LAW SOCIETY AMENDMENT ACT, 1998 LOI DE 1998 MODIFIANT LA LOI SUR LE BARREAU
LAWYERS' PROFESSIONAL INDEMNITY CO
METROPOLITAN TORONTO LAWYERS' ASSOCIATION
LAW SOCIETY OF UPPER CANADA PROFESSIONAL REGULATION SUBCOMMITTEE
COUNTY OF CARLETON LAW ASSOCIATION COCHRANE LAW ASSOCIATION
CANADIAN BAR ASSOCIATION -- ONTARIO
CONTENTS
Tuesday 8 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
Lawyers' Professional Indemnity Co
Mr Malcolm Heins
Metropolitan Toronto Lawyers' Association
Mr John Ritchie
Law Society of Upper Canada professional regulation subcommittee
Mr Gavin MacKenzie
County of Carleton Law Association; Cochrane Law Association
Mr Bill Simpson
Canadian Bar Association -- Ontario
Mr Steven Rosenhek
Mr Bill Simpson
Law Society of Upper Canada
Mr Harvey Strosberg
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 Garry J. Guzzo (Ottawa-Rideau PC)
Mr Gary L. Leadston (Kitchener-Wilmot PC)
Clerk / Greffière
Ms Tonia Grannum
Staff / Personnel
Mr Avrum Fenson, research officer, Legislative Research Service
The committee met at 1532 in room 228.
LAW SOCIETY AMENDMENT ACT, 1998 LOI DE 1998 MODIFIANT LA LOI SUR LE BARREAU
Consideration of Bill 53, An Act to amend the Law Society Act / Projet de loi 53, Loi modifiant la Loi sur le Barreau.
LAWYERS' PROFESSIONAL INDEMNITY CO
The Chair (Mr Jerry J. Ouellette): I call this committee to order. I welcome everybody to the second day of hearings of the standing committee on administration of justice reviewing Bill 53.
At this time, I would like to call the first presenters forward. If the representative or representatives of the LPIC could come forward, and identify yourself or yourselves for Hansard, we would appreciate it, and to ensure that you know, there's a total time allocated of 20 minutes. At the conclusion of any presentation you may have, the time is divided equally between the three caucuses for questions and answers.
Mr Malcolm Heins: Good afternoon. My name is Malcolm Heins and I'm president of the Lawyers' Professional Indemnity Co. We are the insurer that provides malpractice insurance to the 17,000 members of the bar currently practising law in Ontario.
As the professional liability insurer to the profession, we at LPIC handle the fallout from lawyers' mistakes or incompetence, as the law society requires that lawyers purchase errors and omissions insurance. In many respects, you can think of us as the backstop in the system. As the backstop that attempts to remedy the wrongs, we have a strong interest in the amendments to the Law Society Act and in any initiatives in the act which address the interrelated issues of competence, standards of practice and quality of legal services.
We know from our statistics and studies that enhancing the powers of the law society to set standards of practice, conduct practice reviews, and issue recommendations and orders based on the findings made during the review should help reduce the instances of professional negligence and incompetence. For LPIC that, of course, means fewer claims, and fewer claims benefit members of the public and lawyers alike. As an insurer, we have first-hand experience with the toll that claims take financially and emotionally, not only on lawyers but on members of the public, most importantly.
While insurance provides some measure of financial compensation, we at LPIC cannot begin to address the emotional and physical cost of claims, on both the client and the lawyer. A good example, and one we see often, is the client who, because she feels aggrieved by the level of service rendered or the result achieved, sues her lawyer, only to discover many months into the process that she does not have a compensable claim, although she may well have an issue with respect to the quality of service rendered. Therefore, any initiative that helps make lawyers better practitioners, and reduces claims and their negative impact on the public and the profession, must have LPIC's full support.
To put my comments and concerns in perspective, let me share with you a few statistics which will help you understand the magnitude of the problem I'm talking about. Each year the Lawyers' Professional Indemnity Co handles approximately 2,000 new claims. We spend, on average, $75 million a year to resolve these claims. Over the past nine years, Ontario lawyers have racked up 27,000 claims at a cost of over $675 million. Overall numbers, however, tell only part of the story. What may be surprising to you is that 80% of those claims, both in terms of numbers and costs, are caused by 20% of the lawyers. These lawyers often make the same mistake over and over again.
It is our view that a significant number of these claims could have been avoided if lawyers were subject to the kind of monitoring outlined in the proposed Law Society Act legislation. One jurisdiction that has already gone down this road is the Barreau du Québec. This is the regulating body for Quebec lawyers, the equivalent of the Law Society of Upper Canada. Fifteen years ago, it implemented a multi-pronged professional inspection service that sees lawyer inspectors pay personal visits to about 20% of its membership every year. Thus, about once every five years each law firm receives a visit and a set of written recommendations for improving that firm's practices and procedures. Although some of these recommendations are optional, many do carry the weight of regulation behind them. Failure to comply can and does lead to disciplinary action.
Interestingly, the Barreau's claims costs have fallen significantly over the past decade, due in part, they say, to the rigour of its professional inspection program. My own experience, both in law and in insurance, leads me to believe that the Barreau's experience speaks to the correlation between closer monitoring and a reduction in errors and omissions, and at the end of the line, claims.
What the Barreau's example shows us, and what our own experience in claims handling tells us, is that proactive action aimed at the cause of claims is much more effective than the reactive stance in which we all now find ourselves. Addressing issues of competence before they escalate into issues of misconduct or negligence is a much more cost-effective option than attempting to provide compensation through the claims process. Interestingly, the act's definition of incompetence closely mirrors our own statistics on some of the root causes of claims.
At LPIC, we have one solution which we call PracticePRO. This is our new risk management initiative launched over the past summer, which is designed to help lawyers practise in a more proficient and professional manner, but ours has to be a voluntary initiative. As the insurer to the profession, our clout is limited to raising awareness, and providing lawyers with some tools and resources to steer them in the right direction.
What is needed, if we're to fundamentally address the cost of claims, financial or otherwise, is a more effective regulatory framework that sets standards for competence; provides a flexible, dynamic mechanism for monitoring and investigating these standards; and finally, ensures a measure of compliance.
In LPIC's view, the proposed changes to the Law Society Act meet these needs. Specifically, we see the sections empowering the law society to conduct practice reviews, issue recommendations and compliance orders, together with the enhanced powers to deal with situations where lawyers are incompetent or incapacitated, as a cornerstone in the battle to reduce the number of claims and their costs.
As a businessman, I cannot help but point out that the kind of scrutiny lawyers would be subject to under the proposed act is entirely in line with existing business practices. Consumers entrust lawyers with a considerable amount of autonomy and authority over their affairs. I am certain that these same consumers would be surprised to know that the law society currently has very limited rights of audit and investigation, particularly given the extent of authority often entrusted to lawyers, whether in the administration of trust accounts, estates or other dealings.
The corporate world is more rigorous in its audit requirements than we are today under the Law Society Act. Even LPIC, as an insurer, is frequently asked to open its files and books to its regulator, the Financial Services Commission, as well as to its reinsurers and excess insurers. Why should lawyers be any different?
In our view, the ability to set and administer standards, together with enhanced powers of audit and investigation, simply bring the law society and its members to the same level as would be anticipated in the corporate world and certainly in line with the public's current level of expectation.
Over the longer term, far more effective regulation is achieved through prevention rather than enforcement. We at LPIC view the proposed Law Society Act amendments as a major step in that direction and a critical requirement to reducing claims and improving the standards of practice of Ontario lawyers.
Those are my comments, Mr Chairman.
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The Chair: That affords us just under four minutes per caucus. We begin with the official opposition.
Mr Bruce Crozier (Essex South): Welcome to the committee. You may know, or I will at least admit, that I am not a lawyer. I'll also say that I'm an accountant by profession, which may not be much of an admission either.
Just to clarify, you did say that 80% of the claims were caused by 20% of the lawyers. As a layperson, that seems rather high. I'm certainly not doubting it but just whether I understood that correctly. That seems significant to me. You feel then that this legislation will hopefully help to dramatically decrease that percentage?
Mr Heins: Yes. The reason, bluntly, is that there is nothing to cause a lawyer to change their course of conduct or the way they practise if it is an imprudent way. The law society, if you actually look at the act today, really has very limited authority to go in and issue an order and say, "You must practise in this way." Other than that, if it gets to point of being egregious -- but by that point, the horses have bolted, so to speak.
