Law Times

Law Times • March 2, 2015 Page 7 www.lawtimesnews.com COMMENT A primer on Convocation and the upcoming bencher election 've sat through a few Convocations now, and it's time for me to report back to readers of my regular real es- tate law column on some of my tri- als and tribulations on the Law Society of Upper Canada's governing body. For a few of the hundred or so candidates whose hats are now in the ring for this spring's bencher election, some of these observations might be a bit of an eye- opener. Before I begin, a few definitions and preliminary explanations are in order. Greatly paraphrased, the law society was originally organized along the lines of the Inns of Court in England. There, at the Inns of Court, the more senior barristers sat on benches (hence the term benchers, meaning the senior members of the bar) and the most senior among them had the responsibility for collecting the rent paid by the more junior barristers for their ac- commodations at the Inns (hence why the head of the law society is actually a treasurer instead of something more apt like a president). The term Convocation is peculiar as well. Depending on the context, it means the meeting of the benchers or the benchers themselves as a group. The more colloquial understanding of Con- vocation — being the ceremony at which one gets called to the bar — is actually a bit of a misnomer. The call to the bar ceremony occurs concurrently at and as part of a Convocation as one of the duties of being a bencher is to attend at the call to the bar Convocations. But Convoca- tion itself isn't properly the name of the call to the bar ceremony. I should probably start by disabusing the entire practising bar of the notion that there's a super-secret and exclusive benchers-only wine cellar at Osgoode Hall. Almost all of my lawyer friends, and even a number of people outside the profession, have asked me about the benchers' wine cellar. They've all been disappointed when I've explained to them that it doesn't exist. There may have been a super-secret and exclusive benchers-only wine cellar at one time, but it doesn't exist anymore. This isn't to say that there are no perks at all to being a bencher. I get a super-secret and exclusive benchers-only entrance to Osgoode Hall. It's not really that secret as it faces right onto Queen Street West and sports a sign saying "Benchers' Entrance," but it's exclusive and saves me a few steps in inclement weather. I also get a personal locker at Osgoode Hall that has proven convenient of late to store boots and bulky winter jackets. Most importantly, however, benchers get great food served during Convocation and committee meetings at Osgoode Hall. The Osgoode Hall restaurant, which caters all of the bencher meetings at Osgoode Hall, is a gem and the food really is spectacular. Convocation itself, held once a month towards the end of each month, is where the actual votes take place, but almost all of the heavy lifting occurs in committee meetings. The law society doesn't technically refer to all of them as committees per se as there are work- ing groups, task forces, liaison groups, and subcommittees. But for all intents and purposes, everyone refers to them collectively as committees. It's really at these committees where benchers do the lion's share of the work of Convoca- tion, and almost every member is ex- pected to contribute to one or more of the committees all at the pleasure and direction of the treasurer. The treasurer placed me on five dif- ferent committees: the proceedings au- thorization committee; the professional regulation committee; the equity and aboriginal issues committee; the real estate liaison group (although I attend this committee more in an ex officio capacity as the director of titles); and, perhaps the most controversial one of all, the alternative business structures working group. This is only the tip of the iceberg as there are many other committees of Convocation, such as access to justice, audit and finance, government and public re- lations, paralegals, priority planning, and tribunals, just to name a few of the big- ger ones. While there are 40 elected lawyer benchers along with a small contingent of excellent government- appointed lay benchers and some great elected paralegal benchers at Convocation, most of the members need to sit on several commit- tees in order to populate them and share the workload. Many benchers put significant time into their law society duties. In the law so- ciety's web cast to prospective benchers, former treasurer Derry Millar calculated he spent upwards of 400 to 475 hours per year on his bencher duties. In the same web cast, current Bencher Mark Sandler recalled one year where he spent 110 days on law society business. Of course, not all benchers have such punishing com- mitments, but there really is a significant amount of work involved. Fitting in that many hours while maintaining an active day job isn't al- ways easy. For me, I had help from my employer (although I formally became a bencher while in private practice, al- most all of my committee work as a bencher has occurred while in my new role as the director of titles for the prov- ince of Ontario). Working in the public sector isn't intuitively consistent with bencher duties, but my colleagues in the regulatory services branch of the Minis- try of Government and Consumer Ser- vices have been genuinely supportive of the work I do at Convocation. I also have to give credit to current Treasurer Janet Minor, the first treasurer ever to come from the public sector, for having essentially set the precedent and blazed the trail for other public sector benchers following in her footsteps. Members elect benchers every four years, and 2015 is an election year. Amongst the existing cohort of benchers, there are very few solicitors. Furthermore, one of the few benchers with a strong real estate background, Alan Silverstein, will have reached the term limit and is unable to run in the next bencher