LAW SOCIETY AMENDMENT ACT, 1998 LOI DE 1998 MODIFIANT LA LOI SUR LE BARREAU
STATEMENT BY THE MINISTRY AND RESPONSES
CANADA LAW BOOK
INC
CCH CANADIAN LTD
CARSWELL THOMSON PROFESSIONAL PUBLISHING
LAW SOCIETY OF UPPER CANADA, COMPLAINTS
LAWYERS FUND FOR CLIENT COMPENSATION
CONTENTS
Monday 7 December 1998
Law Society Amendment Act, 1998, Bill 53, Mr Harnick /
Loi de 1998 modifiant la Loi sur le Barreau, projet de loi 53, M. Harnick
Statement by the ministry and responses
Ms Kathleen Beall, counsel, policy branch, Ministry of the Attorney General
Ms June Callwood
Law Society of Upper Canada
Ms Hope Sealy
Canada Law Book Inc; CCH Canadian Ltd; Carswell Thomson Professional Publishing
Ms Geralyn Christmas
Mr Stuart Morrison
Law Society of Upper Canada, complaints
Mr Scott Kerr
Mental Health Legal Committee
Ms Anita Szigeti
Lawyers Fund for Client Compensation
Mr Clayton Ruby
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair / Président
Mr Jerry J. Ouellette (Oshawa PC)
Vice-Chair / Vice-Président
Mr E.J. Douglas Rollins (Quinte PC)
Mr Dave Boushy (Sarnia PC)
Mr Bruce Crozier (Essex South / -Sud L)
Mr Peter Kormos (Welland-Thorold ND)
Mr Gerry Martiniuk (Cambridge PC)
Mr Jerry J. Ouellette (Oshawa PC)
Mr David Ramsay (Timiskaming L)
Mr E.J. Douglas Rollins (Quinte PC)
Mr R. Gary Stewart (Peterborough PC)
Mr Bob Wood (London South / -Sud PC)
Substitutions / Membres remplaçants
Ms Annamarie Castrilli (Downsview L)
Mr Toni Skarica (Wentworth North / -Nord PC)
Clerk / Greffière
Ms Tonia Grannum
Staff / Personnel
Mr Avrum Fenson, research officer, Legislative Research Service
The committee met at 1533 in room 228.
LAW SOCIETY AMENDMENT ACT, 1998 LOI DE 1998 MODIFIANT LA LOI SUR LE BARREAU
Bill 53, An Act to amend the Law Society Act / Projet de loi 53, Loi modifiant la Loi sur le Barreau.
STATEMENT BY THE MINISTRY AND RESPONSES
The Chair (Mr Jerry Oullette): I bring this committee to order. At this time we will proceed with the technical briefing, and I believe the agreement was 10, 10 and 10. So there's 10 minutes for a briefing and there are 10-minute responses from each of the opposing caucuses. Thank you for coming, and you may begin.
Ms Kathleen Beall: Good afternoon, members of the committee. My name is Kathleen Beall and I'm counsel with the policy branch of the Ministry of the Attorney General. With me is Judith Grant, who is also counsel with the policy branch of the Ministry of the Attorney General.
What I'd like to do in the 10 minutes I have is to quickly, but hopefully thoroughly, take you through the main points of Bill 53. I won't be going through it section by section due to the length of time, but instead will give you an overview of the contents of the bill.
The bill addresses the membership and election of its governing body, which is known as convocation. The governing body is made up of benchers. The highlights of these amendments: They will increase the number of lay or non-lawyer benchers from four to eight. They will provide for a regional election of benchers, not just benchers from inside and outside of Toronto. And the bill will incorporate a new corporate structure, creating a position of a chief executive officer and removing the position of under-treasurer.
The bill repeals the present provisions concerning discipline of members and replaces them with a new and comprehensive scheme. The bill creates a complaints resolution commissioner who will be appointed by convocation. The commissioner may not be a bencher or a person who has been a bencher within the past two years. The commissioner may not engage in the practice of law while being commissioner.
The complaints resolution commissioner is to attempt to resolve complaints that are referred to him or her for resolution and to review and, as appropriate, attempt to resolve complaints referred to him for a review. This is an alternate process for addressing and attempting to resolve complaints in addition to a more formal hearing process.
The commissioner has the power to investigate complaints in the process of helping to resolve them and may delegate his powers to the staff. The complaints resolution commissioner and staff may not disclose any information that he or she receives in the course of their investigation.
The bill also sets out investigation powers for the society. It sets out the power to conduct an audit into the financial records of members to determine if they comply with the bylaws. It also provides that the secretary must require an investigation if the secretary receives information suggesting a member may have engaged in professional misconduct or conduct unbecoming of a barrister or solicitor.
It also sets out that the secretary must require an investigation if the secretary is satisfied there are reasonable grounds to believe that a member may be or has been incapacitated.
There is also the power to conduct an investigation for professional incompetence, to review a member's practice if circumstances exist as set out in the bylaws.
The powers of an investigator in any of these investigations or review include the power to enter property during business hours, require production of relevant documents, and make inquiries of those who work with the member.
There are also provisions for confidentiality of materials and information. In an investigation or review, a person is required to provide documents and information even if it is protected by solicitor-client confidentiality, but the provision of this information does not negate or waive solicitor-client confidentiality. An investigator may remove materials for copying. However, there are protections for the confidentiality of information. All information received in an investigation or review remains confidential and cannot be disclosed for any proceeding except for a proceeding under this act, or unless it is already public information or the parties who may be affected have given consent.
There may be application to the Ontario Court (General Division) for a search-and-seizure order when necessary during an investigation, and there may be an application to the Ontario Court (General Division) for an order permitting disclosure of information to public authorities with the exception of information that may be incriminating to a person or material subject to solicitor-client privilege.
The bill establishes a proceedings authorization panel which is to review matters referred to it, and the society must get the authorization of the proceedings authorization panel before it can refer professional misconduct, capacity, and professional competence matters to the hearings panel. The bill establishes a hearings panel which consists of benchers, except for specified members, benchers, such as the Attorney General -- attorneys general Canada and Ontario -- and may not consist of members of the proceedings authorization committee.
The chair of the hearings panel is appointed by the convention. The hearings panel must hold a hearing before determining the matter before it if specified in the act.
A French-speaking party may have a French-speaking panel for their hearing.
The hearing panel can determine questions of law and fact and make such orders as are set out in the act and others as it may find appropriate.
There are certain types of hearings which go before a hearings panel. One is a hearing to determine if a member has engaged in professional misconduct or conduct unbecoming a barrister or solicitor. If such a hearing is to go to the hearings panel, the law society must get consent or authorization of the proceedings authorization committee first.
If the question of professional misconduct or conduct unbecoming is being dealt with by the complaints review commissioner referred to earlier, then the hearings panel cannot hear the matter. It has to remain with the complaints review commissioner.
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There's also the authority to have hearings into the capacity of a member. The bill describes activities that constitute incapacity: where a member by reason of physical or mental illness, other infirmity, addiction to or excessive use of alcohol or drugs or other cause is incapable of meeting the obligations of a member. Again, before a matter goes to the hearings panel, the authorization of the proceedings authorization committee is required.
In the course of a hearing, the hearings panel may order the member to undergo medical or psychological examination to assess whether the member is incapacitated and the extent of recovery or prognosis for recovery. At the determination of a hearing, the hearing panel may make a wide range of orders which provide for flexibility of orders from the hearing panel in these matters.
Another hearing that may go to the hearings panel is for professional competence, to determine whether members meet the standard for professional competence as set out in the bylaw. Again, such a hearing requires the authorization of the proceedings authorization committee. The act again sets out the powers of the hearings panel to make orders.
The hearings panel may also hear applications concerning reinstatement and readmission to the society for members who have had their membership either suspended or removed for certain circumstances.
Final decisions of the hearing panel may go to the appeal panel. The act establishes the appeal panel, which is to consist of at least seven benchers, at least three benchers and one bencher, and the convocation appoints the chair of the appeal board. The appeal panel has the authority to decide matters of law and fact and may make any order that a hearing panel could make, order a new hearing before a hearing panel, or dismiss an appeal. Again, French-speaking parties may have a French-speaking appeal panel.
Appeals lie from the appeal panel to the Divisional Court on final decisions on conduct, capacity and reinstatement. Again, the parties may appeal on any grounds, but the society may appeal on questions of law only.
In addition to the types of orders that the different panels have the authority to make, there are provisions for summary orders for more technical matters. Specifically appointed benchers will have the authority to order the summary suspension of a member for failing to pay required fees or levies or for failing to file the required certificates or reports. An individual bencher may also order the summary revocation of membership for failing for more than 12 months to file the required fees or levies or certificates or reports. There may also be a summary suspension for failing to meet the requirements of legal education as set out in the bylaws or for failing to make substantial use of legal skills for a continuous period as set out in the bylaws.
The act also provides for new types of orders, freezing orders, in addition to trusteeship orders. The Ontario Court (General Division) can make a freezing order, an order that property in the hands of a member shall not be paid out or dealt with by any person without leave of the court.
It also provides that the Ontario Court (General Division) can make a trusteeship order that property is to be held in trust by the society or another person appointed by the court. This provision sets out the types of property these orders apply to, and this will be property in the possession or control of a member that relates to, for example, the practice of a member, the business affairs of a client or a former client, or the estate where the member is the executor, administrator or trustee. Such an order can be made only if the membership of the member has been revoked or suspended, the member has died or disappeared, has abandoned the practice, or there are reasonable grounds to believe that the member may have dealt improperly with the property.
The Chair: Can I ask if there's very much more? You're nearing and actually just slightly past your 10 minutes.
Mr Peter Kormos (Welland-Thorold): Chair, if I may, I quite frankly don't anticipate using all of my 10 minutes. I don't know how much more time she's got in her presentation. I'd like to hear --
The Chair: Are you asking for unanimous agreement to allow her to finish?
Mr Kormos: Of course.
Ms Annamarie Castrilli (Downsview): Agreed.
The Chair: Carried. You may continue on.
Ms Beall: Thank you. I am almost done.
Those are the main provisions I wanted to highlight for the committee's attention, but there are some other provisions in this act.
The act does create a new offence of giving legal advice about a non-Ontario or a foreign jurisdiction's law.
The society may now apply to the Ontario Court (General Division) for an order prohibiting a person from acting as a lawyer not only if a person has been convicted of unauthorized practice of the law but also if a person's membership has been revoked or the person has been permitted to resign without a conviction having been pursued or entered.
The act provides for the creation of the ability of the society to have unclaimed trust funds. A member of the society who has unclaimed trust funds and has not been able to locate a person entitled to the money for two years or more may pay the money to the society along with the related financial records. This extinguishes the member's liability as trustee or fiduciary. The society then holds the money in trust for the purposes of payment to the entitled purpose. The interest from the money that is held in trust is to go to the law foundation, and the society is to give an account of the money in trust to the Ontario Court (General Division) from time to time. The society is to publish a list of persons entitled to the money and to take appropriate steps to locate the person, and a person who believes they are entitled to the money may make a claim to the society for the money. If there is a dispute between that person and the society, the claim may go to the Ontario Court (General Division).