Mr Crozier: Again as a layperson, when someone has a complaint against a lawyer and you then become involved, I assume there's a process. Are they required under their insurance coverage to notify you, number one? I'm curious, are most complainants represented by lawyers themselves?
Mr Heins: Some 95% of complainants, or even higher, would be represented by lawyers. Our policy requires the lawyer to report a claim that is made against them. A claim is a little different from a complaint. A claim is where there's an allegation which requires compensation effectively as a result of a professional service. That circumstance is beyond, for instance, what the law society staff might deal with where there's just been what I'll call a bare complaint, without an allegation of negligence and a claim for damages or compensation.
Mr Crozier: Would there be circumstances where you would pay a claimant a determined sum of money separate from what the law society may do with its authority to discipline?
Mr Heins: Absolutely. That would, in most instances, be the rule as opposed to the exception.
Mr Peter Kormos (Welland-Thorold): What do lawyers pay now for premiums?
Mr Heins: A base rate of $3,650 per lawyer. It goes up higher depending on your claims experience and it can go down lower depending on your area of practice, but that's what we call the base rate.
Mr Kormos: Do you anticipate, with the implementation of the more stringent -- can I call them more stringent supervisory powers of the law society in this bill?
Mr Heins: I think that's fair.
Mr Kormos: Do you anticipate a reduction in the errors and omissions?
Mr Heins: Over time, yes, all things being equal.
Mr Kormos: Is it fair to ask you what kind of time frame?
Mr Heins: We should start to see some impact, I would say, in about three to five years, in that time frame, the point being that it takes about three to five years for a claim to be made from the date of the negligent act. Some things just aren't discovered until later in the day. We will start to see an impact within that time.
Mr Kormos: You've got the interesting observation of 20% of lawyers causing 80% of the claims, and you talked about the gross 27,000 claims over nine years at a cost of $675 million. Do you have numbers in terms of what the -- averages are so inadequate in terms of explaining.
Mr Heins: An average claims cost?
Mr Kormos: What's an average claims cost?
Mr Heins: An average claims cost is about $30,000-odd.
Mr Kormos: Is there a deductible in that?
Mr Heins: There's a deductible. The lawyer is responsible for a deductible at $5,000 on average.
Mr Kormos: That's the average and that's a number that we know how it's arrived at. What's a typical claim?
Mr Heins: The majority of our claims arise as a result of lawyers' failing to follow instructions. They can really run the gamut; not perhaps appreciating what service the client is really requiring of the lawyer, failing to fill the client's expectations in the service.
Let's take a simple example. There's somebody buying a house. The person is buying the house with an intention of putting a two-storey addition on it, only to discover when they go to do so they can't. Inevitably, there will be a claim against the lawyer and the issue will revolve around what communication took place as between lawyer and client at the time the house was purchased. What you see there is a difference in expectations. The lawyer says, "You got good title to the property." The client says, "Yes, I did, but I actually wanted to put this two-storey addition on it, so what good is the house?"
Mr Kormos: Are there areas of practice which have a greater tendency to have claims as compared to other areas of practice?
Mr Heins: First and foremost is real estate practice; second is civil litigation.
Mr Kormos: Is there a profile of a lawyer more likely to have a claim made against him or her?
Mr Heins: We have really struggled with that one, Mr Kormos, and we cannot put that kind of profile together. Certainly, you can start to put a profile together if you're in the office looking at what has transpired in the office in terms of their records, their adherence to commonly accepted practice etc. But to actually look at a lawyer, outside of being able to do the kinds of reviews that are in this act, you can't tell. If you put three lawyers in front of me, I can't tell you which one will have a claim made.
Mr Kormos: I'm not sure I asked the question fairly then. I'm not talking about short, fat, skinny, tall. I'm talking about the size of practice, big city, small town --
Mr Heins: Yes, we've done all of those analyses. Lawyers in smaller practices are more likely to have claims than lawyers in larger practices statistically. That's both by dollar value and by numbers of claims.
The real root issue for us is looking at the way lawyers practise and their course of conduct during their practice, and statistics can't help you with that. Unless you've actually maybe gone in and done the investigations across the profession and then statistically analyzed those, which we are not able to do today, we can't get a profile of that.
Mr Bob Wood (London South): It would have been my understanding that you could impose right now, without the new act, conditions on people's getting insurance. Can you not?
Mr Heins: To a point. We can't go further than the law society's underlying authority. For instance, it would be our view that we could not impose a right of audit through the insurance policy when the law society itself does not have a general right of audit, if you take that point.
The law society can compel the lawyer to purchase insurance, they can direct themto a particular insurer such as us, they can impose terms and conditions under that policy, but according to the opinions that I've read, they can't go as far as actually extending their authority beyond the authority they have in the Law Society Act.
Mr Bob Wood: But insurers can normally do that, can they not?
Mr Heins: That's a matter of contract, though, and is optional. In this instance, lawyers must be insured and they must buy insurance from us. Where I think you might be going with that question, if you then said, for instance, "Let's just throw it open" --
Mr Bob Wood: Since you've raised that, why don't you address that issue.
Mr Heins: If you threw it open, and if I was one of that group of lawyers --
Mr Bob Wood: Since you raised it and I responded to it, tell me what you think the pros and cons are for maintaining the monopoly on the basic coverage and that the pros and cons are for eliminating the monopoly.
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Mr Heins: I guess the pros are that people would have a freedom of choice and perhaps feel more comfortable as to where they were actually purchasing their insurance. The major con to that is that we would see a wide variation in pricing in the market. Some members would not be able to buy insurance based on the claims experience they have or based on their practice profile.
The society would then have to decide whether or not the ability to purchase insurance in and of itself is going to be a reason to push people out of practice. At this juncture the decision has been -- because historically this has already happened -- that that will not be the determinator, in which case they will have to arrange some kind of a facility program for these people, in which case you get back to subsidization from the other members. At that point, all you've done is increase the administrative costs of the program.
The program currently simply returns the profit to the members, to the extent there is a profit in the program, through reduced premiums. It is, by all measures, a more efficient system the way it presently is operated insofar as the membership is concerned.
Mr Bob Wood: On what do you base that?
Mr Heins: Comparison cost of delivering the product under this system as compared to the commercial markets cost. We deliver the product for about 5% of premium. Most commercial programs run 20% to 30%.
Mr Bob Wood: If that's right, if you open the market, LPIC would get all the business, would you not?
Mr Heins: It all depends on whether or not we have to insure all the lawyers. In a free market we would not want to insure all the lawyers. To many lawyers we would say, "We will simply not insure you."
Mr Bob Wood: You wouldn't have to if you had a facility fund.
Mr Heins: Then the profession would have to reach the conclusion that cost of insurance will be the arbiter as to whether you practise or not.
Mr Bob Wood: Do you have a problem with that? If you're an incompetent lawyer and were paying $2,000 a year --
Mr Heins: Incompetence may have nothing to do with it. It may be just the area of practice you choose to practise in, in which case you could well have the public not having access to certain classes of lawyers. For instance, plaintiffs' lawyers in the United States are by and large not insured. The market will not insure them.
The Chair: Thank you very much for coming forward today. We very much appreciate your presentation.
We would call our next presenters forward, the representatives of the Metropolitan Toronto Lawyers' Association.
Mr Gerry Martiniuk (Cambridge): I'm sorry, Mr Chairman, may I interject? This may be an inappropriate moment, so excuse me. I was asked a question yesterday by Mr Kormos and I think it's incumbent on me to reply. As I understood the question, Mr Kormos's query was directed towards whether or not there is a copyright on Ontario court judgments, and if so, has that copyright devolved to the Law Society of Upper Canada?
I am advised by ministry staff that this very issue is the subject of the present lawsuit between CanCopy et al and the law society. As it is a matter before the courts, it would be inappropriate to provide that opinion to Mr Kormos, though it's an excellent question.
The Chair: You may respond, Mr Kormos.
Mr Kormos: What's the government's opinion?
The Chair: I believe we have an answer to that.
Mr Martiniuk: I've just given it to you.
METROPOLITAN TORONTO LAWYERS' ASSOCIATION
The Chair: Just prior to beginning -- I haven't started your time yet -- if you could identify yourself for Hansard we would appreciate it. Thank you for coming.
Mr John Ritchie: My name is John Ritchie and I am the treasurer with the Metropolitan Toronto Lawyers' Association.
