should be able get away with appointing someone to the Supreme Court of Canada who has been a Federal Court rather than a Quebec judge and not even been a member of the Quebec bar for the previous 10 years as required by ss. 5 and 6 of the Supreme Court Act. Justice Marc Nadon is a fi ne, con- servative-minded judge. He's the kind of judge Harper likes and, being fully bilingual, would be an asset to the Su- preme Court. at's why Harper tried to appoint him without worry- ing too much about the fi ner points of the law regarding the appointment. is time, it created a big stir in Parliament as well as in judicial and legal circles. And fi nally, Harper decided he had no choice but to put Nadon's appointment on hold while he let the remaining eight Su- preme Court judges decide the matter for him. It was never clear how the lawyers at the CBA came to the idea that they should be telling Harper and the Supreme Court judges how to deal with the Nadon matter. But in any case, such a resolution was on the agenda last week. One "whereas" clause said the CBA "recognizes" bilingual- ism as an "important element" of merit for appointment to the bench. at was a nice way of putting it. ey called it an "important element" and not an "essential requirement" or anything as controversial at that. e resolution writers would have been lawyers a er all. Another "whereas" clause noted pub- licly that the issue of interpreting ss. 5 and 6 of the Supreme Court Act was now before the Supreme Court. We know that already, of course. e question is whether the CBA should be discussing it. O en in Parliament, the politicians don't debate issues that are before the courts and certainly not those before the Supreme Court. at's espe- cially true when the prime minister himself sent the is- sue to the Supreme Court as a reference question. Were the lawyers at the CBA event trying to embarrass Harper or possibly tell the Supreme Court how to decide the reference question? It's hard enough for the judges as it is given the confl ict of interest they face. e resolution went further. It said the CBA should "stress" — presumably to Harper — the importance of "ensuring" that Supreme Court judges from Quebec are "well-known" jurists who can "duly re- fl ect" Quebec's civil law tradition, judicial diversity, and French reality. But the resolution went further still. It said the CBA should "point out" — it must be to Harper again — that the law restricts the appointment of "persons from Quebec" to the Supreme Court bench to judges from the Quebec Court of Appeal or the Quebec Superior Court or lawyers with at least 10 years' standing in the Quebec bar. Nadon loses out on all three counts. And lastly, the resolution said the CBA should "urge" Parliament to "hon- our" the tradition and constitutional conventions "which have prevailed in this regard to date." ese CBA lawyers certainly know how to send a message to the prime min- ister while providing a little legal advice to the Supreme Court bench. But somebody at the CBA must have thought it over. e resolution never got to the fl oor of the meeting. ere was no embarrassing anyone. Harper's ego remained intact and the Su- preme Court's nose wasn't out of joint. In addition, those CBA jurists-in-training in the ballroom didn't end up looking like armchair quarterbacks. It took them a while, but the lawyers at the meeting did the right thing. LT uRichard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers.com. ©2014 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. 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, com- pleteness or currency of the contents of this pub- lication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. 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Among the benefi ts of the proposed changes are greater access to capital, innovation, and more effi cient operations through economies of scale. Other countries have already tried aspects of these reforms, so it will be important to apply the lessons learned in implementing any changes here. With Heenan Blaikie's demise renewing dis- cussions about the need for fi rms to adapt or die, the report is timely. And with the Canadian Bar Association looking at similar issues with its Le- gal Futures Initiative, the prospects for reform happening sooner rather than later appear to be growing. — Glenn Kauth W The Hill Richard Cleroux W

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