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Correcting the record on LSUC diversity statement

Speaker's Corner
Correcting the record on LSUC diversity statement

This fall, the Law Society of Upper Canada advised licensees that they must create and abide by an individual statement of principles that acknowledges their obligation to promote equality, diversity and inclusion generally and in their behaviour toward colleagues, employees, clients and the public. This requirement is one of 13 recommendations contained in the “Challenges Faced by Racialized Licensees Working Group Final Report,” which was adopted by Convocation in December 2016.

I have worked on issues relating to this report since the inception of the law society’s working group in 2012. I can attest that the recommendations, including the statement, have their genesis in robust quantitative and qualitative research, as well as widespread stakeholder consultation and agreement. 

Recently, a handful of licensees, who I understand did not engage in the four-year consultation process, took to traditional and social media to criticize the requirement as constituting a Charter violation and the underlying report as unfounded. I would like to correct some of the misinformation disseminated and respond to some of the points raised.

First, non-compliance with the requirement will absolutely not result in the loss of a licence. The law society will ask us on our annual report if we have adhered to the obligation. Its online FAQ addresses what will occur in the event of non-compliance, under the question: “Will I be suspended or otherwise penalized if I don’t have a statement of principles?” The response is that non-compliance will result in a written reminder of this obligation. Thus, instead of attracting a penalty, non-adherence will result in the continued opportunity to comply.

Second, licensees are not required to send the statement to the law society. After we create it (from scratch or by using the template), we can put it wherever we would like, be it our policy binders, office wall or elsewhere.

Third, the statement does not violate the Charter right to freedom of expression. But if it did, it would nonetheless comprise a reasonable and demonstrably justified infringement of this right. The statement directs action, not belief, by asking us to “acknowledge” our obligation to promote equality, diversity and inclusion. It’s an obligation that is already captured in the Rules of Professional Conduct that describe the special responsibility of lawyers to honour the obligation not to discriminate, respect human rights laws and recognize and protect the dignity of individuals in a diverse Ontario.

It also serves the pressing and substantial objective of eliminating systemic discrimination in the profession by asking licensees to acknowledge their pre-existing human rights obligations through the minimally impairing means of creating a statement comprised of words of their own choosing. Requiring lawyers to confirm their human rights obligations is not deleterious, and in any event, it would be far outweighed by the salutary effects.

Finally, we must scrutinize why Charter protection is being claimed in relation to human rights promotion where non-compliance attracts no penalty but not in relation to truly compelled statements such as the mandatory oath we took at our call to the bar in order to acquire a licence. There, our regulator mandated that we state that we would, among other things, seek to “ensure access to justice,” “improve the administration of justice,” and “champion the rule of law” and we complied. So, why is a statement regarding human rights compliance now being singled out for criticism?

The answer is that doubts remain in the profession that racialized licensees actually face systemic barriers. Doubts remain that systemic discrimination exists in society at all and, by extension, in the profession.

We have to address this. As lawyers, we are trained to examine evidence, its reliability, credibility and weight.

If a judge was examining this issue, which source of information would they find to be more persuasive: the Challenges Report, born out of four years of profession-wide consultations and robust quantitative and qualitative research, which was ultimately debated by our elected representatives and adopted with a near-unanimous vote; or the personal opinions of non-experts in the field who state these barriers do not exist simply because they have not personally experienced them? Clearly, it is the former, which found widespread systemic barriers for racialized licensees in the profession at all stages of their careers.

It bears repeating that this report was not about casting blame or labeling licensees as “racist.” It was about recognizing that the structures, systems and processes of racism that are present in society are also present in our profession, as in others. We cannot ignore this. Together, we need to shift the focus from individuals to systems and from ad hoc human rights liability to the promotion of an inclusive and diverse professional culture.

And in doing so, we must reflect deeply on our roles as lawyers. We must question why we, privileged enough to practise law — to understand it, interpret it, challenge it and contribute to its development through legal precedent and legislative change — would want to use our power and privilege to evade human rights responsibilities instead of promoting them to their fullest extent. We must reflect with our colleagues, within legal organizations, with the bench and with our regulator.

These conversations and the changes they spark will be incremental. Let’s begin by reading the Challenges Report and centering the voices of our colleagues from equity-seeking groups. Let’s then take the time to reflect on and create our statement of principles. Together, let’s create a diverse and inclusive profession. 

Jennifer Quito practises human rights, pay equity, professional discipline and education law at a labour firm in Toronto. She is involved with the Law Society of Ontario’s Equity Advisory Group, the Equal Pay Coalition of Ontario and is the former policy director of the Canadian Hispanic Bar Association.

  • 90% disagree

    Jim Hamilton
    I, along with 90% of the other lawyers who have recently voted against this measure in the Law Times poll, don't agree with Ms. Quito or LSUC. This would seem to be more then a "handful of licensees". Those on the other side of this issue may be well advised to reconsider who is guilty of "misinformation" here. I think opposing thought control and forced opinion represents the highest ideals of our profession.
  • LSUC: virtue signalling at its best

    Aardarsh Agarwal
    Thank God for Ms. Quito's Charter analysis of free expression! We can now get rid of the Supreme Court and simply just ask for her 5 sentence analysis and accept it as law. What a terrible article. Full of shifting ground arguments and bald assertions of fact. It's not surprising that this statement of principles came up as a solution if this is how the Advisory Group dealt with facts and analysis. Accepting that this is truly as serious as she claims it to be, why isn't the LSUC disciplining? After all, they have access to all this "robust" data and rule 6.3.1-1 is quite clear. What's the hold up? One has to wonder if the refusal to send in a statement will be used by LSUC to initiate investigations? Or perhaps used in proceedings against licensees? Don't forget, if you as a licensee were not privy to the "robust" data and did not participate in this Group's process, how dare you disagree with them, because you clearly know nothing at all. Where is your trust in LSUC's decisions? Where is your trust in Ms. Quito? You clearly do not understand that LSUC is always above reproach.
  • Hypocracy Anyone???

    Nick Curran
    Funny, LSUC is forcing the membership to affirm a statement which they may or may not want to affirm. And they're opposing Trinity Western University for "forcing" students to abide by a covenant which they may or may not agree with and which you lot nevertheless don't like. Seems to me that its nothing to do with the program or the campus atmosphere and everything to do with politics and a view point from some with whom you disagree. Somewhere the late Doug Christie is telling somebody "see I told you so!" G'luck with that as counsel opposite at the Supreme Court of Canada no doubt will raise this point. Oh and "J Payne" citing the LSUC's Rules of Professional Conduct is in no way a justification of this measure. If Ontario Bar calls were required to know the aforementioned rules which mentioned these themes for the purposes of passing their Bar Admission Exams then there's no need to force them to make this oath against their will as it will change nothing. LSUC is becoming more of an advocacy group and less the regulator/resource group that it was intended to be. My suggestion is that some of you consider community activism and or politics because that's essentially what you're about.
  • Don't tell me what to say.

