Adjudicators shouldn’t be benchers: paralegals

Some paralegals are calling for deputy judges to be barred from serving as benchers at the Law Society of Ontario.

Adjudicators shouldn’t be benchers: paralegals
Graeme Hamilton says that the experience benchers have as adjudicators on other commissions is invaluable.

Some paralegals are calling for deputy judges to be barred from serving as benchers at the Law Society of Ontario.  

A group of paralegals recently submitted a motion to the LSO for consideration at its annual general meeting that suggests banning anyone who adjudicates tribunals and commissions from becoming benchers. 

The motion calls for the disqualification of any licensee from being elected as a bencher who is a “member, commissioner, deputy judge, or such other adjudicator of a public agency, board, commission, tribunal, or the Small Claims Court.” 

Simon Brown, one of the paralegals who submitted the motion, says adjudicators should not be benchers in order to avoid conflicts of interest and to preserve their independence.

Brown says comments Bencher Raj Sharda made in Convocation last year about paralegals provoked the motion. Sharda also serves as a deputy judge in the Small Claims Court. 

“The problem is that he also holds a role as an adjudicator,” Brown says.

“[H]ow is my client going to have a chance if I’m ever to appear before him in that court?” Brown says. 

Under the proposed changes, licensees running to be a bencher would be required to certify on their nomination form that they are not serving in such a capacity or to resign within 30 days of being elected or appointed. 

The motion allows for an exemption for benchers who are members of the Law Society Tribunal and the regulator’s appeal tribunal. 

A number of current LSO benchers, who are prominent members of the profession, sit on such boards and bodies in addition to practising law. 

Opponents of the motion say the experience of those who work on commissions and tribunals provides an important perspective to Convocation. 

“That experience that benchers have as adjudicators on other commissions, public agencies, boards and tribunals is invaluable to their work as benchers,” says Graeme Hamilton, a partner with Borden Ladner Gervais LLP. 

“They are on the front lines of administrative tribunal proceedings.” 

Hamilton adds that he does not see a conflict arising simply because some benchers sit on other public agencies and boards. He says that if such a change were made, it would mean a significant number of individuals would be disqualified from seeking election, which would not be in the profession’s interest. 

Alan Heisey, of Papazian Heisey Myers, says it should be up to individual benchers to deal with possible conflicts on a case-by-case basis. 

He says that if Convocation is set to vote on legislation that might impinge on an area where a bencher is sitting as another board member, then the simple answer would be to declare a conflict on that particular item.

“I am vice chair of the Toronto Transit Commission. How does that conflict with being a bencher?” he says. 

Sharda’s comments that spurred the motion were made at Convocation in December 2017 during a discussion about whether the scope of family law should be expanded to allow paralegals to practise in the area.

Speaking in opposition to the idea, Sharda questioned whether “competent representation” was being provided by paralegals under the system to date. 

“On a weekly basis, I sit as a deputy judge. Not a week goes by when I don’t get a colleague coming to me and asking me, do paralegals have to speak English, do paralegals have to know how to properly provide documentation to the court?” Sharda said at Convocation, according to law society transcripts. 

“Every week I hear this, and every week as a bencher I have to be defending a process which, if you actually go and canvass the people before whom our paralegals represent, you will find that there is an actual disconnect between this organization and the reality on the street. And the bottom line is in 10 years of regulation, we have failed to establish a baseline of competency for paralegals.” 

Brown says Sharda’s comments “struck a raw nerve” with him and that any casual and objective observer would find those comments biased for someone who holds a role as an adjudicator to make. 

Sharda did not immediately respond to a request for comment. 

Brown says he is less concerned with the fact that the comments were made by a bencher than the fact they were made by someone who holds a role as an adjudicator.

Brown adds that the motion is not meant to punish Sharda and his hope would be for the changes to come into effect for the next bencher election.  

Susan Tonkin, an LSO spokeswoman, said in an emailed statement that the law society “looks forward to discussion of the motion at the annual general meeting next month.” 

The meeting is set to take place on May 9 at the law society. 

If the motion is approved, it would not become binding, but Convocation would have to consider it. 

The motion comes as the law society is considering possible governance reforms that could impact the number of benchers and their roles going forward. 

Bencher Janet Leiper, who is head of the governance task force, noted that she has a perceived conflict of interest in respect to the subject matter of the motion, as she is a member of a number of adjudicative boards.

“It would be interesting, however, to know the policy rationale behind the fairly broad conflict of interest assumptions that are built into this motion though,” she says.

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