Benchers defend status quo for equity partners, decline to censure social media critics

The Equity and Indigenous Affairs Committee will continue to decide relationships with outside groups

Benchers defend status quo for equity partners, decline to censure social media critics
Law Society of Ontario Treasurer Malcolm Mercer.

The Law Society of Ontario did not move forward at Thursday’s Convocation with two controversial measures concerning equity and diversity.

The sibling motions aimed first, to censure public criticism of the law society by non-benchers who participate in deliberations; and second, among other things, to study measures that would stop non-benchers from participating regularly in Convocation meetings and other events.

The motions — which prompted outcry from a number of affinity groups and legal associations this week — stemmed from incidents involving the law society’s Equity Advisory Group and its Discrimination and Harassment Counsel. 

However, LSO Treasurer Malcolm Mercer found that the motion to censure was beyond the scope of Convocation. Benchers voted that the second motion be returned to the Equity and Indigenous Affairs Committee in order to decide how to work with external partners such as the Equity Advisory Group.

“There's been much talk of freedom of speech at Convocation and elsewhere in recent months,” said Treasurer Mercer. “Respectfully, Convocation should be wary of restraining expressive freedom out of fear of injurious social media campaigns. I say that especially where the expressive restraint would apply even if the allegation is true.” 

NO CENSURE OF NON-BENCHERS

The allegation, though not detailed in the motion, stemmed from a tweet made by the head of the LSO’s Equity Advisory Group, Nima Hojjati, on Jan. 20, which said that an unnamed bencher asked for his resignation from the EAG, “[n]ot because of my work, but because they could tell that ‘I hate democracy by looking at me.’ ”

“I won't resign because of the way I look,” he added in the tweet, suggesting he may file a formal complaint. “That's sort of the point of equity.”

Hojjati did not speak during Convocation’s Feb. 27 debate. However, bencher Cheryl Lean said at the meeting that she was the bencher referred to by Hojjati, and that the allegations were untrue.

“Having un-elected and un-appointed people attending our meetings, and then without any restraint feeling that they can go on the attack on the internet, violated all of our privileges,” she said.

But Mercer cited the law society’s by-laws, which stipulate that “no motion shall be made concerning a matter, in respect of which a hearing may be conducted.” Because the motion was not aimed at a bencher but rather at non-bencher lawyers, the matter would be one for the law society tribunal, Mercer said. 

“There is a statutory regime for discipline,” said Mercer, pointing to reformations that date back to the 1990s. “There could be a hearing conducted under the Act. Therefore, I conclude the motion is out of order. If I'm wrong, and if there couldn't be a hearing — because what is addressed could not possibly be professional misconduct or conduct unbecoming — then I find there is no jurisdiction to censure.”

Supporters of the censure motion — benchers who are also members of a coalition that opposed certain LSO diversity and inclusion policies — said today’s decision will limit the law society’s power to censure going forward. The group cited several cases in support of its motion, including Skakun v. Prince George (City), 2011 BCSC 1796, Wang v. British Columbia Medical Association, 2014 BCCA 162, Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 and a 1995 British Columbia Labour Relations Board case, Coleman and Leaney, BCLRB No. B282/95. The cases, Mercer said, dealt with jurisdiction and with whether procedural fairness applied to censure.

“One [decision] is in respect to the city council in respect to its own members. The other is a private association, with respect to the board dealing with its own self,” said Mercer. “Those seem to me to be analogous to benchers establishing a bencher code of conduct, or addressing bencher conduct with or without code being established. So, I don't see that those assist with respect to the jurisdiction to censure someone who is not a bencher.” 

The Knight decision was applicable, Mercer said, and he took no issue with the general requirement for procedural fairness that the decision laid out: considering the nature of the decision, the relationship between the body and the individual, and the effect of the decision on the individual. 

However, said Mercer, the B.C. labour relations board case found that “the motion . . . was framed as a motion of censure, but the board concluded that what it was, in reality, was political censure. 

“The board concluded that it did not want to insert itself into the political life of trade unions,” Mercer said of the Coleman decision. “It hasn't been said by the supporters of the motion [that] what's really going on here is not censure, but an internal political struggle and jockeying for power. . . . So if this motion proceeded, I would conclude that procedural fairness would apply.” 

Mercer said that, going forward, it is open to Convocation to require that those who participate in meetings of committees agree to be bound by the bencher code of conduct, but even that process would include notice of the allegations and a right to be heard where a breach is alleged.

He cited Groia v. Law Society of Upper Canada, 2018 SCC 27, and R. v. Kopyto, 1987 CanLII 176 (ON CA). In Groia, the court said that “a particular professional misconduct finding that engages a lawyer’s expressive freedom will only be reasonable if it reflects a proportionate balancing of the law society’s statutory objective with the lawyer’s expressive freedom.” 

In Kopyto, Mercer added: “As a result of their importance, the courts are bound to be the subject of comment and criticism. Not all will be sweetly reasoned. … Some criticism may be well-founded, some suggestions for change worth adopting. But the courts are not fragile flowers that will wither in the hot heat of controversy.” 

EQUITY COMMITTEE TO DECIDE ROLE OF PARTNERS

The second motion, said bencher Jared Brown, would make governance more efficient and accountable by limiting discourse to those who are elected and bound by a code of conduct.

“Equity advisory groups are accorded a special status in this place,” said Brown. “They have no fiduciary duties to the public, or the membership, no duty of confidentiality, and, I suggest to you, no accountability. So what happens when these groups violate the deliberative process of this place? Nothing.” 

Brown said that unlike former law society treasurers and benchers — who lost many privileges in governance reforms last year — equity groups have been spared as “sacred.” Brown, quoting from remarks made by Mercer last year, said that “one of the themes coming out of the bencher election is to ask whether we are regulating appropriately, whether we are proportionately regulating licensees, and whether the law society operated in support of programs that are appropriate in the public interest from a cost-benefit perspective.”

“To be clear, I don't care what was said in a social media post,” said Brown. “I care that someone is given special status to appear on a committee. And they took to social media about our deliberative process. . . . There is no justification for any special interest group -- unelected, unaccountable -- to have status that is not afforded to other groups, representing other interests.” 

However, Dianne Corbiere -- the bencher who chairs the Equity and Indigenous Affairs Committee, which works with outside equity groups – was successful in pulling the motion under her own jurisdiction.

“External groups participating in law society committees is not unique to equity,” Corbiere told Convocation. “The law society routinely seeks advice from non-elected individuals on important policy decisions. This lends credibility and legitimacy to our work. While some law society policy work is short-term in nature and, in many cases, may only require temporary, episodic or ad hoc participation of non-elected individuals, equity issues are persistent in nature,” she said.

“If our current arrangement with [EAG and other external groups], which has been in place for over 20 years, is now subject to a review, EIAC needs to be the body to take a principled, structured approach to understanding the concerns and coming up with solutions.” 

Although Convocation’s decisions on the motions maintained the status quo of the EAG for the time being, bencher Julian Falconer, who backed Corbiere’s move, raised concerns of a persisting power imbalance.

Hojjati, “a young man who was called [to the bar] in 2018, is the subject of attack by lawyers with decades of experience,” said Falconer at the meeting. “Everything we were supposed to stand for as a law society has been lost. We owe a deep, deep apology for the alienation we have caused organizations that have been our partners for years. This is a very sad day. There's no victory here.”

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