TLA bencher candidate forum highlights election issues from slates, independents

By Amanda Jerome

Law360 Canada (April 14, 2023, 2:22 PM EDT) -- Access to justice, mental health, equity, diversity and inclusion (EDI) and bencher conduct were some of the common themes in a bencher candidate forum hosted by the Toronto Lawyers Association (TLA) on April 4.

The forum, which was moderated by former Law Society of Ontario (LSO) treasurer, Teresa Donnelly, included two independent candidates, Maxwell Radway and Jonathan Miller, as well as one candidate from the Good Governance Coalition, Atrisha Lewis, and the FullStop Team, Philip Horgan. Radway and Miller are seeking election for the first time, while Lewis and Horgan, who were both elected in 2019, are seeking re-election.

Donnelly asked each candidate questions based on their election statements, before turning to questions submitted in advance from forum attendees.

This is a short description of the image(L-R) Maxwell Radway, Jonathan Miller, Atrisha Lewis, Philip Horgan and Teresa Donnelly

Radway’s platform highlighted the importance of mental health and access to justice. Donnelly noted that the “Federation of Law Societies of Canada released the first ever national study on the health and wellness determinants of legal professionals in Canada” last year, which confirmed that “poor mental health affects thousands of legal professionals across Canada every year.”  

“Findings include that alcohol and drug use among legal professionals are at a worrying level and legal professionals experience significantly high rates of mental distress,” she added, asking Radway what the LSO should do about “the mental well-being of legal professionals?”

Radway said the regulator “needs to continue on the path that it’s currently taking,” emphasizing the benefit of the Member Assistance Program. He also noted that the LSO can “do more” and “can act more proactively.”

“Currently, the onus is essentially on licensees to seek out these services, to seek out these resources, and, while they’re in a potentially fragile mental health state, to interpret them, to figure out what to do. And often these individuals are going to be in situations where it would be difficult to access the resources, or they think if they access the resources that perhaps they might be reprised against, or perhaps it might affect their ability to continue to practise if it puts their competence into issue,” he explained, noting the LSO should be “looking for more ways to empower people to access these resources” through outreach.

He proposed that the law society reach out to, “in particular, articling students and junior calls,” to let them know that “the resources are there” and assure them that “by accessing these resources, and by seeking help, that they are not going to be reprised against at all.”

Horgan’s election statement noted that he is “concerned about the politicization of what should be a neutral regulator that has specific legislated core functions.”

“The shelving of the Inclusion Index, a three-year project, was a recent example of the regulator relying upon flawed methodology to advance ideological objectives. That’s what you stated in your statement. My question is, can you help us understand what you mean about ‘ideological?’ ” Donnelly asked.

Horgan responded by addressing the reduction in fees at the law society before Donnelly asked him to specifically answer her question.

Horgan said the “focus should be on competency and integrity.”

“In terms of the Inclusion Index,” he noted, “several” hundreds of thousands of dollars were invested in this project.

“We requested that it be studied by the academic community who came in and said it was methodologically flawed, and in the circumstances, this shouldn’t be released: a ranking of firms with more than 20 licensees as to where they stand on this issue,” he explained.

As previously reported by Law360 Canada, the LSO determined in June 2022 not to publicize the Inclusion Index, an EDI initiative, after a panel of three experts determined the index in its current form was “not an effective means to achieve the law society’s equity goals.”

Donnelly then asked Horgan if he accepted that “it’s proper for the law society to seek to advance diversity in the professions?” Or if he saw that “as an ideological issue?”

“I think we welcome diversity. The question is, are you going to have a forced ideological commitment that was being demanded of by the Statement of Principles? Or is it going to be a situation where we're going to pursue equality of outcome, as opposed to equality of opportunity? So, in the circumstances, when we're talking about diversity in particular, we do have a very diverse profession, we do have an opening opportunity for folks to enter into the legal professions, whether lawyer or paralegal. It’s the further demand, which effectively says that there needs to be a proportionality based on race, gender, religion, in order to make up the law profession itself, that I object to. It seems to me we should focus on equality of opportunity,” he answered.

Miller’s election statement highlighted the need for access to justice, so Donnelly asked him what he saw the role of the regulator was in this area.

Miller noted that the “law society's function is really to lead.” He noted that the LSO does not “control the justice system,” but he believes it should “get together and show leadership with the government.”

“The law society, in a respectful way, has to raise hell, and get together with other stakeholders, the government, the bar associations, the Rules Committee … and let’s get real,” he stressed, noting the overloaded, “arcane” and “expensive” legal system that’s currently in place needs to be addressed.

Lewis’ platform included reopening the law society’s Osgoode Hall restaurant, which was closed due to the pandemic. Donnelly asked Lewis why the LSO should be funding the restaurant.

“Part of the mandate of the law society is to ensure competence, and we know that there’s lots of different ways to ensure that,” Lewis remarked, viewing the lunch service at Osgoode Hall as an “important contributor.”

The restaurant, she noted, “provides an opportunity for the bench and the bar to get together.”

“I’ve been there many times after court, oftentimes with opposing counsel, having a meal. And I think it’s a great opportunity to foster civility, as well as to foster relationships between the bar,” she said, adding that she supports local law libraries for the same reason.

“I think they're an important place where members can get together, share knowledge, connect, all of which advances competency and that’s within the mandate of the law society,” she added.

Donnelly then asked each candidate to describe their number one strategic priority would be for the LSO going forward.

