Why the 2015 LSUC Bencher Election Deserves Your Attention

I recently spoke with Henry J. Chang, one of the Toronto candidates in this year’s Law Society of Upper Canada (“LSUC”) bencher election. I asked him why members should pay particular attention to the elections this year and what issues are most important to voters. A summary of our conversation appears below.

YSC: Why is it important for LSUC members to pay attention to this year’s election?

HJC: Convocation is currently debating several important and potentially controversial issues. During the election, LSUC members will have an opportunity to support the candidates whose views are aligned with theirs. As six incumbent benchers in Toronto and eleven incumbent benchers outside of Toronto are not running for re-election this year, individual votes will have an even greater influence on how those issues are ultimately resolved.

YSC: Can you tell us what appears to be the most important election issue this year?

HJC: There are actually a number of significant issues that might be deserving of that title. However, if I had to choose one, I would say that the issue of Alternative Business Structures (“ABS”) is quite possibly the most important election issue this year.

YSC: What’s your position on ABS?

HJC: There is a simple answer and a complex answer to this question. The simple answer is that I am against ABS. However, ABS actually involves a broad spectrum of proposals and some are more controversial than others.

In terms of non-lawyers (such as private equity firms) holding significant ownership interests in law firms, I am very much opposed to this. However, I am not opposed to considering lesser changes such as: (1) relaxing some of the fee-sharing restrictions currently imposed on multi-disciplinary partnerships, (2) permitting law firms to use other types of corporations besides professional corporations, or (3) permitting long-time employees of a law firm to have a small ownership interest in a law firm, at least while they are employed by that firm.

YSC: What are some of the other controversial issues that have been raised during this year’s election?

HJC: Another issue currently being debated is the Law Practice Program (“LPP”) and whether the LSUC should continue offering it as an alternative to the traditional articling process. Several arguments have been raised by critics of the LPP, including the potential discrimination that LPP participants might face in the job market and the speculation that law graduates who could not find articling jobs will have difficulty finding employment after being called to the bar. However, we can’t determine at this early stage whether or not those concerns are well founded.

For now, what I can do is share some of my personal observations with you. I started my articling year during the 1990 recession and, although I found an articling position, many of my colleagues had a hard time getting placed. I don’t believe it was because they were incapable of being good lawyers; the economy was just terrible at the time.

Although a shortage of articling positions due to an economic downturn may not be the fault of a particular student, it may still prevent him or her from becoming licensed. I don’t think this is fair, especially if that law graduate will likely pass the bar exam once he or she is permitted to write it.

Some members have stated that a law degree does not automatically give someone the right to be a practicing lawyer; I completely agree with this. However, in my opinion, the bar exam should be the method used to test minimum standards, not the articling process. If we need to increase the difficulty of the bar exam in order to achieve this objective, perhaps we should consider doing that instead.

YSC: Are there any other controversial issues that have been raised during the election?

HJC: I was asked by several members for my position on whether Trinity Western University (“TWU”) should have been accredited by the LSUC. As you know, last year, Convocation voted to reject the accreditation of TWU by a vote of 28 to 21. However, TWU has commenced an application for judicial review of this position, which is currently pending, so the issue continues to be debated.

YSC: Can you tell us your position on the TWU decision?

HJC: This was a tough issue for me to reconcile because I am conflicted between my personal views and my desire to apply the rule of law. I think most people will accept that TWU’s policy discriminates but, as a private university, it is not subject to the Charter of Rights and Freedoms. On the other hand, the LSUC is subject to the Charter when making discretionary decisions, such as law school accreditation. This particular case involves a conflict between two Charter rights: (1) the right to freedom of religion and (2) the right to equality.

As you may know, a similar issue arose in Trinity Western University v. British Columbia College of Teachers, a 2001 decision of the Supreme Court of Canada. In that case, the SCC considered the same issues and ultimately decided that, in order to balance these two competing rights there had to be an actual or very real risk of discrimination, not just the perception of risk. On that basis, the SCC required the BC College of Teachers to accredit graduates of TWU.

There are some who say that this decision no longer reflects society’s views and should not be followed. However, until the SCC actually overturns this precedent decision, I think we have no choice but to apply it.

