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Law Times • February 7, 2011 State-sanctioned granny-bashing a new low O ntario has sunk to a new low in granny- bashing. A case in point is the temporary care assistance benefit dating back to 1927 administered by the Minis- try of Community and So- cial Services to provide $241 a month to support a child. It most often goes to grand- parents or uncles and aunts who step up when the biological par- ent cannot or will not. The basic rules are simple enough: the child must be un- der 18 years old, in financial need, and not covered under the Ontario Works Act or the Ontario Disability Support Pro- gram. The adult providing care must not have a legal obligation to provide support and not be paid as a foster parent. The most recent case in- volves a Chatham, Ont., grandmother, Wendy O'Riley, who's raising her 13-year-old granddaughter and receives the benefit as a supplement to her Old Age Security and Canada Pension Plan payments. With an income of $15,000 a year, O'Riley isn't living large on the state's dime, and the $241 represents welcome com- fort. However, the ministry cut off the benefit deeming the situ- ation permanent because the child had a room and O'Riley played an active role in taking her to the doctor, school, and recreational programs. Yes, you read it correctly. O'Riley did what we'd all ex- pect and she's punished. The is- sue, sadly, is that what's deemed permanent or temporary varies according to municipal juris- diction. Indeed, Peel Region's inter- pretation on its web site notes: "No time limits are set on the length of time that temporary care assistance is available; it can be provided as long as the child requires care and remains under the age of 18." So if O'Riley could have moved 250 kilometres east to Clarkson from Chatham, she would have been fine? Bashing granny for stepping up isn't just morally insensitive. It's fiscally irresponsible since putting that child in foster care costs the state 10 times more. As NDP MPP Paul Miller explains, this is a long-running saga of bureaucratic idiocy. Campaigning in 2007, he made a doorstep promise to Barbara LaFleshe, another grandmother who'd been cut off, that if elected he would go to bat for her. "She was at my door within a week of being elected," he chuck- les. With some help, he got the decision overturned, but it was clear there were many more cas- es, so he turned to Pro Bono Law Ontario. It handed the brief to Doug Stewart of Fraser Milner Casgrain LLP. His normal area of expertise is civil litigation. Stewart's involvement was an outgrowth of working with the Inside Queen's Park By Ian Harvey child advocacy project, another PBLO initiative. His first crack at the issue came with Marika Vandewater, an Oshawa, Ont., grandmother whose benefits were similarly cut off in 2009. He took that case to the On- tario Social Benefits Tribunal, where he presented appellate court decisions directing that the rules in social benefit pro- grams be applied as liberally and broadly as possible. Last fall, surprisingly, he was back again acting for O'Riley. The tribunal had little choice but to heed its previous ruling. The real question, however, is this: Why did it take the efforts of a large and venerable firm act- ing pro bono to right this wrong? As if granny-bashing wasn't bad enough, the ministry's reac- tion to this challenge would have made Marie Antoinette blush: "The appeal process is in place for people when they disagree with an eligibility decision." What was that about cake? "Until the first case and then this one, every case we can find which went to the tribunal was upheld. That is, none of the ap- pellants won reinstatement," says Wendy Miller of PBLO. As MPP Miller points out, it's not a large program, and there's consensus around the goal to keep families together and con- tain costs. With unanimous support last year, he tabled a bill to clar- ify the issues around permanent and temporary care that con- tained some other minor word- ing changes. Unfortunately, there are dozens of bills pend- ing like his. As this government is more interested in getting re- elected this October, it's doubt- ful it will pass before the current session ends. It's in situations like this that you can't help but admire the work of the PBLO. As PBLO's Miller points out, the organi- zation picks through the cases and matches the lawyer to the issue. It's a win-win because the practitioner can stretch into new areas of law with the assis- tance of other lawyers through PBLO. And, of course, it feels good. "It does make you feel grati- fied," says Stewart. "That's the point of PBLO: to ensure people have access to justice. We can't guarantee a result but we can en- sure they are heard." LT Ian Harvey has been a journal- ist for 32 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers .com. COMMENT PAGE 7 the results are in, I hope it heralds a cultural shift in how our regulator deals with its members under investigation and in disciplinary proceedings. In the past few years, some representatives of our law society seem to have become aggressive and unbalanced in their approach. There's no question that the LSUC's focus is on regulation as opposed to monitoring, guidance, helpful consul- tation, and even media- tion. With its obsession with promoting trans- parency in the protection of the public, there seems to be a lack of balance, understanding, and compassion. The profession is sensing it. One would hope that correspondence from our own regulator would be eagerly opened. I doubt that's the case. Most members of the pro- fession sense that it's rarely a get-well card. I suspect that members experiencing dif- ficulty are reluctant to pick up the phone and call the law society for help and guidance. That wasn't always the case. The LSUC was vibrant, engaged, energized, and trusted in its dealings with its members. Many representatives of the law society now see themselves only as regula- tors, not friends or mentors, while suggesting organizations such as The Advocates' Society, Ontario Bar Association, Criminal Lawyers' As- sociation or Ontario Crown Attorneys' Associa- tion