    Don Perry
    It is so very disappointing that @Jen_Quito failed to read or understand the very report and recommendations on which she comments. This is the troublesome part: Recommendation 3 – The Adoption of Equality, Diversity and Inclusion Principles and Practices The Law Society will: 1) require every licensee to adopt and to abide by a statement of principles acknowledging their obligation to promote equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public; And yes, there will be “progressive non-compliance measures.” See recommendation 8. How the heck else would #LSUC enforce the requirement? Having engaged in in-depth discussion on requirement 3(1) with a number of the best lawyers I know, I can unreservedly say that none have expressed difficulty with the purposes of the policies, or disagree that racialized (whatever that term means) lawyers face distinct challenges. The opposition is to being forced to make a particular political declaration. Period. All of which is to say, don’t tell me what to say.
  • Diversity Statement

    J Payne
    LSUC Diversity Template an Exercise in Practical Application Introduction Upon review of various articles and social media postings it has become apparent that various members of the legal profession view the LSUC’s requirement for both Lawyers and Paralegals to provide an executed Statement of Principles as to their acceptance of their obligation to ensure diversity in the profession and/or to demonstrates the profession’s effective zero tolerance for discrimination and harassment as either unnecessary and redundant or as a general infringement by the LSUC on their rights generally. While this growing controversy appears to a large extent to be resulting in two specific positions, the first being that the proposed statement is socially beneficial and while possibly somewhat redundant given the obligations already imposed on the profession, it is an important clarification to define the profession’s position on the subject. The second position would appear to be that the requirement imposed by the Society is not only redundant given the obligations already imposed on the profession but also a general politically correct overreach arbitrarily imposing duties, obligations and potential sanctions on members based on vague undefined principles, parameters and standards. Given these diametrically opposed positions it is suggested that while the philosophical positions are clear, there has been no suggested or disclosed review of the practical application of the proposed requirement, as such the issue presents matters of interest and as we here at Paraassist essentially “do not have a dog in this fight” we have decided to attempt to review the potential practical application of the proposed Template #1 as an exercise in research in the hopes of suggesting a less emotive basis for consideration and/or acceptance or rejection of the required statement. We take no position as to the validity or propriety of the proposed Statement of Principles however it has become apparent that various postings and opinions in respect to same rely on developing actions in response to the outcry rather than the an independent review of the practical application of the principles involved, as such we present what the possible practical application of Template #1 would or could be, based on an analysis of the existing case law, Rules and relevant statutes. Overview/Analysis of Purpose and Preamble In order to review the provided Template #1 it is our intention to review the template both in respect to specific sections which we believe are of special note and in terms of the language used in the template as a whole which we believe can provide an overriding insight into the application of the template as a whole. The initial section of the subject template is the Purpose and Preamble which state; 1. Purpose Recommendation 3(1): 3-1. Require every licensee to adopt and to abide by a statement of principles acknowledging their obligation to promote equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public. 2. Preamble: Human rights legislation is afforded quasi-Constitutional status by the Supreme Court of Canada. It is of such import that under the Rules of Professional Conduct (for lawyers) and the Paralegal Rules of Conduct, licensees of the Law Society of Upper Canada have a special duty to respect human rights in their dealings with others* I acknowledge that valuing equality and enhancing diversity and inclusion in my practice, at my legal workplace, and in my public life is central to the maintenance of public trust and confidence in the legal profession. *Section 2.03, Paralegal Rules of Conduct; ss. 6.3 and 6.3.1, Rules of Professional Conduct. In reviewing the above cited sections of the proposed template it is submitted that the inclusion of the reference to the Ontario’s Human Rights legislation, the reference to the Rules of Conduct for both lawyers and paralegals and the subsequent acknowledgement of same in the Preamble constitutes the adoption of such as a terms of the Statement of Principles and any agreement/undertaking express or implied between the member and the LSUC that may be formed by the document proposed. It is suggested that the simple statement of the principles that confirms Human Rights in itself is a position of merit and both inoffensive and expected on the part of a professional body. However, it is suggested that such inclusion also establishes the standards of the said Human Rights legislation, no matter how vague as to their case by case determination, as applicable to the conduct of the members or licensees as well as making the breach of same analogous to a breach of the referenced Rules of Professional Conduct thereby authorizing disciplinary action for breach. Thus it is suggested that while the provision of some kind of statement acceptable to the LSUC in respect to the subject issue is mandatory as a condition of membership or license the above discussed “Purpose” and “Preamble” given their wording and the inclusion of the references to the legislation and correlating governing Rules of Conduct directly and by implication would suggest that not only is the provision of the Statement mandatory but also that any failure to abide by the terms of same is actionable as a breach of the Rules of Conduct. This position is further reviewed in respect to wording used in the balance of the Template statement. Words Matter Upon review of the balance of the suggested Template #1 it is suggested that the wording used is of specific relevance as demonstrated by the examples below which are representative of the terms of the Statement generally and which state; I acknowledge my obligation not to discriminate against, nor harass, any person on the basis of the grounds under the Human Rights Code with respect to my employment of others, or in professional dealings with other licensees. I agree to review, understand and abide by all policies in my legal workplace that prohibit harassment and discrimination, and that encourage diversity and inclusion on the basis of the grounds set out in Human Rights Code or other grounds. I will report any observations or allegations of harassment or discrimination. If asked, I will cooperate in any investigation and complaints procedure at my legal workplace. To promote diversity and inclusion I agree to: review, understand and abide by any and all of my legal workplace’s policies that encourage diversity and inclusion on Human Rights Code or other grounds; encourage a culture of inclusion and diversity at my legal