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Law Times • march 23, 2009 month. He slipped legislation into his budget that has noth- ing to do with stimulating the economy and everything to do with knocking back pay equity gains of women in the public service during the past 20 years. Pay equity, equal pay with men T he Stephen Harper government pulled a fast one on women this Harper's war on women Hill The By Richard Cleroux for work of equal value, has been a right of women in the public ser- vice since a 2000 decision. Harp- er's budget law, Bill C-10, replaces pay equity with "equitable com- pensation," something that has yet to be defined by the courts. The Public Sector Equitable Compensation Act was intro- duced as part of the budget Feb. 7, passed the Senate March 12, and was proclaimed the same day. The new law is loaded against the 240,000 public service women in every possible way. It came out of the Conservative party's national convention in Winnipeg. Delegates told Harper they were fed up with women al- ways complaining they should be paid as much as men, and that the pay equity law had to be struck down. He promised he would see what he could do. He tried to replace pay equity in the govern- ment's "economic statement" last fall, but had to back down when the Opposition united in a coali- tion against him. So he came back again in his latest budget. The new law reduces pay equi- ty to something to be settled at the negotiation table, like any other union-management bargaining issue. It is no longer a court-given right to women. To make a claim against the government for pay equity, a woman must be part of a "female dominant group" of at least 70-per-cent women. By setting the bar that high, the government eliminates five of the 10 current "female domi- nant" groups in the public service. Women outside the "dominant" groups — well too bad. An example: there are 2,039 women among the 2,963 infor- mation services workers in the federal government right now. Is that a "female dominant" group? Whoops, that's only 68.8 per cent. Too bad girls. No claim allowed. Union bargaining agents who bargaining against the women, explained it this way in the Com- mons: "I am proud to be part of a government that puts the interests of women ahead of lawyers." Critics of the law say there are enough Charter of Rights viola- tions to keep the courts busy for years. They have only begun to fight. The Bloc Québécois and the New Democrats fought the legis- lation every inch of the way. But without the Liberals they lost. Liberal leader Michael Igna- COMMENT PAGE 7 Whose law society is it? BY WILLIAM TRUDELL For Law Times very concerned if this is a reflection of the interest that we have in our regulator. In a recent Maclean's article (Feb. 23) "A Closed T hirty-four per cent of eligible lawyers voted in the last Law Society of Upper Canada bencher election. We should be Society," the erosion of professional self-regulation is discussed and stark predictions of its demise are presented. It is suggested that our law society may be unsuccessfully staring at an international trend away from self-regulation. The article quotes from a study by legal history tieff might have been against the legislation. He used to be a hu- man rights advocate. But if he had stood up to Harper, it would have meant voting against the budget and Ignatieff might have ended up with an election, something he cannot afford to fight right now. So in the end the Liberals voted as Harper wanted, for the budget bill. Others stayed away from the Commons or sat in their seats and hung their heads. The final igno- miny came when Harper forced Ignatieff to tell his Liberal senators to vote for the bill. They did. "This bill was a deliberate right- wing trap by Harper," says New Democrat women's issues critic Irene Mathyssen. "It's part of the Conservative ideology. Women should stay home and be moth- ers or wives, and if they go out to work, they should subsidize the pay of men." It is not the first battle between Harper and Canadian women who work outside the home. When first elected three years ago, Harper abolished the $5-bil- lion national childcare plan set up by Ken Dryden. Harper replaced it with a $100-a-month baby bonus plan. It saved $3.5 billion a year. A hundred dollars a month buys two days of childcare a month, hardly enough to make it worth- while working outside the home. Then Harper cut advocacy are caught advising women to go to the courts to seek pay equity can be fined up to $50,000. Now how is that going to stack up in court, given that union bar- gaining agents are required under Canadian law to work on behalf of their members. Unions will no longer be allowed to represent women members or pay their le- gal costs before the Public Service Labour Relations Board. Who will have the means to take on a costly legal fight? Harper was clear in defending his law. He said he wanted to re- duce the number of women tak- ing their claims before the Human Rights Commission, the Labour Relations Board, or other legal bodies. It was taking up too much time and costing too much. Former justice minister Vic Toews, president of the Treasury Board, whose department will be and research grants to women's groups. Feminist groups gnashed their teeth; Real Women applaud- ed. Then Harper abolished the $10-million-a-year Court Chal- lenges Program of Canada. Wom- en's groups had been using it to win rights in the courts that Harper wasn't prepared to see them have. Harper's steadfast opposition to affordable housing programs hit single moms and working women particularly hard, as they make up most users of the plan. Women' they will continue fighting Harper and his new equitable compensa- tion act. There is not much they can do. They still feel bad about what happened. "It' s rights advocates say says Mathyssen. "In so many ways women have been cheated. They trusted us to make a difference in their lives, and we failed them." s terrifying," LT Richard Cleroux is a freelance re- porter and columnist on Parliament Hill. His e-mail address is richard cleroux@rogers.com. professor W. Wesley Pue at the University of British Co- lumbia as follows: "'Even the most cursory review of bench- er's election campaign state- ments in Ontario during the 1990s and early 2000s reveals a remarkable commitment to protect lawyer's inter- ests,' for example, by keeping members' fees low." Indeed a review of some of the most recent bench- er election platforms illustrates similar promises for the electorate. So if the benchers' interest is in protect- ing our members, why the yawning interest in voting? I suggest it is because the law society is inherently practice and almost always unable to ask for help and admit mistakes. Corner Speaker's conflicted. It is indeed time to be rethinking and debating governance and the role of benchers. The stakes are indeed high for benchers as pointed out in Law Times in the March 9 edition. The reality is that the law