LSO halts wind-up of Certified Specialist Program, tables motion to repeal Bencher Code of Conduct

By Amanda Jerome

Last Updated: Monday, October 03, 2022 @ 10:59 AM

Law360 Canada (October 3, 2022, 9:47 AM EDT) -- The Law Society of Ontario (LSO) backtracked its recommendation to wind up the Certified Specialist Program, passing a motion to suspend the dissolution of the program until further study can be done by Convocation.

The regulator determined to wind up the program after a report was brought by the Competence Task Force on May 26, allowing current certified specialists to continue using the designation until Dec. 31, 2022.

The motion, moved by bencher Andrew Spurgeon, was revised after a friendly amendment was brought by Gerard Charette and Cecil Lyon, who had issued a parallel motion.

Andrew Spurgeon, bencher

“We are seeking to simply put it back on the table for consideration given the overwhelming response to our previous decision and allow the profession to have its say,” Spurgeon told Convocation on Sept. 29, noting that it is “apparent that the profession did not perceive the winding-up of the program to be something that would likely happen …”

Sidney Troister, chair of the Competence Task Force, said he would support the motion because existing certified specialists “had the right to assume” that the recommendations of the task force would be “approved by Convocation, which included their existing designations would be grandparented; they were safe.”

“They had the right … to believe that their designation would not be sideswiped by a motion from the floor to eliminate it completely. And while there are some who believed that the motion as amended was a correct one, it is not fair to the bar,” he stressed, noting that certified specialists who relied on the task force’s report were “blindsided without an opportunity to respond to that particular amendment.”

Claire Wilkinson seconded the motion and noted that “good governance requires that sometimes we reconsider decisions if we don't quite get it right.”

“I was on the Competence Task Force, I recognize bencher Troister’s comments that we didn't get a lot of feedback about the Certified Specialist Program at the committee level, but clearly, we've got feedback now,” she added, noting that she appreciates “everyone who has spoken in favour of this motion.”

According to the Competency Framework Report, “784 lawyers were designated as Certified Specialists, representing approximately 2 per cent of practising lawyers” as of 2020.

The 17 areas of specialization, the report noted, include: “Bankruptcy and Insolvency Law; Citizenship and Immigration Law; (Immigration/Refugee Protection); Civil Litigation; Construction Law; Corporate and Commercial Law; Criminal Law; Environmental Law; Estates and Trusts Law; Family Law; Health Law; Indigenous Legal Issues (Rights and Governance/Litigation and Advocacy/Corporate and Commercial); Intellectual Property Law (Trademark/Patent/Copyright); Labour and Employment Law; Municipal Law; Taxation Law; Real Estate Law; and Workplace Safety and Insurance Law.”

Bencher Michael Lesage then brought a motion proposing the regulator “track and prominently post on its website” the “percentage of criminal, family and civil documents rejected (along with the total number of such rejections),” at the Superior Court of Justice, along with the “average amount of time from filing to trial” and the “current scheduling procedures at each courthouse to schedule criminal, family and civil motions.”

However, the motion failed, as benchers pointed out that the “administration of Ontario's courts is a matter that falls solely and squarely within the ambit of the Ministry of the Attorney General.”

A motion to repeal the Bencher Code of Conduct, brought by Sam Goldstein and Lesage, was not debated as bencher Jonathan Rosenthal moved to table the motion, noting there is a “working group that's been going on for some time” regarding this issue.

Goldstein, raising a point of personal privilege, said the working group and a report on the Bencher Code of Conduct has “been sitting around for about a year and a half, almost two years now.”

“Nothing's been done with it. The point is we don't need to review. We should just be getting rid of the Bencher Code of Conduct,” he added, before the motion to table was passed.

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