workplace, in order to help attract and retain the best talent and better serve my clients’ needs; I will provide legal services in a manner that is courteous and equitable, without discrimination or harassment. I will ensure that no client or prospective client is denied services or receives inferior service on the basis of the grounds set out in the Human Rights Code. I will respect both the letter and spirit of human rights legislation in professional dealings with other licensees or any other person. It is suggested that the above examples of clauses contained in Template #1 contain words that must be noted being, “I acknowledge” “I will” and “I agree”. It is submitted that the said words or phrases are all imperatives and as such analogous to the word “shall” as defined by the Interpretation Act insofar as I would submit that they are unqualified terms and imply strict adherence to the agreements or terms following them. This type of interpretation of Agreements and/or Statutes is to a large extent trite law but is well outlined in the case of Toronto Police Association v Toronto Police Services Board, 2014 CanLII 27445 (ON LA) which stated; 42. Rather, I view this case as one of interpretation of the actual language used – although I may have struggled in arriving at that interpretation. The legal principles of such interpretation are not in dispute whether I refer to authority referred to me by the Association – Toronto Police Services Board, supra, at pages 362 to 363: “I do not disagree with the reasoning in those cases but that merely begs the question as to what the parties have bargained for in this collective agreement. In approaching that language. I am cognizant, as well, of the jurisprudence regarding the use of extrinsic evidence as an aid in interpreting ambiguous provisions in a collective agreement: Noranda Metal Industries, supra. If I determine that the relevant language is clear on its face, recourse to extrinsic evidence is proscribed. That was the conclusion in Northwest Territories, supra; and Calgary Roman Catholic Separate School District, supra (referred to as "Calgary"). The latter case raises other issues which are addressed when dealing with discrimination. On the other hand, if the wording is patently ambiguous or, if extrinsic evidence discloses a latent ambiguity, it is appropriate to consider extrinsic evidence. In that process. it should be noted that the extrinsic evidence, even if admissible and properly considered, may not be of assistance in disclosing the intention of the parties. The objective of the analysis is precisely that, to discern the intention of the parties in agreeing to the provision in question. It is likewise not controversial to note that the interpretive process should have regard to the particular provision in the context of other relevant articles and the agreement taken as a whole. In my view, the interpretations urged upon me by each counsel are plausible. That there may be more than one meaning attributable to a provision does not necessarily imply ambiguity.” or by the Board - Canroof Corp., supra, at paragraph 4 to 6: “[4] The fundamental rule of collective agreement interpretation is that the words used must be given their plain and ordinary meaning unless it is clear from the structure of the provision read as a whole and in context that a different or special meaning is intended, or the plain and ordinary meaning result would be unlawful or absurd. All words must be given meaning, different words are presumed to have different meanings, and specific provisions prevail over general provisions. The words that are there are obviously significant. But words that are not there may also be significant. [5] As a matter of general principle collective agreements must be interpreted in a manner which preserves the spirit and intent of the collective agreement. However, it is the words that the parties have agreed to use to express their intention which are of primary importance. The parties to a collective agreement are presumed to say what they mean and mean what they say. Allegedly missing words or terms cannot be implied under the guise of interpretation unless it is absolutely essential to the apparent mutually intended operation of the collective agreement, or to make the collective agreement consistent with legislation which the parties cannot contract out of (the Employment Standards Act, or the Human Rights Code, for example). Although much has been written about purpose, fairness, internal anomalies, cost or administrative feasibility, or what "should be" such considerations only come into play when the collective agreement language is truly ambiguous and the arbitrator must choose between equally plausible interpretations. The arbitrator's task is to determine what the collective agreement provides or requires, not what he or one of the parties thinks it should say, regardless of any professed unfairness of the effect on either party or the bargaining unit employees. The parties and employees are entitled to no more or less than what the collective agreement stipulates, and clear wording trumps all considerations other than legislation. [6] When it comes to collective agreement interpretation extrinsic evidence of context is always admissible (see, for example, Hi-Tech Group Inc. v. Sears Canada Inc. 2001 CanLII 24049 (ON CA), 2001 CanLII 24049, (2001), 52 O.R. (3d) 97, (Ont. C.A.)). Extrinsic facts provide context but cannot be used as an aid to interpretation. Extrinsic evidence is not admissible as an aid to interpretation unless ambiguity is alleged (in which case extrinsic evidence is admissible to establish or resolve the alleged ambiguity: Leitch Gold Mines Ltd v. Texas Gulf Sulphur Co. (1968), 1968 CanLII 405 (ON SC), 3 D.L.R. (3d) 161, (Ont. H.C.); and see also, Noranda Metal Industries Ltd, Fergus Division v. I.B.E.W, Local 2345 (1983), 1983 CanLII 1690 (ON CA), 44 O.R. (2d) 529, 84 C.L.L.C. 14,024, 1 O.A.C. 187, (Ont. C.A.), or to determine application unless estoppel (or perhaps waiver) is alleged. Extrinsic evidence is any evidence, oral or documentary, that is external to (i.e. not contained in) the collective agreement document (s)…” 43. There is much that, at first blush, is attractive about the Association’s argument. I do not think it matters here if the Board’s right to re-classify may also be statutory (if a regulation merely setting out the ranks of constables and when they are eligible for re-classification can somehow be described as a statutory delegation of that right to the Board). Article 3.01 of the Collective Agreement is clear (that it is the Board’s exclusive function to reclassify) which the Association acknowledges. The question here is whether the right to grieve and arbitrate the exercise of that function has been given up by the Association in paragraph 5 of MOU #2. 44. Equally, I do not dispute in any way that paragraph 5 cannot be read in isolation, but must be read in its context – but that probably includes all of MOU #2 and Article 3.01, the management rights clause of the Collective Agreement. 45. Equally, much of MOU #2 appears to, by establishing a Committee to which an appeal can be made, be addressing how to deal with situations where the force is withholding a constable’s re-classification – not the Board’s decision, where the recommendation are ultimately going to. 46. Equally I am troubled by the notion that in this context of MOU #2, when a recommendation by the force to re-classify has never been previously rejected by the Board, that the Association ever intended to completely abandon any right to arbitrate any grievance about such withholding of a re-classification, or promised that it would not be taken to arbitration. 