Hearing from Mr Heins earlier, I don't know what category I fit into among the lawyers against whose claims -- but I am bald, so whether that category is part of the questions that you were asking, Mr Kormos, I don't know.
The Metropolitan Toronto Lawyers' Association position on this legislation is that we support the legislation other than certain impugned sections, specifically sections 42(2)(a), 49.2, 49.3. Those sections are associated with section 49.5 and 49.6 where a bencher is involved. The key section that we're concerned about is 49.8 and of course the section that effectively eliminates the Statutory Powers Procedure Act rights, that is, 61.2(4).
Those are the sections that we have concerns about. Essentially those sections, in our opinion, give a right of search and seizure which we believe is unwarranted. Our position is that, similar to a government, which governs in the public interest, the Law Society of Upper Canada is supposedly to govern also in the public interest, not in the interests necessarily of the lawyers. The government has created and is subject to the charter rights, which don't give it any right of search and seizure without due process. We believe that the law society should not have the right of search and seizure without due process. The act is, we suggest, quite arbitrary in the sense that the secretary can simply, on his wish or whim, have the right of search and seizure.
Our second point is, to coin a trite phrase, if it ain't broke, don't fix it. We suggest that the existing legislation is quite capable of enforcement. As a matter of fact, I was reading an article from the Star yesterday, and apparently Mr Ruby, who was before you, is a bencher. He therefore represents somebody in power. It's interesting to note that it's funny how power seems to influence Mr Ruby's opinion. All of a sudden he's on side with the law society. I know he has a history of standing up for individual rights.
There seems to be a purpose behind the bill of helping to reform the poor image of lawyers in the province. I'm not sure that legislation will ever improve the poor image of a lawyer. I notice Mr Ruby, at least in the Star article, stated, "The law society is now pretty good at tracking down, after the fact, lawyers who steal or cheat, and we're pretty good at drumming them out of the profession." Ruby said that only 70 of the province's 28,000 lawyers are under investigation for fraud or theft. There are procedures in place, we suggest, without these sections that we impugn being passed.
I would like to add one further matter. Very often, the complainants to the law society are not in fact clients. If clients complain, there really is no problem because it's the client that has the solicitor-client privilege. The client can tell the law society: "I waive the privilege. Do whatever you want with my notes." Very often, complainants are opposing litigants who are unhappy with the fact that a lawyer may have succeeded for his client and they don't like it. They complain to the law society and the law society deals with those complaints.
There is room, we believe, for excesses in those provisions of the proposed legislation. We suggest that they're not needed and that they are in fact excesses, as I have stated.
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The Chair: Thank you very much. That allows us a little over four minutes per caucus. We begin with the third party.
Mr Kormos: Thank you very much. Not only was Mr Ruby here yesterday, but Ms Callwood and Ms Sealy were here yesterday, both of them former lay benchers. Both talked about, Ms Callwood particularly, the need for intervention that may not constitute discipline; that is to say, lesser types of intervention. She indicated she felt frustrated because she couldn't do those things under the current legislation. More directive and disciplinary -- I hope I've put her positions adequately before you. I wonder if you'd comment to that.
Mr Ritchie: We believe that if you eliminate these sections that I've indicated we wish to impugn, the rest of the act gives the power of the law society to go in and do these kinds of questions and answers. What we're concerned about is the power to really go in to the clients' files and have a look. We say if the client consents, there's no solicitor-client privilege so you can go into those files and have a look.
Mr Kormos: I suppose I was responding to your "If it ain't broke, don't fix it" proposition. The executive assistant to the Attorney General is here, as compared to the Attorney General.
Interjection: I find sometimes that's better.
Mr Kormos: He's never happy and rested, as compared to his boss.
Were you consulted during the course of the preparation of this legislation, the Metropolitan Toronto Lawyers' Association?
Mr Ritchie: Not during the course of the preparation of legislation, no. We made a submission and the Attorney General did respond to our submission after the fact.
Mr Kormos: After the bill was --
Mr Ritchie: After the bill had been prepared.
Mr Kormos: The other issue, I suppose, is the comment we just heard from the Lawyers' Professional Indemnity Co. Granted, that submission didn't specifically refer to the sections that you referred to, which others have referred to as well, and I think the CBA is going to speak to them this afternoon. I'm confident they're going to speak to the very same sections, confident because I've heard them speak to them before and I've read their submission in that regard. But what do you say to the LPIC? Again, I appreciate that they didn't identify the sections that you speak of as being the ones which will function to reduce claims, but they spoke of the bill in the broadest terms as having the capacity to reduce claims and therefore reduce premiums for lawyers. I've raised that because where I come from -- I'm from small-town Ontario down in Niagara -- those premiums of, what, $3,340 are a killer. There are a lot of small-town lawyers with modest practices.
Mr Ritchie: Basically there's a difference, as Mr Heins pointed out, between the claims and complaints. We are insured, so the insurer, like any insurer, when there is a claim made against us, can come in and basically do whatever the insurer has to do because we, through the law society, have signed on a policy in which we have to cooperate with LPIC. I'm not sure that what I am complaining about on behalf of the MTLA has any real relevance to what Mr Heins is here about.
Mr Kormos: Finally, and I hope I have enough time, I know what you're saying on behalf of the members of your association, on behalf of lawyers. If you have any idea, what do you think the public's view is? Do you think the public shares your --
The Chair: Thank you, Mr Kormos. Didn't quite get it in. I move to the government members now.
Mr Martiniuk: Thank you, Mr Ritchie, for your presentation here today. I too am steeped in tradition; when were you called before the bar?
Mr Ritchie: In 1973.
Mr Martiniuk: Well, I beat you; I was 1964. In any event, one that is steeped in the tradition --
Mr Ritchie: I had to go through an engineering business for a while. I am also a member of that profession.
Mr Martiniuk: I did an economics degree at the same time, but in any event, I too am steeped in the tradition but I've always been of the opinion that if this society that we live in and our province and our country -- that we must adapt to changing circumstances and we must produce the best product we can. On what rationale would you say that an act that has been around for 25 years is perfect and needs no change? That's sort of what you indicated: "If it ain't broke, don't fix it." Do you feel that the act is perfect in all regards at the present time?
Mr Ritchie: No, hardly. I'm sorry, my comments may have been taken out of context. I am referring specifically to the sections that I stated, and that is the investigative powers of the law society. I agree and I think I opened my comments by saying that those are the only sections of the act which we believe are improper.
Mr Martiniuk: OK. You have no objection to the law society, for the first time, having authority in the field of competence.
Mr Ritchie: Yes, no problem with that.
Mr Martiniuk: Do you think that's a good idea?
Mr Ritchie: I think that's a good idea.
Mr Martiniuk: I travelled around the province on another matter for the Attorney General and I get this strange feeling that some of the lawyers do not feel part of the law society. As I understand it, the law society represents all the lawyers in this province, but you seem to indicate that somehow the law society is more interested in power than representing the lawyers. I really don't understand that philosophy.
Mr Ritchie: The law society does not represent lawyers; the law society's mandate, and Mr Strosberg can speak to this, is to represent the public interest, not to represent lawyers. I'm here speaking for the Metropolitan Toronto Lawyers' Association. We are a group of volunteer lawyers who formed an association. The law society is our governing body but its mandate is to represent the public interest regarding the legal profession, not to represent lawyers.
Mr Martiniuk: And you're here to represent lawyers.
Mr Ritchie: I'm here to represent our lawyers.
Mr Martiniuk: OK. I just want to deal, then, lastly with the philosophy of "privilege and right." As I understand it, being a lawyer in this province is a privilege. There is no right to be a lawyer. You have intermingled, in my opinion, rights and privilege by, for instance, talking about governments and criminal law and dealing with peoples' rights. Here we're not dealing with those; we're dealing with the privilege of practising law and the conditions under which you're going to practise. How do you reconcile those two? Are they identical to you, rights and privileges?
Mr Ritchie: No. That's eliminating lawyers having any rights. If that's the wish of the Legislature, eliminating lawyers having rights vis-à-vis their governing body, then this act should go forward. If the Legislature wants to maintain some rights of lawyers vis-à-vis their governing body -- and there's more than just the legal governing body, obviously, in terms of the professions now. I think this government has established a governing body for teachers even, as I understand it. The issue is the rights now of lawyers vis-à-vis their governing body. We believe that lawyers should have some rights vis-à-vis their governing body.