are who we must resort to for help. Surely, a balance can and should be achieved. The amount of money spent on disciplinary hear- ings and investigations is staggering. A fraction of that money directed to mentoring and ethical guidance would be enlightening. Let me be very clear. There may be lawyers and indeed paralegals who don't care about ethics, are driven by opportunities to cut corners, and are in wilful violation of the rules. They must be disci- plined but they're a small minority. There are so many more who are suffering from burnout, depression, collapsed relationships, failed expectations, financial ruin, health prob- lems, family pressures, and addictions who need help, mentoring, and guidance to correct their mistakes and change their environment. It's trite to say it, but we must remember that lawyers and paralegals are human and subject to human error. Coupled with this is our unique difficulty given our training to be problem solv- ers and successful professionals that we can't seem to ask for help. Our law society needs to understand this. Much more will be achieved by a simple, clear warning in that first letter sent out by the investi- gations department such as: "You have a duty to respond. This matter may lead to discipline pro- ceedings against you that could be career threaten- ing. We encourage you to consult with counsel before responding." It's simple to do. It would inform the member that the matter is serious. It would render what- ever comes next more manageable. Every letter announcing an investigation de- mands a response and points out that prosecution for failure to co-operate is ever present. Failure to co-operate or respond often ends up in a summary prosecution with the same potential penalties available as on the merits, most often a suspension and clearly a record of professional misconduct for which there's no pardon ever. There may be many reasons for not responding or not engaging: fear, helplessness, and failure are more often the motivator rather than any wilful snubbing of the law society. Furthermore, the number of lawyers and paralegals who are unrepresented through their own disciplinary process is troubling. The law society should promote and support a robust in- dependent duty counsel system for its members www.lawtimesnews.com Whose law society is it? T BY BILL TRUDELL For Law Times he next Law Society of Upper Canada bencher election is rapidly approaching. It's an extremely important one. When Speaker's Corner (who often can't afford to retain counsel) instead of relying on the goodwill of organizations such as The Advocates' Society and individual lawyers to assist. Our law society needs to be aware of the enor- mous damage caused to careers due to the mere publication of the fact that a disciplinary proceed- ing has been authorized. Long before any finding of misconduct, a reputation can be irreparably ruined by publication on the LSUC web site, let alone in articles in legal publications, in the media at large or in the coffee shops of small towns. In attempting to pre- serve its own reputation, our law society often de- stroys that of its mem- bers before any finding of wrongdoing. This is unacceptable. We need a cultural shift in front-end man- agement separating those who clearly deserve discipline from those who essentially need guidance. This is impossible under our present system in which the closed proceedings authorization com- mittee receives the report and recommendations of the investigations department signed off by the discipline department. There's no bencher involve- ment before this. The lawyer under investigation has no access to the report to the committee. Only those lucky enough to have counsel from the start can hope to ensure their side of the story is presented comprehensively. There are enormous problems in our system. There are too many situations where a lawyer under investigation isn't given the actual com- plaint or complaint form but is asked to respond. Moreover, interviews conducted during an in- vestigation are too often adversarial, feature cross- examination, and amount to fishing expeditions outside the focus of the areas authorized. This, too, is unacceptable and will surely lead to court challenges later on when it becomes clear that the Charter of Rights and Freedoms applies to regulatory bodies. Our law society does a terrible job of exercis- ing discretion and alternative dispute resolution. While every other justice-related institution is seeking front-end management and diversion, the benchers to date have abandoned that to others by exercising insufficient oversight. There are many members of the profession who would happily volunteer their time to men- tor and help divert cases out of the system. Often, all that's required is for a colleague to be able to admit to someone that they've failed. But the rigid structure of our regulator frus- trates a plea for help. Consideration should be given to the cre- ation of an ombudsman or a mentor-in-res- idence. There's a commissioner for unhappy complainants. Why isn't there an office that members could contact in confidence for help, guidance, and information? In past elections, voter turnout has been em- barrassingly small. There may be many reasons for this. I suggest one may be that some of our benchers seem to be out of touch with an expen- sive, crushing, and often unnecessarily aggressive approach to members of the profession who are under investigation. It's not enough for benchers to see it at the back end and then start promoting expediency in the hearing process. If self-regulation is to survive, we need benchers who have a passion for the profession and recognize the need for a balanced approach. In recent months, benchers Larry Banack, Julian Porter, Glenn Hainey, Linda Rothstein, and Mark Sandler have opened the doors to a dialogue on some of these issues. This is an in- credibly important step. An informed dialogue between the membership and benchers is vital as we approach the election and hopefully an eventual cultural shift. LT Bill Trudell is a Toronto lawyer who occasionally defends clients in LSUC disciplinary proceedings.