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LSO balks at federation's standards on disciplinary investigations

Requirement to contact those under investigation every three months 'not optimal'
|Written By Anita Balakrishnan
LSO balks at federation's standards on disciplinary investigations
William Trudell says it’s 'not acceptable' for the law society to take more time to notify people under investigation.

The Law Society of Ontario has decided it cannot comply with a national standard to contact lawyers and paralegals every three months if they are the subject of a disciplinary complaint investigation, according to a new report.

The May 23 report from the LSO’s Professional Regulation Committee, prepared for the law society board of directors’ Convocation meeting this week, highlighted the point of disagreement between Ontario’s legal regulator and the national Federation of Law Societies of Canada.

While the law society tribunal is doing the best it can to be efficient and fair overall, it’s “not acceptable” for the law society to take more time notify people under investigation, says William Trudell, a senior lawyer who represents other lawyers facing complaints before the Law Society Tribunal.

“What that doesn’t take into consideration is the person who is the subject of investigation. The damage could be done by the time the law society gets around to get dealing with the issue. A person’s career could be ended. Their health could be affected. There is a cloud over every person alleged to have committed professional misconduct or conduct unbecoming,” he says.

The report said that none of Canada’s law societies is meeting the federation’s National Discipline Standards project, which “seeks to strengthen and harmonize complaint and discipline processes across the country.” Particularly, Ontario’s law society has decided that the federation’s suggestion to contact complainants and subjects within a 90-day period during the investigation stage is “not optimal,” the report said.

At a meeting on Thursday, law society staff said that, while the initial contact with subjects and complainants happens relatively quickly, the standard requires updates every three months. The LSO did not meet the benchmark in 2018 and said it has previously pushed back against the recommendation since 2013.

The LSO received 6,442 complaints on 60,600 licensees in 2018, compared with the next-biggest law society, Quebec, which received 2,049 complaints about 26,799 licensees, the report said.

“Ontario has more than twice as many licensees as the second largest jurisdiction, Quebec and over 40 times as many as New Brunswick,” the report said. “When complaints are considered in the context of overall staffing, we receive approximately 10.7 complaints per staff member, as compared to approximately 10.2 for Quebec, 5.7 for British Columbia and New Brunswick, and 4.8 in Nova Scotia. Given the significant differences in the number of licensees we regulate, the complaints we receive, and our current staff levels, there are certain benchmarks that will remain difficult.”

At Thursday’s meeting, newly elected bencher Gerard Charette said many of Ontario’s medical professional tribunals provide much more frequent updates. Charette, a past director of TV Ontario and past lay member of the Council of the College of Optometrists, said Convocation should look further into whether technology can help the law society respond faster.

Darrel Pink, who was executive director of the Nova Scotia Barristers' Society from 1990 to 2018 and now practises in association with Toronto firm Steinecke Maciura LeBlanc, says he was involved with the federation’s discipline standards and was not persuaded that the LSO’s decision on timelines was justified.

“The issue about keeping complainants informed is: If you have nothing to tell them, is it better not to say anything or to tell them you have nothing to tell them? I think the Law Society of Ontario has decided better to say nothing rather than engage with them,” says Pink. “I understand that it’s an issue of resources. Every time you send a note to someone, even a machine-generated followup, there’s a possibility of that person contacting you and engaging in a discussion about why nothing has happened. I think there is a real question philosophically about what it says in terms of what the law society’s priorities are. . . . Just imagine if you sent a complaint in to a regulator and you don’t hear from them for almost six months.”

The LSO said in the report that it would need to double its staff to reach complaint levels seen in smaller provinces. The report suggests an alternative of 120 to 150 days.

“Obviously, a large organization like the law society has to have efficient organization. But if you forget about fairness and access to justice, you’ll have a very well-organized body that might be irrelevant to the members that support it,” Trudell says.


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