Ms Annamarie Castrilli (Downsview): Thanks very much for being here. I don't hear you saying that you're against the thrust of the bill. What I hear you saying is that there are some sections of the bill that you would like to see changed, amended, clarified, in the public interest.
Mr Ritchie: Correct.
Ms Castrilli: Let me ask you if you could be a little more specific. I've heard your objections to the various sections. One of the jobs that we have to do here in committee is to look at the legislation and then make practical amendments to the legislation if warranted, so I wonder if I could ask you elaborate on some of the points that you've made and help us in our job.
I have before me a letter from the Information and Privacy Commissioner. You don't have the benefit of that but, if I may, I will read a couple of sections because they mirror some of what you've said. The commissioner's office says, "I believe that consumers of legal services would accept (and expect) that the law society has some access to their client files for the purpose of maintaining standards in the profession.... The challenge is to provide adequate safeguards to ensure that personal information is only collected and used to the extent necessary."
The first question I would ask you is, would you agree with that? My sense, from what you're saying, is that you would. If you do, then the second question is, what kind of safeguard, in the opinion of your association, would be adequate?
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Mr Ritchie: The answer to your first question is yes. The second is that, as I mentioned earlier, due process is something that we believe in as an association. When I say "due process," that means that in order for an investigation to take place, in order for somebody to go through your files, there should be reasonable and probable grounds that should be looked at by an independent arbiter of some sort.
We haven't canvassed an exact wording that should replace the section. For instance, section 49.3 simply says, "The secretary shall require an investigation to be conducted into a member's conduct if the secretary receives information suggesting that the member may have engaged in professional misconduct." The secretary's making an arbitrary decision. There's no due process involved. For whatever reason, that individual would just make the decision. It doesn't say there has to be reasonable and probable grounds. There doesn't have to be due process.
We would certainly suggest that any kind of legislation along these lines have a due process clause. For instance, in the Criminal Code of course, as you know, if there's suspicion, then you take your suspicions to a judge and he looks at them and issues a warrant if he believes there has been conduct. There could be a body of the law society set up, a group of benchers who are charged with this task much like a judge is. That would be an alternative. There just has to be some due process.
I suggest going even further. I know the law society takes the position that the law society is the repository of the solicitor-client privilege. I take great issue with that personally. We haven't gone over it to any extent in our association, but obviously our concern is what happens to the information the law society collects.
Ms Castrilli: The Chair tells me I don't have more time, but thank you very much.
The Chair: Thank you very much for coming forward today. We very much appreciate that.
LAW SOCIETY OF UPPER CANADA PROFESSIONAL REGULATION SUBCOMMITTEE
The Chair: We would call our next presenters, if representatives of the Law Society of Upper Canada legislative subcommittee could come forward and identify yourselves for Hansard. Thank you for coming.
Mr Gavin MacKenzie: My name is Gavin MacKenzie. I'm here in my capacity as a bencher of the law society and a vice-chair of the law society's professional regulation committee, which is the standing committee of the law society that has responsibility for discipline, policy and professional conduct, as many of the members here will know. But just so that you have a broader view of the perspective I bring to this, I should tell you also that over a number of years in my professional practice as a lawyer, I've done a good deal of professional discipline work. I've often represented lawyers before the discipline committee of the law society and convocation. There was a period of about three years in the early 1990s when I served also as the law society's senior counsel for discipline, and in that capacity I was the senior person responsible for prosecuting complaints of professional misconduct and conduct unbecoming.
There are really three things I wanted to touch on in my presentation today. First, I wanted to talk about the need for reform very briefly. I've been involved in the various capacities I've mentioned over a period of almost a decade now in the law society's initiatives to try to reform its discipline and investigation process to make it more efficient and more effective and to serve the public better. I'm delighted that this bill has now reached this committee, and it's certainly my fervent hope that it goes forth and is enacted into legislation.
With respect to my friend Mr Ritchie, the last presenter, in my respectful view the system is broke. It is in need of reform and change. The system we now have for discipline is a cumbersome, two-tiered process that could be much more streamlined, much more efficient. The law society is often criticized, and sometimes with justification, for not identifying quickly enough problem lawyers, lawyers who are not as competent as they should be, who are not honest. It's certainly a blot on the profession as a whole which lawyers want to eliminate where discredit is brought upon the profession because of the acts of dishonest or incompetent lawyers. So I say with respect that reform is urgently needed.
The two aspects of the bill I wanted to speak about briefly are two aspects that have been touched upon by other presenters as I've been sitting waiting my turn today. The first has to do with the standard that the law society should be guided by or required to abide by in starting an investigation, which is an aspect of the matter that Mr Ritchie spoke about. The second aspect of it is the privilege and confidentiality of client documents. Both of these are very tricky subjects that are difficult to balance.
On the first point, what I wanted to do was to make it concrete for you, just to explain why that standard for initiating an investigation, in my respectful view, should not be too high. One possibility is that the law society should require reasonable and probable grounds, a standard that Mr Ritchie referred to in his presentation, before starting an investigation that would permit it to look at client files. In my view, that's too high.
One reason why is that the law society often will get anonymous complaints. For example, a secretary or a bookkeeper in a lawyer's office may write a letter to the law society anonymously. For obvious reasons, that secretary or bookkeeper won't want to identify himself or herself because his or her job may be in jeopardy, but will write a letter to the law society saying, "You should come in and do an investigation of the books and records of my employer" or "You should look at this particular file and what happened to the settlement funds in that personal injury complaint."
Because it's anonymous, the law society can't immediately verify with the complainant whether there's anything to that complaint or not. It may very well be a frivolous or vindictive complaint. Sometimes the law society will get anonymous complaints from disgruntled former employees, disgruntled former spouses. There may be nothing to them. The problem is that because it's anonymous, the law society just doesn't know, but it's very much in the public interest that the law society have the power to go into that lawyer's office and to look at that file and look at those books and records that have been identified by that anonymous complainant, because more often than not there will be cause for serious concern. As I say, it's very much in the public interest that the law society have the power to go in very quickly.
So however you define the standard, is that reasonable and probable grounds? Probably not. The complaint is anonymous; we can't check it. We don't know whether that's reasonable and probable grounds. It is information suggesting there may be a problem, which is the wording of the current version of Bill 53. All I would urge you is not to set that standard too high, because you won't be serving the public interest if you do so.
As for privilege and confidentiality, that too is a very tricky subject. What I want to emphasize before the committee, though, is that there's no way that the regulator, the law society, can do a proper job of investigating a lawyer without looking at client files. It can't do that any more than the College of Physicians and Surgeons could do a proper job of investigating a doctor's practice without looking at patient records. It's absolutely essential that the law society have authority to look at those client files. It can't do so without the client's consent, and often the clients are not positioned to consent. It's important as an investigative tool that the law society have the power to review client files; otherwise it simply can't do its job as a regulator.
There's no question that information that is imparted by clients to their lawyers with an expectation of confidentiality remain confidential. Bill 53 makes it very clear, as in my view the current common law does, that if the law society as the regulator looks at privileged material and requires it for an investigation or a discipline hearing, the law society is required to maintain that privilege, and that's as it should be. That privileged information should not be used for purposes other than the investigation, but it would be my respectful submission to the committee that the law society should have the power, must have the power, to review that privileged material.
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The only thing I'd add to that is that over the last 30 years the law society has taken the view, based on a leading authority in the English courts, that the regulator is the repository of the privilege; in other words, is entitled to look at that privileged material, but is obligated to maintain it in confidence. The law society has always observed very strictly and will observe its obligation very strictly in the future to maintain the confidentiality and privilege of that material. Nobody is more sensitive to the importance of solicitor-client privilege than the elected benchers who are elected to those positions by their peers. They are lawyers; they respect privilege. For example, in the past when police officers have done an investigation and have asked the law society to produce material from its files, the law society has flatly refused to produce for the police privileged information that it has acquired, client information that it has acquired as part of an investigation, and it will continue to observe that privilege in the future.
Those are the comments I wanted to make to the committee. Obviously, I'd be very happy to respond to any questions you may have.
The Chair: Thank you very much. That allows us just a little over three minutes per caucus. We begin with the government members.
Mr Martiniuk: Thank you very much, Mr MacKenzie. I'm interested in the process that the law society followed, and for what period of time. I take it you were the vice-chair of the legislative subcommittees so you would be familiar with that. Could you tell us when the internal review of the law society was initiated and what the procedures and practises were that you followed?