The bill also provides for members to form limited liability partnerships pursuant to the limited liability Partnerships Act. This would mean that a member who is a member of a limited liability partnership is not responsible for the negligent actions of the other partner. This will require higher levels of insurance for the partnership and other requirements set out in the limited liability Partnerships Act.
Finally, for clarification, the term "rules" as found in the present act will be changed to "rules of practice and procedure," and the bylaws of the act, those rules of the act which are more appropriately to be bylaws, will be made into bylaws, and the society is given the power to make bylaws in the new provisions. This will clarify the distinction between rules, rules of practice, and bylaws.
The unproclaimed provisions concerning law corporations as found in the present act is repealed. There will be the appropriate definitions sections arising from these changes and consequential amendments, and the act does provide for transitional provisions. Thank you.
The Chair: Thank you very much. We now move to the official opposition for comments.
Ms Castrilli: I won't take very long because frankly I'd like to hear from the presenters here today. Many of us have had the opportunity to comment on this legislation in the House.
Let me just say, though, that the thrust of this legislation is welcome. The law society certainly has made an admirable case and it's reflected here in the legislation. It's been a long time since we've had any changes to the Law Society Act, and I think these amendments go a long way to increasing public confidence in the self-governing of the profession.
I guess the issues that are before us that appear on the surface to be contentious, and which I hope we will address during the course of the hearings, really revolve around two different sets of concerns, and that's what I'm going to be looking for in terms of answers during the course of this hearing.
The first set of concerns have been advanced by the privacy commissioner principally, and also by the Canadian Bar Association, but it's the privacy commissioner's letter and opinion that I really would like some discussion on today. The concerns of the commissioner -- I'm not sure how much time I have, Chair. You'll have to give me some guidance.
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The Chair: Eight minutes.
Ms Castrilli: Terrific.
The points that the privacy commissioner makes are that some of the powers given to the law society under the amendments might infringe on solicitor-client privilege and confidentiality, and that the act may go further than required or necessary in order to investigate members' conduct. This isn't an issue of protecting dishonest lawyers. I don't think anybody in this room would condone any activity that's filed on the part of lawyers. But it is a question of balance: How are investigations against lawyers triggered, and what follows thereafter?
I think those, in the main, are the kinds of concerns voiced by the privacy commissioner. I've come here with an open mind. I want to hear the responses and the views with respect to that issue.
The second set of concerns are of a different order. They have essentially been advanced by the publishers of legal materials. I gather they are also scheduled to come before us today, and it will be very instructive to have their views. Certainly in correspondence that has been forwarded to us, it's clear that in their view the Law Society Amendment Act creates a monopoly in the law society that they feel is unwarranted. I'll be looking for some responses and some views with respect to that.
In the main, as I've said, the legislation meets the needs of revamping the act, of ensuring that the law society continues to do the work it was mandated to do, and to do it in a way that increases public accountability and public confidence. I think this act does that. The notion that you would have an increase in lay members, that there is a Complaints Review Commissioner who would review difficulties, the fact that there would be the establishment of professional competence standards, that these would be publicized, that there would be remedial measures to ensure that the quality of lawyer service is very high: all of these are extremely good measures and we don't quibble with any of them.
I think we have some narrow points that we need to focus on, that we need to have some debate on and that we need some guidance on. They are concerns that we cannot ignore. We couldn't ignore the privacy commissioner even if we wanted to. The office is an office of the Legislative Assembly, and it's incumbent on us to make sure we get the responses we need in order to have the best possible legislation in the public interest.
With that, I want to limit my comments. I would prefer to have as many speakers as possible and as in-depth discussion as possible of the issues that we raise.
The Chair: Is there a necessary time to respond to some of the things you asked or should we move on?
Ms Castrilli: No. I don't really think, with all due respect, that there can be a response from the presenters before us at the moment.
The Chair: That's fine.
Mr Kormos: Chair, you know from second reading debate that the New Democratic Party supports in principle the thrust of the legislation. Ms Boyd spoke to it. I spoke to it. We supported it on second reading. We're eager to see it now in the committee process. I note the law society has four presentations here, so they're getting --
Interruption.
Mr Kormos: That's a quorum call, guys.
They're getting their kick at the can. Like Ms Castrilli, I've been lobbied by them. I've been similarly lobbied by the CBA and the law book publishers. I recall having referred to the letter from one of the law book publishers, in reference to his concerns, to the Attorney General. The opening paragraph of the letter makes reference to sharing cigars -- I'm sure expensive ones -- and cognac -- I'm sure fine cognac -- with the Attorney General, Mr Harnick, whom you people know, and Mr Strosberg in Halifax. I'm sure Mr Harnick paid his own way. Far be it from him to have taken a perk. Again, I understand this isn't your bailiwick. It's not for you to concern yourself with.
I read part of the letter into the record. I don't know if the author of that letter is among the presenters here this afternoon. I hope he brought the cigars with him, because surely Mr Harnick isn't the only member of the Legislature he wants to share his cigars and fine cognac with.
I'm looking forward to hearing what the CBA and the law book publishers have to say, but I'm also more interested -- and I put this to the parliamentary assistant: We've only got two days of public hearings on this. I assume the list is reasonably representative, if not exhaustive, of the people who wanted to make submissions. I want to ascertain that. I wish the government would sort of show its hand at the onset. If there are areas where the government is prepared to make amendments, say so up front so we don't waste time.
For instance, correct me if I'm wrong, Mr Martiniuk, but I understand that former attorneys general are benchers, ex officio, but that they have to be members of the law society as well. It's outrageous that you wouldn't have addressed that in this legislation, for you people to have overlooked that, to have ignored Marion Boyd and her contribution to leadership in this province.
I am going to be presenting a motion that former attorneys general, notwithstanding that they're not lawyers, also be ex officio benchers. Quite frankly, it should be an embarrassment to the government not to have addressed that in its original drafting of the bill. So I'm prepared to put forward that amendment. I'm raising this with you, parliamentary assistant. Because if the government is going to bring forward a similar amendment, say so and we won't have to debate it, and I won't make an issue of it. Similarly with respect to other matters that are going to be addressed, particularly, I suppose, the privacy commissioner -- it's his statutory duty to review legislation and respond.
I'm going to listen to the participants in the hearings. You know that we support the legislation in principle, but I wish the government would indicate, as particular matters are addressed, if it's going to respond by way of amendments. That will make the process much more efficient. There are no real secrets around here and, as I say, I hope I can persuade the government to consider my proposal for an amendment to include non-law society former attorneys general as benchers. If they want to take the credit for it, fine, let the whole world know that I made the suggestion first here during these hearings.
The Chair: Thank you very much for coming forward today. We very much appreciate that.
JUNE CALLWOOD
The Chair: With that, we would call forward our first presenter of the day, June Callwood. If you would identify yourself for Hansard, we would appreciate it. Thank you for coming. You may begin.
Ms June Callwood: Thank you. I'm also not a lawyer.
Mr Clayton Ruby: Why don't I sit next to you.
Ms Callwood: Why?
Mr Ruby: I happen to have gotten you out of jail 30 years ago. You might rely on me.
Ms Callwood: He did get me out of jail.
Mr Ruby: Just in case there's any questions she can't answer, I can help her.
Ms Callwood: I was a lay bencher for four years, appointed by Ian Scott. As you may know the structure of the law society, the lay benchers sit on complaints review. It was a source of considerable concern to all of us -- there were four lay benchers -- that we were seeing complaints from the public against lawyers that we thought were very justified, and that the law society was not prepared to act against these lawyers.
We ascertained that close to 40% of the complaints coming to the law society were not acted on. We found there was a systemic reason for this, which was that the complaints were of a nature that fell below the threshold that the law society requires for an invitation to attend, which I think is the lowest form of discipline that is available under the present law.
We struck a committee, which I chaired, which had some very distinguished people on it. I remember most fondly Arthur Martin and others. I think it might be in your material; I hope so. It was a good committee. We came to the conclusion that a number of changes had to be made. The kinds of complaints that were driving the public crazy and not getting a response from the law society were failure to return phone calls, failure to move a file, a charge that seemed excessive but not enough to go to the exercise of having the fee taxed, rudeness. All these things were highly irritating to the clients but not actionable as far as the law society could see.
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We worked with Scott Kerr, who is here. I don't know his title, but he runs the complaints department, or did then. We worked with him, looking at other jurisdictions, and came to the conclusion that there were a number of simpler ways of handling these simpler complaints, such as just making a phone call to the lawyer. Previously, everything had to be in writing and it was a tedious process to get a complaint settled that way. Lawyers don't care to put their mistakes in writing. It was easier for a lawyer to admit on the telephone, "Yes, I made a mistake and I'll fix it."
Special people were hired to handle these low-resolution disputes. However, we said, "What if the lawyer refused to do what the law society was gently suggesting the lawyer should do?" We had to admit that was entirely possible. So we said there should be a complaints resolution commissioner, and this turned out to be outside the authority of the law society to establish, because there was no provision in the Law Society Act. That provision is now covered in the new legislation, and I am here in a very ovarian sense to defend this because it was my idea.
I notice, though, I might say, and then I would be very happy to respond to anything you want to ask me, that we did not resolve how this complaints commissioner should be appointed. We wanted this person, he or she -- I think the other pronoun has been left out of the discussion, but we intended it to be both -- to be clearly separate from the law society process, because the appearance that this was another employee of the law society would not do much to comfort an indignant client. But we left unresolved how the person should be chosen, and I see that in the legislation the person is to be chosen by the law society.
Far be it from me to rewrite a statute. But I wouldn't mind, if it that person were named by the law society, that there be very heavy input from the law society's lay benchers. That would please me a great deal. I wouldn't be awfully upset if the Attorney General also had some input.
I don't think the law society would behave badly. It is as anxious as I am to see that this is an effective position and one that has the respect of the profession, or else it's going to fail. But I think the perception of the public would be enhanced if the appointment had a very thoughtful process.
The Chair: That allows us approximately four minutes per caucus. We begin with the official opposition.
Ms Castrilli: Thank you very much for being here. We really appreciate it. It's good to have the lay perspective first, and you put it extremely well. Let me ask you about what you just talked about: the Complaints Review Commissioner and how you envision that process would actually work. I would like you to elaborate on your final comment. How would you give extra weight to lay benchers, for instance, in the selection of the Complaints Review Commissioner?
Ms Callwood: Not to lay benchers in the first year of appointment, because I remember how seriously I floundered. I think others might not have done as badly, but it takes a little while. I think that lay benchers with experience, especially in complaints review -- once they have under their belts a year of listening to complaints and the level of frustration the public feels -- would be very sympathetic to the kind of tact and diplomacy, as well as knowledge, that the commissioner would have to have. I think their input would be extremely useful.
Ms Castrilli: But in practical terms, how would you have more weight given to those opinions?
Ms Callwood: Well, the way we always do it: a five-person hiring committee and three of them are lay.
Ms Castrilli: In your view, should the Complaints Review Commissioner be a layperson?
Ms Callwood: I thought that was a swell idea because, of course, I'm not a lawyer. We considered the problem of the lawyers respecting what the commissioner said. And since the commissioner's decisions are binding and non-appealable, it would be imperative, I would think, that at least the first appointment be a lawyer highly regarded in the profession, an ex-judge, somebody unassailable. I'm afraid, with all due respect to the lay benchers, that this component would not be available to them as it would to a seasoned lawyer.
