Law Times

Page 6 June 25, 2018 • Law Times www.lawtimesnews.com Ford deserves a chance to test his mettle BY IAN HARVEY P remier-elect Doug Ford takes office this week and it is not going to be an easy ride for the new government. Tough decisions have to be made and they will be attacked vociferously, such is the nature of polarized politics today. Initially, the provincial Progressive Conservatives will be fully occupied with fiscal issues. Every dollar cut in taxes must be replaced while finding $6 billion to $8 billion in "efficiencies." It means improving return on in- vestment, and one hopes the courts and justice system will be front and centre where fast-tracking the evolution to dig- ital processing and documents will ulti- mately lower costs and speed things up. Against this background is the lurk- ing issue of amalgamating the French, French Catholic, Catholic and English school boards and schools. It could yield between $900 million and $1.3 billion or more, say proponents, making it a pal- pable target. The boilerplate response is that fund- ing for separate schools is an untouch- able constitutional issue, but there are strong counterpoints, including the fact that Quebec and other prov- inces have jettisoned sepa- rate systems. Also, it's 2018. The BNA Act of 1867 didn't foresee today's multicultural society or the deficit and debt crisis. Blame the Conserva- tives. Elementary schools were funded in Ontario, but secondary school cash was a surprise parting gift from former premier Bill Davis in 1984. No other faith schools are funded in Ontario and that has trig- gered new court challenges on grounds of discrimination. A related Ontario Superior Court challenge six years ago failed for lack of a complainant. However, it has been res- urrected with two complainants by One Public Education Now. OPEN says it's a question of principle: "On average, sepa- rate school boards received, from 2011- 12 to 2014-15, about $1,600 more per student every year than public schools in operational funding and about $1,700 more per student every year in com- bined operational and capital funding." Unfair and costly as it is, changing the funding arrangement, until now, has been the third rail of provincial politics and only the Green party had it in its platform. Politics, as always, make strange bedfellows and the Ontario Secondary School Teachers Federation, which campaigned again the Con- servatives, now finds itself wondering if there's an op- portunity for collaboration on this issue. "We changed our position to sup- porting one public system four years ago from one supporting confeder- ated boards with shared facilities," says Dominic Bellissimo, director of com- munications in the political action de- partment of OSSTF, which is part of the One Public System activist group. "Between declining enrolment across all boards [and] stagnant school mem- bership, we really need to rethink the funding formula because it's not a one size fits all." The larger Elementary Teachers Fed- eration of Ontario also similarly changed its position two years ago, pushing to get a rethink of how schools are funded. "We want the money saved to go back into education, not general revenues," says Bellissimo. "And what we're finding [is] less pushback from our polls when we place ads on Facebook or elsewhere. Tens of thousands of people actually come to our website and are following this issue closely." Whether this is on the agenda will become clearer when the cabinet is re- vealed and we find out who will be min- ister of education and what the letter of mandate contains, he says. "If it's a hawk who has favoured a voucher-based faith system, then we might be in for a rocky ride," he adds. "MPPs will say privately they agree with one system, but, publicly, [they] won't support it for fear of losing votes." Given a new government bent on dis- ruptive change and hungry for funds, it might just be the perfect storm for the winds of change. LT uIan Harvey has been a journalist for more than 41 years, writing about a diverse range of issues including legal and political affairs. His email address is ianharvey@rogers.com. COMMENT u EDITORIAL OBITER By Gabrielle Giroday ©2018 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. 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Karen Lorimer Managing Editor . . . . . . . . . . . . . . Jennifer Brown Editor . . . . . . . . . . . . . . . . . . . . . . Gabrielle Giroday Staff Writer . . . . . . . . . . . . . . . . . Anita Balakrishnan Copy Editor . . . . . . . . . . . . . . . . . . Patricia Cancilla CaseLaw Editor . . . . . . . . . . . . . . . . . . Leah Craven Art Director . . . . . . . . . . . . . . . . . . . Phyllis Barone Production Co-ordinator . . . . . Jacqueline D'Souza Electronic Production Specialist . . . Derek Welford Choice architecture S ometimes, there are phrases that make you roll your eyes. Then, there are others that have a way of slinking their way into your daily vocabulary. One of the ones that has captured my interest of late is the idea of choice architecture — a not-so-new idea that became popular- ized in the book Nudge, by professor Cass Sunstein of Harvard Law School and economist Richard Thaler of the University of Chica- go. The reason the term has caught my interest is an idea — what if by each case, each legal argument and each ruling we were establishing "the new normal" or baseline of what Canadian people (or Canadian companies) could expect? How can lawyers improve each person's (or organization's) deci- sion-making abilities for themselves? Take the story in this edition of Law Times on the conditions of Indigenous offenders who are incarcerated. The numbers are sober- ing — and embarrassing. The gaps are abundantly clear. Lawyers serving clients who will come into contact with the justice system have a crucial role in helping articulate the very real conse- quences that exist as a result of a correctional system that is woefully inadequate in addressing inmates' needs. Or, looking at a vastly different realm in corporate/commercial law, competition litigator Nikiforos Iatrou says lowering the thresh- old of evidence to add defendants and pushing diligence later into the process might not be the most just and expeditious way to resolve class action conf licts given the inf lux of class action suits. "My read on this case [Mancinelli v. Royal Bank of Canada] is that it aligns with a trend — with an unfortunate trend — of consistently lowering the bar for plain- tiffs' lawyers in these kinds of class actions," Iatrou says. If Iatrou is correct, is this not building a new baseline in the law, with potentially harmful effects? Choice architecture may just be a fancy way of expressing the idea that one decision can have an altering effect on others that follow — not a new concept for lawyers. The goal is connecting one's own work, and one's own cases, to the overall pic- ture. LT Queen's Park Ian Harvey

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