Mr MacKenzie: I'd be happy to do that, Mr Martiniuk. The process started in 1989, in short. There was a special benchers' committee chaired by Roger Yachetti, who was a bencher at the time, to look into the law society's discipline process and how it should be reformed. There was a second special committee chaired by June Callwood, from whom you heard yesterday, to look into the complaints process of the law society.
Those two committees reported. With some revisions, their reports were accepted by convocation. Some of those recommendations did not require legislative reform and have now been in place for a number of years. Others did require legislature reform and are pending here. After that, convocation from time to time has reviewed various versions of the legislative package that has now gone forward to the government and has approved these.
That's how long the process has been going on.
Ms Castrilli: I don't think there is anybody who is going to quibble that there's a need to reform. The amendments have been a long time coming and they've been advocated for a very long time. The issues that you raise, though, are the most troubling ones that face the committee. Not only are they very sensitive, but as we draft the legislation we want to make sure it's the best possible legislation that we have.
I raised before the issue of the letter, the opinion of the privacy commissioner. In particular, on the second point that you make, the privacy commissioner has indicated that the bill should contain specifics about what kind of information would be collected, under what circumstances, and make sure that there is secure retention of that information in order to protect the solicitor-client privilege. The dilemma that we're in is, we're not trying to impugn the law society and the way the law society conducts its business, but there are very specific recommendations that have been made by the privacy commissioner, who feels the legislation is inadequate with respect to those particular issues. I'd be interested in your comments.
I'm hearing you say that we should leave the status quo, that the law society has always behaved appropriately in the public interest and will continue to do so. On the other hand, we have a privacy commissioner who says, "Well, that's all very well and good, but we'd like to see something specifically in the bill that addresses these issues of confidentiality and privilege."
Mr MacKenzie: I can respond to that by saying that the bill does specifically address the questions of confidentiality and privilege. I've read the commissioner's letter and I certainly agree with the privacy commissioner that there's a difficult exercise in balancing the various interests there.
One of the difficulties is that I think it's impossible to foresee all the eventualities that are going to arise in specific investigations. Perhaps the best approach in those circumstances is to specify that the law society needs the power and has the power to review documents that are private and privileged and confidential but has the obligation to maintain them in confidence and not to use them for any other purpose.
I think it's explicit in the legislation that the privileged and confidential documents that the law society has the power to review and seize are those relevant to the investigation, relevant to any charge of professional misconduct that may be laid arising out of them. It's certainly clear to me from the bill that there's no realistic risk that the law society is going to seize irrelevant personal information concerning a client and use it for any ulterior purpose. The law society would be in breach of its duty if it were to do that. My view is that there's a very difficult and sensitive balance to draw there but that the current bill does strike the right balance.
The Chair: Thank you for your presentation today. We very much appreciate your coming forward.
COUNTY OF CARLETON LAW ASSOCIATION COCHRANE LAW ASSOCIATION
The Chair: We would call upon our next presenter, the County of Carleton Law Association. Thank you for coming.
Mr Bill Simpson: Thank you very much. I am going to stay around and be part of the Canadian Bar Association's delegation as well in 20 minutes. However, at the present time I'm here representing not only the County of Carleton Law Association but I've been asked to represent the Cochrane Law Association, which was going to be present but because of a conflict in scheduling was not able to be here.
The lawyers for each of these two organizations are quite generally supportive of Bill 53, especially the complaints resolution commissioner, the competency, and not only competency but also the incapacity provisions that have been put into the bill, regional election of benchers and so on. There are only a few areas that we are objecting to. We have done this because we feel the act should be amended because there are these deficiencies in there.
As a lawyer practising in the city of Ottawa, we have just recently endured three full weeks' worth, about 23 days, of front-page stories in the Ottawa Citizen. The Ottawa Citizen was running these right on the front page, all about rogue lawyers and about the deficiencies that the law society had concerning getting rid of these rogue lawyers and the harm that was being done. It featured a number of disbarred lawyers going back 10, 12, 13 years in some cases. The theme of the story was simply that the law society wasn't fast enough to root out the lawyers and that there should be more regulation, that there should be a friendlier insurance system and that the compensation fund should be fully funded to make sure that no client lost any money. After going through this, on the last day that the reporter was representing, he gave 10 pieces of advice under the heading, "Buyer Beware: Ten Ways to Avoid a Crooked Lawyer."
The first piece of advice he gave was to use a paralegal, a completely unregulated and uninsured paralegal who would be able to do wills, uncontested divorces, various other things that the reporter thought should be done. So after spending three weeks in which it looked like he was telling us the law society needed to do a number of things, the first thing they suggest is, "Don't use lawyers, because paralegals can do them."
Why I mention it in this setting is only because you're being asked to pass this bill in the aftermath of those stories, and although the stories come out and certainly target the law society, there seems to be another agenda to these stories. They were all one-sided and there was very little behind them.
Bill 53 gives the law society a lot more powers, and we haven't objected and aren't objecting about that. The associations I am representing today only object to overriding the interests of clients, the rights of innocent clients and the rights of innocent lawyers. In the later presentation, Mr Rosenhek will join me and he will be talking more about the solicitor-client privilege and the problems of confidentiality.
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For the next couple of minutes, I want to focus on one area of the search-and-seizure provisions, and that's the area of taking away a lawyer's computer. As you may recall, section 49 is so set up that there need not be any grounds at all to begin an investigation, and if an investigation is begun on the suggestion or the rumour, the right to enter a lawyer's office and take away the computer is absolutely given to the investigator. It is not something that any more grounds than reasonable, or any reasonable grounds, should be there.
That computer is supposed to be taken away for the purpose of copying relevant information and then returning it, and it's to be returned promptly.
At the airport on the way down here today, I met the senior regional judge for the Provincial Court in Ottawa for eastern Ontario and he brought up the aspect of the computers. He said: "On this idea of taking computers away to copy things, the RCMP do that now, police forces do that now when they're doing investigations. It's months before they finish because they're trying to figure out what has been deleted and what may be encrypted and it's not necessarily something that is going to be returned within a few hours or a few days."
What "promptly" means will be left to the individual case and if they can't get the information off fast enough, then promptly could turn out to be a long time. If somebody is running an office, the loss of the computer during that period of time is devastating. For instance, somebody might want to put in a submission to a legislative committee and have it all prepared, and the computer's taken away and they can't finish it off at the proper time and they have to start over.
Those are the only comments I want to make about the computer aspect.
I want to raise something Mr Martiniuk raised with a previous witness and that was with respect to privileges and rights. Yes, it is a privilege to practise law, but the Supreme Court of Canada has in fact found that law societies across the country are subject to the Charter of Rights and Freedoms, and because of that lawyers actually have some rights. They have privileges, but there are rights involved as well. If this Legislature passes something that is beyond what is allowed by the Charter of Rights and Freedoms, which is the suggestion that is being made by the CBAO and by the other associations, including the Metro Toronto one that Mr Ritchie was here for, then when that happens, you're going to either have to make sure there is nothing wrong with what you're doing or you're going to have to override the Charter of Rights and Freedoms.
In this regard, let me just read one quote from Chief Justice Lamer in a 1993 case in the Supreme Court of Canada:
"Searches are an exception to the oldest and most fundamental principles of the common law and, as such, the power must be strictly controlled. There are places for which authorization to search should generally be granted with reticence and, where necessary, with more conditions attached than for other places."
He goes on by saying, "One does not enter a church in the same way as one enters a lion's den" -- you must take a lot more precautions before you go into the lion's den -- "or you don't go into a warehouse in the same way as you go into a lawyer's office."
That's where the problem comes in. In a lawyer's office there are confidences involved, there's more than the clients involved. It's something that is not the same as regulating a kitchen or a warehouse and there are certain rights that have to go along with that.
Those are the remarks I'd make at this time, members of the committee.
The Chair: Thank you very much. That allows us approximately three minutes per caucus and we begin with the official opposition.
Ms Castrilli: Mr Simpson, you came a long way to make your presentation and thank you.
I want to deal for a moment with this issue of a search and seizure. You quoted section 7 of the charter and I've asked previous presenters here if they felt section 7 of the charter was absolute, if there are any reasonable limits, and you might want to comment on that. But if the law society gets a complaint and they believe there are grounds for that complaint, what is an unreasonable search and seizure under those circumstances, in your view?