Ms Castrilli: You heard me say in my opening statements that one of the concerns that has been raised is the investigation of lawyers. I don't know if you as a lay bencher can help us with respect to this. Much has been made of the fact that the act, as it now stands, would trigger an investigation of lawyers on any grounds, that there's no reasonable or probable grounds category to begin an investigation into a lawyer's conduct. Can you offer us any advice as a lay bencher? We've heard from the privacy commissioner. We've heard from the CBAO. What do you have to say about that?
Ms Callwood: I wasn't part of the discussions leading up to that. I have no idea what led the law society to feel that that was an important power to acquire. In general, I would say it makes me nervous. If they have many cases where it is essential to their ability, on behalf of the public, to pursue something that looks like malfeasance -- I think the larger question is whether they really go after the big firms -- you know, Lang Michener. I think that's a bigger question, but you can't put that in the legislation.
Ms Castrilli: Thank you very much.
The Chair: We move to the third party.
Mr Kormos: That was Yorkville Avenue, wasn't it, the bust? Yes, I remember. Some role model you were. You got a whole lot of us into a whole lot of trouble. You know that, don't you?
Ms Callwood: However, I am a completely rehabilitated ex-con.
Mr Kormos: Across Ontario all of us were rushing out to get busted. June Callwood got busted.
Ms Callwood: Yes, some role model.
Mr Kormos: I'm not sure if these guys know. I'm not sure what they were doing during the 1960s. I'm sure they remember every minute of the 1960s.
One of the problems I've had in the constituency offices -- I'm talking about complaints -- is people who really feel isolated from the complaints process. I know there's some addressing of that in the statute, in terms of almost an ombudsman role or a similar type of role to keep people acquainted. I don't know if you share with me the observation that people don't understand what's going on. You have a lot of people who don't feel they're articulate enough, that their writing skills aren't sufficient.
Ms Callwood: That's right, especially people whose first language isn't English. Absolutely.
Mr Kormos: Exactly. What's your response in terms of addressing that? Should the law society be providing advocates for people who want to make complaints, an advocate's office for people who want assistance in making complaints?
Ms Callwood: Our committee recommended that the complaints commissioner should travel around the province -- access is a huge issue -- and be much more accessible in that way. I haven't been a bencher for nearly 10 years, but my general feeling was that there was a considerable amount of compassion and sympathy for the clients in the complaints department and that they shared to some degree the frustration that we lay benchers felt. It all comes down to people, as you know, Mr Kormos. If there are good people there, then good work is going to get done. You want to write a law so that bad people can't wreck it.
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Mr Kormos: I should indicate I'm extremely supportive of your proposition and I'm glad it's here in the bill. It's the Callwood amendments.
Ms Callwood: Yes.
Mr Kormos: We'll give them good credit. I come from small-town Ontario where we don't tend to have Lang Micheners, those types of law firms. Again, speaking to the whole matter of small law firms that are under incredible time pressure, incredible financial pressures, increasingly so, single practitioners, you say not answering phone calls. I have no doubt that's one of the most common complaints, sadly. What should the law society be doing in terms of, rather than after the fact responding to a complaint, helping those lawyers develop procedures, practices, skills, models, patterns that address that?
Ms Callwood: I discovered that they have a considerable amount of resources within the law society to help lawyers. We had one occasion of a lawyer who had a serious cocaine habit and there was a great deal of understanding -- not of the mess he'd made of his practice but of the disaster for that individual. There is professional and personal counselling available. There's more of a tiny little heart beating there than you might think.
The Chair: We'll move to the government members.
Mr Gerry Martiniuk (Cambridge): I just have one question and my colleague Mr Wood will ask one.
Thank you very much for your presentation. I'm really curious about your experience as a lay bencher, because here you are with a bunch of lawyers. I was wondering if you have any difficulties, or if there would be any education or training that could be given to lay benchers because we're expanding or doubling the number. It's an excellent idea for the public perspective, but I get the feeling that perhaps a lay bencher might be a bit lost in the earlier parts of their term.
Ms Callwood: That's extremely astute of you. We were told by Ian Scott, all four of us who were appointed by him, that it would only take a day or two a month and I was eventually on 11 committees. The last year I was there, I was on 11 committees. I could have done with an orientation. It doesn't need to be in the statute, but it certainly should be built into the process.
Mr Bob Wood (London South): Of the complaints that came before you when you were on the bench, what proportion do you think were justified?
Ms Callwood: I thought almost all of them. You could sometimes see -- this must happen with elected people as well -- that some people are driven nearly crazy by their frustrations and they go over the edge, they go too far, because they're so frustrated. We would have in front of us somebody who seemed like a demented person and couldn't get a straight story out because they're so frustrated, but at the kernel of it was some lawyer who had not behaved well. I would say that of the cases that were appealed to us, I don't know any that didn't have some justification.
Mr Bob Wood: When you say justification, you mean justification to attract discipline?
Ms Callwood: To have something happen other than to get a letter from the law society, which was the procedure at the time, saying that your complaint has been rejected.
Mr Bob Wood: What proportion of the complainants you dealt with do you think left satisfied?
Ms Callwood: None, because the law society did not act on a single complaint that I know of.
Mr Bob Wood: Do you have any feel, of all of them that were justified, for what proportion would have attracted discipline and what proportion would have required resolution outside discipline?
Ms Callwood: All of them could have been resolved outside discipline -- no, I've gone too far. Maybe 5% to 10% I thought were serious discipline issues. They went to the chair of the discipline body -- I forget the words now -- and the chair rejected them as -- anyway, the chair rejected them, which drove us crazy and that led directly to the committee.
The Chair: Thank you very much for coming forward today. We really appreciate it.
Ms Callwood: Thanks for your help, Mr Ruby.
LAW SOCIETY OF UPPER CANADA
The Chair: For the individuals and committee members, just so they realize, we've asked for a minor change, that the 4:20 presentation change places with the 5 o'clock presentation.
At this time I would ask the representative or representatives of the Law Society of Upper Canada to come forward, please. If you could identify yourself for Hansard, we would appreciate it. Thank you for coming, and you may begin.
Ms Hope Sealy: My name is Hope Sealy. I was a lay bencher from 1992 until June of this year. With me at the table is Ms Elliot Spears from the department of legislation and research at the law society. So you have two lay benchers speaking to you one after the other.
I propose first to deal with matters that I call context, then with matters that I would refer to as dealing with the public interest and, finally, with a specific amendment about the appointment of the complaints resolution commissioner.
These amendments speak to an act which empowers a body made up of lawyers to govern lawyers in Ontario. This is not an act empowering florists or journalists or engineers or taxi drivers to govern lawyers, and there are two matters which follow from that, that very self-evident fact that I ask you all to keep in mind as you consider the amendments and submissions that you're going to be receiving over the next couple of days.
Firstly, those being governed are the lawyers of Ontario. They are not mindless, uneducated, illiterate people who can't help themselves. They are persons who have been trained in law. They are people who have acquired skills in handling matters of law. So while it is true that as citizens they must be protected from any overreaching arbitrary action by their governing body, the benchers in convocation, nevertheless when you are looking at these amendments, I ask you to weigh in the balance the skills and knowledge which these lawyer members of the law society have in their dealings with their governing body against the lack of legal skills and knowledge that most members of the public have when they deal with their lawyers.
I think you'll all agree with me that the emphasis which we have to place in these amendments has got to be in protecting those least able to protect themselves; namely, members of the general public in their interactions with lawyers. I hope that therefore you will agree to the amendments which give the law society the power to be proactive in preventing harm to members of the public. I'm speaking, for instance, of the right which these amendments will give the law society to investigate matters of professional competence.
The second side of the context issue is that the governors themselves are lawyers, by and large. There are going to be more lay benchers, but you're speaking of 40 lawyer benchers and eight non-lawyer benchers. As such, they come to their duties as benchers with a perfectly normal in-built bias. We're all biased in different ways by our professions, and they come to the job of governing the profession in the public interest with a bias which I would describe as being "There but for the grace of God go I."
In my experience, the benchers are not a body of people who are just dying to prosecute fellow lawyers. I've never heard benchers say: "Who are we going to prosecute tomorrow? Who can we investigate?" Their in-built bias, which is not evil or good or indifferent -- it's simply a fact of humanity -- is towards inertia.
Therefore, it seems to me that it is incumbent on you when you are considering these amendments to bear that in mind and to bear in mind that they are the people who are asking for these amendments. They are the people who are recognizing both within themselves in the in-built inertia of not wanting to act against their fellow professionals and the fact that they know that within any bench -- and I have served as a bencher as a result of two bencher elections, so I have seen the composition of convocation change -- and with any group of benchers, there are always going to be those who embrace the difficult job of governing in the public interest and those who have come literally to fight very, very local battles that have absolutely nothing to do with the public interest.
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It seems to me that these amendments speak to you from those benchers, and convocation as a whole, who want to have a Law Society Act that forces them out of inertia and that forces them to do what we all require, which is to govern the profession in the public interest.
Why do we need to move beyond this inertia? We need these amendments because the public interest demands that lawyers provide honest, competent, efficient service to their clients. We need it because lawyers themselves, I'm sure, are sick and tired of being the butt of cynical comments about the behaviour of those who consistently let the profession down.
Here I'm not speaking about major acts of dishonesty, because believe me, those are dealt with. I'm speaking about those who, like the pernicious dripping of a tap, eat away at the integrity of their profession by providing sloppy, inefficient, incompetent, rude service to their clients. Ladies and gentlemen, the armoury of weapons which the law society currently has to deal with those lawyers is totally insufficient, and lawyers are just too important to the public good for the current situation to continue.
Members of the public have to turn to lawyers at times of the greatest crisis in their lives. It is to lawyers that members of the public must turn sometimes to defend themselves against you, the legislators. So they are just too important a body in the whole public format, the whole society, for these amendments not to be given your approval. I think they are absolutely essential if we are to stop this cynical rot that exists by members of the public about a profession which the public desperately needs.
From 1992 until earlier this year, it was my privilege and duty to sit, as Ms Callwood did, as a complaints commissioner for the law society. I, like her, met with people who had complained about their lawyers and been told that the file would be closed, so they came for a meeting with me.
My experience mirrors that of Ms Callwood and my fellow lay benchers that the majority, and I would say over three quarters of the files that I dealt with, dealt with shoddy service, letters unanswered, telephone calls not returned, arrogance, lawyers not following their clients' instructions and rudeness. Most of the time, as with Ms Callwood, I had to close the file, not because the lawyer had given good service and not because the complaint was frivolous, but because the law society lacked the tools with which they could deal with those sorts of deficiencies. They were able to deal with dishonesty because the rules of professional conduct covered that, but they could not deal with these particulars, and I'll give you some examples.