YSC: Younger lawyers are arguing for greater representation in Convocation. Do you believe that you can represent their interests as a bencher?

HJC: Although I have been practicing for more than 23 years, I am still under the age of 50. More importantly, I still remember what it was like to article during a recession year and then to open my own law practice after being admitted to the bar. Younger lawyers who are entering the practice of law now are still experiencing these same difficulties. So yes, I believe that I can represent the interests of younger lawyers also.

Comments

  1. I’m happy to see this post, Yosie.

    As Mr. Chang highlights, significant turnover at the Bencher table is imminent. Lawyers wanting to influence the make-up of Convocation have never had a better opportunity to drive change.

    As a candidate (Outside Toronto – East Region), I’m facing the same questions from voter and I’m also seeing ABS stand out as the hottest topic. While I certainly haven’t been shy about sharing my views on that topic (pro) both here on Slaw and elsewhere, it concerns me that it is attracting a disproportionate amount of airtime. I hope we don’t lose the greatest chance we’ve ever had to influence the governance and priorities of how our profession is regulated in the public interest by letting the election turn on a single issue. There is a lot more at stake and a lot more to do during the 4 year period until the next election.

    Voting begins next week and I hope to see more discussion on other topics and more focus on the skills candidates can bring to Law Society. After all, Benchers are more than policy-makers, these are the people that will serve as directors of a $100M a year business as well.

    Colin Lachance
    Bencher Candidate – East Region

  2. Most threatening issue is, the unaffordable legal services problem. How to cope with that problem should be the most important, and the determinative issue in this bencher election, because, for many years it has:

    (1) caused the majority of the population of Canada to be unable to obtain a lawyer’s advice at a reasonable cost;

    (2) clogged the courts with self-represented litigants, and as a result, judges have been warning that their courts are grinding to a halt, because cases without lawyers take longer;

    (3) created a very negative economic future for the legal profession, at a time when people have never needed lawyers more, meaning that if legal services were affordable, lawyers would have more than abundant work and clients, and graduate law students plenty of articling positions to choose from, on their way to becoming lawyers ; and,

    (4) made taking more taxpayers’ money for adequate funding of legal aid organizations’ providing free legal services to poor people, increasingly politically unwise.

    Therefore, this most damaging of all “access to justice” problems in Canada’s history, presents a high probability of government intervention into law society management because for many years law societies have failed to perform their duty to make legal services adequately available to the population. Therefore they have no purpose. Therefore a new management structure should replace them. But benchers show no sign of the necessary fear required to force them to take effective action.

    It is a problem that has been developing for decades, such that its very damaging effects have been readily observable by everyone for many years. But, there is no law society program in effect now, the purpose of which is to solve the problem. And there is no LSUC publication that states that the problem is its problem, and its duty in law to solve.

    That is a violation of the duties imposed on the law society by s. 4.2 of Ontario’s Law Society Act, to: (1) maintain and advance the cause of justice and the rule of law; (2) to facilitate access to justice for the people of Ontario; (3) protect the public interest; and, (4) to act in a timely, open an efficient manner. Obviously there is no concern that LSUC’s ignoring the problem and those duties, has the appearance of a breach of trust by a public officer—see Criminal Code s. 122, and the definition of “public officer” provided by the Supreme Court of Canada in, R. v. Boulanger, 2006 SCC 32.

    But, while ignoring this problem, which afflicts the majority of the population, the alternative business structures proposals (ABS proposals) are being very much “fast-tracked” by LSUC to a law society decision—with comparative lightning speed to serve the interests of commercial investors. And fast-tracked forward by a Discussion Paper obviously written as promotional advertising literature, and not the neutral, balanced presentation it should be.

    So, examine the summary of responses carefully. For example, it lists my submission as being “mixed” in its opinion on the ABS proposals, when in fact, every part of it is very much against ABS’s. The writer knows that the summary will be used by all to judge the content of the submissions. Few, if any, will read the submission themselves.

    I have published mine on the SSRN (Social Science Research Network). See:
    What a Law Society Should Be-A Response to the Law Society of Upper Canada’s Alternative Business Structures Discussion Paper of September 24, 2014.” It is also on the list of responses to the ABS Discussion Paper on LSUC’s ABS webpage. For a pdf copy, click on, “Chasse, Ken.”