Law Times

Page 6 aPRIL 20, 2015 • LaW TIMeS www.lawtimesnews.com COMMENT ABS not the only issue ith less than two weeks to go, there have been lots of interesting developments in the Law Society of Upper Canada bencher election campaign. Blaney McMurtry LLP's Henry Chang, for example, has taken to crowdfunding for financial support for his candidacy. As of last week, he had raised more than $1,500 of his $2,000 goal on the crowdfunding web site gofundme.com. Key issues in the campaign have included the LSUC's accredita- tion decision in relation to Trinity Western University. The Chris- tian Legal Fellowship, for example, sent candidates a survey asking them whether they would have voted for accreditation if they had been a bencher last year. Most notable, however, has been the Ontario Trial Lawyers Asso- ciation's survey of candidates about their views on alternative business structures. The association reportedly asked candidates just one ques- tion — do they support alternative business structures — and has since released a voting guide urging lawyers to vote on the basis of that issue. A vocal opponent of alternative business structures, the association is en- dorsing 65 candidates who agree with it on that issue. On the one hand, there's a fair argument that the association is es- sentially cajoling candidates into falling into line with its position. An organization of more than 1,500 lawyers, law clerks, and articling and law students, the association is inf luential. And with its loud opposition to alternative business structures, it's easy to see how its approach could sway many candidates on the issue. On the other hand, this is an election and the association has a right to fight aggressively for its position. In fact, it's good to see a fairly vibrant campaign given the concerns about low voter turnout. Lots of opportunities for lawyers in Ontario's cap-and-trade plans he cap-and-trade regime an- nounced by Premier Kathleen Wynne last week is a curious example of politics at play and a new payday for the profession. While Wynne's goal of "saving the planet" for her granddaughter is laudable, questions remain around exactly what the government is selling us. Long on hyper- bole and short on details, the plan is more about the government asking us to trust that it knows best rather than a detailed road map to salvation. Wynne was giddy at the announce- ment, predicting the usual critics would attack her but insisting the threat of cli- mate change is real. Insurance rates will climb as storms worsen, droughts will cause crop failures, and wildlife will suffer. Aside from the question of whether cap and trade is better than a straight carbon tax as imposed in British Columbia, let's look past the headline. This is about two things. First, it's a tax grab by a debt-burdened govern- ment desperate for revenue. Second, it's a chance for Wynne to take shots at Prime Minister Stephen Harper. Pre- dictably, the Liberal fundraising e-mails followed within hours of the announce- ment begging for donations to help the Liberals save Canada from the clutches of Harper. Why not? The issue plays well with Wynne's core constituency. So what do we really have? So far, we have a lot of thin air. As practised in Quebec and California, a cap-and-trade system places limits on car- bon emissions and then allows those who emit less than their cap to trade their surplus with those who exceed the limit. The Ontario Conservatives rightly called it a "tax on everything," but what else would we expect from a govern- ment running unsustainable deficits with no stomach to take on the public service unions that helped it win elections? The Liberals have been studying the options for seven years and while they steadfastly denied they were planning to bring in one regime or another during the election campaign last year, they still can't come up with the details of how it's all going to work. Which industries will get special treatment? Quebec, for ex- ample, gave cement makers and alumi- num smelters a pass. What about natu- ral gas electricity generation and dairy or pig farming? Let the lobbying begin. For the legal profession, of course, this is a new set of rules and regulations to assimilate. Who will regulate the market? Who will monitor derivatives? For some people, these are red f lags. For lawyers, this is also the starting gun. Rules and regulatory changes mean opportunities for bill- able hours. Roxie Graystone, an Otta- wa-area lawyer with a back- ground in environmental engineering, says the big issue is we don't know what we don't know. "Given the lack of details, most lawyers working in this area have been having conversations with clients around the issues of basic carbon pricing anyway," he says. Also, he adds, it's going to get complex with a cap-and-trade system no matter what. "When you get into markets and de- rivatives, it gets a lot more complicated and certainly beyond my expertise," he says. Small- and mid-sized companies, then, will have to start looking at how emissions trading is going to affect their businesses, something that's going to take resources, time, and, ultimately, some legal advice. As such, smaller firms will want to build capacity in this area pretty quickly, says Graystone, especially when it comes to clients with emissions- reduction technologies or renewable energy projects that will be able to take advantage of a cap-and-trade system. "The larger firms likely have the ad- vantage in having the capacity to advise clients," he says, noting they'll probably be out of the gate quickly. There will be a learning curve, but it may not be as difficult as some people anticipate, he adds. "There's a complicated suite of envi- ronmental legislation already in Ontario and this may not be any more complex than anything already there. It will be another brick in the wall that environ- mental lawyers will have to be aware of around the details of the regulations and legislation that follows." The math, however, remains troubling. How do you take $2 billon out of the econ- omy and expect it to not have an impact on employment and consumer spending? LT uIan Harvey has been a journalist for more than 35 years writing about a di- verse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. ©2015 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. 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The profession has yet to fully explore and study ideas such as non-lawyer ownership of law firms and it would be a shame to essentially cut the discussions off through the bencher vote. The law society still has plenty of time before it votes on the issue, so let's hope lawyers will assess candidates on the basis of the other issues at stake — including things like the future of the Law Practice Program — rather than just alterna- tive business structures. And, most importantly, let's hope more people take the opportunity to vote. — Glenn Kauth Queen's Park Ian Harvey T W

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