A change has long been anticipated by Ontario lawyers
Lawyers in Ontario finally have clear instructions from their regulator about how they are required to treat the principles of diversity and inclusion in their practice.
The statement of principles requirement was repealed on Wednesday, replaced with a different requirement for lawyers and paralegals to specially acknowledge each year existing obligations under human rights laws and a section of the rules of professional conduct.
Bencher Sidney Troister, a senior partner Torkin Manes LLP Barristers & Solicitors, introduced the motion that was adopted.
“I do not believe it is in the interest of the professions and the interest of this board to simply ignore or minimize the issue of discrimination in our professions. We know it’s there, and we do not need more surveys, reports and focus groups to know it’s there,” he said. “For me the repeal of the mandatory statement of principles needs a replacement. I’m of the view that we need to remind our licensees that they do have obligations as it relates to discrimination.”
The new requirement could potentially to be implemented as a “check box” on an annual report submitted to the Law Society of Ontario, benchers proposed in discussion.
The motion that was approved says that the law society “shall require every lawyer licensee to acknowledge in the lawyer annual report that, in accordance with the Rules of Professional Conduct, the lawyer has a special responsibility to respect the requirements of human rights laws in force in Ontario, and, specifically, to hour the obligation not to discriminate on the grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences (as defined in the Ontario Human Rights Code), marital status, family status, or disability with respect to professional employment of other lawyers, articled students, or any other person.”
The motion, which included a similar provision copied from the paralegal rules of conduct, passed 27 votes for, 18 against, with several abstentions.
The Sept. 11 Toronto meeting marked an uneasy compromise in a long-standing and divisive dialogue on the statement of principles, a rule that made clear a perceived tension between free speech and respect for the lived experiences of racialized lawyers and paralegals.
The statement of principles — a paper pledge to support diversity and inclusion required by the Law Society of Ontario — has been in flux since April. In a spring election of the law society’s board of directors, opponents of the statement of principles requirement won 22 out of 40 bencher seats set aside for elected lawyers.
The arguments for and against the statement of principles led to a gridlock at a June meeting, when supporters of the statement of principles requirement, including a public group called Demand Inclusion, said the statement of principles was one of several important recommendations to come out of an exhaustive consultation on the challenges faced by racialized lawyers and paralegals.
Atrisha Lewis, a senior associate in McCarthy Tétrault, reiterated her perspective on Sept. 11.
“The repeal vote today, I think, was a devastating blow to all racialized licensees and the public at large. Mr. Troister’s motion is not enough but it is better than nothing, and I think it’s important for us to all get behind it,” Lewis said. “I think it’s really important that we stop metaphorically punching racialized licensees in the face, because that’s what it feels like with the repeal motion. I think it’s important we do something and send a message.”
The recently elected anti-statement-of-principles slate of benchers, called Stop SOP, said the rule was compelled speech.
“I haven’t been punched in the face, and I don’t think Ms. Lewis can speak for all, what she called, racialized licensees, of which I believe I am one,” said sole practicioner Chi Kun Shi. “I hear a lot of talk about discrimination being a problem in our profession. Discrimination is against the law . . . . if there are lawyers that flout the human rights laws, they need to be found guilty before the human rights tribunal and brought before our tribunal for discipline.”
One proposed compromise — which would have made the statement of principles a voluntary document — struggled to take hold in both June and September, amid concerns from some Stop SOP benchers that the compromise motion included data collection and virtue signalling. Unlike in June, the September sitting of Convocation approved a motion completely repealing the statement of principles, instead.
Then, the new “check box” compromise, introduced by Troister, won enough support to become the new LSO policy.
“A hard repeal — that ignores the significant demographic of our professions who will be angry, hurt and will have a greater sense of exclusion than it already does — does not sit well with me. In fact, it leaves me cold. Despite my difficulty with the mandatory statement of principles, this result sends a message that the issue is not important to us, even as regulators,” Troister said.
The motion that was ultimately adopted still faced opposition, when some benchers said it breached proper procedure and did not have the proper consultation. Despite the consternation about the timing of the motion, benchers did not get enough votes to send the discussion of Troister’s motion back to the committee level.
While most of the debate focused on issues of good governance and regulatory overstep, other arguments were also raised by benchers.
Bencher Jack Braithwaite, counsel at Weaver Simmons LLP and supporter of keeping a mandatory statement of principles, said the compromise showed the law society will take the path of least resistance, "throwing its principles under the bus" in favour of political expediency.
“The repealing of the mandatory approach is meaningless. It’s a compromise to nothing,” he said.
Bencher Murray Klippenstein, who is part of a court case challenging the constitutionality of the statement of principles requirement, said he felt the profession had been “misled.”
“I didn’t want to get into this today. I have to say that long process was rigged and the data was manipulated and misrepresented,” said Klippenstein of the 2016 report on discrimination in law that ultimately led to the adoption of the statement of principles and other requirements.
A lay bencher — a non-lawyer of member of the public — spoke in favor of having lawyers and paralegals acknowledge the pitfalls of discrimination, if only for a few seconds each year.
“I’ve never been a proponent of the mandatory statement of principles and my reasons are on the record,” Troister said. “My position hasn’t changed as it relates to the statement of principles. But I had the privilege over the past three years of being a member of the Equity and Indigenous Affairs committee, and I learned a lot as a member of that committee …. And I have read the letters from many our professions for whom some recognition of the discrimination licensees face is important.”
Treasurer Malcolm Mercer, a partner in McCarthy Tétrault and leader of the law society benchers, told reporters that while the process took longer than one might have hoped for, but it allowed Convocation to express its will through democratic channels.
“On a more personal basis, I think where we ended up is in a good place. The law society made clear that the adoption of the statement of principles, originally, was not meant to be more than an acknowledgement of existing obligations. There was obviously great confusion and a lack of clarity on that,” Mercer said. The result of the Sept. 11 meeting, he said, was in keeping with the “spirit” of the original statement of principles requirement.