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The Future of Articling – in Canada

There have already been several posts on Slaw and elsewhere about the current articling debate in Ontario.

As one of the invited moderators [1] of the debate I have been actively involved in reflecting and commenting on the issues, and I’m quickly coming to the conclusion that this could be the start of changes across Canada. A recent article in The Lawyers Weekly [2] noted that even though Manitoba graduates currently can find articling positions, the situation there may drastically change because of what is going on in Ontario.

Where We Are Right Now

During October Convocation a number of legal organizations expressed misgivings about the amount of time between the release of the final report [3] and the debate. In true lawyerly style, a debate then proceeded over whether the debate should even occur.

The decision was that the debate should commence, but that the vote should be delayed to Convocation on November 22, 2012 to give people more time to read the report. Of course the debate could not have concluded in October, so November Convocation will contain the continued debate and the vote.

But November Convocation has to address the budget, which might mean in a worst-case scenario that the debate and vote carry on into a special sitting of December Convocation. Let’s not hope it gets pushed even further into 2013.

Canvassing the Views

To recap, here are some of the posts and articles by some of the other panelists:

Dean Sossin of Osgoode [13] (not a moderator), would probably question the premise that it signifies the end of law schools. He doesn’t comment on this but does weigh the pros/cons here of each proposal, and indicates this is a national issue, citing a statement by the Canadian Council of Law Deans. He has also rebuffed [14] some of the criticisms directed against law schools, saying that seat increases have matched population growth.

Tom Conway, Treasurer of the Law Society, did a short blog post about October Convocation here [15].

My posts on the subject include:

The views expressed by the panelists are as diverse and contradictory as the views expressed by the bar [21] itself. In my last post on this subject I commend the law society for the extensive consultation and engagement that they’ve engaged in through this process.

I pointed out repeatedly that the students who are being affected by articling decisions did not elect the benchers and did not have representation on the moderating panel. The law society has bravely responded to this by inviting Eric Vallillee [22] to join the fray. He expresses concerns with the majority’s position, but hasn’t really revealed much more about that yet.

What the Past Month Has Accomplished

Despite the extensive consultation already undertaken, the additional month provided stakeholders further time to read and consider the detailed report and the majority and minority decisions.

The past month allowed legal organizations, lawyers and law students to provide additional commentary [23], which is summarized by the law society here [24].

I don’t see anything particularly unique about these comments, which largely mirror similar sentiments expressed during the consultation period. The only difference here is that they are now framing these concerns and views in context of the majority and minority opinions.

I feel the need to point out that the original report by the Task Force was expected in May 2012, but given the enormous resistance from the bar over every proposed option it was pushed until October. This follows a previous consultation which concluded in 2008 that concluded, erroneously, that the bar would be responsible for fixing the problem if one truly existed.

The report notes at para. 25 that the 2008 the Licensing & Accreditation Task Force surveyed over 94% of the law firms in Ontario, but were unable to create a single additional articling position through this process.

What Everyone Seems to Forget

It’s not a “gap issue.”

Most of the debate seems to center around why there is a shortage of articling positions, and how to best resolve it. This is just one element of the terms of reference [25] set out in June 2011 (as amended [26] in September 2011).

What this Task Force was supposed to examine was whether articling was a valid regulatory barrier for entry to practice. Keep in mind that articling is not supposed to assist law firms with recruitment or help young lawyers get jobs.

The purpose is directly related to the function of the law society under the Law Society Act [27], to protect the public interest and advance access to justice (see minority view, para. 204). The qualifications for licensing [28] under the Act are entirely different and separate from the professional competence [29] provisions.

When a qualification for licensing requires employment with a law firm (understanding of course there are other articling positions in the public sector, etc.), then the nature of that employment within firms should be subject to direct scrutiny.

Option 2 of the December 2011 Consultation Report [30] was maintaining the status quo with qualitative improvements. The majority note at para. 25 that there is broad support for improving the articling experience. It would be misleading to conclude that these improvements exclusively relate to the breadth of substantive legal exposure, or amount of mentoring within the articling process.

There is absolutely no tracking of the demands placed on articling students (minority view, para. 204).

Ontario’s Employment Standards Act [31] provides exemptions for students in enumerated professions under s. 2.(1)(e) [32] of O. Reg. 285/01 [33] (as amended) for working hours [34], overtime pay [35], minimum wage [36], and holidays [37]. With the legal market the way it is, it probably isn’t surprising that there are articling students working below minimum wage, when prorated for hours/week (some are so desperate as to work for free; para. 64).

The bigger challenge is the impact on equity-seeking groups, who still don’t seem to have a significant voice in this debate. The inequities are not limited to securing positions, but also extend into the forms of harassment which are clearly within the realms of violation of human rights legislation.

Law students are not particularly thought of as a vulnerable population, but the power imbalances in the legal profession are markedly different than others listed under the ESA regs. You only need to look at one of the many “scandals” asserting abuse against partners, and the ensuing backlash by the firm and the profession, to understand why abuses can and do occur. For the law firms, any form of conflict results in conclusions [38] that they shouldn’t be hiring in the future (or perhaps for some, that they shouldn’t be hiring from certain equity-seeking groups).

Although articling does not create the inequities, mandating it as the sole route to licensing ensures that the law society is directly responsible for the inequities that do occur (para. 89). Unfortunately, the co-op placements required in the majority’s Law Practice Program (LPP) will not resolve this problem, and some of the largest firms have already indicated [39] they are not keen to cooperate with the co-ops.

Where Do We Go From Here?

One of the other principles [40] under the Law Society Act [27] is that it operate in a timely, open, and efficient manner. Although the transparency of the process has been admirable, it has hardly been timely or efficient if we include the previous task force on this subject.

I do not believe this is due to any fault of the law society or the benchers. They are dealing with the most contentious and divisive issues in the legal profession of our generation.

As elected representatives they deal with a constituency who has significant financial incentives to retain (and sometimes “abuse”) the current articling system as a means of cheap labour and recruitment/advancement through attrition. The task force has been rebuffed numerous times throughout this process that “kids” (the terminology often used) are too “spoiled” these days.

Justifying articling simply because it’s the process that all of us endured is not-evidence based and is illogical, and is a strange form of argument for a profession populated by advocates. The task force itself acknowledges that we do not have the evidence to make proper decisions.

Part of the proposed pilot project include quantitative (paras. 170-172) and qualitative (paras. 173-175) monitoring, which should help collect the appropriate evidence. Interpretation of quantitative information, especially as it relates to equity-seeking groups, should keep in mind the subtle and insidious manner in which discrimination occurs (See, for example, Basi v. Canadian National Railway Co. (No. 1) [41] (1988), 9 C.H.R.R. D/5029 (C.H.R.T.); Raheja v. Newfoundland (Human Rights Commission) [42] (1997) at para 32).

The majority and minority proposals are not just imperfect, they are deeply flawed. Unfortunately we are simply out of time, and delaying this issue further is irresponsible. After the pilot is concluded we can reassess how we move forward as a profession, utilizing the information collected in the interim. I expect this data will be closely reviewed by law societies across Canada in determining what comes next.

The minority’s view has not been tabled as a motion. I do not consider this to be an “effective” means in which to advance their critiques of the majority’s view, especially since we’ve had a month’s delay to extend the debate.

The time has come for change, and the majority motion is the only option available.

Unless, of course, we end up deferring the vote to December.