election. The County & District Law Presidents' Association and others are undertaking a concerted effort this year to encourage more so- licitors to run for bencher and have more lawyers generally participate in the vote. Perhaps not surprisingly, voter turnout in the last bencher election was dismal at only 37 per cent in 2011 compared to 71 per cent in 1979, but every reader should take this year's vote seriously. The bar would benefit immensely from hav- ing more solicitors at Convocation. But therein lies the rub: If solicitors want a bigger voice at Convocation, they actual- ly have to get out there and vote for their colleagues. With a fairly large number of solicitor candidates running in the 2015 election, there will be little sympathy for the solicitor community if it doesn't mo- bilize and vote in April. So why should people run for bench- er? To quote our current treasurer, the work is truly "interesting, challeng- ing, and important." Furthermore, the benchers really are a great bunch of people. That said, you'll see the real ben- efit of becoming a bencher if you have a child or close relative in law school. Being a bencher puts you on stage at the moment your child gets called to the bar. So in a world where it's becoming progressively harder to find really cool ways to embarrass your adult children, nothing is more attractive than the idea of springing up from the backbench, fully gowned, and handing the certifi- cate of call to the new lawyer in the fam- ily. How sappy — or cool — is that? I, for one, can't wait to do it. LT uJeffrey Lem is director of titles for the province of Ontario and a bencher of the Law Society of Upper Canada. The opin- ions expressed in this article are his own and not attributable to the provincial government or the law society. Bell Mobility deserves punitive damages for arrogance in 911 case t's difficult to imagine a more egre- gious case of corporate arrogance than Bell Mobility's move to charge subscribers a monthly fee for a non- existent service and attempting to justify it in class action litigation. That's the story of the ongoing litigation commenced in 2007 by two Yellowknife residents who objected to a charge of 75 cents a month for a 911 service that didn't exist. According to the judge who granted certification of the class action, dialling 911 in Yellowknife on a Bell Mobility cell- phone resulted in calls being rerouted to a 10-digit number and a subsequent mes- sage stating, "There are no 911 services in this area. Please hang up and dial the emergency number for your area or hang up and dial zero to reach an operator." But dialling zero would result in a re- corded message stating, "In case of emer- gency, hang up and dial *911." It's obvious why subscribers might be frustrated enough to seek a remedy. But with each subscriber out of pocket a mere $9 per year, only a class action could provide a remedy. The lawsuit included thousands of customers in the Northwest Territories, Nunavut, and Yu- kon (save for Whitehorse, where 911 services were in place). Anderson v. Bell Mobility Inc., the first class action trial in the Northwest Territories, resulted in a victory for the plaintiffs. Bell Mobility contested the class action on the basis of what it claimed was a clear and express contractual right to collect 911 fees from customers in areas where no 911 services existed. Bell Mobility relied on vari- ous statements in its standard form docu- ments such as: "I understand that depend- ing on the rate plan I select, I am also li- able to pay . . . a monthly 911 service access fee outlined by Bell Mobility." Neither the trial nor the appellate court had difficulty rejecting Bell Mobility's claim that it could rely on such imprecise language to permit it to charge a fee for providing no 911 service. Nothing in the documents explicitly stated Bell Mobility could charge something for nothing. In arguing customers actually received something for their fee, Bell Mobility unsuccessfully argued sub- scribers were able to access 911 services when they travelled to parts of Canada where such services existed. Nothing in this litigation is surprising save that it con- tinues into its eighth year. Time to seek leave to appeal to the Supreme Court of Can- ada hasn't expired nor has the court dealt with quantifica- tion of damages. The only damage issue dealt with to date is the trial judge's rejection of a claim for punitive damages. In rejecting such an award, the trial judge stated: "It may be considered somewhat high-handed of Bell Mobility to continue charging 911 fees in the face of concerns and the incon- sistent application of policy, but it does not rise to the level of reprehensible conduct required for punitive damages." Even a finding that Bell Mobility "re- fused to stop billing a fee until a class action was commenced despite its full knowledge of the lack of service for which it was charging a fee" was insufficient to justify punitive damages. I'd argue punitive damages were in order. Surely, charging a fee for no ser- vice and then aggressively defending the practice through many years of litigation falls well beyond ordinary standards of decent corporate behaviour. According to principles enunciated by the Supreme Court of Canada in Whiten v. Pilot Insur- ance Co., the purpose of punitive damages is "to deter the defendant and others from similar misconduct in the future (deter- rence), and to mark the community's col- lective condemnation (denunciation) of what has happened." Forcing Bell Mobility only to disgorge money it wrongly billed doesn't provide sufficient deterrence or denunciation. Only a significant award of punitive dam- ages would signify society's condemna- tion of this blatant abuse of power and arrogance. LT uAlan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a free- lance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com. Social Justice Alan Shanoff I I The Dirt Je rey Lem Je rey Lem

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