There were instances where it was fairly obvious that what the lawyer needed to do was to gain some assistance in how to run his practice. His legal skills might be fine; he just didn't know how to run an office. The law society actually has a program which does just that, so you'd think it was fairly easy. We could say to the lawyer, "You must go and take this particular course." But could we do that? No, because we lacked the powers. We could only invite the lawyer to take this course and, surprise, surprise, the lawyers who needed it most said, "Thank you very much but no." You land in a situation where because you lack the means of doing something about inefficiency, the in-built inertia which is in the body simply holds sway.
I'm simply delighted that these amendments, if they are passed, will allow the society to order that a lawyer participate in specific programs of professional training to improve his or her professional skills and I'm delighted that if that carrot doesn't work, the lawyer will be called on to refund all or a portion of the fees and disbursements paid to the lawyer by the client. I'm also wholeheartedly in support of setting up the office of a complaints resolution commissioner.
Therefore, I would like to leave the rest of my time free to deal with questions from you, but I would simply urge you to allow whom I call the good benchers, that is, the benchers who have embraced the difficult job of governing in the public interest, to do their job, remembering that there will always be benchers who haven't got the slightest interest in the public interest.
The Chair: Thank you very much for your presentation. That allows us three minutes per caucus and we begin with the third party.
Mr Kormos: I already told you, I'm inclined to support the bill.
Ms Sealy: Great.
Mr Kormos: You talked of a distinction between the two types of benchers.
Ms Sealy: That will always be.
Mr Kormos: Listen, I'm asking you straight, do you disagree with the bencher who brings regional issues, parochial issues to convocation?
Ms Sealy: I don't disagree with the bringing of parochial issues to convocation. Parochial issues can be very important. What I resent is when some benchers forget that the law society is not the trade union for lawyers. Most times the public interest is not in conflict with lawyers' interests, but there are times when there is a conflict and so what I resent is the times when some benchers fail to recognize that distinction. It's got nothing to do with regional or local.
Mr Kormos: OK. You have insights we don't. How does convocation respond? Obviously the antennae go up and people know what's going on. Right? How do the benchers respond when that starts happening?
Ms Sealy: I have been absolutely proud, by and large. It is as if by magic, but it's not by magic; it is by the advocacy of those benchers who truly appreciate that a profession can only be self-governing if it looks truly to the public interest and it is by their advocacy, it is by the shaming.
You all sit in an elected body; you know that of which I speak. There are always going to be the people who have a greater sense of the public good than others, and in my experience, those interested in the public good all have so far carried sway.
Mr Kormos: They do public opinion polls, they do surveys -- they publish them -- about public confidence, public trust in various professions. Do you know where lawyers end up? Lawyers end up very close -- they share spots with politicians --
Ms Sealy: Or journalists.
Mr Kormos: Journalists too? OK. There you go. She said it, not me, guys. Is there any hope?
Ms Sealy: There is hope. My name is Hope, so I guess I can be forgiven. But I honestly believe that these amendments give the society an opportunity to start lifting the whole profile of the profession. I really do.
The Chair: We'll now move to the government members.
Mr R. Gary Stewart (Peterborough): I just got my question answered, to be honest with you, but it's my understanding that the lay benchers are appointed for four years and that you can have additional terms or can be reappointed.
Ms Sealy: Yes.
Mr Stewart: Ongoing or only for a two- or a three-year term?
Ms Sealy: My reading of the amendments and the act does not limit the amount of time that lay benchers can be reappointed, but you should know that I came in halfway through one term and then got reappointed for a full term. During the second period we had meetings with the minister and it was our suggestion that lay benchers not be appointed for more than two terms, and I'll tell you why. The whole thing can be very seductive. OK. You go in there with the best of will, but after two terms it's very easy to have bought into an approach and a look, which means that you're not as critical as you might be and so our suggestion to the minister was that there be a cap after two terms. I have no way of knowing if the minister has considered it or decided on it, but it's certainly not part of the act.
Mr Stewart: We heard from Ms Callwood that when she became a lay bencher, there wasn't a great deal of orientation done. Do you feel the same way and do you think there should be more? I hate to say what I'm going to say, but I'll say it anyway, that sometimes lawyers, because of their ability of knowing the law, whether they are good lawyers or bad lawyers, I would suggest may try to intimidate lay benchers.
Ms Sealy: Nobody tried to intimidate me, and it's a good thing for them they didn't.
Mr Stewart: I was just making a statement.
Ms Sealy: But yes, I agree with Ms Callwood. The most important thing is to ensure that the lay benchers you appoint have the time to do the job. This is almost a full-time job. I was fortunate in the work that I was doing at the time it didn't matter when I did my proper work. I could do it at night, so I could do law society work in the day. The most important thing is to make sure that your lay bencher has the time to do the work that's there.
The second thing is, yes, there is need for better orientation. It needn't be extravagant. It can be just one day of being walked through the society, being walked through the processes, being walked through the building, for starters. You can get lost in there for years. There needs to be more work on that, but the time is the critical one.
The Chair: We now move to the official opposition.
Ms Castrilli: Let me say in response to the last question that I can't imagine two people who are less likely to be intimidated by anyone, including lawyers, than June Callwood and Hope Sealy.
It's been a long time since I've heard a spirited defence of the legal profession, and to hear it from a member of the public is extremely rare indeed. I thank you. You've been extremely articulate in your point of view and very forceful and direct and, like my colleague Peter Kormos, I agree with what you said.
I do have one question for you, though. The issue, as I said at the outset, is not about protecting crooked lawyers or shoddy lawyers or -- I don't know how you define "arrogance." That may be a different concept for the public than it is for the lawyers doing work, but we're not trying to protect the lawyer who's not doing his or her job. The concern that has been voiced with respect to this legislation, though, is that in trying to deal with that problem, one may in fact be going too far and you're not entirely protecting the public interest.
The privacy commissioner, for instance, has said that the broad powers that are here infringe or could potentially infringe on the privilege and confidentiality that other members of the public, not related to the complaint, might have. I'd like to hear your comment on that because it's really an issue of balance and how far you go to ensure that, yes, you maintain the highest standards for lawyers, but don't impact individuals who aren't connected.
Ms Sealy: You're speaking to the materials which the law society might see or might seek to see as it investigates a complaint, am I right?
Ms Castrilli: That's right.
Ms Sealy: Certainly in my time on the bench I have observed an extreme caution on the part of the law society that this is hallowed material and that this material cannot be used outside of certain limits. That's been my experience. Beyond that, it seems to me that it shouldn't be beyond the reach of the law society, working with the privacy commission, to develop some protocols because I think these protocols will simply enhance what I have seen happen myself, and that is an extreme awareness of the sensitivity of the material which, as the governors of the profession, they manage to see in their work in protecting other members of the public. I don't see it as a huge hurdle I guess is what I'm saying.
Ms Castrilli: That's a very good suggestion you make and I certainly would like to follow up on that. The courts have ruled that the privilege is the privilege of the client, not of the lawyers, and of course one of the issues you have with a bill that's as wide as this one is construed to be is that you may be trammelling on that privilege, that in fact you may involve people who haven't given their consent.
The person who makes the complaint clearly has given his or her consent because they want the case investigated, but in the course of that investigation you may impact on other people. I think your suggestion is extremely valuable, that there should be some attention given to the kind of protocol that could be developed to ensure that does not happen.
The Chair: Thank you very much for coming forward today. We very much appreciate that.
With that, we call our next presenters, Canada Law Book, CCH and Carswell. If you could identify yourselves for Hansard, we would appreciate it.
Mr Stuart Morrison: I am Stuart Morrison with Canada Law Book. We have someone making an official presentation but we were advised that we would start at 4:40. I don't see anyone here from Carswell yet.
The Chair: We can take a five-minute recess.
The committee recessed from 1635 to 1642.
CANADA LAW BOOK INC
CCH CANADIAN LTD
CARSWELL THOMSON PROFESSIONAL PUBLISHING
The Chair: We call our next presenters forward, the representatives of Canada Law Book, CCH and Carswell. If you could identify yourselves for Hansard, we would appreciate it.
Ms Geralyn Christmas: Good afternoon. I'm Geralyn Christmas from Canada Law Book. Stuart Morrison is from Canada Law Book, Terry Hemingway is from CCH Canadian and Rachel Francis is from Carswell Thomson Professional Publishing.
We're here with one of the more obscure issues, I'm sure. We're concerned about a single amendment to the Law Society Act. To give you a brief background on ourselves, the three companies we represent are among the largest legal publishers in Canada. We are all headquartered in Ontario. We sell value-added legal information to the legal profession. The legal profession is our primary market.
One of the more substantial parts of our business is reporting the decisions from the courts of the country, and of course the courts of Ontario are a very important and large element of what we report.
We have been doing this for up to 100 years. This is a publication, Canadian Criminal Cases, which is celebrating its 100th anniversary of supplying criminal legal case law information to the legal profession.
Section 63 of the current Law Society Act has a provision in paragraph 5, and I'll read it for you:
"Subject to the approval of the Lieutenant Governor in Council, convocation may make regulations respecting any matter that is outside the scope of the rule-making powers specified in section 62 and, without limiting the generality of the foregoing,...
"5. respecting the reporting and publication of the decisions of the courts."
Regulation 708 made pursuant to that states in paragraph 22: "The libraries and reporting committee may make provision for the distribution of copies of reasons for judgment on such terms as the committee may from time to time determine."
With the amending provision which moves the substance of that section into section 62, "Convocation may make bylaws,...
"12. respecting the reporting and publication of the decisions of the courts."
It may be that this effects no real change. We have been told by representatives of the law society that it does not. However, we have some concerns in the context of the relationship that currently exists between legal publishers and the law society.
The law society has taken a public position that copyright in the decisions of the courts of Ontario is the property of the crown in right of Ontario, and that by virtue of the existing section 63, that copyright flows or has been delegated to the law society.
We fear that with the law society, if it's given unfettered authority over this element of our business, there may be some restriction on our access to the decisions of the courts of Ontario so that we can conduct the business we're in.
So our suggestion is that the degree of political control that currently exists be retained and that the power over reporting and publishing of the decisions of the courts of Ontario continue to be subject to the approval of the Lieutenant Governor in Council.
I or my colleagues would be glad to answer any questions.
The Chair: Thank you. That allows us five minutes per caucus. We begin with the government members.
Mr Bob Wood: I actually thought your presentation was very clear and don't really have much in the way of questions. Your concern is that some of your group might not have full access to the court decisions?
Ms Christmas: We have a concern that there may be some efforts to restrict access to the decisions of the courts of Ontario, or perhaps to create a monopoly on the supply of them, and we would be a victim of the pricing mechanism the agency would set in place. Right now we have liberal access and I think everybody benefits, including the lawyers of Ontario and the public, as a result. We are concerned that that continue.
Mr Bob Wood: I gather you've received assurances from the law society that there's going to be no change on the question of access.
Ms Christmas: Yes, we have.
Mr Bob Wood: But not written.
Ms Christmas: But it isn't in writing. Political stands change and it is a political stand.
Mr Bob Wood: Those are my questions.
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The Chair: We'll move to the official opposition.
Ms Castrilli: Thanks very much for coming. I'm going to leave the questions about cigar and cognac to my colleague Peter Kormos, who I'm sure is going to want to delve into that.
Let me say first off that I don't think your point is obscure at all. It seems to me you made it very clear. I'd like to ask a couple of questions. You've had some dealings with the law society over this act. Is that what I'm understanding? You've talked about this?