Mr Simpson: First of all, the problem is that the way the legislation is drafted, there is no requirement for them to have reasonable grounds. If you go back to what was actually passed by convocation, by the benchers, and was submitted to the government, which was to be section 34.3, they indicated that the secretary was going to investigate where the secretary receives information leading him or her to believe that the member may have engaged in professional misconduct or conduct unbecoming.
There was a very different test when the law society first sent this to government. Why it got changed, where it got changed, I've never been able to find out. I'm not privy to that, but all of a sudden it goes from having reasonable information to believe to having a mere suggestion of misconduct.
To suggest that because a lawyer's secretary who may have just got fired or is about to be has complained about the lawyer or that somebody else who is disgruntled complains against the lawyer, there's no reason they can't investigate, the problem comes in as to what they can do automatically when they start to investigate. Unless there's something more to an investigation than mere suggestion, the power should not be given to the investigator.
Ms Castrilli: We live in a computer world and you raised the issue of computers. All the lawyers I know rely on their computer. I hear what you're saying, that it may take a long time to copy the information. On the other hand, what should the law society do to gain access to the information in that computer that will assist them in their investigation?
Mr Simpson: Surely that is something where there should be somebody other than an investigator making the decision whether there are reasonable grounds to believe that something is going to come on from there. Section 8 of the Charter of Rights and Freedoms says that everybody -- the last I read, it included lawyers -- had the right to be free from unreasonable search and seizure. To have somebody able to take that computer away with everything that's in there, personal, private and also business, relating to every client you might have, goes well beyond. They should certainly have to move to do something other than have suggestions and suspicions.
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Mr Martiniuk: Thank you very much for your presentation, Mr Simpson. How do I, as a legislator, explain to the public that lawyers feel that, as a matter of solicitor and client privilege, there should be or could be substantial delays which would not protect the public? How does one balance the public good with what you are talking about as lawyers' rights?
Mr Simpson: I'm not sure whether we're talking about lawyers' rights or solicitor and client problems in your question.
Mr Martiniuk: They work out to the same thing because lawyers could be accused of using clients' rights as a shield, so we're really coming down to lawyers' rights and how they can be investigated.
Mr Simpson: Let me talk about the clients, first of all, because if a client has made the complaint, the client surely is going to consent to that client's file being looked at. If, however, the client hasn't been the consenting one, if it comes from a third party, and you often get this in aspects such as family law where the other party, the other spouse makes a complaint, that type of thing, that third-party complaint is something that in those rare circumstances, and it's a rare circumstance -- it's not very often that that happens, I'm led to believe by the law society -- that there is actually going to be a situation where they're going to want to look at things where the client hasn't complained, in those rare instances they can either ask the client to consent, or if the client won't consent, they should by that time have some reasonable grounds to seal the file and apply to a judge. It's not necessarily a long delay. You may be talking about a day, two days at the most.
Mr Martiniuk: In your experience, have you ever heard of an occasion or have you personally had knowledge of privileged information being divulged by the law society, or any member thereof?
Mr Simpson: I've been told about that. I've been told that certain things have been leaked to certain places at times. I'm sure the law society has a policy that that not happen. I have been informed at times that the Attorney General's department has been informed of things, on what basis I don't know. I have no personal knowledge and I don't really want to get into that.
Mr Martiniuk: These are just rumours.
Mr Simpson: Suggestions -- same as section 49 says.
Mr Martiniuk: You have no personal knowledge?
Mr Simpson: No, I don't.
The Chair: Thank you very much, Mr Martiniuk. Thank you very much for that presentation. You may remain seated because I understand you're part of the next presentation.
CANADIAN BAR ASSOCIATION -- ONTARIO
The Chair: If the other representative of the Canadian Bar Association -- Ontario could come forward and identify yourself for Hansard, we would appreciate it. Thank you for coming.
Mr Steven Rosenhek: Thank you very much, Mr Chair and members of the committee. My name is Steven Rosenhek. I am the president of the Canadian Bar Association -- Ontario and I'm pleased to be here to represent the Canadian Bar Association in respect of its submission in respect of this bill.
As a first step, I want to introduce the Canadian Bar Association to you. It is a group representing more than 15,000 lawyers, judges and law students in Ontario. In the submission that I believe you have before you, on the first page you will see what our mission statement is.
We are an association of lawyers, judges and law students in Ontario. Our purpose is to advance the interests of our diverse membership and to promote the essential role of the legal profession in our society.
We seek to strengthen our role as the recognized voice for the Ontario legal profession, in co-operation with other legal organizations, and at the same time maintain and enhance our core activities.
I want to tell you at the outset that the Canadian Bar Association -- Ontario strongly supports the vast majority of the bill that is being considered by this committee.
The points that Mr Simpson and I wish to address to the committee have to do with specific matters, specific sections of the bill before you to which we take objection or about which we have concerns. This does not detract from the essential and core fact that we support, by and large, this bill virtually in its entirety. There are significant concerns, however, about some of the provisions that we will speak about today.
As a further housekeeping matter, I want to indicate that I have a letter from the Cochrane Law Association indicating that its president is unable to make submissions, but fully endorses and supports the position of the Canadian Bar Association -- Ontario and the County of Carleton Law Association with respect to Bill 53. I have that available for the members of the committee.
I also have, to the extent it has not already been made available to you, a letter dated October 2, 1998, to the Canadian Bar Association -- Ontario from the Information and Privacy Commissioner/Ontario, Ken Anderson, director of legal services division, outlining concerns that body has with respect to some of the items I'm going to address. I'm happy to make those available to the members of the committee to the extent you wish to have it available.
I will address two discrete portions of this bill. The first is the provision of the bill with respect to the abrogation of solicitor and client privilege. The second is with respect to the provision that deals with the ability to derogate from and fail to incorporate the protections of the SPPA with respect to the bill that's before you.
I am now directing my attention, and I hope you will as well, to page 2 of our submission with respect to the secrecy of non-complaining clients' files.
In essence, the Canadian Bar Association's starting position, and I think a recognized legal concept, is that the protection of that is granted to confidential information and documentation that changes hands between a client and his or her lawyer, is protected by the concept of solicitor and client privilege.
Furthermore, that concept of solicitor and client privilege recognizes as a fundamental proposition that the protection is that of the client. It is not that of the solicitor; it is not that of the government; it is not that of the governing body of the solicitor who happens to be involved in the enforcement of the protections and responsibilities that fall within the Law Society Act or the governing body of lawyers.
We start from the fundamental proposition that the protection is that of the public. I suggest respectfully to this committee that it is well established in the case law and a well-known fact to lawyers as well as to members of government that that protection is that of the client, that that protection is designed to protect the client and furthermore that it is only the client's to waive or discard if he or she sees fit.
Starting from that fundamental proposition, we take issue with these proposed sections, which in effect render those protections of no value or arguably wipe them out completely for the purposes of the proceedings contemplated by these sections.
We at CBAO respectfully suggest that it is inappropriate that those protections be erased, that they be discarded and that they be able to be discarded at will as is specifically contemplated by the provisions of section 49.2 with respect to making admissible in a proceedings information or documents even if the information or documents are privileged or confidential.
We then have the issue of why it is important that this protection be preserved, recognizing that it should be preserved, and the courts have long said that it should be preserved.
It should be preserved for the simple reason that clients should have the right to feel that their confidential information and documentation, conveyed to their lawyer, is granted protection. They should be safe in the knowledge that that protection can only be waived by them and with their knowledge.
What is contemplated in these sections is a procedure whereby that right not only will be eliminated, not only in our respectful submission will it be trampled upon, but it will be done without notice to the very person whose protection it is and remains. We say there's a good reason why that should not take place, because we want to ensure that clients are confident that confidential information and documentation is protected, and furthermore that they will be free from the fear that that information that is conveyed to their lawyers will, at some point in the future, without their knowledge be dispensed with and released, potentially with harmful consequences to the client.
That is the essence of my submission with respect to solicitor and client privilege. Where does that leave us in terms of what we are specifically recommending? We are specifically recommending there be a provision analogous to that which obtains in a variety of other statutes that contemplate the exact same thing that's being proposed in this situation, where documents are being seized, for example, from a lawyer's office, and those files might contain information that is confidential and is provided in confidence by a client to his lawyer: the Income Tax Act, the Criminal Code and the like.
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The protection we seek is the standard protection which is granted in these situations, which is that the records be sealed and that there be a determination by a court based on information and material that clients want to put forward to protect that confidential information and a determination by a judge based on that information as to whether or not it's appropriate that the confidences in the documentation be protected.
