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Ontario’s Law Society: Orwell’s Big Brother or Fuller’s Rex?

On September 13, 2017 Ontario’s Law Society with no name sent a now infamous e-mail to its licensees stating:

You will need to create and abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public. You will be asked to report on the creation and implementation of a Statement of Principles in your 2017 Annual Report.

While some have defended the Statement (see Omar Ha-Redeye here on SLAW and Renatta Austin’s comments on The Current) most commentary has been harshly critical. Bruce Pardy on The Current called it “the most egregious kind of violation of freedom of speech…this is the authorities requiring you to say what it is that they want to hear”. In an editorial in the National Post Pardy described it as “[f]orced speech” of the type that would be imposed in North Korea. In his view the Statement “effectively prohibits Ontario lawyers from engaging in…debate” around the “contours of anti-discrimination laws”. In an equally histrionic editorial in the Globe and Mail, Arthur Cockfield described the Statement’s “chilling Orwellian language” and claimed that it would prevent lawyers from representing certain types of clients, like a person who was charged criminally after calling for the imposition of sharia law. And even Conrad Black saw fit to unleash a polysyllabic spree against the Law Society’s initiative, decrying the Law Society for taking “unto itself the totalitarian power to exclude or otherwise punish anyone who declines to declare total fealty to principles enunciated by the professional self-regulator”. Black went on to condemn the whole lot of us as “a largely venal association of self-serving gougers riveted on the back of society and dispensing a hideously bloated service on a defenceless public as the lawyers jubilate in their 360-degree cartel.”

This post comes not to praise the Law Society’s e-mail, but to bury it.

To do so I propose and defend the following:

  1. Despite Pardy and Cockfield’s free speech hysteria, a law society can indeed require lawyers to acknowledge and abide by obligations it has lawfully created. Doing so is a legitimate and appropriate exercise of regulatory authority, and is essential for law societies as they move towards compliance-based regulation;
  2. A law society can legitimately impose obligations on its members that involve moral assessments about what is “right” and “good”.
  3. The obligations a regulator requires a lawyer to acknowledge must have legal authority – i.e., the law society can only legitimately require lawyers to commit to and acknowledge obligations it has actually created.
  4. In this case, the problem with the Law Society’s approach was not that it required lawyers to acknowledge and abide by obligations that incorporated a particular moral perspective or point of view with which some members may disagree (see Propositions 1 and 2). The problem with the Law Society’s approach is that they want licensees to acknowledge an obligation they do not as yet appear to have created (as required per Proposition 3).
  5. Canadian law societies should embrace compliance-based regulation, including entity regulation. Doing so could, amongst other things, help to address inequality, exclusion and racism in the profession. The deficiencies in the Law Society’s approach here should not prevent it and other Canadian law societies from exploring these approaches.

They can make you say that

The law regularly requires people to acknowledge their legal duties, and does so without much regard for the accuracy of that acknowledgement. I regularly click “Agree” to confirm my “understanding and acceptance” of terms and conditions I have never read, let alone understood and accepted.

Why do we do that? What is the point of requiring people to say things we know are not true and that they do not believe?

My guess is that, most of the time, it is to prevent people from later denying the thing they have acknowledged to be true, however insincere that original acknowledgement. If I challenge the validity of Apple’s Terms and Conditions, they will remind me of my original decision to click Agree to get that app or movie or TV show or song or device that I wanted enough to lie for. Similarly, once a lawyer acknowledges the existence of her legal duties to a regulator – her duty of competence, to avoid conflicts of interest, or to maintain confidentiality – then it will not lie in her mouth to claim that she did not know she had those duties or that she did not understand them. The duties existed and the fact that the lawyer acknowledged their existence, however insincerely, forestalls any argument based on ignorance or innocent misunderstanding.

In addition, however, regulators need to bring legal obligations and requirements to the attention of licensees. They need to do so to ensure that licensees do not lose sight of regulatory obligations in the scramble of keeping a practice running. A system of acknowledgments helps with that objective. Requiring a licensee to acknowledge, for example, that he has an obligation not to represent two clients whose legal interests are directly adverse, even in an unrelated matter, helps ensure that licensee remembers that the bright line rule exists.

Acknowledgements also help regulators to ensure that licensees keep up to date with emerging practice issues and challenges. Requiring a licensee to acknowledge, for example, the need to protect client confidentiality and privilege when crossing the border into the United States, or when storing documents in the cloud, will alert a licensee to those new but crucial obligations, and encourage the licensee to identify means for accomplishing them.