Mr Morrison: I've had some discussions, but very brief, on this particular amendment.
Ms Castrilli: Their interpretation is different from yours. Is that what I understand?
Mr Morrison: No, it was subsequent to a letter of inquiry I made to the Attorney General asking for clarification in writing of the purpose, and I received a call from the treasurer of the law society advising that there was no cause for concern and that the status quo was expected to continue as far as access is concerned.
Ms Castrilli: What evidence do you have that this wouldn't be the case?
Mr Morrison: We have none at all. It's just a concern on our part because the legal information industry is somewhat fractious at the moment. We are in the process of a trial, a lawsuit with the law society. Our concern was about the future. We've got no indication that things would change.
Ms Christmas: I think we should be aware that in the context of the lawsuit that's underway and should be concluding this week, the law society has basically stated in its pleadings that we should not have a copyright interest in anything we publish. They have also made representations at various times to various government entities, primarily federal, stating that the control of law reporting in Ontario should be in the law society. I have appended one of their representations to the document that I have provided to you here today.
Ms Castrilli: It's your position then, on the basis of your understanding of this legislation and the position that's been put forward by the law society in this lawsuit, that the removal of Lieutenant Governor in Council approval in this legislation might lead to the law society restricting your ability to publish. Is that the gist of your --
Ms Christmas: It leaves their authority unfettered, I think. That's where we have some concerns. I think that as long as there's some degree of political government control, at least we have a road of appeal if there were anything carried out that would hinder us in conducting our business.
Ms Castrilli: Just to be clear, what you're saying is that you prefer the section to remain as it is and that would address you concerns.
Ms Christmas: I think that would address our concerns, yes.
Ms Castrilli: Could you tell us a little about your industry?
Ms Christmas: Yes, I will. The companies you see before us, as I say, are the largest, but the industry as a whole comprises other legal publishers. We employ approximately 1,500 people across the country, with the greater number of those in Ontario because that's where we're all headquartered. A lot of us are privately held companies, but it's estimated that our revenue is in the vicinity of $150 million a year.
We publish in every format, paper, Internet, CD-Rom, on-line. We publish legal information for lawyers across the country in virtually any format you can name. We have been doing for a long time -- Canada Law Book traces its history back to 1855 when it published the Upper Canada Law Journal. Our competitors here have equally lengthy histories.
Ms Castrilli: So there's a lot at stake.
Ms Christmas: There's a lot at stake. Case law is one of the foundations of all the information we publish.
The Chair: We now move to the third party.
Mr Kormos: We haven't got a lot of time. You're talking about case law, right?
Ms Christmas: Correct.
Mr Kormos: What's the status quo? I'm not really clear on that yet.
Ms Christmas: The status quo is that we are supplied with judicial decisions as issued by the courts, as they are issued, without any hindrance at all.
Mr Kormos: So each of the publishers gets the same reports.
Ms Christmas: We get copies of judgments the way the courts file them. We get the raw decisions. We add value to them and publish them.
Mr Kormos: Quite right. But I still don't -- because I know some of these. I'm familiar with some of these. I see them from time to time. We've got the ORs and so on, but the private publishers get the reports sent to them by the courts?
Ms Christmas: Yes, the raw judicial decisions are sent to us by the courts.
Mr Kormos: Each publisher gets the same reports?
Ms Christmas: That's correct. If we choose, yes.
Mr Kormos: What do you mean if you choose?
Ms Christmas: If we didn't want them, we wouldn't get them, but we all currently get them, yes.
Mr Kormos: You pay for them.
Ms Christmas: We pay whatever the courts ask. In Ontario they do not ask us to pay. However, in other jurisdictions they do and we pay.
Mr Kormos: Then you make decisions about which ones you're going to publish in your monthly or bi-weekly --
Ms Christmas: Weekly.
We select among them. We retain expert editors, whether they be academics or practitioners, who select among those decisions which ones should be published. We add value in terms of classification, head notes, various other types of information of use to lawyers and we publish them.
Mr Kormos: You cross-reference them, stuff like that.
Ms Christmas: Absolutely, yes.
Mr Kormos: OK, but I don't know anything about this business. The current regulation says, "The libraries and reporting committee may make provision for the distribution of copies of reasons for judgment...."
Ms Christmas: Yes.
Mr Kormos: That's what prevails now and it's under that prevailing regulation that there's the distribution --
Ms Christmas: Nobody has used that. The distribution currently is directly from the courts. There has been no hindrance using that provision up to now. The libraries and reporting committee, which I guess doesn't exist by that name any longer -- the law society publishes the Ontario Reports. It's their series of reports.
Mr Kormos: Quite right.
Ms Christmas: The publishers have a series of privately published reports.
Mr Kormos: I suppose the good thing about reports is that it means there are unreported decisions, which are the ace in the hole, right? That's when the defence lawyer stands up and says, "But I have this unreported decision."
Ms Christmas: There is almost nothing that isn't published because of course there are various services that provide all that material on-line.
Mr Kormos: What I'm trying to understand is you're fearful the law society is going to -- if I can take a look at the subsection here with respect to the reporting of publication of the decisions of the courts. I don't know what the courts have to say. Are the courts going to suggest to the law society to tell them who they're going to send transcripts out to?
Mr Morrison: We've had no problems in our dealings with the law society on this issue whatsoever. Each of the companies and the law society publishes as it sees fit. Our concern is based on two things: (1) the move to change the existing regulatory structure, and (2) the fractious nature of the relationship between the law society and the committee of legal publishers as of today's date. That's it. Otherwise, we've been carrying on business as always. Our concern is that something suddenly will change.
Mr Kormos: You are Mr Morrison.
Mr Morrison: I am indeed.
Mr Kormos: You're the guy with the cigars and the cognac and Charlie Harnick.
Mr Morrison: Yes.
Mr Kormos: Boy, oh boy, is there a story there beyond what I tried to infer by way of cheap shots?
Mr Morrison: No story whatsoever.
Mr Kormos: I'll take your word for it for the moment.
The Chair: Thank you very much for coming forward today. We very much appreciate that.
Mr Kormos: To the parliamentary assistant, I've got to tell you I'm still unclear about the status of things in terms of the current regulation appearing to give the law society power to control the distribution of copies of reasons for judgment -- that's what the publishers refer to in their submission -- and the non-utilization of that power. The government obviously has addressed that, in its own mind at least. Chair, I'm wondering if the parliamentary assistant, if they solicited comments from legislative counsel commenting on this, indicating whether the concerns of the publishers are valid or not and if we could have those.
Mr Martiniuk: I'll report to you on that, Mr Kormos.
LAW SOCIETY OF UPPER CANADA, COMPLAINTS
The Chair: We would call upon our next presenter, the Law Society of Upper Canada, complaints, Mr Scott Kerr. Thank you for coming.
Mr Scott Kerr: Thank you, Chair. My name is Scott Kerr. I was the manager of the law society's complaints department from 1989 until 1997. I currently lead a restructuring project which will see a major overhaul and improvement in the operations of the law society's regulatory division.
I'm going to speak on two fairly narrow points. There will be law society speakers who will speak to a much broader range of issues over the next few days.
The first point I want to speak to briefly is the process of how the legislative amendments evolved at the law society and the role the public interest played in that process. Secondly, the role the law society's current restructuring plan will play to ensure that the legislative reforms, once implemented, will reinforce the law society's responsibility to govern and to continue to govern in the public interest.
As June Callwood's presentation indicated, the process by which the law society has come to this point has been an arduous one, which began in 1989, when June Callwood's committee and another parallel committee were set up to review ways in which we could improve the way we provide our regulatory services to comply with our mandate to act in the public interest.
June was probably too modest in describing the importance of her committee's work and particularly the role she played in it. Its fundamental mandate was to develop a process that inspired the public's confidence in the law society's complaint handling process. We certainly think that, with the reforms that are before you now, we will be able to accomplish that.
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It has long been recognized that a narrow, strictly disciplinary approach is not good enough to handle all the complaints we deal with, in particular a lot of the service- and competence-related complaints that some of the other speakers have already referred to.
Regulation today means more than just disbarring dishonest lawyers. We have to broaden the scope to deal with the complaints that deal with "shoddy" work, as June Callwood refers to it.
Addressing the problems of service and competence is equally important to our mandate today. The legacy of June's report speaks to that directly. One way in which that report intended to deal with the problem was to create an independent overseer and a third party broker of settlements. That is now reflected in the legislative package as the complaints resolution commissioner. That's one aspect of the package which has remained intact since 1989.
At the same time that the Callwood committee's work was ongoing, there was a second committee that was looking at various ways of improving our discipline process, which we've long realized was too cumbersome and took too long to deal with hearings. The reforms that you have before you now will streamline that process and enable us to conclude disciplinary matters faster. It also gives us powers to protect the public while those hearings are going on through the institution of things like interim suspension powers and the ability to seize the assets or to protect the assets of clients while a disciplinary hearing is ongoing.
We only have these powers to some extent or in an ad hoc fashion at this point in time. The legislation will clearly fill gaps which exist right now that we've long recognized we need to fill in order to act in the public interest.
Finally, the discipline reform committee also began looking at ways that we could build preventive and remedial aspects into our discipline process, so that rather than simply reprimanding lawyers and sending them back out to do the same things all over again to a new set of clients, we might also be able to provide them with the wherewithal and the means with which to avoid future complaints and to serve their clients better.
From there, further reforms have resulted in further additions to the legislation which make it a better, well-rounded piece of legislation and which responded to continuing changes and new expectations on the part of the public about what a professional regulator should do. An example of that is mandatory peer review for our members.
You're probably familiar with quality assurance programs that are now a hallmark of all the health professions which have been enshrined in the legislation and which the government has approved over the past several years. The law society currently only has a voluntary peer review program simply because we lack the legislative power to require our members to participate in quality assurance programs. One of the important gaps that this legislation will fill is that it will finally give us the power to deal with competency problems in the profession head-on.
In summary, we've been working on this package since 1989. The process of refining has gone on ever since. The package has been in convocation on countless occasions, with the improvements being brought forward and approved in almost every case by convocation. At this point in time, it's a best-practices document in 1998. It provides us with the framework that enables us to act and adapt to the changing public expectations so that we can perform the type of role we've been mandated to perform.
The other point I want to touch on briefly is some aspects of the restructuring project, which is a wide-ranging and systematic attempt to modernize and put our organization on a footing where it can effectively implement and operate the new legislation. There are numerous aspects to this program which I won't bore you with, but certainly one of the key aspects of it is to build into the organization a service orientation in the sense that we're more responsive and adaptive to the needs of our client groups, one of the most important of which is the public. We've already begun the process of opening up regular consultations with the public and with our members as well to ensure that our services are responsive to their needs and expectations.
Many of the changes we've made to our organization structure and how we do some of the work, and how we're going to do some of the work under the legislative package, have been in response to the feedback we got. Certainly, one aspect of it is to be more flexible and versatile in how we deal with complaints. We have to recognize that we have a much broader regulatory scope under the legislative reform package.