47. Having said all of that, I am still left with the clear wording of paragraph 5: “During the term of this Collective Agreement, the Association undertakes that withholding of a re-classification within the constable rank will not be taken to arbitration and this provision will remain in effect as provided under Section 129(1) of the Police Services Act.” 48. Not only are the words stark in their simplicity but they are completely unqualified. The Board argued before me that (supported by the jurisprudence) I cannot imply words into the Agreement that are neither there or are not required either to make the interpretation intelligible when it would not be or contrary to statute. I agree with that. Thus based on the above cited case it is suggested that the words in the Statement of Principles, which is assumed both by its wording and intent to be an agreement between the Members and the Society, are meant to be both strictly interpreted and adhered to as they are clear and unqualified as to the principles acknowledged, and the conduct agreed to thus rendering any general interpretation or addition of implied terms or conditions inappropriate. This position is further confirmed by the decision of and reasoning in the case of Regina v. Lawrie and Pointts Ltd., 1986 CanLII 2817 (ON SC), which should be familiar to both the Bar and Paralegals alike as it was the decision that first confirmed the existence of paralegal practice. While holding that paralegals or agents could appear before selected Courts etc. the decision also provided specific insights into the interpretation of the relevant Rules and Statutes insofar as it stated; The Law Society Act is a penal statute and therefore must be strictly construed…. After referring to s. 50(1) of the Law Society Act, Mr. Justice MacKinnon stated at p. 169 of the court: It is clear that s. 50 does not allow, unless otherwise provided, non-barristers or solicitors to practise in the Courts ... When the Legislature, which is competent in this field, wished to make exceptions to s. 50, they did so in clear terms, as for example, s. 100 of the Small Claims Court Act, R.S.O. 1970, c. 439 ... And His Lordship quotes s. 100: "100. A barrister or solicitor, or any other person not prohibited by the judge, may appear at the trial or hearing of an action as agent for a party thereto." (see also: the Mechanics' Lien Act, R.S.O. 1970, c. 267, s. 38(8).) With respect to s. 735(2) of the Code, His Lordship noted at p. 167 that a defendant might be represented before the summary conviction court by an agent and stated: " 'Agent' is not defined in the Criminal Code ... but historically it is clear that 'agent' is not limited to a duly qualified member of the Bar." The provincial Legislature has otherwise provided in clear terms for the appearance of agents in the County Court by virtue of s. 118 of the Landlord and Tenant Act, R.S.O. 1980, c. 232. Section 118(2) of that Act is similar to s-s. (3) of s. 51 of the Provincial Offences Act with regard to exclusion of incompetent agents…… Thus the Legislature has travelled some distance from s. 6(1) of the Solicitors Act, and s. 5(1) of the Barristers Act. The objects of statutes such as the Solicitors Act and the Law Society Act and like statutes governing other professions is to protect the public. Such Acts create standards and qualifications of professionalism which must be adhered to by its members. In the words of Chief Justice Robertson in R. ex rel. Smith v. Ott, 1950 CanLII 86 (ON CA), [1950] O.R. 493 at p. 496: To protect the public against persons who, for their own gain, set themselves up as competent to perform services that imperatively require the training and learning of a solicitor, although such persons are without either learning or experience to qualify them, is an urgent public service. It is submitted that while the Court in the above cited case found that agents could in fact attend in the Courts and provide services perhaps denied by the strict wording of the Law Society Act such restriction was off-set by the statutory exceptions contained in other governing legislation. However it must be noted that in doing so the Court confirmed both the strict interpretation of the Acts and Rules governing the provision of professional and specifically legal services as well as the strict interpretation of statutes generally. In respect to the subject template being reviewed herein I would submit that the clear implication is that given the imperative language and unqualified nature of the terms following the said imperatives the wording creates a strict obligation to fulfil same as written and not as may be interpreted. In other words where it says will report you must report any incident that falls within the scope of the Statement or the relevant legislation, where it says you will cooperate with an investigation it does not mean cooperate subject to right to Counsel or your interpretation of the validity of the investigation or allegation and when it says you will ensure no discrimination etc. of a client the obligation is not just in reference to your practice but inclusive of partners and associates. When you agree to conduct your practice in accordance with this statement you are agreeing to do so both in terms of the identified legislative requirements as subjective as the case law suggests they may be and in accordance with the less defined “spirit” of such legislation. The consequences for non-compliance with such obligations is implied by the inclusion of references to the Rules of Conduct contained in the Preamble to the provided template however upon review of this material I would submit that other facts can come into play suggesting that the breach of the outlined obligations can constitute breaches of other undisclosed Rules of Conduct such as those relating to Duty to Report, Courteous/Professional Conduct, Competence, Practice Management and Duty to the Law Society. While the above breaches when considered in respect subject Statement the rationale as to what would constitute a breach is fairly clear however one serious breach which would reference Duty to the Law Society is perhaps not so clear but serious in its implication and arises from the very nature of the Statement and the wording of same as suggested by the template and frankly by any possible alternative wording thereof. I would submit that based on the case of Hudson v. Foster et al, 2010 ONSC 3417 (CanLII), the contemplated statement when provided in accordance with the statement of purpose and the preamble constitutes an Undertaking to the Law Society, the breach of which, no matter how minor and/or interpretive can result in serious and unforeseen consequences. This position is supported by the rationale in the above case which held the following; [17] Although the defendants have moved to enforce a solicitor’s undertaking, there is no analysis in either party’s argument as to the nature and effect of a solicitor’s undertaking. As a result, counsel were asked to make further submissions on this point. I have now considered these further submissions. [18] The plaintiff has not sought leave to withdraw the undertaking. However, implicit in the plaintiff’s position that the assurance was an admission that can be withdrawn is a request that the plaintiff not be bound by Mr. Bruzzese’s assurance, if indeed it was an undertaking. [19] Black’s Law Dictionary, 7th edition, s.v. “undertaking” defines it as a “promise, pledge or