society is not there for its members but to regulate its members. It is increas- ingly perceived as doing little or nothing for the strug- gling practitioner even in a collapsing economy. I have to admit I wasn't getting it. I have written in this space before about the need to help the profession including a strange idea for an ombudsman for the members (see below). I was reminded recently that the law society is The law society needs to recognize this and do something about it. One of the calling cards of self-regulators is the "see how tough we are on ourselves approach." This can drive lawyers away from opening the letter from the law society as opposed to eagerly awaiting it. There is something very simple that the law so- ciety could do. When the investigation department decides to act on a complaint, it would be helpful to advise the lawyer in "clear" language not only that they have a duty to co-operate but they are en- couraged to consult counsel before doing so. Many complaint letters go out demanding co-operation and threatening prosecution for non-compliance. The accusatory and threat- ening letter from our regula- tor is unnecessary and un- helpful. ly revised its information package. This is what now appears under the "duty to respond" section: "Most lawyers and paralegals do not hire a representative when a matter is in the investigation stage but if you do, you still must respond promptly to our requests for information and continue to co-operate with the investigation. The law society has recent- operate are your personal, professional obligation and are not avoided by retaining a representative." Does the law society not trust lawyers to give ad- vice to lawyers? It could be very simple, perhaps the following: You are being investigated and must co- operate. You have the absolute right to consult with counsel and we urge you to do so. What would be wrong with that approach? So much time, abuse, reticence, delay, procrastination, fear, and mistrust would evaporate. Self-regulation would live on and perhaps even be strengthened. I suggest that responses would be more focused, The obligations to respond and co- there to regulate not necessarily to educate, or em- brace its members. These tasks are seen to be the responsibility of outside organizations such as the Ontario Bar Association, or The Advocates' Society, or the Criminal Lawyers' Association. The law society is keenly aware that it is answer- able to the public, hence the worship at the altar of transparency, openness, and publication of disci- pline proceedings. This is further witnessed by the demise of admonitions (finding of misconduct but no publication) increases in regulatory hearings (open to the public but no finding of misconduct) and I would suggest an erosion of the use of the invitation to attend option (a closed-door chat . . . rather than a conduct application). I suspect that as the law society shifts away from protecting its members to protecting the public the electorate's interest will continue to wane. Most prac- titioners are seemingly unaffected by and do not need to worry about being disciplined, therefore the law society becomes irrelevant to them. Recently, new procedural rules were passed in an attempt to be more efficient, more focused, more "expedient." Some of the changes however, are of real concern with deemed admissions, arbitrary re- strictions on examination and cross-examination, and unbalanced cost provisions. Also, recently the benchers unanimously approved expanding the summary hearing procedure. A recent newspaper article reported that according to a sub- committee report the summary process had proven to be "effective." "It provides an efficient process for addressing cas- indeed even "expedient" if help was encouraged and problems addressed in the front end, in a less litigious manner. Moreover, some investigations take an inor- dinate amount of time even after full responses, likely because of the workload of the investigations branch. Consequently, oftentimes lawyers under investiga- tion suffer enormous damage to their reputations and livelihood long before an actual hearing. This is especially true in the mortgage fraud files. Some of the files may consume years from complaint to hearing. Even if a lawyer is found not to have been a knowing participant, lending institu- tions have blacklisted them long before that, often ruining their practices irreparably. There is no question that there are some law- yers who lack integrity and have forfeited the right to practise. We often hear that professionals have been given much and do not deserve as much sym- pathy as the less fortunate in our society. There is no question that the impact of misconduct can be widespread and painful to victims. I suggest however that the majority who get into es where the issues are narrowly defined and focused and where revocation of a licence (disbarment) is not sought as a remedy." This approach misses the point. Revocation is reserved for the worst cases but a discipline record is forever whether it is at a summary hearing or in front of a whole panel. A reprimand or suspension is a public finding of misconduct reported in the Ontario Reports with no pardon . . . EVER! Widening the summary hearing net may be expedient, may get lawyers' attention but let's not pretend that it doesn't hurt. The small commu- nity newspaper that runs the story as big news doesn't discriminate between summary hearings and substantive ones. The fact is, that most lawyers who get into dif- ficulty need help. They are often all alone in their www.lawtimesnews.com trouble are much more than their worst mistakes and need help. The issue is whether we can continue to self-regulate and swim against a tide. In order to do that, we need our profession to support its benchers. More than 34 per cent of us need to vote. That will not happen if the law society is seen to be unhelpful, even irrelevant. I have an idea. What about an ombudsman for the members, a respected senior person with a small staff, paid for by the law society, in the law society, but not of the law society? This office could confidential- ity offer assistance, problem solve, provide guidance, and perhaps recommend counsel to lawyers to help address problems before they explode. I suspect that if there were merely 100 calls in a year to the ombudsman, at least, 34 per cent of the problems would be resolved in the front end. This would result in enormous cost savings to the society and face-saving for the member and the profession as a whole. I further suspect that in future elections we may even see 66 per cent of eligible voters expressing their confidence in their regulators. As the law society engages in its comprehensive study of its governance structure, it should take the opportunity to examine and be honest about its essential mandate before it is too late. LT William Trudell is a Toronto lawyer and chairman of the Canadian Council of Criminal Defence Lawyers.