It's not just the question of whether or not we have sufficient evidence to discipline a member any more. We have to consider other issues, especially ones which relate to competence and service issues, on a much more comprehensive basis than we have in the past. One way in which we hope to be able to do that is through the expanded use of alternative dispute resolution mechanisms, including the availability of third party mediation for parties in certain circumstances.
There is also an increased emphasis on remedial and preventive activities. A number of programs are being developed which will speak to some of those issues that June Callwood and Hope Sealy were referring to, where we would actually have programs in place which could assist lawyers with improving their office systems or learning how to operate a trust account effectively, whatever needs are required in the circumstances.
We're also streamlining our organization structure so that it makes more sense to external users and makes our resources and services more accessible.
We're also using technology more effectively to improve access to the information services that we provide.
The sum total of all these changes on the restructuring end is to make sure that when the legislation is approved, the organization is ready to implement it in an effective way so that the public will see almost immediate benefits in terms of how the law society is able to now take on the expanded role that the legislation provides for it.
The Chair: Thank you very much. That allows us approximately three and a half minutes per caucus. We begin with the official opposition.
Ms Castrilli: Thank you very much. Could you tell me a little bit about your office: how complaints are initiated, how many complaints you would have in a year, what the disposition of those complaints might be in any given year.
Mr Kerr: The number of complaints has varied quite a bit over the years. It peaked in about 1993 at nearly 6,000 complaints. Last year, the number was around 4,500. As a general rule, between 5% and 10% of those complaints result in disciplinary action being taken against the lawyer. The remaining complaints for the most part are closed. In every case, the complainant is part of the process in the sense that if a member of the public makes a complaint, they're provided with any information we receive from the lawyer and we are required to provide them with a response explaining our position at the end of the day, particularly if we're going to close the file without taking any action against the lawyer. In that type of situation, complainants have the opportunity to seek a review of the complaint by a lay bencher. I think that process has been explained to you before.
That's how the process works now. There had been some modifications to it over the years which have streamed certain complaints into dispute resolution processes, which have been quite effective in about 20% of the cases. We also have more intensive investigative operations which are responsible for conducting audits in members' law practices. We also have a voluntary peer review program which is up and running, and if we can obtain the members' consent, they do very intensive work with lawyers in terms of trying to upgrade their practice methods and so on.
That's pretty much the regulatory framework as it currently exists.
Ms Castrilli: I have a lot of people who come to my constituency office and complain against lawyers. The fact that I'm a lawyer makes them think that somehow I can mitigate. Is it every complaint that results in an investigation?
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Mr Kerr: No. There are numerous complaints that we receive which we don't have the jurisdiction to investigate in any case. One example of that would be a complaint which deals exclusively with the fee that a member has charged the client. Under the Solicitors Act, it's the courts of Ontario rather than the law society that have to deal with fee disputes.
Ms Castrilli: Aside from jurisdiction, what criteria do you use before you would investigate? I hear a lot of what appear to me to be frivolous complaints.
Mr Kerr: It's a pretty low threshold. Because of our mandate to act in the public interest, we try to take seriously at least the concerns the party has even if we don't think they are concerns that will result in disciplinary action. There aren't very many cases where we would want to simply close a file without getting the lawyer's response in any event.
The Chair: We move to the third party.
Mr Kormos: People here today have been very interesting -- Ms Callwood and Ms Sealy. Ms Callwood said that in her opinion there wasn't a single complaint -- I hope I've got this right -- that she reviewed wherein she indicated there wasn't a problem, at least, where something had gone sour.
I've already mentioned my constituency office down in Welland. Most of the time it's lawyers who will empty a client's bank account and say, "Sorry, I can't carry the matter on any further." It happens so often in matrimonial cases. I really get ticked off about those people, because they say, "Sorry, I can't act for you any more," and inevitably it's a woman who has come in who is left hung to dry -- but also the non-responsive lawyers, the ones who don't call.
What I do is I think a very discreet practice of writing a letter to the lawyer saying: "Ms or Mr So-and-so was in to see me today. I've assured them that you're doing everything you can. However, they would like a phone call." I've done it; been there, done that. Usually lawyers don't like me doing that because they don't like their clients talking, right? The last one -- she just wrote me a letter -- dumped all over her and threatened her. He said, "Don't you ever -- " So this guy, I figure: "That's right. We'll take care of him."
What about the alienation that people feel from the complaints process? I've talked to Ms Callwood about it and I've talked to others and I've really got a concern about that. Again, I'm talking about folks down where I'm from, but I think it's the same as everywhere else. Ms Callwood talked about ethnic people, non-English-speaking people, people who don't have the education you've got, people who don't even feel comfortable. What is going to happen to accommodate those people a little better, in a way that they're not intimidated or scared off or so they don't think they're David taking on Goliath and haven't got a snowball's chance in hell? What's going to change? What's going to happen to accommodate them?
Mr Kerr: That's a very good point. I think one of the efforts of the restructuring in particular is to move a lot more of our capable resources up front in the process. Historically, we've had a lot of clerical staff at the front end of our process to open the complaint. If someone would call in for the first time with a complaint, it would be somebody who really wasn't equipped, nor did they have the authority, to make decisions about whether the case was going to go further or to assist the party in making their complaint and so on.
One of the improvements we hope to make is to put a lot more highly skilled people with more authority right on the front lines, right on the phones and right in the first office contact area. So if people come into the law society or if they're making telephone calls, there will be people there who will be equipped from a skill standpoint, but also they'll have the authority to open files, to assist people with their complaints and so on.
I agree with you that that is one of the more frustrating parts. It's a barrier at the start of the process that we have to address.
Mr Kormos: What about assistance to these people in terms of even presenting their case, understanding if they're going to have a credible allegation? Is that the right way of putting it?
Mr Kerr: Yes.
Mr Kormos: Nothing wrong with that, eh? -- a credible allegation. What kind of material have they got to put together? My impression is that they're not getting much assistance, if any, in that regard now. Is that going to change?
Mr Kerr: We're always open to ways in which we can change the process. What we're trying to do now is make an attempt to improve the process. I think we have to be careful about recognizing what our role is. We're not an advocate for individual complainants, nor are we advocates for lawyers or trying to protect lawyers. Our job is to act in the public interest, and that means we have to take a certain amount of responsibility for that complaint ourselves and develop that complaint according to what we believe are the standards and the interests of the public to make sure that the public is being properly protected in that situation.
The Chair: Thank you very much.
Mr Kormos: This is really important, Chair. Lawyers may need --
The Chair: No, Mr Kormos. We now move to the government members.
Mr Stewart: There's a very important question I'd like to ask on my time, Mr Kormos.
Mr Kormos: Go ahead.
Mr Stewart: How many complaints would go through in a year? I'm not talking about the ones that are dealt with, but how many complaints would there be a year?
Mr Kerr: In 1997 for the calendar year, there were about 4,500 complaints.
Mr Stewart: What percentage of those would be dealt with and what percentage of those would actually have some action taken?
Mr Kerr: Between about 5% and 10% of those would result in disciplinary action of some kind or other against the lawyer.
Mr Stewart: One of the perceptions out there in the public is, "Why would I take my complaint to them, because they are protecting their own?" It's not only in your association or society; it's in a lot of them. How do we get away from that? Do you think that exists?
Mr Kerr: One of the problems we've had with the system, and it's something that June Callwood alluded to as well, is the fact that in the current legislation we don't have any means by which to deal with service and competency problems. The legislation speaks to professional misconduct as the basis for the law society taking action against lawyers. "Misconduct" is interpreted to mean dishonesty, dishonourable conduct, things like stealing money from your clients and stuff like that. I think historically the law society does a very good job of dealing with those types of cases.
The difficulty is that the legislation is silent on what powers the law society might have to deal with service complaints: the lawyer who doesn't return the telephone calls; who takes too long to complete the case; who is rude or arrogant to their client. We got lots of complaints like that. There is some merit to those complaints but there is nothing in the legislation that empowers us to do much about it. That's why I think to a certain extent such a small percentage of the cases we deal with result in discipline or any kind of further action.
Mr Stewart: I guess that was leading to a question I had: What complaints are not covered under the present legislation that should be? You talked about fees. I was also hearing you say a few minutes ago, and I kind of shook my head a bit, that many lawyers should be taught or should get some type of assistance in how they operate a trust account. Does the word "trust" account not suggest what you should do without having a great deal of education in how to operate it? I'm being a bit facetious, but I'm not being facetious either.
Mr Kerr: Many lawyers are excellent lawyers. They're great in the courtroom but they're not accountants, they're not good bookkeepers and they're not good office managers. They're just not inclined that way, they don't spend a lot of time at it and that end of their business suffers. A lot of times we have to end up going in and cleaning up the mess.
Mr Stewart: What should be covered, then, under present legislation that isn't, the two or three most important things?
Mr Kerr: There is a whole new competency scheme in the new legislative package which will give us a lot of tools not only to fill that gap but also to assist lawyers as well so they can provide better services to their clients, so they stop getting complained about and their clients get better service. I think the new legislation speaks directly to that and then it's incumbent upon us to put into place the internal structures which support the legislation.
The Chair: Thank you for coming forward today. We very much appreciate your presentation.
MENTAL HEALTH LEGAL COMMITTEE
The Chair: We would call upon our next presenter. If the representative or representatives of the Mental Health Legal Committee could come forward and identify yourselves for Hansard, we would appreciate it. Thank you for coming. You may begin.
Ms Anita Szigeti: Good afternoon, Chair. My name is Anita Szigeti. I'm a lawyer in private practice. I also chair a committee of lawyers known as the Mental Health Legal Committee. We're an organization of lawyers and community legal workers who advance and protect the rights of persons with mental illnesses.
I am appearing here today to talk about a very specific aspect of the legislation that is proposed, Bill 53, a very small portion of the legislation but a significant one for lawyers who are persons with mental illnesses.
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Our committee has become concerned about specific provisions that are in sections 35, 39, 40 and 44 of Bill 53, which are the powers given to the law society on discipline matters to make certain conduct orders, capacity applications, capacity orders and professional competence orders. You may have already heard about these things earlier today and I apologize if I repeat any ground.
Our specific concerns regarding members who may be incapacitated: Our first concern is that under the proposed bill the law society's hearing panel could order a member to undergo a medical or psychological examination and that order would not be preceded by requirements to make inquiries, nor should the panel be required to have reasonable and probable grounds that the member is incapacitated before those examinations are ordered. This is in sharp contrast to other regulatory professional acts such as the Regulated Health Professions Act, which requires reasonable and probable grounds before these types of examinations are made.
There are a number of other concerns about the way incapacity is determined under subsections 37(3) and (4) of Bill 53; specifically, putting a presumption of incapacity on a member who's been found to be incapacitated for purposes of another act. I've produced some written submissions that are lengthy, rather dull, but I refer you to those.
Our main concern about Bill 53 is the power of the law society to make certain so-called treatment orders in the case of members who are either guilty of misconduct, incapacitated or professionally found to be incompetent based on a mental disability. Our specific concern is that disability and mental illness.
