It’s been a high profile fall for the Law Society of Upper Canada’s disciplinary system.
With the appeal decision in the notorious Groia case now on reserve, headlines on a different matter have moved to centre stage: a Law Society hearing panel has “exonerated” and “absolved” two Torys lawyers—Beth DeMerchant and Darren Sukonick—of conflict of interest allegations in relation to work done for the Hollinger Group of Companies. While the Law Society has expressed “disappointment” with the result, the cleared lawyers, for their part, are now seeking up to $4 million in costs and disbursements that they say were incurred as a result of the hearing that took place over more than 130 days between 2010 and 2013. It remains to been seen whether an appeal will also be filed in this matter, adding even further cost and delay.
A full postmortem on the DeMerchant/Sukonick saga is yet to be conducted. One issue that that this lengthy and complex matter would appear to more immediately revive is the long-standing question of whether the tribunals that evaluate complaints against lawyers – composed in large part by elected benchers who may or may not have any previous training in adjudication – are up to the task of presiding over increasingly complicated disciplinary matters.
In 2010, the Ontario Court of Appeal’s decision in Law Society of Upper Canada v. Neinstein, provided some disheartening insights on this issue when it held that the Law Society hearing panel that had originally heard the matter offered reasons “so inadequate as to foreclose meaningful appellate review” and on certain issues, came “perilously close to constituting no reasons at all.” Ultimately, the Court held that the inadequacy of reasons constituted an error of law requiring a new hearing.
Roughly a year later, statistics published in a 2011 Report from the Law Society’s Tribunals Office suggested that adequacy of reasons was not the only potential problem in the disciplinary system. The Report revealed that approximately 30% of the 174 tribunal files open at the end of the fourth quarter of 2010—with “open” meaning that an originating process had been filed—were over a year old. Of the 53 files over 12 months old, the five oldest were 129, 69, 52, 50, and 46 months old. The picture painted was one of a hearing process that was, at times, administering justice at a glacial pace and that was potentially failing to meet basic standards of due process.
The good news is that, faced with these circumstances, the Law Society took action. In 2012, Convocation approved a number of measures with a view to “enhancing” the Law Society’s adjudicative model. These measures included, among other things, approving the appointment of additional non-bencher adjudicators (including non-bencher lawyers, paralegals and laypersons) and approving the creation of new criteria for the appointment and evaluation of adjudicators within the Law Society’s tribunal system.
Another “enhancement” that Convocation approved was the creation of a full-time non-bencher “Tribunal Chair” position. This new position, occupied now by David Wright for a four-year term that started in September 2013, is intended to provide strategic direction and leadership in improving the overall performance of the tribunal system at the Law Society. Among other things, the Tribunal Chair is tasked with mentoring and evaluating adjudicators and supervising the adjudicative decision-making process with the goal of ensuring consistent quality and cogent decision-making.
The creation of a Tribunal Chair of this type is, in certain ways, an unexpected step for a regulatory body like the Law Society which closely guards and values self-regulation. The Chair is not only an appointed non-bencher, but the position was also set up to be “independent” from (and, in certain respects, beyond the control of) the elected benchers who have traditionally been the prime locus of the Law Society’s self-regulatory powers. When I asked Wright about what “independence” means in the context of his new job, he told me:
Independence has various meanings in this context. In accordance with the Supreme Court’s case law on independence in administrative tribunals, the Chair has security of tenure during a fixed term, financial security, and administrative independence. No one can direct the Chair about adjudicative matters like how a case is decided or how the Chair’s powers to assign tribunal members to cases will be exercised. It also signifies independence and separation from the policy-making and prosecutorial functions of the Law Society. Unlike benchers or senior managers at the Law Society, the Chair is responsible only for the fair and impartial adjudication of cases and the system of dispute resolution.
This creation of this new position is also an experiment. Although the position is similar to chairs of other administrative tribunals, no other Canadian law society has, to my knowledge, appointed full-time tribunal chairs of this nature. Given the legal profession’s typical resistance to change, the Law Society of Upper Canada ought to be applauded for trying something new.
However, it also bears noting that, for those who pay LSUC fees, this isn’t a costless experiment. In the opinion of the Committee who recommended that Convocation approved the creation of the Tribunal Chair position, “a reasonable estimate for costs related to the Chair, including administrative support, office space and expenses and his or her remuneration, will be in the area of $500,000 per annum.”
Will this investment pay off in needed improvements in the speed, consistency and quality of adjudication for lawyers under disciplinary scrutiny? Or will it prove to be a band-aid solution that does little to reform an outdated and inherently flawed adjudicatory system that relies too much on volunteer benchers to judge their peers?
More is at stake than simply money. On a systemic level, a failure to realize a fair and effective adjudicatory system calls into question the ability of lawyers to effectively self-regulate. For individual lawyers caught up in the disciplinary system, delays and inconsistent quality of adjudication can carry major personal consequences. It’s clearly worth our time to keep a watchful eye to see how the Law Society’s recent “enhancements” to the tribunal system unfold over the next few years. If these reforms don’t work, a more radical revamping of the tribunal system is likely in order.