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Page 6 February 8, 2016 • Law Times www.lawtimesnews.com COMMENT ©2016 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. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, com - pleteness or currency of the contents of this pub- lication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd. 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But the spirit of the words remains the same and should be top of mind for the Ontario legal community, after recent changes that will limit retired or dismissed Superior Court of Justice judges who want to return to practice. As Law Times reports, Convocation made policy amendments that will affect retired or dismissed Superior Court judges who wish to appear as counsel before the court. Under new rules, Superior Court judges will have to seek ap- proval from a Law Society tribunal to do this. This move — which might be seen as creating unnecessary bar- riers to experienced veterans — is commendable nonetheless. It is telling that Malcolm Mercer, chair of the LSUC's profes- sional regulation committee, says some judges have been recusing themselves from hearing cases by former Superior Court of Justice judges-turned-practising-lawyers. "Parties, and particularly self-represented litigants, may feel intimidated or hesitant to voice their concerns to the presiding judge," says a report to Convocation by the Professional Regulation Committee. Whether any bias actually exists, the fact that current judges have expressed concerns about public perception of judicial neutrality is problematic. Having a former judge represent a client in a Canadian courtroom can raise endless questions about the fairness of a rul- ing. The LSUC's prudent move to have former Su- perior Court Justices seek approval from a tribu- nal means an added level of scrutiny about the appearance of impartiality in the court, and re- inforces the public perception of the fairness af- forded to everyone in the courtroom. LT Vox populi not always politically correct T he Ontario government's budget is looming and may be tabled as early as next month. Last December, the govern- ment launched a web site for sugges- tions from the public as to what they might consider in their spring budget. "Ideas are building blocks — and put- ting forward yours here can help build Ontario up," reads the call to action on the Ontario government web site. "Not every idea can be realized in an an- nual budget, but every voice matters. Your idea could be the next spark that lights a new perspective, opportunity or decision." Be careful what you ask for. The sug- gestions make interesting, if constitution- ally unviable, reading. "Auctioning Lib- eral MPPs as slaves to pay off the debt," for example, was intriguing, as was the idea of "throwing Kathleen Wynne in jail." Of the more than 1,700 ideas submit- ted as of last week, more than 53,000 votes had been cast. There were also more than 4,300 comments posted. Some touch on the obvious, such as cut- ting spending. Others were more pointed and repeated, such as demands to merge the public and Catholic schools boards. "There is no constitutional restraint to the removal of the funding, as On- tario politicians would have you believe," said a poster named Commonsense. Indeed, elementary and secondary school education spending in On- tario ranks second after health care, swallowing $23.3 billion this year in operating costs and $1.4 billion more in capital costs. We've also managed to contrive a complex system of education with Eng- lish public, French pub- lic, English Catholic, and French Catholic schools. This results in 72 school boards. Administratively, it's a nightmare. The Ontario Green Party made merg- ing the boards a plank in its 2014 election platform, saying it would save between $1.2 billion and $1.6 billion annually. No other party, however, will touch it. That's because it's a f lashpoint that doesn't divide along neat political lines — save for the Greens — and it's an example of why it is so difficult to effect any kind of spending reforms in Ontario. Even the 2012 report by the Drummond Com- mission stepped around it, citing "consti- tutional guarantees." That "guarantee" is somewhat suspect. Both Quebec and Newfoundland shed themselves of the obligation back in the 1990s. It's a dichotomy. This is a province led by a self-proclaimed ac- tivist premier who obsesses over every real and symbolic discrimination. Yet she continues to back public funding of schools divided by segregationist religious doc- trine. Still, as noted, it's an issue rarely spoken of at Queen's Park. Both the Tories and the Liberals are in lockstep in supporting the current system with boilerplate platforms. The idea is still percolating outside of the bubble, however. Liberal Party of Ontario stalwart, former party presi- dent, and retired cabinet minister Greg Sorbara mused in his 2014 memoirs, The Battlefield of Ontario Politics, that the time had come to end separate school funding citing "fairness." In 2012, a non-practicing, retired law- yer, Reva Landau, went to the Ontario Superior Court seeking a court order to stop funding of separate secondary schools on the grounds there was no con- stitutional obligation. She was denied standing after a pha- lanx of Ontario government lawyers op- posed her and the presiding judge noted she found herself "out of her depth." However, the judge also noted that while it wouldn't be prudent to grant standing to an ordinary taxpayer, a more representative group might fare better in the future. The Canadian Civil Liberties Asso- ciation had intervened on Landau's be- half at the hearing, but, so far, it has not picked up the banner and no other group has come forward again. Mergers aren't the only way to effect savings in education, however. With both systems struggling to fill schools and trustees refusing to knuckle down and make the politically difficult choices to close schools and sell proper- ties, another popular suggestion on the Ontario government web site is to elimi- nate school board trustees altogether and have Queen's Park take charge. Given the machinations at the To- ronto District School Board, maybe it's not a bad idea. Last year, an advisory panel reported Ontario's largest board was possessed with a "culture of fear" and "dysfunctional governance" pitting a ty- rant director against trustees, themselves divided into cliques, while staff, parents, and teachers walked on eggshells. The report suggested structural chang- es followed by a year's probation. Scrapping trustees altogether, however, or further re- ducing their roles may be just the radical change that's needed if it will shave some money off the education budget. LT uIan Harvey has been a journalist for more than 35 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. Queen's Park Ian Harvey

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