Treatment orders, for your information, are an extraordinary power and they're not seen anywhere else in Canadian law but for one exception. The only place anyone can order treatment is under the Criminal Code in the case of an unfit accused, and that is a very small number of occurrences. Our provincial mental health legislation and consent and capacity legislation nowhere authorize a provincial tribunal to make treatment orders of a person, and basic rights to make treatment decisions for ourselves are based in our Constitution, specifically in section 7 of our Constitution.
What the Mental Health Legal Committee is basically saying is that, yes, the law society has not only the right but the obligation to protect the public interest and it should do so by requiring its members to be fully capacitated and competent to practise. It can contract with the member for a specific outcome, but it should not have legal entitlement to order the means to get there.
There are a number of good reasons for making this argument because ordering a certain treatment by no means satisfies the society that the member is either competent or capable to practise. You can be misdiagnosed with a mental illness, you can be prescribed the wrong medication. Under the regime proposed by Bill 53, you can be ordered to take a certain medication and then go away and be free to practise. But that's really not the concern. The concern is, are you capable, are you competent?
We're suggesting that it's not legal, not constitutional and not right for the law society to have these invasive powers, these intrusive powers to order a treatment that's specifically perhaps medication, and further also to order the member to authorize disclosure by a health care provider, to report on the so-called compliance of the member to the law society. We think these are unjustifiable infringements on the basic privacy rights and life, liberty, security of the person rights and perhaps equality rights of members of the law society.
There's a lot more I could say but I think I'll leave it at that and just invite questions. I'm happy to respond to anything that may arise from that.
The Acting Chair (Mr R. Gary Stewart): We have approximately five minutes per caucus, starting with the third party.
Mr Kormos: I've got some strong sympathy for the point you make. I think this part of the bill stood out to a whole lot of people because of its novelty in terms of being primarily a new element. How would you propose that a bill deal with protecting the client from a bona fide incapacitated lawyer, a real, honest-to-goodness incapacitated lawyer? I'm not engaging you in argument. I don't know.
Ms Szigeti: If you look at the written submissions we've made, we propose that what happens under the Regulated Health Professions Act, for example, is a good way of going about it, so that if someone's incapacity comes to your attention, you make some inquiries, and it's only when you have reasonable and probable grounds to believe there is incapacity that you then hold a hearing. That's the first step.
In addition, appeal rights are important. We, as lawyers, would also be a lot more comfortable appearing before these tribunals if we had a legislated right of appeal such as in the Regulated Health Professions Act, so that if the hearing panel makes a mistake at least we know if there's a problem, an error of fact or law, we can go and appeal that.
The public should be protected from lawyers who are incapacitated. We agree with that and we think all the society needs to do after it makes a determination that the member is incapacitated is say: "You don't have the right to practise right now. Get yourself together. Do whatever and come back to us and let us know when you're capable to practise law again. That's when we'll let you go for it again."
But what the society is proposing to do in those specific subsections is say, for example: "You must go and see your psychiatrist twice a week and take a particular antipsychotic," if your diagnosis is of a psychotic nature, "and then, if you continue to do that and you authorize your doctor to come and tell us that you're complying with that order, you can go ahead and practise."
We think this, first of all, doesn't accomplish the public interest being protected, just because someone's popping their pill. For a large percentage of these folks, that's not going to help in any way.
You're failing to protect the public interest if that's all you do and you're unduly invading the individual member's right to make their own treatment decisions. How I get well is my business, but the law society has the right and the entitlement and in fact the duty to make sure I'm well to practise. I need to satisfy them that I'm well to practise, but they don't get to ask me what I'm taking and when and they don't get to force me to call my doctor up to satisfy them that I am taking my medication.
Is that helpful?
Mr Kormos: Yes. We won't hear from the law society again until tomorrow. One of the problems with this type of hearing is that they don't get a chance to respond to you here and now. I'd like to hear what the law society says about that.
You talk about safeguards.
Ms Szigeti: Yes.
Mr Kormos: At the end of the day, you understand why I'm sympathetic to the bill.
Ms Szigeti: No.
Mr Kormos: Across the board.
Ms Szigeti: Oh, yes, but on this particular issue I --
Mr Kormos: So what do I do with respect to the bill vis-à-vis this issue if the government doesn't amend it?
Ms Szigeti: In the committee's view, those particular sections that make treatment orders, which are unprecedented powers and not seen any place else, as I say, would have to come out. I don't know how to advise you about what to do, but this is the kind of thing, if it's passed through, that's going to be the subject of constitutional litigation, which would make our committee members very happy, as it'll give us something to do. On the other hand, to the extent that our members are subject to this kind of coercive treatment order scheme, we're not going to be very happy. Those are some of your choices.
Mr Kormos: I suppose one of the arguments that might be made would be that it's not really coercive because the person can choose not to comply with the direction.
Ms Szigeti: Right, but what I'm suggesting to you is the direction could be entirely misguided and it's based on a certain faith in what the doctor says will improve you rather than in looking at the functional outcome. They could be forced to take medication that's harmful and not helpful for the stated purpose of protecting the public interest.
Mr Martiniuk: This is a most inventive argument. When we're dealing with rights, that's one thing. Although I practised law for 30 years -- I no longer practise law -- I always thought the practice of law was a privilege I enjoyed and not a right. There are many individuals in our society who do not practise law and they choose not to. The distinction between a privilege and a right is paramount. It's an honour to practise law; it's also a privilege.
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You have taken the criminal law and your reasonable and probable grounds and you have made the practice of law a right. You talk about a lawyer being coerced into a treatment; he has a choice at all times. He can choose to continue the privilege of practising law in this province or walking away from the practice of law, which many lawyers do today. They do not take up the privilege. Please explain to me how you have made privilege into a right under the Charter of Rights.
Ms Szigeti: Thank you for your comments. What is not a privilege is the right to decide what medication you put in your body and what you don't. That's a constitutional right that's protected, as I'm sure you know, by section 7 of the charter. I'm not suggesting that practising law is a right. Actually, I'm not sure it's a privilege on certain days of my practise either. But I take your distinction.
The law society has the right and the obligation not to allow the privilege, as you say, of practising law to be conferred on incapable or incompetent members. You and I are in agreement about that. All I'm suggesting is that the society needs to ensure that the member is capable and competent before they allow that person to continue practising. During a period of incapacity or incompetence the person should be suspended. It's up to the person how they get back to the point of capacity or competence. That's all I'm saying.
What is everybody's individual, private right is to decide how we're going to treat ourselves to get well enough to exercise the privilege of our profession. That's all.
Mr Martiniuk: But this is very important because the alternative -- and you've said it. What we're going to do is suspend a lawyer rather than treating that lawyer under guidance, where he could earn a living, and he may not wish to be suspended for six months or a year until we can see some permanent effects of the treatment. He may prefer, or she may prefer, to receive a course of treatment so that he could continue making a livelihood. That's a pretty bleak picture you've painted for us here for lawyers. You put me out of business because the results of a particular treatment may not appear for a number of months or possibly years.
Ms Szigeti: Is the bill then suggesting that while the treatment that's been ordered is underway, that may be or may be not taking effect, that member ought to be practising? Because in my view, then, it's not protecting the public interest.
Mr Martiniuk: The bill would not say that. That would be a matter for the law society when they lay down conditions. As I understand it, the idea is to give the law society the most flexible terms possible so they can deal with lawyers with some kindness, in addition to penalizing them. I thought that was the scheme.
Ms Szigeti: I understand it's presented as if it's going to be a less intrusive method of dealing with complaints. However, in my view, that's just not the case because you're not going to continue the entitlement, the privilege, to practise while medication is being experimented with to see how you're doing. Ultimately, the public interest is only protected if you're both capacitated and competent to practise. We're all in agreement that needs to be the case.
All the committee is concerned about is that a tribunal's going to have these unprecedented powers to order you into treatment and to order you to authorize your doctor to come and tell the society that, yes, you are duly popping those pills, yes, you're attending, yes, you're taking everything you should. In our submission, that in itself is not going to protect the public. The law society is not a doctor; you don't know what's going on. Anything else?
Ms Castrilli: Thank you, Ms Szegeti. You've certainly been very clear. This is one of those incidences where I really regret that we don't have more time. Five minutes to ask questions, since you will be the only presenter to speak on this issue, is really not enough.
I'm going to raise three issues with you and I hope we can deal with all of them relatively briefly, and perhaps, if more time is required, I can speak to you after.
People around here will tell you that I'm a passionate advocate for the charter, but I have to ask you, do you really think that section 7 of the charter is absolute and do you really think there are no limits that can be placed on the charter in these particular situations?
Ms Szigeti: As you know, the rest of the sentence in section 7 is you have the right to life, liberty and security of the person, to be deprived thereof only in accordance with the principles of fundamental justice.
I guess, if I'd had more time to write my paper, I would have expounded for you on why I think the mechanism that's proposed in Bill 53 is not in accordance with a process that is fundamental justice.
Ms Castrilli: We'd be interested in having some more information on that. Obviously, this isn't the forum, but if you could submit something to us, that would be helpful.
A corollary question to that is, having established that section 7 might apply, why shouldn't lawyers be held to higher standards? Lawyers act in the public interest. People will tell you that it's necessary to have lawyers particularly perform at a certain standard. Why would we not say that in this particular case it should be a higher standard?
Ms Szigeti: Members of the Mental Health Legal Committee would not object at all to the idea that lawyers need to be held to the highest standard where capacity and competence are concerned. We're in agreement with the stated purpose of the bill. We're in agreement that protecting the public interest is paramount.
What we're suggesting is that simply ordering a person into treatment -- if you look at the language of the proposed legislation, it says the society should have the power to order us to do anything that might improve our health. I smoke; are they going to tell me not to? They could try, and I wish they were successful but --
Ms Castrilli: I suppose if they have enough benchers of that persuasion, they could. Is that your point?
Ms Szigeti: Yes. Pretty broad powers, you've got to be careful.
Ms Castrilli: We have very little time. I want to address two issues with you. One is the reverse onus that you talked about in your paper because I think that's important. I think you should explain to us how that differs from other situations.
Ms Szigeti: Subsection 37(3) suggests that in the absence of evidence to the contrary, a person shall be presumed to be incapacitated for purposes of this act, Bill 53, if the person has been found under any other act to be incapacitated within the meaning of that act.
In our written submission we explain that the legal construct as a test for capacity in provincial mental health legislation is very thinly sliced, so that under the Mental Health Act you could be found incapable of something as narrow, for example, as deciding to whom your psychiatric records should be disclosed. If that's the basis of your incapacity finding as a member, that doesn't translate into the incapacity to practise law. In capacity to make treatment decisions, you can be capable to decide if you need aspirin for a headache but not if you need a certain other kind of other medication; very task oriented. The only thing that unites capacity legislation elsewhere in the province is that the presumption is always of capacity. Somebody else has to rebut that presumption.
This particular provision would put the onus on the member to show that they're not incapacitated as long as there is any finding out there under any other act of their capacity.
Ms Castrilli: They're incapacitated unless they prove otherwise; that's your reading of the statute.
Ms Szigeti: That's my reading, and I could be wrong.
Ms Castrilli: You talk about subsection 39(1) and the hearings that take place under that section, which now seem to be very broad. Would you be satisfied with an amendment there that allowed for "reasonable grounds" of the hearing panel to indicate a certain treatment, or is it a question of they should under no circumstance be able to indicate there should be treatment?