engagement.” [20] The nature of an undertaking is quoted by G.B. Smith in Professional Conduct for Canadian Lawyers (Toronto: Butterworths, 1989), at p. 203 as follows: An undertaking is the promise given by a solicitor through a written statement, a verbal communication or inferred from his acts, or any combination thereof, in reliance on which promise the recipient of the undertakings gives up to the solicitor or to another party, a document or right, or performs an act which that recipient would not have done were it not for the receipt of the promise from that solicitor. [21] An undertaking binds the lawyer to do something that the circumstances of the pledge do not permit him or her to do immediately. It may be to supply documents, make inquiries, answer a question, discharge a mortgage, or act in a way promised in the undertaking. It is an exception to the general principle that a promise made without consideration is unenforceable. No particular form of words is required to form an undertaking. [22] The nature of an undertaking was described by the court in Bogoroch& Associates v. Sternberg (2007), 2007 CanLII 41889 (ON SCDC), 229 O.A.C. 284 (Div. Ct.), at para. 23 as follows: Solicitors’ undertakings are matters of utmost good faith. They are traditionally given to expedite and facilitate the furtherance or conclusion of matters upon which solicitors are engaged on behalf of their clients. These efficiencies result in savings of lawyers’ time that can be passed on to clients. Time is spent more efficiently and work is done more smoothly. Because of that, solicitors must be able to rely upon undertakings, which are promises given by one solicitor to another to do or refrain from doing an act. [23] The court will enforce an undertaking given in the lawyer’s professional capacity as part of its inherent jurisdiction to control its process. The undertaking is also enforceable in order to uphold the honour of the bar. While undertakings are typically exchanged by lawyers, I conclude that an undertaking given in the lawyer’s professional capacity may be enforced by the court when it is given to a non-lawyer, in order to underscore the professionalism of the bar. However the court will not compel the performance of an undertaking simply because it is made by a lawyer in a non-professional context; see: Wilson v. Beatty (1885), 12 O.A.R. 253 (C.A.). [24] Unlike contractual obligations, an undertaking does not require consideration to be binding. The undertaking is binding personally on the lawyer who has given it unless the undertaking states in unambiguous terms that it is the client who has made the undertaking. In the case of ambiguity, the undertaking is deemed to be that of the solicitor personally. Consequently, a lawyer should not give an undertaking that he or she cannot personally fulfill. Even though the client may change lawyers, the undertaking continues to bind the client and can be enforced after the retainer of the first counsel ends. See: Lysyk, Dodek and Hoskins, Barristers and Solicitors in Practice, LexisNexis Canada Inc. 2009, (looseleaf). Undertakings are not limited to the litigation process but are used in other areas of law such as real estate. [25] Honouring an undertaking is also a professional obligation as set out under Rule 6.03 (10) of the Rules of Professional Conduct promulgated by the Law Society of Upper Canada. The rule states: 6.03 (10) A lawyer shall not give an undertaking that cannot be fulfilled and shall fulfill every undertaking given. [26] The assurance given by Mr. Bruzzese was a clear and unequivocal promise to amend the statement of claim to bring it within policy limits. I conclude that it was an undertaking. It is suggested that the above cited findings of the Court not only establish that the terms of the subject Template #1 constitute an Undertaking to the Law Society given its presented wording but also that any other wording used would result in the same position given the nature of the statement, its purpose and the included preamble. It should be also noted that a breach of an undertaking does not always have to be intentional and can be subject to subsequent interpretation and review of the conduct in light of the presumed knowledge of the party involved. This knowledge is of course presumed by the terms and agreement of the party to familiarize themselves with and abide by the terms and spirit of the relevant legislation, Another word or term that is of interest in the provided template is “workplace”. This term is not defined in the materials but is defined by the Occupational Health and Safety Act as; “workplace” means any land, premises, location or thing at, upon, in or near which a worker works; (“lieu de travail”) It is suggested that in terms of Members and Licensees this definition is even broader than implied above insofar as its application could include, your office, opposing representative’s office, Court house, your car, your home, Tim Horton’s and/or online including closed Facebook pages on which opinions and assistance is given or sought. As the practice of law obviously is not location specific or limited it would appear clear that the Statement of Principles and it’s presumed and implied obligations essentially follows you like a shadow. Another issue arising from the wording of the provided template and/or presumed by the purpose and preamble arises from the inclusion of the Human Rights legislation. This may be somewhat obiter but a matter of interest just the same. The question that arises is, what is the possible application of res judicata. This is of interest as everyone’s conduct is subject to the Human Rights legislation and the censures and penalties that flow therefrom, however given suggested wording of the requested statement would a finding by the Human Rights Tribunal, a monetary award or a dismissal of the complaint preclude action by the LSUC based on the Statement of Principles. I would suggest it would not as the LSUC proceedings would be issue centric in that they reference professional regulation and discipline versus the nature of penalties within the jurisdiction of the Tribunal. The overall philosophy of this position is outlined in the case of Law Society of Upper Canada v. Robson, 2015 ONLSTA 4 (CanLII), which reviewed the subject as follows; [26] It is important to note, however, that the Supreme Court in CUPE recognized that there may be circumstances where relitigation would not be an abuse of process. Arbour J. comments as follows: …There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at para. 80. The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision (Danyluk, supra, at para. 51; Franco, supra, at para. 55). [27] These are the considerations that will guide us in determining whether it would be unfair for the Lawyer to be precluded from relitigating the findings of Lax J. [Citations contained in footnotes omitted.] [17] In our view, it is in the application of these principles[2] to Mr. Robson’s case that the hearing panel erred in law. Summary As initially indicated this review of the Statement of Principles does not propose to take a position for or against same, rather as stated it is an academic exercise reviewing the proposed Template #1, it potential implications and consequences. It could be properly stated of course that the wording of this template is irrelevant given the right of Members and Licensees to create their own wording for a comparable statement, however no matter what words are used the overall implication of those words is important and worth careful consideration.
  • Not signing it.

