Law Times

Law Times • JuLy 25, 2016 Page 5 www.lawtimesnews.com Lawyer says LSUC deferral 'irresponsible' BY MICHAEL MCKIERNAN For Law Times A Sudbury, Ont. lawyer facing law society and human rights com- plaints over his self- published aboriginal manifesto says the Law Society of Upper Canada has abdicated its regula- tory responsibilities by waiting for the Human Rights Tribunal of Ontario to rule before making its own decision on whether the complaints are merited. Peter Best's 350-page tome, published on his personal web site and titled "There is no dif- ference: An argument for the abolition of the Indian reserve system and special race-based laws and entitlements for Can- ada's Indians," rails against the two-tier justice system he says has emerged in Canada when it comes to First Nations matters, as well as the "Indian industry" that in his opinion profits from and perpetuates the "hopelessly negative status quo in this area of Canadian life." According to Best, the essay is a call for racial equality and integration, inspired by Nelson Mandela and Martin Luther King, but in August 2015, three Law Society of Upper Canada complainants disagreed, de- manding the regulator take ac- tion against Best for expressing views they claimed were racist. Nine months later, in May of this year, Best says he was in- formed that an LSUC investiga- tor had recommended dismissal of the complaints, but the regu- lator changed its mind when the lawyer told them about a new HRTO application relating to the essay. Best says the deferral leaves him to "twist in the wind" unnecessarily for months more while the HRTO process un- folds. "This is an irresponsible and inappropriate delegation to out- siders of what should be their sole and non-delegable responsi- bility, and an unjust and unprin- cipled sacrifice of the emotional well-being of a long-serving lawyer in favour of excessive and soulless bureaucratic caution," Best says. "I'd like to carry on with my life knowing this is not hanging over my head." LSUC spokeswoman Susan Tonkin said in a statement that the LSUC's policies allow for de- ferrals in cases where concurrent criminal, civil or other regulato- ry proceedings are at play. "The Law Society considers a number of factors in decid- ing whether to defer investigat- ing, including, but not limited to, risk of harm, abuse of our process, the likelihood of the is- sue being decided in the related proceeding, length of any delay, and the expertise of the other fo- rum," Tonkin added. However, LSUC Bencher Joe Groia questions whether mat- ters of free speech should fall un- der the law society's disciplinary mandate at all. "My sense is that when the LSUC strays beyond its core mandate of ensuring that law- yers are honest and competent, we get into trouble. Freedom of expression for lawyers is not only helpful but I believe it is essential. That means allowing expression of a wide range of views on matters of public in- terest. We should be encourag- ing all lawyers to teach, speak, and write about issues of public importance without fear of dis- cipline. For example, in my own case, I have taught at many law schools on the perils of incivil- ity. I plan to continue to do so in the future," Groia says. "Cases which overlap with HRTO matters should be no different. We have our job to do as a regulator and they have theirs. It would be extremely damaging to the profession if either agency starts to defer to the other." Steven Bryant, the applicant in the HRTO matter, first en- countered Best because the law- yer acts as the trustee for his fa- ther's estate, which lists Bryant as a beneficiary. The application accuses Best of discriminating against Bry- ant because of his First Nations background: His mother holds Indian status under the Indian Act as a member of the Kitigan Zibi Anishinabeg band in Que- bec, and Bryant has lived on a reservation in B.C. Bryant says he was particu- larly offended by a passage of Best's essay in which he says the Indian Residential Schools ex- perience was "relatively minor and benign compared to what the Jews, Ukrainians, Eastern Europeans and American blacks experienced." "My grandmother was a Resi- dential Schools survivor, so to describe it as 'minor and benign' is completely unacceptable to me," Bryant says. However, Best says he never knew about Bryant's native heri- tage, having only come into con- tact with his non-native father, and calls the allegations in the HRTO application "ridiculous." The pair had already clashed during the estate litigation be- fore the human rights applica- tion, with Bryant failing in an earlier attempt to have Best re- moved as trustee because he be- lieved Best favoured his father's partner over him and his sister in the administration of the estate. A superior court judge found those allegations unjusti- fied, labelling Bryant's language in material filed with the court as "intemperate and disrespect- ful." The HRTO application refers to one incident during Bryant's cross-examination of Best in which tensions boiled over. Best apologized in person and in writing after the incident, which was prompted by Bryant's suggestion that Best's secretary could have withheld documen- tation from him. "It was so mean and ridicu- lous for him to do that. I had kept my self-control when he was endlessly insulting me, but when he turned on my secretary, I did indeed lose it, and I levelled some very personal insults at him," Best says. The HRTO has ordered a summary hearing to determine whether Bryant's application discloses a reasonable prospect of success, and in the meantime, Best has applied to the court to re- sign as trustee in the estates case. Despite all the trouble it has led to, Best says he has no regrets about writing his essay. "It might sound corny, but I felt I was doing my civil duty by using my knowledge and educa- tion to make an argument that the status quo in this area of Ca- nadian life is harmful to the best interests of native Canadians and all Canadians," he says. LT NEWS law.utoronto.ca/ExecutiveLLM GPLLM Global Professional Master of Laws [Get a Master of Laws] Because business issues are legal issues. So if you want to get ahead in business, get the degree that gets you there faster. ONE YEAR – PART - TIME – NO THESIS – FOR L AWYERS AND NON - LAWYERS Untitled-8 1 2015-03-02 11:15 AM

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