Ms Szigeti: An examination? That section talks about the examination.
Ms Castrilli: Examination, that's right.
Ms Szigeti: I think that there are probably appropriate circumstances to order that the person undergo a medical or psychological examination. We would not oppose that as an idea. It exists in other professional regulatory legislation. Reasonable and probable grounds, though, is what we'd be looking for to conduct that.
The Chair: Thank you very much for coming forward today.
LAWYERS FUND FOR CLIENT COMPENSATION
The Chair: We now call upon our last presenter of the day. If the representatives of the Lawyers Fund for Client Compensation could come forward and identify yourself Hansard, we would appreciate it. You may begin.
Mr Clayton Ruby: Thank you, Mr Chairman. My name is Clayton Ruby and I am the leader of the discussion the law society has on an ongoing basis, the Lawyers Fund for Client Compensation. That's a fancy name for the fund we maintain out of lawyers' money, only lawyers' money, to pay back the victims of dishonest lawyers who steal, the ordinary, little people, small business people, and we care very deeply about it.
It's one of the areas we do pretty well in. We have 28,000 and change members right now across this province. We maintain a fund which today stands at $24 million to pay up to $100,000 per claim with no limits. We're proud of that. I'm also proud of the fact that, at the moment, if you ask me how many lawyers there are outstanding claims about in this fund dealing with lawyers' dishonesty, the answer is 70, out of 28,000 and change. That's not bad.
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I suspect I'm also here because I've been an elected bencher for about 20 years now, so I've seen a lot change and a lot not change. I want to tell you, first of all, that you must distinguish between the law society on the one hand and the lawyers' advocacy groups on the other. To use Hope Sealy's wonderful phrase, "We are not a trade union." We have no mandate to protect lawyers or lawyers' incomes. The real question is, will this legislation help us better do our real job of governing in the public interest?
We're pretty good at some things. We're pretty good at tracking down after the fact people who have stolen money and prosecuting them and getting them out of the profession. We're pretty good at paying back their victims.
We're not so good at other things, and I think June's quite right about those. We're not good at resolving matters so that the public is satisfied and the member is fully satisfied and feels they've been handled properly, particularly when we're dealing with minor problems, when we're dealing with incompetency, when we're dealing with, yes, mental illness. Let me stop and say a bit about mental illness if I can.
First, it's a wonderful presentation and I respect the perspective tremendously. Let me point out to you that subsection 49.3(3), which is the commencing of a hearing on mental illness on competency grounds, requires reasonable grounds as a precondition. We think that's right, that there should be that reasonable grounds standard right at the beginning before you can start doing anything.
Second, I must say that I personally agree with the last presenter when she says, "There ought to be a right of appeal," so think about that. There ought to be a right of appeal. There isn't one at the moment.
Overall, the right to practise, as was mentioned very clearly, is a privilege. This is not an attempt to be punitive. It's an attempt to be flexibly helpful, to try and say: "We've got to do more than we can do right now. Right now we can suspend you under section 35." It's a hammer. It's not a helpful hammer. This allows people to have other options and choices, but at the end it's much like the decision to fly in an airplane: If you don't want to fly in an airplane, you won't be personally searched. It's a big price to pay but it's necessary in the public interest.
Ms Castrilli has asked some questions and I want to deal with one point of them. In order to effectively regulate lawyers -- and bear in mind, we're not the state, we're not somebody external; we're the regulating body -- we have to have access to everything. If you look at the books alone, the records alone, the economic books, they may look fine on their face, until you see the file and then you realize, "Oh, my God, we've got a horrible problem." Or the records may be a mess and unintelligible until you see the files. Every regulatory body in the English-speaking world has to see that file, so the common law has developed a rule that when the regulatory body does that, it's bound by the same privilege the member had. That's true all across the world in English-speaking countries. That's the common law we believe in Canada, as it is in the United Kingdom, and we've always been bound by that. To my knowledge, we've never had a complaint of breaching that privilege once we've seen the records, and we have always done it.
The present language I believe sets that out. To me, it's clear; I hope it is to you as well. There is nothing new about that as a technique: Translators, social workers, psychiatrists who take part in the privilege process all wind up being bound by the privilege. It's a normal fact of legal life.
Last, a word about the publishers' submissions, if I may: First, the law society does not have presently have and, as I read this proposed amendment, will not have the power to tell the courts to whom they should send their reasons for judgment, let alone whether they should charge for them.
Second, I doubt if even this legislative body has the constitutional right to tell the court system to whom they should send their judgments. I think the separation of powers prevents that. I don't think anybody has the power.
Third, I want to make it absolutely clear that we have never sought to restrain in any way the access of publishers to reasons for judgment. Indeed, it would boggle my mind why the law society would want to do that. We have an interest in seeing that our members know the law and have access to the law by whatever method they want.
What that bylaw does is allow us to do what we have done from time immemorial: We have published the Ontario Reports, which are selected judgments of Ontario, and we distribute them free to our members through one of the publishers, Butterworths Canada. I don't understand the presentation on that very well, but I want to make clear that we have never sought to in any way limit their access. I doubt that anyone constitutionally could or should.
If there are questions, you've been very patient with me.
The Chair: That affords approximately 12 minutes per caucus and we begin with the government members -- sorry, four minutes per caucus, a total of 12 minutes.
Mr Ruby: I don't mind 12; I'm here.
Mr Bob Wood: I had a question about your comments on the submission of the publishers. Would you have a problem with putting in the statute a provision that said something along the lines of "consistent with full access by all to the decisions of the courts"?
Mr Ruby: To me, it would be redundant. I have no problem with it, of course not, but it would be redundant. I think everybody in this province, every citizen has got a right of access to the courts and to understand and get information about what the terms of the courts are. I think it's part of what we mean by democracy. I'm sure it's a charter right. If someone tried to infringe it on the part of the government, it would be stopped.
Mr Bob Wood: Would that be in any way inconsistent with what the law society proposes to do?
Mr Ruby: Not that I can see at the moment without having reflected on it. I can't see it.
Mr Stewart: I asked the previous presenter about the perception that the public has about going to this group on a complaint because you're "protecting your own." This is not me saying it; this is a perception that's out there. Do you think that the breakdown where they are now increasing the lay benchers to eight is enough? I use the word "intimidation," and certainly the two ladies I talked about -- I'm quite sure you don't intimidate them, but in some way a lawyer's business is intimidation. I don't mean that disrespectfully. I guess what I'm trying to say is, are there enough lay benchers on to really do the job to protect the people?
Mr Ruby: Let me tell you the problem that no one has adverted to about this. One of the constitutional freedoms that we have in this country is the independence of the bar -- you've heard the phrase -- but in practical ramification what that means is that government cannot control the legal profession in its organized capacity. Every citizen is entitled to a lawyer who is not tied to government or controlled by government, so we set up an independent bar. At some point you have so many lay people appointed by the Attorney General that that independence is threatened. I think the number we have now does not threaten it. I would be concerned if you went too far. I don't think there's a magic number. We've experimented slowly with the rise from two to four to more now, and I think it's probably the right course to take, but I'd rather go slowly.
Ms Castrilli: I should say at the outset that the questions I've asked and the views I've expressed here are not my own. I've said from the outset that I have an open mind but that there are issues that have been raised that I'd like to raise.
I'm delighted that you're here at the close of this session, because we've heard a lot of things today. I want to put two questions to you. The first deals with what the law book publishers put forward, which is not a huge argument in the scheme of things -- we're all quite disposed to support this legislation -- but they made a point that I'd like to hear more information on. My question simply is: If the idea is to retain the ability of law book publishers to continue to do what they're doing, then why the change? Why do we see these amendments in the Law Society Amendment Act?
Mr Ruby: It isn't really a change. It's now a bylaw rather than a regulation, but other than that it is no change.
Ms Castrilli: I don't know. I asked the researcher to bring me a copy of the original legislation and it looks to me that there are sections that are being deleted and put in other places of the act. Even in a most generous interpretation, not even a legal interpretation, something's going on, wouldn't you say?
Mr Ruby: Just moving from a regulation to a bylaw, and that's all that's happening -- zero.
Ms Castrilli: But you're eliminating -- I don't want to quibble, but what they've said is substantiated here -- the approval of the Lieutenant Governor in Council.
Mr Ruby: Because all we're asking for, all we've ever had, is the right to publish our own reports. We do not seek anything by way of refusing them access. We don't have the power to do it. If you gave us a regulation saying, "You can from now on regulate access to these publishers," it would be absolutely unconstitutional. We've never sought it, we don't want it, and that's why I fail to understand fundamentally what they're about.
Ms Castrilli: The point may be moot if the litigation speaks to this point later on. I'm not sure, but I hear what you're saying. There's obviously a difference of opinion.
Mr Ruby: The litigation's about copyright and public domain, and that's all I know about it, but it doesn't deal with this issue at all.
Ms Castrilli: All right. There's a difference of opinion here. I will explore it further with the law society, because you have a few other members who are coming forward.
The other question I really want to ask is about the mental health issue. That is important. I'm not entirely clear as to how you answer what has been put forward today. I understand what you're saying, that there have to be reasonable and probable grounds to begin with.
Mr Ruby: Right at the beginning.
Ms Castrilli: That clearly is not sufficient, and I suppose you'd be open to repeating "reasonable and probable" in other sections in order to give comfort in that particular --
Mr Ruby: But then there's the second stage too, if you read it. I know you just got that paper and you haven't had a chance to spend time on it, but in order for anything to start there must be reasonable grounds. That's the first safeguard. Then in order for the committee to make any order as a precondition they must find, they must be satisfied that the person is incapacitated.
Today, that would be the end of it; we'd suspend them at that point. But now we're going to be able to say, "Instead of being suspended, you can do A, B, C or D. We've got a lot of flexibility here." It's purely designed to help, but it can only happen after they are satisfied that there really is an incapacity.
Ms Castrilli: In any event, some of the concern may go away if there's a right of appeal.
Mr Ruby: To me, it makes sense. I like the right of appeal.
Ms Castrilli: I'm glad to hear you voice that.
The Chair: Thank you very much. We now move to the third party. Mr Kormos.
Mr Ruby: I don't want to be cross-examined by Peter Kormos.
Mr Kormos: Well, I'm not going to.
I understand the issue with the publishing; I think I do. You're talking about enabling the law society to publish its ORs. I don't know; am I right?
Mr Ruby: That's what it looks like to me, as I read plain English.
Mr Kormos: Once again, it's interesting that you would comment on the matter of appeal rights to decisions. I don't know whether that's going to be repeated by way of submissions tomorrow from other representatives of the law society, but that's something where I hope the government is -- it might even want to show its hand. Is the government considering those sorts of amendments?
Mr Martiniuk: We're considering all reasonable amendments. That's what these hearings are for, Peter. You know that.
Mr Kormos: Cut the crap, Gerry. These are rubber stamps and they have nothing to do with consulting the public. If you don't want to show your hand, fine.
Thank you very much, Mr Ruby. We'll see what the government does by way of rights of appeal.
The Chair: Thank you very much for coming forward today. At that, this committee rises until 1530 of the clock tomorrow.
The committee adjourned at 1755.