    Kirk Rintoul
    It is simply none of the Law Society of Whatever's business what the political views of its licencees are. Nor should we be compelled to recite a politically correct creed to assuage the guilt of Bay Street.
  • Diversity Statement

    J Payne
    LSUC Diversity Template an Exercise in Practical Application Introduction Upon review of various articles and social media postings it has become apparent that various members of the legal profession view the LSUC’s requirement for both Lawyers and Paralegals to provide an executed Statement of Principles as to their acceptance of their obligation to ensure diversity in the profession and/or to demonstrates the profession’s effective zero tolerance for discrimination and harassment as either unnecessary and redundant or as a general infringement by the LSUC on their rights generally. While this growing controversy appears to a large extent to be resulting in two specific positions, the first being that the proposed statement is socially beneficial and while possibly somewhat redundant given the obligations already imposed on the profession, it is an important clarification to define the profession’s position on the subject. The second position would appear to be that the requirement imposed by the Society is not only redundant given the obligations already imposed on the profession but also a general politically correct overreach arbitrarily imposing duties, obligations and potential sanctions on members based on vague undefined principles, perameters and standards. Given these diametrically opposed positions it is suggested that while the philosophical positions are clear, there has been no suggested or disclosed review of the practical application of the proposed requirement, as such the issue presents matters of interest and as we here at Paraassist essentially “do not have a dog in this fight” we have decided to attempt to review the potential practical application of the proposed Template #1 as an excercise in research in the hopes of suggesting a less emotive basis for consideration and/or acceptance or rejection of the required statement. We take no position as to the validity or propriety of the proposed Statement of Principles however it has become apparent that various postings and opinions in respect to same rely on developing actions in response to the outcry rather than the an independent review of the practical application of the principles involved, as such we present what the possible practical application of Template #1 would or could be, based on an analysis of the existing case law, Rules and relevant statutes. Overview/Analysis of Purpose and Preamble In order to review the provided Template #1 it is our intention to review the template both in respect to specific sections which we believe are of special note and in terms of the language used in the template as a whole which we believe can provide an overriding insight into the application of the template as a whole. The initial section of the subject template is the Purpose and Preamble which state; 1. Purpose Recommendation 3(1): 3-1. Require every licensee to adopt and to abide by a statement of principles acknowledging their obligation to promote equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public. 2. Preamble: Human rights legislation is afforded quasi-Constitutional status by the Supreme Court of Canada. It is of such import that under the Rules of Professional Conduct (for lawyers) and the Paralegal Rules of Conduct, licensees of the Law Society of Upper Canada have a special duty to respect human rights in their dealings with others* I acknowledge that valuing equality and enhancing diversity and inclusion in my practice, at my legal workplace, and in my public life is central to the maintenance of public trust and confidence in the legal profession. *Section 2.03, Paralegal Rules of Conduct; ss. 6.3 and 6.3.1, Rules of Professional Conduct. In reviewing the above cited sections of the proposed template it is submitted that the inclusion of the reference to the Ontario’s Human Rights legislation, the reference to the Rules of Conduct for both lawyers and paralegals and the subsequent acknowledgement of same in the Preamble constitutes the adoption of such as a terms of the Statement of Principles and any agreement/undertaking express or implied between the member and the LSUC that may be formed by the document proposed. It is suggested that the simple statement of the principles that confirms Human Rights in itself is a position of merit and both inoffensive and expected on the part of a professional body. However, it is suggested that such inclusion also establishes the standards of the said Human Rights legislation, no matter how vague as to their case by case determination, as applicable to the conduct of the members or licensees as well as making the breach of same analogous to a breach of the referenced Rules of Professional Conduct thereby authorizing disciplinary action for breach. Thus it is suggested that while the provision of some kind of statement acceptable to the LSUC in respect to the subject issue is mandatory as a condition of membership or license the above discussed “Purpose” and “Preamble” given their wording and the inclusion of the references to the legislation and correlating governing Rules of Conduct directly and by implication would suggest that not only is the provision of the Statement mandatory but also that any failure to abide by the terms of same is actionable as a breach of the Rules of Conduct. This position is further reviewed in respect to wording used in the balance of the Template statement. Words Matter Upon review of the balance of the suggested Template #1 it is suggested that the wording used is of specific relevance as demonstrated by the examples below which are representative of the terms of the Statement generally and which state; I acknowledge my obligation not to discriminate against, nor harass, any person on the basis of the grounds under the Human Rights Code with respect to my employment of others, or in professional dealings with other licensees. I agree to review, understand and abide by all policies in my legal workplace that prohibit harassment and discrimination, and that encourage diversity and inclusion on the basis of the grounds set out in Human Rights Code or other grounds. I will report any observations or allegations of harassment or discrimination. If asked, I will cooperate in any investigation and complaints procedure at my legal workplace. To promote diversity and inclusion I agree to: review, understand and abide by any and all of my legal workplace’s policies that encourage diversity and inclusion on Human Rights Code or other grounds; encourage a culture of inclusion and diversity at my legal workplace, in order to help attract and retain the best talent and better serve my clients’ needs; I will provide legal services in a manner that is courteous and equitable, without discrimination or harassment. I will ensure that no client or prospective client is denied services or receives inferior service on the basis of the grounds set out in the Human Rights Code. I will respect both the letter and spirit of human rights legislation in professional dealings with other licensees or any other person. It is suggested that the above examples of clauses contained in Template #1 contain words that must be noted being, “I acknowledge” “I will” and “I agree”. It is submitted that the said words or phrases are all imperatives and as such analogous to the word “shall” as defined by the Interpretation Act insofar as I would submit that they are unqualified terms and imply strict adherence to the agreements or terms following them. This type of interpretation of Agreements and/or Statutes is to a large extent trite law but is well outlined in the case of Toronto Police Association v Toronto Police Services Board, 2014 CanLII 27445 (ON LA) which stated; 42. Rather, I view this case as one of interpretation of the actual language used – although I may have struggled in arriving at that interpretation. The legal principles of such interpretation are not in dispute whether I refer to authority referred to me by the Association – Toronto Police Services Board, supra, at pages 362 to 363: “I do not disagree with the reasoning in those cases but that merely begs the question as to what the parties have bargained for in this collective agreement. In approaching that language. I am cognizant, as well, of the jurisprudence regarding the use of extrinsic evidence as an aid in interpreting ambiguous provisions in a collective agreement: Noranda Metal Industries, supra. If I determine that the relevant language is clear on its face, recourse to extrinsic evidence is proscribed. That was the conclusion in Northwest Territories, supra; and Calgary Roman Catholic Separate School District, supra (referred to as "Calgary"). The latter case raises other issues which are addressed when dealing with discrimination. On the other hand, if the wording is patently ambiguous or, if extrinsic evidence discloses a latent ambiguity, it is appropriate to consider extrinsic evidence. In that process. it should be noted that the extrinsic evidence, even if admissible and properly considered, may not be of assistance in disclosing the intention of the parties. The objective of the analysis is precisely that, to discern the intention of the parties in agreeing to the provision in question. It is likewise not controversial to note that the interpretive process should have regard to the particular provision in the context of other relevant articles and the agreement taken as a whole. In my view, the interpretations urged upon me by each counsel are plausible. That there may be more than one meaning attributable to a provision does not necessarily imply ambiguity.” or by the Board - Canroof Corp., supra, at paragraph 4 to 6: “[4] The fundamental rule of collective agreement