The premier weekly newspaper for the legal profession in Ontario
Issue link: https://digital.lawtimesnews.com/i/50535
lAw Times • April 20, 2009 Politics is all about the optics L iberal MPP Broten's push to get the Ontario Laurel Securi- ties Commission to review its practices around disclosure and report back next year on whether environmental, social, and governance disclosures rules are adequate seemed like a bit of a sleeper at fi rst. It's a mom and apple pie thing. Of course, we love mom and though her pie may not be as good as store bought, it's made with love and that's why it's so special. Who's going to argue? So it was no surprise the leg- islature voted unanimously to support her motion directing the OSC to undertake such a review and report back Jan. 1, 2010. It's been apparent for some time that greed and shareholder val- ue above all else is out and that companies are now being told that there's more to success than just the bottom line. Broten and supporters want increased disclosure and that's not a bad thing because we've seen how year-end statements can be founded on a pile of worthless fi nancial derivatives hidden underneath the prover- bial walnut shell. In this eco- nomic climate and with the public backlash against two decades of corporate greed and excess, who would argue more scrutiny of publicly traded cor- porations is not a good thing? "We can never make invest- ing a fail-safe proposition, but we can ensure that investors have all the information that they need and that information is set out in a way that is easily understandable, readily compa- rable, and suffi ciently complete to allow investors and consum- ers to make the best decisions possible about what companies they want to invest in or pur- chase goods from," Broten said in speaking to the motion. Th e latter part raises some issues since consumers wishing to purchase goods or services from a company are ostensibly protected under diff erent legisla- tion. It also suggests public com- panies bear responsibilities to consumers beyond those faced by privately held companies. Let's put that aside, though. First, and to be fair to the much maligned OSC, they were ahead of the curve when just over a year ago they issued a directive to reporting companies remind- ing them that disclosure also covered environmental liability and required more than standard boilerplate. Th at reminder came after a spot check of annual fi l- ings found too many companies were too sketchy in their envi- ronmental liability disclosures. So this motion reinforces, in part, what they're already doing and also says the OSC should look at governance and the so- cial impact of the company's operations. Still, I think it's that third area which is most interesting: "Th at, the OSC seek to develop and adopt an enhanced standardized reporting framework for both Inside Queen's Park By Ian Harvey quantitative and qualitative social and environmental information, to ensure corporate disclosures are understandable, comparable, and outcome focused." Th e environmental and governance aspects are clear enough, given past experience, but what is "social?" And how far does a publicly traded com- pany have to go in ascertaining its social responsibilities and putting a price tag on it? Broten's own explanation is wide ranging and may already be causing some CEO and CFOs a little discomfort around the collar. "How does company Y treat their employees?" Broten asked the house. "Who does company B buy their supplies from? How does company X treat our plan- et? What kind of neighbour is company C to the community in which it operates? How do vari- ous companies compare to their competitors in these areas? What risks are they bearing to their bottom line? According to In- dustry Canada, corporate social responsibility is ultimately about delivering improved shareholder and debt holder value, provid- ing enhanced goals and services for customers, building trust and credibility in the society in which the business operates and becoming more sustainable over the long term." Or as she more succinctly put it in an interview: "Are they a leader or a laggard?" Th ose ethical fund managers (also known as green or clean funds) are of course delighted, as it's something they've been push- ing for as well for many years. It's also a great opportunity for Ontario to take a leadership po- sition in securities regulation by incorporating the best practices of other jurisdictions around the world, she says. Indeed, the OSC, which has been working with Bro- ten and ethical fund managers be- hind the scenes on this now has a clear mandate to go forward. And that, my friends, is the real Trojan Horse. Beyond mom and apple pie, it's also about Ontario staking out its claim as the obvious choice and place to be the single and sole securities regulator in Canada. Th at, as we all know, is some- thing many people have de- manded for some time and if this gets us there soon, it's a good thing. Even more of a bonus, an- nual reports will start to have a little more meat in them for us to chew over. LT Ian Harvey has been a journalist for 32 years writing about a diverse range of issues including legal and political aff airs. His e-mail address is ianharvey@rogers.com. LT - 1/4 x 3.indd 1 COMMENT PAGE 7 Reflections on civility T BY JOSEPH J. MARKSON For Law Times here is broad consensus and continuing concern in the legal community that lack of civility in the courtroom is on the rise. Blame is being cast in many directions: at some members of the bar for unprofessional behaviour; the bench for losing control of its processes; the Charter for creating remedies that require and reward fi ndings of malice by the Crown; and law societies for failing to disci- pline their members for