The requirement has faced some backlash from lawyers and legal scholars, who argue it imposes beliefs on licensees and is a violation of freedom of conscience.
“When you ask people to swear that they have any particular value — even if that view is one that we would all agree is unproblematic — you’re coercing people to reveal what is innermost,” says Alford.
Alford has asked the court to declare that the requirement is contrary to the rule of law and unsupported by the regulator’s Rules of Professional Conduct.
The professor’s application argues the requirement is disproportionate, inoperable and unconstitutional. Alford says it could have a number of problematic consequences.
He said the Supreme Court of Canada ruled in a 1984 decision, National Bank of Canada v. Retail Clerks International Union, that compelling people to say they agree with a particular value is totalitarian and not characteristic of a free state.
“A lot of people in the legal profession find the fact that the law society would be doing that particularly problematic, given that the law society is representative of a profession that is meant to be guardians of the constitution [and] defenders of the rule of law,” he says.
Under the new requirement, lawyers and paralegals have to adopt a statement and check a box on their annual reports to show they have complied. They will not have to submit the statement to the law society, which has said it will not impose a penalty this year for noncompliance.
Proponents of the requirement have said that the requirement is reflective of obligations lawyers already have under the Ontario Human Rights Code.
Asher Honickman, the lawyer representing Alford in the matter, however, says the requirement goes beyond any such obligation.
“What this says is not only that we have to comply with the law, but that we have to ‘promote’ these values and promote them ‘generally’,” says Honickman, a partner with Matthews Abogado LLP.
“There is a lot of ambiguity about what that even means, but certainly that is not what the Human Rights Code says.”
Alford has asked the court to order an interim injunction until his application can be heard in full, as lawyers will have to abide by the requirement in their 2017 annual report due at the end of March.
Honickman stresses that his client is a proponent of diversity, equality and inclusion, but the application is not about those values.
“This has nothing to do with what my client certainly thinks about equality, inclusion [and] diversity. My client is a supporter of those things. That’s not what this is about,” he says. “This is simply about what the law society, as an arm of the state, can compel lawyers to do.”
A spokeswoman for the law society confirmed Alford’s Notice of Application was served Tuesday morning.
“We are reviewing the application and will be responding to it,” she said in an emailed statement.