The Law Society of Ontario governing coalition will face serious challenges

The 2023 bencher election was an unparalleled success for the Governance Coalition, which captured all 45 seats up for election. Their lawyer candidates, many supremely qualified, each earned, on average, around 51 percent of the vote, or about 11,500 votes. Their members include lawyers from Stockwoods, Torkin Manes, McCarthys, Gowlings, Lenczner Slaght, Palaire Roland, Goodmans, Siskinds and Lerners. Other notable members include the head of the Canadian Bar Association, a former president of the Ontario Bar Association, several class counsel, and a former general counsel since named a judge.

Given the Coalition’s membership and organizational ability, they were able to drive voter turnout, increasing it by close to 40 percent from the 2019 election (to 22,535 voters from 16,156). This was likely aided by the endorsements secured from a veritable who’s who of legal organizations, with some of the more notable ones being the Canadian Defence Lawyers, Criminal Lawyer’s Association and the Legal Aid Ontario local.

However, the Coalition’s utter dominance gives rise to its first challenge, namely, whether it wishes the LSO to have any independent (i.e. non-Coalition) benchers in future, and if so, how significant a role it will allow them to play. For instance, in the 2023 election, no unaffiliated candidate received more than 2,500 votes (with the last elected bencher receiving 10,697). Conversely, in the 2015 election, the top polling candidate received 5,932 votes (around 3,000 votes were required for election in the Toronto region and around 2,000 for outside Toronto). Interestingly, combined the total votes for the last three treasurers in the 2019 election would still fall around 700 short of being able to win the last seat in Convocation in 2023. Ultimately, this illustrates that absent change, benchers will be selected internally by the Coalition in the future (much as the Governor of California is chosen in the Democratic Party’s primary), and the profession will go from being self-governed to being ruled by the Coalition.

Moving beyond the election, the Coalition must determine whether the LSO should resume its virtual verification requirements from 2007, sunsetting its pandemic measure that permitted virtual verification without authentication. This would require lawyers to verify a client’s government-issued photo ID in the presence of the client (goodbye Zoom), to obtain a prospective client’s credit report, or to obtain at least two original documents from two sources containing two of the prospective client’s name, address and date of birth (with an exemption for ETF-received funds).

While unlikely to have much effect upon firms such as Stockwoods or Torkin Manes, such rule revision would likely impact firms who serve older clients (who may prefer to pay for legal services by cheque, for instance) or who operate in more rural areas. Given the unpopularity of this measure and the then-pending election, this rule revision was delayed until 2024.

The Coalition must next determine whether and how much it will expand the LSO’s powers to regulate lawyer conduct (including conduct outside the practice of law) where prosecution would not otherwise be appropriate. Currently, where a complaint is made, the LSO (specifically the proceedings advisory committee) has three options, to authorize a proceeding, take remedial action or pursue no action. Remedial action is currently limited to sending the lawyer a (private) letter or inviting the lawyer to attend a meeting, which the lawyer presently has the option of declining. The proceedings authorization committee believes its existing powers in this regard are insufficient.

Accordingly, the LSO would like to expand its authority concerning remedial outcomes. The most minor change would be making attendance at a remedial meeting mandatory rather than optional. Others, such as requiring lawyers to attend a “specified continuing education or remediation program” (SCERP or re-education) and publishing a public notice (with reasons), have the potential to be much more oppressive (and to spawn some of the costly litigation that the LSO is known to become embroiled in, often unsuccessfully).

In its October 27, 2022 consultation report, the proceedings authorization committee noted that its proposed remedial outcomes aligned with “other professional regulators.” One such regulator is presumably the BC College of Nurses and Midwives, which is currently using its statutory powers to prosecute nurse Amy Hamm, who had the gall to sponsor a billboard indicating she loved JK Rowling and to otherwise voice her opinion that there were differences between biological women and trans women. Such prosecution of unpopular viewpoints aligns with the College of Psychologists of Ontario, which is demanding that Jordan Peterson take a course about proper “social media etiquette.”

Once the LSO’s new remedial powers are approved, Ontario lawyers can expect the LSO to monitor, guide and correct their conduct, even where, like Hamm, it is unrelated to their professional activities (presumably protected by the Charter). A paid-for, professional big brother, if you will.

While the Coalition will doubtless find those issues a challenge, one area will certainly be easier to deal with –namely how rapidly to increase the LSO’s budget. Currently forced to operate on a shoestring budget of a mere $141M (only several tens of millions of dollars more than the next most expensive Ontario regulator) per year, management will likely be pressing for modest yet necessary spending increases, to say $155M in 2024, and likely approaching $200M in annual expenditures by the end of term. Such increased spending will not only allow the LSO to focus on its core activities, such as the operation of the restaurant (now likely to soon reopen, for those who were worried) or the development of close to $20M in custom software (see p. 12 of this report) but also to bring new employees on board, to monitor compliance with the above new regulations currently in the works.

Ultimately, how the Coalition responds to these challenges will determine whether “Good Governance” turns out to be more than a successful campaign slogan.