misconduct. Certainly, these factors are critical parts of the problem and key to any solution, but the problem runs deeper; it is also social and personal. I believe that lack of civility in the courtroom is, in part, symptomatic of the lack of civility in society. We live in an age that is often aggressive and cynical, and that mocks icons and celebrates the hypercritical and irreverent. Consider that today, few things seem to shock or shame, manners are a dying art, and vulgarity is welcome most everywhere most of the time. Th e salutations and small courtesies that were norms not so long ago are increas- ingly uncommon; abrupt and self-absorbed be- haviour is fi lling the void; people are easily out- raged; and adversaries are quickly demonized. Indeed, the question as to whether civility and zeal are compatible virtues in the modern courtroom was asked in a breakout group at the recent Advocates' Society Symposium on Pro- fessionalism. So, can the rising tide of incivility in society be kept back from the courtroom? I think the answer is most emphatically yes. I off er some refl ections drawn from one of my most treasured experiences. I kept a jour- nal of the court proceedings I attended during my year as a Fox Scholar at Middle Temple, the Inns of Court. Whether I was assigned to a junior barrister who carried us through London traffi c on the back of his motorcycle from chambers to his criminal trial in the Blackfriars Crown, or to a High Court justice as a marshal in the Old Bailey, or to the great Sir Sydney Kentridge in the House of Lords, I both observed and admired the incomparable civility and theatrical eloquence of the English bar. Not once did I observe in the courtrooms of England and Wales the incivility that con- cerns our profession here. Th ere are lessons to be imported from the English bar. Perhaps, the history and the traditions of the Inns of Court may better insulate the courtroom from the changing social tempera- tures outside. I found that practising in cham- bers and dining in the Inns fosters collegiality. In fact, young barristers must dine in their Inn a prescribed number of times before they are admitted as a member. Th e mentorship of junior barristers is re- markably personal. I rotated through three sets of chambers, and in each of them was assigned to be mentored by one barrister. I was seated on the opposite side of the barrister's desk and we Speaker's Corner literally faced each other. I listened to every tele- phone call, read every pleading, and attended every court appearance. His calendar was my calendar. While such proximity may discomfort some, it provided priceless insight into the dis- ciplines, practices, and unfailing civility of the eff ective senior advocate. Th e concept of confl ict at the English bar is comparatively trusting. For example, it was not uncommon for barristers on opposite sides of the same action to reside in the same chambers, and most barristers would act for plaintiff s and defendants, or act for the Crown in one trial, and the accused in another. Such dexterity fos- ters balance and respect for your opponent, and comes from walking a mile in their shoes. It also reduces the polariza- tion that all too often bogs down litigation in our own court system. Th e ceremonies and pageantry of the English judicial system are striking and dramatic. When I served as a mar- shal on circuit to the Presiding Justice of Wales and Chester circuit in Cardiff , we resided in the judges' lodgings in the nearby town of Ryder. We had a butler and a cook, and were chauf- feured to and from court every day, in a Bentley no less, and behind two motorcycle escorts. His Lordship donned his wig and was fully gowned, red for criminal or blue for civil, and I wore a morning suit, white gloves, and a top hat that did not fi t. When we pulled up before the court- house in the morning, His Lordship was greet- ed by the High Sheriff in full period costume who would then draw his sword and escort us into the courthouse. We always returned to the lodgings for lunch. What's more, His Lordship sometimes hosted the opposing counsel in the matter before him for lunch. Wine was served. In the evening, it was mandatory for His Lord- ship to dine in black tie. While some may eschew such practices and the pomp and circumstance as pretentious, I believe that the English rely upon such props to discipline the justice system for its partic- ipants, and to elevate it in the eyes of those whom it serves. While the courts must be open, they also should not be familiar to the point of breeding contempt. I truly believe that advocacy is a vocation, and a virtuous profession. It is the beating heart of the rule of law, and an art, a science, and a passion. And, while I am equally inspired by my peers in Ontario, I do sometimes miss the eccentricities and exemplary civility of the English courtroom. As we strive to curb incivility, we may fi nd inspiration in the history and traditions of the Ontario bar, and in our ancestral and living ties to the Inns of Court. Now is the time to renew the noble legacy of the barrister as an offi cer of the court. LT Joseph J. Markson is a criminal and regulatory barris- ter at Markson MacDonald, and a Canadian trustee of Th e Harold G. Fox Education Fund. His e-mail address is jmarkson@thebarristersgroup.com. FIRM UP! 10% Purchase 5 or more subscriptions for your law firm to Law Times or Canadian Lawyer and save www.lawtimesnews.com 4/15/09 11:46:11 AM Digital Editons FREE with each paid subscription Receive the 15% Purchase 20 or more and save 1 year $135.00 + gst, go online at www.lawtimesnews.com 1 Year - $65.00 + gst 2 Year - $105.00 + gst go online at www.canadianlawyermag.com or call 1-888-743-3551 Special rates for students and international subscribers. BONUS