Benchers balk at funding law commission

The exact role the Law Society of Upper Canada should play in a new Law Commission of Ontario has come into question, as Convocation voted narrowly last month to renegotiate its proposal for the project.

While most benchers at Convocation are in favour of a new law commission in the province, the vote at last month's meeting was 23 to 22 in favour of asking the government relations committee to renegotiate the terms of the law society's proposal for the commission.

The proposed structure for the commission would involve a partnership between the government, the law society, the Law Foundation of Ontario, Osgoode Hall Law School, and the other Ontario law schools. The commission would be located at Osgoode Hall Law School and would be the first in the province since the former Law Reform Commission of Ontario was cut in 1995.

The Law Foundation approved a grant application of $485,000 for five years for the commission earlier this year, provided certain conditions are met. These include a $100,000 commitment from the law society every year over the next five years, as well as active participation in the project.

The Ministry of the Attorney General was also required to commit $100,000 cash and $120,000 in kind per year for five years, and the law schools other than Osgoode were each to commit $10,000 per year for five years and be active participants in the project.

However, according to Convocation, since then, the funding sources have changed slightly, as the other law schools will not be making a financial contribution, but will still be actively involved in the governance of the project. The AG will now be contributing $150,000 in cash instead of $100,000.

The board of the law commission would be made up of eight members, including one representative of the Law Foundation, one chosen by the Law Deans, one from Osgoode, one from the AG's office, one from the law society, one from the judiciary, and other members as required.

Although most benchers are in favour of creating the new commission, there was some opposition to the fact that the law society was being asked to contribute to the funding of the project. There was also objection to the fact that there did not seem to be many representatives from the private bar on the board. Other benchers also disagreed with the fact that the Ministry of the Attorney General would be supplying the commission with staff.

Bencher Gary Lloyd Gottlieb commented, "We should have legal research. We should have a Law Reform Commission, but it is my view, treasurer, that we're not the appropriate body to fund the Law Reform Commission, and we're here to regulate the  profession. We should not ask our members for money in their annual dues to fund [it]."

Bencher Clayton Ruby added, "This should be publicly funded. There's been some attempt to make a virtue of the fact that we're going [to] make a $100,000-a-year contribution to it. It is nowhere near our core responsibilities. It doesn't even approach our core responsibilities, and it is a large amount of money. One can also predict it's not a large amount of money that will remain static or end after five years. It's a permanent belief - it's going to be a permanent commitment. We should not enter into it. We should negotiate that."

Bencher Laurie Pattillo said, "I think that the concept that's before us - of a law commission which has independent funding and an independent agenda - is a fabulous concept. It takes the old law commission further - much further in my view - and I think the opportunity for this body to be at the table and to participate and to help drive the agenda is one that we cannot and should not pass up."

Presenting the report to Convocation, Bencher Neil Finkelstein said, "The attorney general should be making a contribution and have a role on the governing body so that the attorney general can't give the back of his hand to the Law Commission, but the attorney general's contribution should be one that we can live without, otherwise the tap can be turned on as happens federally. So it is vice, not a virtue, to have a too great of contribution by the attorney."

According to the original grant application, submitted to the Law Foundation by Osgoode Hall Law School on behalf of the other organizations, the commission would "address areas of law and legal practice that are of considerable importance and relevance to the public and practising bar and yet fall outside of the mandate of Legal Aid Ontario's law service." It would also "conduct critical work that is not currently receiving sufficient attention, but which needs to get done to maintain a sophisticated and effective legal system and community."

The commission would begin as a five-year pilot project, with critical evaluation undertaken in the third year.
Attorney General Michael Bryant told Convocation, "Justice issues need that independent driver of opinions and collector of reforms or else it's just in the hands of the policy department of the Ministry of the Attorney General, one that I'm very proud of, but in the long term we need more than just a government voice."

He noted that a provincial law commission is a more viable option for Ontarians than a federal one, even though a federal one is important. Bryant originally announced his support for the creation of a new law commission back in January at the opening of the courts.

Last month, the Harper government cut funding for the Law Commission of Canada, an independent federal law reform agency, resulting in savings of $4.19 million for the government over two years.

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