In respect of the SPPA protections, what we are saying is that there is no good reason for a provision such as subsection 61.2(4) which, in effect, can nullify the protections under the SPPA. The SPPA rules are designed to afford minimum levels of procedural and evidentiary protection in the context of hearings. There's a good reason for SPPA protections because there is the risk of abuse otherwise and the failure to abide by minimum levels of fairness and procedural protections. What this section purports to do, and what it can do if abused, is eliminate those protections for hearings as important as those leading up to and resulting in disbarment.
What we have simply said to the law society and what we simply suggest to the government is that it makes sense that those protections be retained in a certain enumerated class of proceedings that are considered to be important. It may not be necessary; in fact, we don't advocate it. We don't advocate that it be necessary to consider that those protections obtain in all situations of all hearings, but certainly it makes good common sense and it accords with other pieces of legislation to ensure that important hearings, such as those that can lead to disbarment and the elimination of a lawyer's ability to practise and earn a livelihood, should have those protections.
All we need to do to correct that problem, with the greatest of respect, is to incorporate into the section an exception which eliminates the risk that the SPPA will be eliminated from hearings which are of fundamental importance, such as hearings leading to disbarment.
Those are my submissions in respect to those two sections.
Mr Martiniuk: Thank you very much for your presentation. We heard yesterday, In particular, that a compromise possibility might be for a member of the law society, a person of authority, to reach a certain legal determination in his mind rather than approaching a court; for instance, the secretary reaching the conclusion that there are reasonable grounds for a search. What would your opinion be in that regard?
Mr Rosenhek: That is an issue that is different in some ways from the issue of solicitor and client privilege, but if you're asking me whether or not it makes sense that the watchdog for the ensuring of protection to clients be the party that is doing the seizing, I respectfully suggest that that's inappropriate.
The whole reason why it makes sense, in the context of other statutes, to ensure that an independent, overseeing court make that determination is precisely because there can be overexuberance and abuse by investigators in the context of carrying out their responsibilities. That's the reason why, for example, in the context of the Criminal Code, the police don't decide whether or not the protection should be granted in the context of searches that they undertake.
The court is the independent watchdog, and in our respectful submission there's no good reason, there's no logical reason why it should be anybody other than the court, in respect of overseeing the responsibilities of an investigator who is purporting to, and runs the risk of, releasing or falling upon confidential information that a client, whose right it is to protect it, doesn't want released.
Ms Castrilli: I'd like to focus on the part of your submission on the SPPA. I think it's the first time we've really had a chance to look at it.
The way I read subsection 61.2(4) is that the Statutory Powers Procedure Act applies, except insofar as there's a conflict with rules that may be made by convocation with regard to the hearing panel and the appeal panel and what orders may be made under that. So it's not blanket; it's tailored.
You're saying that's still too wide, that there may still be some orders for some hearings that should require the Statutory Powers Procedure Act to apply even under those circumstances. It seems to me pretty narrow when I read this and I'd really be interested in your view as to how you perceive it.
Mr Rosenhek: Yes, you're quite right. This section purports to allow convocation, for example, to make rules governing the conduct of hearings. Yes, it's quite possible that convocation could make eminently sensible and fair rules in respect of the conduct of hearings and there's no reason to believe that they wouldn't, in their wisdom, do that.
The risk is that convocation is a temporal thing. It doesn't withstand the passage of time because benchers come and go. So in order to ensure that there is an established and well-documented standard for the protection of those who are going to come before their discipline body for the life of the legislation, it makes sense that they know that those rules are going to be made, first of all, sensibly and for a period of time that can be relied upon.
It is precisely for the same reason, in response to the previous question, that one doesn't want to have the police overseeing the searches. One doesn't want to have the secretary of the law society, against whom we take no issue, deal with issues that may affect the conduct of proceedings for a period of time that will go far beyond the life of the people who are making the rules.
There's no reason why, in a case leading to disbarment, there should be any good reason not to invoke the protections of the SPPA. There may be grey areas in respect of rules, in respect of hearings that don't have that fundamental importance, but one thing is perfectly clear: You can tell today and you can tell 10 years from now that in respect of hearings that lead to disbarment, those are important hearings. There is no good reason why the SPPA shouldn't be decreed, for all purposes, to apply to those hearings.
Ms Castrilli: Are those the only two types of hearings that you would specify? You don't specify the types of hearing.
Mr Rosenhek: The types of hearings are the hearings which can lead to disbarment.
Ms Castrilli: So any hearing that leads to disbarment should be subject to the SPPA, in your view?
Mr Rosenhek: Any hearing that can lead to disbarment should be subject to the SPPA and there should be no reason to question why that wouldn't be the case. In respect of other matters, it may be that rules can be appropriately designed from time to time.
The Chair: Thank you very much for coming forward today.
Mr Simpson: Mr Chair, I noticed that we only had 15 minutes of the allotted time. Can I take two minutes just on one area?
The Chair: I'm afraid that the other minutes were in the event that the NDP had shown up. The time was divided equally between the three caucuses at the conclusion of the presentation.
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LAW SOCIETY OF UPPER CANADA
The Chair: At that, we would call our last presenters forward, if the representatives of the Law Society of Upper Canada. Thank you for coming. You may begin.
Mr Harvey Strosberg: My name is Harvey Strosberg and I'm the treasurer of the law society, and that's the president of the law society. Frank Marrocco is chair of our government relations committee, and Elliot Spears has been involved as a liaison with the government.
There is one important, overriding obligation the law society has, and that is to govern the profession in the public interest. You, as legislators, represent the public interest. The law society governs the profession in the public interest and the Metropolitan Toronto Lawyers' Association, the Carleton county association and the CBAO represent lawyers' interests. Those three distinctions are fundamental.
The Law Society Act was last amended in 1970. There were 7,181 lawyers in Ontario at that time. Today there are 28,668 lawyers, 400% more lawyers. Bill 53 enhances the law society's ability to deal with discipline, incompetency and capacity. Without the powers that are set out in Bill 53, the society cannot efficiently govern this profession in the public interest. There is no question about that, and make no mistake about the fact that this bill fundamentally changes the relationship between lawyers and the society. That is the reason you've seen organizations that represent lawyers come forward and say they want changes to part of this bill. Understandably, lawyers or some lawyers may be upset about this. But make no mistake about it, the changes that were suggested by the lawyers' organizations would eviscerate this bill, would mean that you could not possibly govern the profession in the public interest. Make no mistake about that.
It is impossible to suggest that the law society can deal with issues of competence without the ability to go into a lawyer's office and look at a large number of files. To suggest that you go out and get the consent of 50 or 100 clients is to say that you will have no ability to deal with competence. You will have no ability to deal with 20% of this profession that's causing 80% of the losses. Without the right of the law society to go in and look at a lawyer's file and require a lawyer to answer questions about allegations of misconduct, the law society will be stonewalled, and stonewalling is what is happening today.
What is suggested by the lawyers' advocacy groups is that there should be a regime that equates lawyers and their regulator to members of the public and the police. I say to you, that's not in the public interest. That is not an equation that makes sense logically nor does it make sense in the public interest.
I found it interesting that there is a complaint that the lawyers' groups assert about what they say is a breaching of solicitor-client privilege. This act says, and should say as clearly as it possibly can, that the law society is the repository of the privilege. Therefore, this act enhances solicitor-client privilege because it makes it absolutely clear that when the society gets the information that it gets from time to time the privilege is maintained. I find it rather ironic that lawyers' advocacy groups are wrapping themselves in the cloak of representing the public interest by being concerned about solicitor-client privilege when the net effect of their position will mean that solicitors will effectively be immune from appropriate regulation by their regulators.
This bill will reform the discipline system. There has been some suggestion about discussion from the privacy commissioner. I have written to the privacy commissioner and explained to the privacy commissioner -- and I'll set this letter out to you afterwards -- that the law society is acutely aware of the importance of privacy. I've offered to the privacy commissioner that, hopefully, when this bill is passed, we will work with the privacy commissioner to develop rules that will ensure that confidentiality is maintained.
The privacy commissioner wrote on December 3, 1998 and said:
"I understand the position that the law society has taken on this matter. The fact that the law society plans to build on the protections for confidential information by developing detailed privacy protocols is very encouraging news. I am indeed pleased to note that this project would take place in consultations with a wide range of stakeholders. In this context, I would be happy to commit the resources of my office to provide whatever assistance may be needed.
"My executive assistant, Greg Keeling, will contact you to schedule an introductory meeting on this issue. I look forward to meeting you."
