Law Times

March 26, 2018

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Page 2 March 26, 2018 • Law TiMes NEWS they would need the provincial government to pass legislative changes and there will also be a transition period for some changes, she says. The task force is hoping to return to Convocation in May with more specific recommen- dations. There will then be a consul- tation period in which bench- ers, the bar and the public will be able to provide submissions before benchers vote on the rec- ommendations in the fall. LT "In my experience, that mis- information can turn into in- correct fact," he says. "You've got to be vigilant and I don't believe Ms. Saad was as vigilant as she should have been." Mr. S retained Saad in 2008 to represent him in the family law proceeding that involved a custody battle between him and his wife for their two sons. In his statement of claim, Mr. S said Saad did not "show the lev- el of skill as might be reasonably expected of counsel competent in family law proceedings" and that she failed to provide mean- ingful replies to inquiries made by judges in the proceedings. He alleged that she referred to case law that was not relevant to family law proceedings and that "the degree of Saad's in- competence became apparent as medical, and other profes- sionals became involved in the proceedings." Over the course of the fam- ily proceedings, a number of psychological assessments were done on both Mr. S and his wife. A first assessment found that the mother had a serious mental ill- ness and recommended Mr. S should have sole custody. A second report compiled by Carter after the mother's lawyer objected to the first one found that Mr. S was narcissistic and had a personality disorder, de- spite never having met him. Cart- er further said in his report that the mother had no mental health issues. It later came out that Cart- er was not, in fact, a psychologist but a psychological associate, ac- cording to the statement of claim. Psychological associates are not allowed to administer testing and render diagnoses. Mr. S claimed that after he sent Saad a copy of a letter from the College of Psychologists that showed that Carter did not have the necessary qualifications, the lawyer took "little or no effort" to tell the court. The plaintiff said that the "gross incompetence" of Saad and other defendants in his lawsuit made his life "difficult to bear" along with the stress of having to deal with his former wife. The father also brought a claim against Carter, but a judge dismissed that part of the claim, finding professional immunity applied. Mr. S is seeking $47,000 that he paid to Saad for legal fees in addition to a number of other damages. When reached for comment, Saad, who has since changed her name to Elizabeth McGrath and now practises in New Bruns- wick, said she was "unable to provide any information." In a statement of defence, Saad's former firm contended that the lawyer "reasonably and competently" put forward Mr. S's position and challenged that of the mother. The firm argued that Saad had challenged the "relevance reliability and quali- fications" of the mother's experts by including a letter from the College of Psychologists and by making extensive submissions before the court. The firm also denied that the judge's order was a result of any alleged incompe- tence or negligence in how she represented Mr. S. The statement of defence said the plaintiff chose not to serve a notice of appeal after Saad re- viewed the order with him and advised him of his options. The firm also denied that Saad's con- duct prejudiced the plaintiff 's position in the proceeding. LT Man now has custody of children Continued from page 1 ing to design a smaller board with members who are both elected and appointed that has a "streamlined committee struc- ture." The task force retained Han- sell LLP to research the gover- nance structures of different professional regulators in vari- ous jurisdictions. The resulting report con- firmed that the law society's board was significantly larger than any others to which it was compared in the review. Leiper says the task force has not decided on what spe- cific recommendations it will be bringing to Convocation yet but that the group is looking to shrink the size of the board. A survey conducted of benchers found respondents gave the law society's gover- nance an overall "effectiveness rating" of 55 per cent. One comment that was re- peated in the survey results was that Convocation is too large. "The feedback we got is to look at whether we can be small- er, but not so small that we're not effective, [and] to try to find a sweet spot," Leiper says. Some have argued that the group should operate more like a corporate board and that benchers should be selected rather than elected — an idea that some benchers have de- rided as making the group less democratic. Galati says the en- tity that governs the law soci- ety is more akin to a municipal government than a board. He favours getting rid of appointed benchers and just having mem- bers who are elected. "As a self-regulating profes- sion, there's only one way to do it — democratically," says Galati. "Otherwise, we're not self- regulating. Someone else is pull- ing our strings." Others have expressed con- cern that diversity might suffer if the number of benchers is shrunk. Leiper says the task force is looking to ensure diversity at Convocation and that one way of doing this is by simply having enough elected benchers in the governing group. Another way to ensure di- versity would be to require appointments to take into con- sideration ability, perspective, background and experience, she adds. Governance was one of five priorities LSO Treasurer Paul Schabas announced when he was first elected to be treasurer in 2016. He has voiced support for cutting down the size of Convocation and has limited committees to 15 members or less. This was to the disappoint- ment of some life benchers who have complained they have had a diminished role on commit- tees in recent years. Life benchers may have an even more limited role going forward, as the task force's re- port found that the inclusion of ex-officio and honorary mem- bers at Convocation was un- usual when compared to other regulators' boards. Leiper says Convocation will have to determine whether the law society needs ex-officio benchers going forward but that either way there may be a num- ber of ways they could still be involved going forward. The governance task force is also looking at the role of benchers, the size and struc- ture of committees and bencher term limits, as well as the length of terms for both benchers and treasurers. Leiper says she expects some of the reforms to be implement- ed relatively soon if approved. Others would take longer as Continued from page 1 Law society's board bigger than others FULL DAY IN-CLASS & LIVE ONLINE ACCESS This annual conference gives executives and Corporate Commercial & Technology lawyers an opportunity to network and learn about the most recent and significant developments in Canadian and international Technology Law - all provided by leading practitioners. 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