Horgan noted that the “Statement of Principles was one of 13 recommendations from the Challenges report” and the remaining recommendations “remain in place.”

“Recommendations five, six and seven: more surveys, more reports. Recommendation eight: progressive compliance about what EDI means. Recommendation 13: that the actual composition of Convocation itself should be subject to EDI principles. I think we need to take a hard look at those issues and whether, in fact, the profession itself remains committed to those obligations, which remain the current policy of the law society,” he added.

Lewis noted that there’s concern across the province about LSO fees, so her strategic priority would be a program review.

“We need to look at what the law society does and where fees can be cut, but I think it needs to be done thoughtfully. People need to understand what we’re giving up when we give something up because to cut fees means to cut programming,” she explained, noting that a “program review is an important first step.”  

“I do think it’s also very important that we affirm our commitment to equity, diversity and inclusion,” she added, explained that equity initiatives make up “less than one per cent of the law society’s budget.”

She noted EDI was an important objective for the LSO because, “as the Supreme Court said in Trinity Western, a ‘diverse bar is a competent bar,’ and our role is to ensure competency.”

Miller didn’t know what his strategic objective would be because he’s never been a bencher before. He said, if elected, he would “come in and listen to those who have been there before” about what the important issues are.

Radway’s number one strategic priority would be access to justice as it’s in the “public interest,” but also of interest to lawyers.

Next, Donnelly turned to the Bencher Code of Conduct, which “sets out the ethical responsibilities” for benchers.

“As a regulator of the conduct of professionals, the law society recognizes a corresponding obligation on the part of benchers to conduct themselves with the highest degree of ethical behaviour and integrity. During the last four years, some members of the StopSOP resiled from the declaration of adherence or said that they are not bound by the Bencher Code of Conduct. My question to you is, do you support a mandatory Code of Conduct? Or do you agree with those who have refused to be bound by it and say it should be optional?” she asked Horgan.

Horgan noted that the Bencher Code of Conduct was introduced in February 2019 and was “used to challenge positions taken in many cases, in my view, reasonably by members of the slate.”

“It wasn’t used to take on anybody else within law society,” he said, noting that on “at least nine occasions, benchers in the slate were subject to Bencher Code of Conduct complaints.”

He noted that a working group made recommendations to revise the code, but work on the revision was “stalled.”

“So, in the circumstances, you’ll understand a level of frustration when people resile from that instrument, which was effectively being weaponized against folks for maintaining, they could argue, vigorous positions or just taking positions because of the fact that that’s how it was exercised in practice,” he said, noting that he’s “open to the suggestion for continued review of that document to get to a resolution.”

Turning to Radway, Donnelly noted that “many jurisdictions across the world, including England and Australia, no longer have self-regulation.” She asked him whether he thinks self-regulation is “important in Canada” and “should we be concerned about losing it?

Radway stressed that self-regulation is “incredibly important” and “lawyers are best situated to regulate and determine the obligations of each other.”

“We have significant expertise on the issues that Convocation addresses, and we have significant insight into how to address competency, regulation, misconduct of other licensees and to throw that expertise aside, or to allow it to cede because we’re not exercising it properly, would be a huge mistake, and it would be a huge loss of opportunity,” he emphasized.

An audience question noted that “part of the FullStop platform is ‘stop woke.’ The audience member asked Horgan “for a description of wokeness and what that means.”

“In my view,” Horgan responded, “the woke notion is a forced compulsion to obtaining certain outcomes, typically driven by equality of outcome.”

“So, in that circumstance, in the Statement of Principles, it was to promote equity, diversity and inclusion as part of your practice, life, and otherwise,” he said, noting that he stands for an “independent bar that provides the bulwark against authoritarianism, state oppression and freedom.”

“And in that context, I am passionate about the independence of the bar and the ability that we have to serve our people in the public interest by advocating offensive unpopular positions, but that allows for that freedom of thought and diversity,” he added.

The Merriam-Webster dictionary defines “woke” as being “aware of and actively attentive to important societal facts and issues (especially issues of racial and social justice).”

Lewis addressed Horgan’s response, noting that it “ignores” what the LSO has “heard from our professions.”

“We heard in 2016, when we interviewed a number of people, that they are facing real issues: microaggression, racism, discrimination. And it is our job as the law society to remove barriers to ensure the success of all of our licensees,” she said, emphasizing that she was bothered by the suggestion that there is a “forced notion of equality of outcomes.”

“There is excellence and merit across all people, all races. So, if you see a group that is not representative of the province, then that means that is probably not a meritocracy. So, this idea that somehow ensuring a diverse profession, is somehow offensive, I just don’t understand [it] and it really bothers me,” she concluded.

Another audience member asked whether the candidates “believe that someone who promotes homophobic and antisemitic content on social media is fit to serve as a bencher of the law society?”

All the candidates agreed that this behaviour was not appropriate and even a “breach of the Rules of Professional Conduct.”

To wrap up, Donnelly asked each candidate what they believe is the “one evolving issue involving the law society as regulator that will have the greatest impact on the provision of legal services in Ontario.”

Radway and Lewis both asserted that technology would be the biggest issue, noting it’s constantly evolving and needs to be regulated in order to improve access to justice. Miller believes that professional education is the major issue as it touches on the competence of the bar. Horgan stated that access to justice is his main concern as there are currently “big” problems with legal aid.

The voting period for the bencher election will be open from April 19-28 and the results will be announced on May 1.

Photo credit: photo provided by the Federation of Ontario Law Associations. 

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