interpretation is that the words used must be given their plain and ordinary meaning unless it is clear from the structure of the provision read as a whole and in context that a different or special meaning is intended, or the plain and ordinary meaning result would be unlawful or absurd. All words must be given meaning, different words are presumed to have different meanings, and specific provisions prevail over general provisions. The words that are there are obviously significant. But words that are not there may also be significant. [5] As a matter of general principle collective agreements must be interpreted in a manner which preserves the spirit and intent of the collective agreement. However, it is the words that the parties have agreed to use to express their intention which are of primary importance. The parties to a collective agreement are presumed to say what they mean and mean what they say. Allegedly missing words or terms cannot be implied under the guise of interpretation unless it is absolutely essential to the apparent mutually intended operation of the collective agreement, or to make the collective agreement consistent with legislation which the parties cannot contract out of (the Employment Standards Act, or the Human Rights Code, for example). Although much has been written about purpose, fairness, internal anomalies, cost or administrative feasibility, or what "should be" such considerations only come into play when the collective agreement language is truly ambiguous and the arbitrator must choose between equally plausible interpretations. The arbitrator's task is to determine what the collective agreement provides or requires, not what he or one of the parties thinks it should say, regardless of any professed unfairness of the effect on either party or the bargaining unit employees. The parties and employees are entitled to no more or less than what the collective agreement stipulates, and clear wording trumps all considerations other than legislation. [6] When it comes to collective agreement interpretation extrinsic evidence of context is always admissible (see, for example, Hi-Tech Group Inc. v. Sears Canada Inc. 2001 CanLII 24049 (ON CA), 2001 CanLII 24049, (2001), 52 O.R. (3d) 97, (Ont. C.A.)). Extrinsic facts provide context but cannot be used as an aid to interpretation. Extrinsic evidence is not admissible as an aid to interpretation unless ambiguity is alleged (in which case extrinsic evidence is admissible to establish or resolve the alleged ambiguity: Leitch Gold Mines Ltd v. Texas Gulf Sulphur Co. (1968), 1968 CanLII 405 (ON SC), 3 D.L.R. (3d) 161, (Ont. H.C.); and see also, Noranda Metal Industries Ltd, Fergus Division v. I.B.E.W, Local 2345 (1983), 1983 CanLII 1690 (ON CA), 44 O.R. (2d) 529, 84 C.L.L.C. 14,024, 1 O.A.C. 187, (Ont. C.A.), or to determine application unless estoppel (or perhaps waiver) is alleged. Extrinsic evidence is any evidence, oral or documentary, that is external to (i.e. not contained in) the collective agreement document (s)…” 43. There is much that, at first blush, is attractive about the Association’s argument. I do not think it matters here if the Board’s right to re-classify may also be statutory (if a regulation merely setting out the ranks of constables and when they are eligible for re-classification can somehow be described as a statutory delegation of that right to the Board). Article 3.01 of the Collective Agreement is clear (that it is the Board’s exclusive function to reclassify) which the Association acknowledges. The question here is whether the right to grieve and arbitrate the exercise of that function has been given up by the Association in paragraph 5 of MOU #2. 44. Equally, I do not dispute in any way that paragraph 5 cannot be read in isolation, but must be read in its context – but that probably includes all of MOU #2 and Article 3.01, the management rights clause of the Collective Agreement. 45. Equally, much of MOU #2 appears to, by establishing a Committee to which an appeal can be made, be addressing how to deal with situations where the force is withholding a constable’s re-classification – not the Board’s decision, where the recommendation are ultimately going to. 46. Equally I am troubled by the notion that in this context of MOU #2, when a recommendation by the force to re-classify has never been previously rejected by the Board, that the Association ever intended to completely abandon any right to arbitrate any grievance about such withholding of a re-classification, or promised that it would not be taken to arbitration. 47. Having said all of that, I am still left with the clear wording of paragraph 5: “During the term of this Collective Agreement, the Association undertakes that withholding of a re-classification within the constable rank will not be taken to arbitration and this provision will remain in effect as provided under Section 129(1) of the Police Services Act.” 48. Not only are the words stark in their simplicity but they are completely unqualified. The Board argued before me that (supported by the jurisprudence) I cannot imply words into the Agreement that are neither there or are not required either to make the interpretation intelligible when it would not be or contrary to statute. I agree with that. Thus based on the above cited case it is suggested that the words in the Statement of Principles, which is assumed both by its wording and intent to be an agreement between the Members and the Society, are meant to be both strictly interpreted and adhered to as they are clear and unqualified as to the principles acknowledged, and the conduct agreed to thus rendering any general interpretation or addition of implied terms or conditions inappropriate. This position is further confirmed by the decision of and reasoning in the case of Regina v. Lawrie and Pointts Ltd., 1986 CanLII 2817 (ON SC), which should be familiar to both the Bar and Paralegals alike as it was the decision that first confirmed the existence of paralegal practice. While holding that paralegals or agents could appear before selected Courts etc, the decision also provided specific insights into the interpretation of the relevant Rules and Statutes insofar as it stated; The Law Society Act is a penal statute and therefore must be strictly construed…. After referring to s. 50(1) of the Law Society Act, Mr. Justice MacKinnon stated at p. 169 of the court: It is clear that s. 50 does not allow, unless otherwise provided, non-barristers or solicitors to practise in the Courts ... When the Legislature, which is competent in this field, wished to make exceptions to s. 50, they did so in clear terms, as for example, s. 100 of the Small Claims Court Act, R.S.O. 1970, c. 439 ... And His Lordship quotes s. 100: "100. A barrister or solicitor, or any other person not prohibited by the judge, may appear at the trial or hearing of an action as agent for a party thereto." (see also: the Mechanics' Lien Act, R.S.O. 1970, c. 267, s. 38(8).) With respect to s. 735(2) of the Code, His Lordship noted at p. 167 that a defendant might be represented before the summary conviction court by an agent and stated: " 'Agent' is not defined in the Criminal Code ... but historically it is clear that 'agent' is not limited to a duly qualified member of the Bar." The provincial Legislature has otherwise provided in clear terms for the appearance of agents in the County Court by virtue of s. 118 of the Landlord and Tenant Act, R.S.O. 1980, c. 232. Section 118(2) of that Act is similar to s-s. (3) of s. 51 of the Provincial Offences Act with regard to exclusion of incompetent agents…… Thus the Legislature has travelled some distance from s. 6(1) of the Solicitors Act, and s. 5(1) of the Barristers Act. The objects of statutes such as the Solicitors Act and the Law Society Act and like statutes governing other professions is to protect the public. Such Acts create standards and qualifications of professionalism which must be adhered to by its members. In the words of Chief Justice Robertson in R. ex rel. Smith v. Ott, 1950 CanLII 86 (ON CA), [1950] O.R. 493 at p. 496: To protect the public against persons who, for their own gain, set themselves up as competent to perform services that imperatively require the training and learning of a solicitor, although such persons are without either learning or experience to qualify them, is an urgent public service. It is submitted that while the Court in the above cited case found that agents could in fact attend in the Courts and provide services perhaps denied by the strict wording of the Law Society Act such restriction was off-set by the statutory exceptions contained in other governing legislation. However it must be noted that in doing so the Court confirmed both the strict interpretation of the Acts and Rules governing the provision of professional and specifically legal services as well as the strict interpretation of statutes generally. In respect to the subject template being reviewed herein I would submit that the clear implication is that given the imperative language and unqualified nature of the terms following the said imperatives the wording creates a strict obligation to fulfil same as written and not as may be interpreted. In other words where it says will report you must report any incident that falls within the scope of the Statement or the relevant legislation, where it says you will cooperate with an investigation it does not mean cooperate subject to right to Counsel or your interpretation of the validity of the investigation or allegation and when it says you will ensure no discrimination etc of a client the obligation is not just in reference to your practice but inclusive of partners and associates. When you agree to conduct your practice in accordance with this statement you are agreeing to do so both in terms of the identified legislative requirements as subjective as the case law suggests they may be and in accordance with the less defined “spirit” of