Law Times

www.lawtimesnews.com Change on the horizon for 2015 Candidates jockey for position as bencher spots open up By shannon Kari Law Times he one certainty about the upcoming bench- er election is that there are going to be a significant number of new members on the Law Society of Upper Canada's governing body. Even if every incumbent bencher running in the 2015 election wins, new members will still fill more than 40 per cent of the seats on the governing body for lawyers in Ontario. Rules that limit a bencher to three four-year-terms means there are 14 incumbents running for the 20 seats available in Toronto. For the 20 spots outside of the city, there are nine incumbents running this year. With a total of 96 lawyers running for the 40 posi- tions, there are still going to be a number of disappoint- ed candidates after the April 30 vote. But a significant change to the composition of the governing body appears to be a key campaign issue for many candidates, just as it often is in traditional political campaigns. The membership of Convocation must better ref lect the diversity of the profession and the province, a num- ber of potential benchers are stating publicly. Some can- didates are also highlighting the potential cost of run- ning to be a bencher and the lack of any limit on election spending or requirements for disclosure. "It is the same old, same old," says Rocco Galati about the makeup of the law society's governing body. "It is too cosy," says the outspoken Toronto lawyer who's running for bencher for the first time. Galati has made headlines for launching a successful challenge to the appointment of Justice Marc Nadon after the Supreme Court of Canada ruled that the Federal Court of Appeal judge didn't meet the eligibility requirement set out in the Supreme Court Act. The top court is to hear a similar challenge to the appointment of Justice Robert Mainville to the Quebec Court of Appeal on April 24. As part of his campaign for bencher, Galati also wants a review of LawPRO's monopoly on insurance for lawyers in the province. As well, sole practitioners and small-firm lawyers face an "alarmingly disproportion- ate" percentage of the disciplinary proceedings initiated by the law society, Galati suggests. The Criminal Lawyers' Association has put forward a similar viewpoint, especially when it comes to the role of defence counsel, in its public support for Joe Groia in his disciplinary proceedings over his alleged incivility in defending former Bre-X Minerals Ltd. executive John Felderhof (Groia is also running for bencher). Enzo Rondinelli, treasurer of the CLA and a long- time adjunct professor at Osgoode Hall Law School, is running in part to ensure representation of the interests of defence lawyers at Convocation. "It is important to have a voice at Convocation from the criminal law world. They may not appreciate what it is like in the trenches," says Rondinelli. Two prominent criminal lawyers, Mark Sandler and Alan Gold, aren't running this year because of term lim- its. Rondinelli says both have made significant contributions to the law society. He supports the calls for diversity among benchers and, as a first-gen- eration Canadian, says he's especially proud of the teaching he has done for the Internationally Trained Lawyers Program. Another potential change to the membership of Convocation could result from the willingness of govern- ment lawyers to run in the election, perhaps aided by the fact that the current treasurer, Janet Minor, was formerly a senior counsel in the civil branch of the Ministry of the Attorney General. Other lawyers, including outgoing Bencher Beth Symes, had urged Sandra Nishikawa, who's currently counsel in the civil branch of the ministry, to run this year. Increased transparency and diversity at the law soci- ety are among Nishikawa's priorities. "We have to ensure that our processes are fair for the profession and for the public," says Nishikawa, who started her career at a large New York firm before return- ing to Canada in 2003 to practise law with the federal government and then the province. A more diverse Convocation "provides a broader range of perspectives that enriches the institution," says Nishikawa, who has been chairwoman of the law soci- ety's equity advisory group since 2012. One area where there's broad agreement among some of the non-incumbent candidates is the need to reform the election process, including the costs of seeking to be a bencher. Lee Akazaki, a Toronto litigator who's running, es- timates it would cost almost $60,000 for a candidate to reach out to lawyers through mail, e-mail, and ads. "This is a debate we need to have," says Akazaki, a past president of the Ontario Bar Association. For candidates who want only to send out a mass e- mail to voters, the law society has the e-mail addresses of about one-quarter of the more than 47,000 eligible voters on file. To contact those 12,373 voters by e-mail, the regu- lator requires candidates to pay nearly $700 to the Cornerstone Group of Companies, a private company contracted by the law society to send out the messages. If a candidate wants any creative material to accompany the e-mails instead of just text, the company will charge additional fees. The cost of these advertising vehi- cles is prohibitive for sole practitioners or lawyers at smaller firms, says Aka- zaki. "Who is paying for candidates to be elected?" he asks. The voter turnout in the 2011 bencher election was only 37 per cent, although that was slightly higher than the percentage four years earlier. Eli- gible voters can cast ballots online for up to 40 candidates (20 in Toronto and 20 in the rest of the province). A bencher working group in 2013 considered the issue of election ex- penditures and, based on a survey con- ducted six years earlier, found no cor- relation between spending and success as a candidate, says Susan Tonkin, a spokeswoman for the law society. "As well, the working group reported that imposing and enforcing spending limits would create regulatory issues and were not a necessary feature of a fair election pro- cess," says Tonkin. Along with the ability to spend, name recognition and the support of a large firm are a distinct advantage, say many candidates. "It is a disadvantage to be a newer call or not to be at a big firm," says Nishikawa. To boost name recognition, many candidates are us- ing slick web sites, social media, and endorsements from other lawyers. Nishikawa has endorsements from 16 current or past benchers as well as organizations that include the Fed- eration of Asian Canadian Lawyers. Rondinelli has the support of the CLA, the Canadian Italian Advocates Organization, and lawyers including Sandler, Brian Greenspan, Marlys Edwardh, and David Lepofsky. Having taught as a sessional lecturer for a doz- en years, Rondinelli is hoping former students will vote for him and he's also relying on a more old-fashioned way of generating votes. "I hope my supporters tell two friends and they'll tell two friends," says Rondinelli. In a slight twist to the endorsement strategy, Isfahan Merali is running a joint campaign with Janet Leiper, an incumbent bencher known for serving as the City of To- ronto's integrity commissioner during Rob Ford's event- ful tenure as mayor. Leiper and Merali, who's currently counsel at the pro- vincial Consent and Capacity Board, link to each other's campaign web sites and are taking other steps to run as a team. LT THE LAW SOCIETY OF UPPER CANADA BENCHER ELECTION 2015 Law Times • March 30, 2015 Page 9 T Sandra Nishikawa is among several govern- ment lawyers running this year. 2015 bencher election — by the numbers 47,557: Number of eligible voters in Ontario 5,534: Number of votes received by Bencher Constance Backhouse, the top overall vote getter in the 2011 bencher election 3,045: Number of votes received by the candidate who placed 20th in Toronto in 2011 1,940: Number of votes received by the candidate who placed 20th outside of Toronto in 2011 37: Percentage of eligible voters who cast ballots in 2011 67: Percentage of candidates in the 2015 election who are male 70: Percentage of incumbents running for re-election in Toronto 45: Percentage of incumbents running for re-election outside of Toronto 8: Number of benchers running for re-election in 2015 who voted to accredit Trinity Western University's law school 11: Number of benchers running for re-election in 2015 who voted against accrediting Trinity Western 4: Number of current benchers called to the bar after 1990 8: Number of current benchers who practise at national law firms Sources: Law Society of Upper Canada, online information, Canadian Law List, and Law Times archives

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