Law Times

Page 4 May 5, 2014 • Law TiMes www.lawtimesnews.com " e basic diff erence there from an administrative law standpoint is that teachers in Canada generally, and in Brit- ish Columbia specifi cally, are a regulated profession. at's to say the government controls the teaching profession," he says. Unlike the situation with lawyers, "the state does govern what teachers do and cannot do. It wasn't really for the College of Teachers to make that decision," Akazaki adds. While the B.C. College of Teachers had a narrow jurisdiction to make a call about whether to accredit Trinity Western-trained teachers, the law societies that govern the legal profession con- trol the entire licensing process, he notes. "So in terms of where the court case would end up, it would defi nitely end up in a place that's diff erent conceptually than British Columbia College of Teachers." Toronto lawyer Susan Ursel, who was counsel for an interven- er in Trinity Western University in 2001, says the evidence before the court would be diff erent now. "When the TWU case origi- nally came to the Supreme Court of Canada, the court found it very persuasive that there was no evidence that TWU-trained teachers have conducted them- selves in a way that violated hu- man rights law," she says. " at may have been persua- sive at the time in a case of fi rst instance, but if you carefully read TWU's web site, you'll see that they have conceived their mission in the world as an evangelical one, which is conversion of individu- als in society to their particular Christian viewpoint. e point of educating lawyers within that context is to fulfi l that mission." While it may be acceptable for Trinity Western to train teachers who will uphold their viewpoints and teach in Christian communi- ties, the case for lawyers is diff er- ent, according to Ursel. "To my way of thinking, edu- cating teachers might be seen as a valid activity of a religious community, but educating law- yers is not directed at the perpet- uation of that small community and its health," she says. "It's directed at the outside world. Lawyers function in the outside world and the system they are trying to interact with is completely a feature of the out- side world." By launching a law school, Trinity Western is venturing into the public sphere as a service pro- vider, says Ursel, who notes "the minute you hang up your shingle and off er services to the pub- lic, you take the public the way it comes to you. And the public comes to you with all kinds of skin colours, all kinds of genders, all kinds of ethnicity, all kinds of religious backgrounds, and all kinds of sexual orientation." Another issue that could come up in a court challenge now that didn't arise in 2001 is whether the Trinity Western covenant is legal, says Sakalauskas. Trinity Western University "nev- er asked if the covenant is legal; they just assumed it is, which is a huge thing," she says, noting a chal- lenge launched by lawyer Clayton Ruby against the B.C. government on that very question. Even so, Trinity Western would have had a better chance of gaining accreditation in On- tario if it had responded to a question raised by benchers dur- ing the fi rst day of the debate, says Akazaki. Bencher Julian Falconer had asked what would happen to students who discover they're gay while at the university. "With all due respect, [Trinity Western president Bob] Kuhn didn't give me an answer," said Falconer. Akazaki says that was a valid question and that it was "a tacti- cal error" for the university to be on the defence during its address to Convocation. Kuhn told Convocation that critics had wrongly likened the school to apartheid and Muslim extremism. "As a respondent, you try to make it less interesting," says Aka- zaki, adding Kuhn could have simply reiterated why the Law Society of British Columbia had accredited the school. e refusal by some law soci- eties to accredit Trinity Western means graduates can't use the national mobility agreement to permanently work in those prov- inces but they may still be able to practise across Canada for up to 100 days, says Akazaki. e LSUC, however, says it's still ironing out the full details of what the implications would be for the mobility agreement. "As matters stand, Trinity Western University's graduates would not be eligible for admission to the Law Society of Upper Canada under our present rules. As we discussed in the news conference following Convocation's vote on April 24th, there are several ques- tions relating to future graduates of TWU's law school," said LSUC spokesman Roy omas. LT For detailed results of the vote, see page 5. 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"Representation from solicitors at Convocation is very important and I do believe that solicitors' issues are getting a fair hearing now," says Susan Hare, a bencher from Manitoulin Island who does both barrister and so- licitor work. "But if the numbers ever change so that there are even fewer solicitors, we could have a very diff erent situation." According to Silverstein, the increasing workload involved in being a bencher could dissuade potential solicitor candidates. "We are trying to get more solicitors to run, but the workload for benchers is going up and can amount to as much as two days per week," he says. "Many so- licitors, most of whom practise in small fi rms or are sole practitioners, say they can't aff ord that kind of time. It's a problem that's going to get worse as the issues become more and more complex." As well, standing for election is one thing; winning is another. " ere are many candidates for bencher and generally speaking, it's harder for solicitors to become known to voters than it is for bar- risters, especially in some areas of the province," says solicitor and Bencher Robert Evans of Evans & Evans in Bradford, Ont. "It would be helpful, however, to have more solicitors in Convocation." Aggravating the situation is the fact that so many of the issues fac- ing Convocation have signifi cant repercussions for solicitors. Title insurance is perhaps the most obvious historical example and solici- tors didn't come out well on that issue. "Title insurance certainly lost us a fair chunk of business," says Silverstein. "And right now, the greatest issue facing the solicitor bar is survival in the face of pressure to do more with less, the changing Rules of Professional Conduct, the rising costs, and the lower fees." Arguably, the most controversial issue currently facing Convoca- tion relates to the viability and possible shape of alternative business structures in Ontario. Perhaps the strongest argument in favour of alternative business structures is the promotion of access to justice. e irony is that while the advent of new structures likely threatens small-fi rm solicitors far more than barristers generally, it's diffi cult to make the argument that solicitors represent the greatest threat to ac- cess to justice given the time and cost of resolving litigation disputes or obtaining representation in family or criminal matters. "All the barriers to access to just ice in terms of solicitors' work is the height of mown grass," says one bencher. "But even though the barri- ers relate to litigation, a barrister-dominated Convocation thinks it's better to encourage Walmart wills than to encourage litigation pro- cesses that reduce fi le turnover time from three months to six years, which is where they should be." Silverstein is of similar mind. " e people who are complaining about access are not complaining about solicitors," he notes. ere does seem to be a move afoot to give solicitors' issues a high- er profi le. In April, acting on a recommendation from the Ottawa real estate bar last summer, the law society announced the formation of a real estate liaison group with a fi rst meeting scheduled for May 7. "It's an interesting new wrinkle, but we'll have to see how it goes," says Silverstein. It may not be an easy go: a similar eff ort failed a few years ago amid reports of considerable infi ghting. "We just weren't going anywhere," says Silverstein. " e group just became a soapbox for a couple of people." LT Continued from page 1 More solicitors sought

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