such legislation. The consequences for non-compliance with such obligations is implied by the inclusion of references to the Rules of Conduct contained in the Preamble to the provided template however upon review of this material I would submit that other facts can come into play suggesting that the breach of the outlined obligations can constitute breaches of other undisclosed Rules of Conduct such as those relating to Duty to Report, Courteous/Professional Conduct, Competence, Practice Management and Duty to the Law Society. While the above breaches when considered in respect subject Statement the rationale as to what would constitute a breach is fairly clear however one serious breach which would reference Duty to the Law Society is perhaps not so clear but serious in its implication and arises from the very nature of the Statement and the wording of same as suggested by the template and frankly by any possible alternative wording thereof. I would submit that based on the case of Hudson v. Foster et al, 2010 ONSC 3417 (CanLII), the contemplated statement when provided in accordance with the statement of purpose and the preamble constitutes an Undertaking to the Law Society, the breach of which, no matter how minor and/or interpretive can result in serious and unforeseen consequences. This position is supported by the rationale in the above case which held the following; [17] Although the defendants have moved to enforce a solicitor’s undertaking, there is no analysis in either party’s argument as to the nature and effect of a solicitor’s undertaking. As a result, counsel were asked to make further submissions on this point. I have now considered these further submissions. [18] The plaintiff has not sought leave to withdraw the undertaking. However, implicit in the plaintiff’s position that the assurance was an admission that can be withdrawn is a request that the plaintiff not be bound by Mr. Bruzzese’s assurance, if indeed it was an undertaking. [19] Black’s Law Dictionary, 7th edition, s.v. “undertaking” defines it as a “promise, pledge or engagement.” [20] The nature of an undertaking is quoted by G.B. Smith in Professional Conduct for Canadian Lawyers (Toronto: Butterworths, 1989), at p. 203 as follows: An undertaking is the promise given by a solicitor through a written statement, a verbal communication or inferred from his acts, or any combination thereof, in reliance on which promise the recipient of the undertakings gives up to the solicitor or to another party, a document or right, or performs an act which that recipient would not have done were it not for the receipt of the promise from that solicitor. [21] An undertaking binds the lawyer to do something that the circumstances of the pledge do not permit him or her to do immediately. It may be to supply documents, make inquiries, answer a question, discharge a mortgage, or act in a way promised in the undertaking. It is an exception to the general principle that a promise made without consideration is unenforceable. No particular form of words is required to form an undertaking. [22] The nature of an undertaking was described by the court in Bogoroch& Associates v. Sternberg (2007), 2007 CanLII 41889 (ON SCDC), 229 O.A.C. 284 (Div. Ct.), at para. 23 as follows: Solicitors’ undertakings are matters of utmost good faith. They are traditionally given to expedite and facilitate the furtherance or conclusion of matters upon which solicitors are engaged on behalf of their clients. These efficiencies result in savings of lawyers’ time that can be passed on to clients. Time is spent more efficiently and work is done more smoothly. Because of that, solicitors must be able to rely upon undertakings, which are promises given by one solicitor to another to do or refrain from doing an act. [23] The court will enforce an undertaking given in the lawyer’s professional capacity as part of its inherent jurisdiction to control its process. The undertaking is also enforceable in order to uphold the honour of the bar. While undertakings are typically exchanged by lawyers, I conclude that an undertaking given in the lawyer’s professional capacity may be enforced by the court when it is given to a non-lawyer, in order to underscore the professionalism of the bar. However the court will not compel the performance of an undertaking simply because it is made by a lawyer in a non-professional context; see: Wilson v. Beatty (1885), 12 O.A.R. 253 (C.A.). [24] Unlike contractual obligations, an undertaking does not require consideration to be binding. The undertaking is binding personally on the lawyer who has given it unless the undertaking states in unambiguous terms that it is the client who has made the undertaking. In the case of ambiguity, the undertaking is deemed to be that of the solicitor personally. Consequently, a lawyer should not give an undertaking that he or she cannot personally fulfill. Even though the client may change lawyers, the undertaking continues to bind the client and can be enforced after the retainer of the first counsel ends. See: Lysyk, Dodek and Hoskins, Barristers and Solicitors in Practice, LexisNexis Canada Inc. 2009, (looseleaf). Undertakings are not limited to the litigation process but are used in other areas of law such as real estate. [25] Honouring an undertaking is also a professional obligation as set out under Rule 6.03 (10) of the Rules of Professional Conduct promulgated by the Law Society of Upper Canada. The rule states: 6.03 (10) A lawyer shall not give an undertaking that cannot be fulfilled and shall fulfill every undertaking given. [26] The assurance given by Mr. Bruzzese was a clear and unequivocal promise to amend the statement of claim to bring it within policy limits. I conclude that it was an undertaking. It is suggested that the above cited findings of the Court not only establish that the terms of the subject Template #1 constitute an Undertaking to the Law Society given its presented wording but also that any other wording used would result in the same position given the nature of the statement, its purpose and the included preamble. It should be also noted that a breach of an undertaking does not always have to be intentional and can be subject to subsequent interpretation and review of the conduct in light of the presumed knowledge of the party involved. This knowledge is of course presumed by the terms and agreement of the party to familiarize themselves with and abide by the terms and spirit of the relevant legislation. Another word or term that is of interest in the provided template is “workplace”. This term is not defined in the materials but is defined by the Occupational Health and Safety Act as; “workplace” means any land, premises, location or thing at, upon, in or near which a worker works; (“lieu de travail”) It is suggested that in terms of Members and Licensees this definition is even broader than implied above insofar as its application could include, your office, opposing representative’s office, Court house, your car, your home, Tim Horton’s and/or online including closed Facebook pages on which opinions and assistance is given or sought. As the practice of law obviously is not location specific or limited it would appear clear that the Statement of Principles and it’s presumed and implied obligations essentially follows you like a shadow. Another issue arising from the wording of the provided template and/or presumed by the purpose and preamble arises from the inclusion of the Human Rights legislation. This may be somewhat obiter but a matter of interest just the same. The question that arises is, what is the possible application of res judicata. This is of interest as everyone’s conduct is subject to the Human Rights legislation and the censures and penalties that flow therefrom, however given suggested wording of the requested statement would a finding by the Human Rights Tribunal, a monetary award or a dismissal of the complaint preclude action by the LSUC based on the Statement of Principles. I would suggest it would not as the LSUC proceedings would be issue centric in that they reference professional regulation and discipline versus the nature of penalties within the jurisdiction of the Tribunal. The overall philosophy of this position is outlined in the case of Law Society of Upper Canada v. Robson, 2015 ONLSTA 4 (CanLII), which reviewed the subject as follows; [26] It is important to note, however, that the Supreme Court in CUPE recognized that there may be circumstances where relitigation would not be an abuse of process. Arbour J. comments as follows: …There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at para. 80. The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision (Danyluk, supra, at para. 51; Franco, supra, at para. 55). [27] These are the considerations that will guide us in determining whether it would be unfair for the Lawyer to be precluded from re-litigating the findings of Lax J. [Citations contained in footnotes omitted.] [17] In our view, it is in the application of these principles[2] to Mr. Robson’s case that the hearing panel erred in law. Summary As initially indicated this review of the Statement of Principles does not propose to take a position for or against same, rather as stated it is an academic exercise reviewing the proposed Template #1, it potential implications and consequences. It could be properly stated of course that the wording of this template is irrelevant given the right of Members and Licensees to create their own wording for a comparable statement, however no matter what words are used the overall implication of those words is important and worth careful consideration.
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A Law Times column argues it’s time for provincial laws dedicated to stopping defamatory publications on the Internet. Do you think that new legislation will help counter defamatory statements online?
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