I am delighted to say that the privacy commissioner will work with the law society in developing protocols that will satisfy the privacy commissioner.
It is also, I believe, significant that the Criminal Lawyers' Association has sent a letter to the Attorney General and was kind enough to send me a copy. These are the lawyers who go to court and deal in the criminal context every day. They have made a number of suggestions. The one suggestion that they made was under subsection 49.3(4), that the threshold of reasonable suspicion be required before a person conducting an investigation may be required to produce documents or before a person enters the premises.
That is not anywhere near the kind of standard that's been suggested by the other three advocacy associations, which I would suggest to you demonstrates the unreasonableness of the position that has been put forward by my friends who preceded me. I would tender this: The suggestions that the Criminal Lawyers' Association have made are sensible and reasonable suggestions.
Let me close by commenting upon the Statutory Powers Procedure Act. The law society operates through convocation. Convocation has, historically, given the full panoply of rights to lawyers who appear in discipline hearings. This section, relating to the Statutory Powers Procedure Act, fairly sets the balance. What is important here is that there is flexibility. I have said repeatedly that the law society will consult with a wide range of stakeholders in setting bylaws and setting rules.
This legislation was the result of a process that started in 1988 or 1989. There's been a huge number of people who have had input. The law society will take advantage of the input of all of the organizations that represent lawyers, the Attorney General's department, the privacy commissioner, and that will be put before convocation.
At the end of the day, the law society is governed by benchers, and in Bill 53 you provide that there will be a benchers' election every four years. At the end of the day, if benchers do not act reasonably, benchers will be removed in the same way that legislators sometimes are removed.
Make no mistake about what we're dealing with here. The positions that were put forward by the other groups are political positions that are intended to make it clear that those organizations, which, by the way, are talking about merger, are acting in the best interests of lawyers. You here today must act in the best interests of the public. We believe that to govern the profession in the public interest we must have this power. I would ask you to pass this legislation.
I have a handout which has some suggestions about some cosmetic changes that I would ask you to consider on your clause-by-clause determination. I'm grateful that you've heard me out.
1710
Mr Crozier: Welcome, Mr Strosberg and your colleagues. I have just a comment, and I say this with the greatest of respect because I know you. Now I have a little better understanding of how lawyers can argue both sides of a case, depending upon who they're hired by. I say that because you and others, I assume, belong to the Canadian Bar Association. Would you and other benchers belong?
Mr Strosberg: Yes, for sure.
Mr Crozier: But they're so wrong and the law society is so right. It's kind of interesting.
Mr Strosberg: I suppose the answer depends upon which side of the fence you sit on. Lawyers are very good at compartmentalizing. When I'm here representing a group that has an obligation to govern the profession in the public interest, I have a different set of obligations I have to follow, and those are priorities that have to take precedence.
Mr Crozier: With respect, I appreciate that.
Ms Castrilli: Let me ask you a question. Forgetting for a moment the comments that have been made by the lawyers' association, we have to deal with the concerns of the privacy commissioner. You in fact have said that you've been in correspondence with the privacy commissioner. I'm delighted to hear that. The letter you've quoted from is from Ms Cavoukian herself?
Mr Strosberg: Yes, it is.
Ms Castrilli: Has she in any way revoked the opinions that have been set out in the October 2nd letter we have?
Mr Strosberg: I can't speak for her any more than you can by the basis of this letter.
Ms Castrilli: But the letter doesn't contain that. It just says it wants to work with the law society.
Mr Strosberg: The law society believes it's important that it's set out in this legislation clearly that privilege is maintained. Any wording that would increase and make clearer that privilege is maintained as a result of disclosure to the law society, I'm all in favour of. We believe the language that's here, or if you strengthen the language, would be fine. Privilege would be maintained and confidentiality has to be maintained.
We believe that fervently, so we're on all fours. We think it's done by this legislation and we think it can best be dealt with on a flexible basis by dealing with bylaws and rules.
Ms Castrilli: Chair, this is an important point. This is our last presenter. We're ahead of schedule. Could we ask for unanimous consent to extend by a couple of minutes? Would that be all right?
The Chair: Two minutes.
Ms Castrilli: For each party, if that's all right? Thanks very much.
The privacy commissioner, on October 2, set out some concerns. I tell you frankly, I've asked questions but the time hasn't allowed for an in-depth discussion. The concerns raised in that letter haven't been addressed to any real extent, except the letter you've presented that says: "We'll work with the law society to strengthen the language, to work on some set of regulations following the passage of the act as is." If I'm misquoting you, I apologize. I've not seen the letter. I'm just going from memory of what you read.
The concerns that are here I've not heard the law society speak to. I really would like to hear that. The Chair is going to cut me off; two minutes is going to come by very quickly. What I'm inclined to do, as I give you an opportunity to respond, is to take those concerns of the privacy commissioner and present them as amendments. The government may defeat them, but they will nevertheless stand as some sort of guidelines for whatever discussions may take place later. I want to be very clear on that.
Mr Strosberg: As I understand the scheme of the act, the law society has an obligation -- I think Mr MacKenzie touched on this -- only to take relevant information. "Relevant information" means that extraneous information ought not to be collected. Second, if there's an obligation to maintain confidentiality and an obligation to protect solicitor-client privilege, as there is in the bill, then what you have is a continuation of the same confidence and the same status, and the information is held in exactly the same way as in the hot lawyer's hands. Then when there is a provision in the act, as I believe there is now -- it may require strengthening -- that says the information collected about the client can only be used for the discipline process of the law society, it is not admissible anywhere else, and no member from the law society can be summonsed to give evidence in any other proceeding, what you have is a reasonable mechanism to ensure that confidential information and information that's privileged is maintained in confidence and that the solicitor-client privilege is maintained.
I believe, when you read the act in its totality, that that protection is there. I say, with respect, that there is no other manner that I've heard anyone suggest by which you could better do it than the scheme that is here.
Mr Garry J. Guzzo (Ottawa-Rideau): Thank you very much for your presentation, Mr Strosberg. The good news is that I'm from Ottawa and I'm here to help you. The bad news is that we haven't had a very good month in the practising bar in Ottawa. The 20% of the profession who cause 80% of the problem have been getting an undue amount of publicity. I'd be remiss if I didn't commend you for your defence of the situation; I thought it was extremely poignant.
It might be appropriate at this point if you might simply register on the record the type of problem that has been exposed, if you like, by a few rogue lawyers in the publications in the Ottawa Citizen, and how what we're trying to do here might aid you in preventing what has been exposed in those articles.
Mr Strosberg: What we have from time to time is dishonest lawyers and lawyers who don't practise competently. Oftentimes we have clients who are in the dark. To suggest that you have to get a consent from the client means that the law society has got to try to tell a client: "By the way, we think your lawyer may be cheating you." Sometimes what happens is that the lawyer and the client are in cahoots. What do you do about that situation? How do you get around that situation? How do you get around the situation where the rogue lawyer has created a corporation and it turns out that his cousin or his wife or her husband controlled the corporation and they say, "Aha, it's solicitor-client privilege."
The beauty about this act is that it says the law society stands precisely in the shoes of the lawyer. It strengthens what Mr MacKenzie and Mr Ruby said was the common law and what I believe to be the common law. It means that there's no question about it. There's a preservation of confidential information, which is what Ms Castrilli was concerned about. That is preserved. Solicitor-client privilege is preserved.
The law society can go in and say, "This lawyer has acted dishonestly" or "This lawyer hasn't acted competently" and the society can be proactive.
The Ottawa Citizen talks about the fact that the law society is always going in afterwards, like Mr Ruby said. Yes, we're going in afterwards, and the reason is that we don't have the power to get in there before. We don't have the tools. Winston Churchill said, "Give us the tools and we'll do the job." We say, give us the tools and we'll do the job. We'll govern this profession in the public interest. It will give us the opportunity to start improving the image of lawyers, because we'll root out the dishonest lawyers, we'll root out the lawyers who are incompetent, and that will be the end of it. Those complaints that people have will be diminished dramatically. We can do it; we need the tools.
The Chair: Thank you very much. We very much appreciate your coming forward with your presentation today.
Mr Strosberg: May I distribute this material?
The Chair: Yes. The clerk can distribute the information.
With that, I just remind the committee that amendments are due tomorrow by 9 am.
The committee is adjourned until tomorrow at 3:30 pm.
The committee adjourned at 1720.