Finally, any regulator who wants to move to compliance-based regulation, and away from the reactive complaint/discipline model that has traditionally been used, needs to use an acknowledgement system. Compliance-based regulation depends on regulated parties – and in particular on regulated entities – acknowledging regulatory obligations, creating strategies for accomplishing those obligations and reporting on the success of those strategies. Compliance-based regulation aims not to punish lawyers for doing things wrong, but to help lawyers create structures and strategies for getting it right. Doing that requires lawyers acknowledging what they need to do, creating strategies for doing it, and monitoring how those strategies work.

In short, regulators have legitimate reasons to require licensees to acknowledge their obligations, and whether a licensee is a compliant but insincere Holmesian bad man, or a compliant and sincere adopter of Hart’s internal point of view, makes no difference.

Regulation involves value judgments

My sense from reading some of the criticism directed at the Law Society is that the critics are uncomfortable with the Law Society imposing moral values on its licensees: because the value and parameters of inclusion, equality and diversity are contested and unclear, the Law Society ought not to require its members to acknowledge a duty to promote them.

In my view, decisions about the content of law and regulation, and in particular the duties and obligations of lawyers, necessarily involve moral judgments. Indeed, the duties of Canadian lawyers are rife with them:

  • A lawyer may (not must) disclose an imminent threat of serious bodily harm or death to an identifiable person or group even where that threat is otherwise confidential and privileged.
  • We do not include financial fraud, however serious, within that permission to disclose
  • A lawyer must treat a court with civility
  • A lawyer must be shown to be of “good character”
  • A lawyer must withdraw when a client insists on committing perjury, even where the lawyer’s knowledge of that perjury is confidential and privileged.

A number of those duties are ones with which I do not agree, or would have stated differently. But I do not dispute the propriety of a legal regulator making those moral judgments. Indeed, how could they avoid them? Lawyers have duties such as confidentiality, and law societies and courts have to decide what falls within that duty, and where it ends. They have to consider the rights of clients, but also the interests of others – of, for example, the person a client has threatened to harm. Balancing those varied rights and interests requires the regulator to make a value judgment with which some people will agree, and some will not. Indeed, that’s what law always is and does – it allows us to peacefully resolve our disagreements about the right way to live. It answers moral questions and resolves moral disputes. A legal regulator is charged with making value judgments on difficult moral questions; it cannot both discharge its mandate and be value neutral.

Regulators can make you acknowledge what is, but not what they wish to be

Given what I have argued to this point, a regulator can make a licensee acknowledge and agree to comply with obligations with which the licensee disagrees. The Law Society of Alberta could make me acknowledge and agree to comply with the duty of civility. It could make me acknowledge and agree to comply with a duty to withdraw when a client has committed perjury. It could do so, even though I do not necessarily agree that, in all cases, that’s what my duties should be.

On the other hand, it surely goes without saying that no state actor can make a person agree to abide by legal rules that it has not created. The most basic principle of the rule of law is that the state cannot impose duties or exact sanctions without legal authority to do so. So, for example, the Law Society of Alberta could make me acknowledge that I have a duty to “encourage public respect for and try to improve the administration of justice” (since Rule 5.6-1 imposes that duty). It could also make me acknowledge that I have a duty “not to weaken or destroy public confidence in legal institutions or authorities by irresponsible allegations”. But it could not make me acknowledge a duty to “never criticize a court or tribunal” since the Commentary to Rule 5.6-1 also says “Proceedings and decisions of courts and tribunals are properly subject to scrutiny and criticism by all members of the public, including lawyers”. The first two acknowledgements have legal foundation. The third one doesn’t. And it is only that which is an existing legal duty that I can be required to acknowledge.

The Problem with the Statement of Principles

Given all of this, what about the Law Society’s requirement that licensees acknowledge an obligation to promote equality, diversity and inclusion, and create a statement of principles reflecting how they will do so? Provided there is in fact a legally established duty on Ontario lawyers to promote equality, diversity and inclusion, then there is no reason whatsoever why licensees cannot be required to acknowledge that duty, and identify strategies for accomplishing it. That the scope of equality, diversity and inclusion are contested doesn’t matter – it would be a legitimate regulatory strategy to accomplish an existing regulatory obligation. Further, requiring a licensee to identify strategies that will “promote” equality, diversity and inclusion does not require a licensee to make public statements in favour of the duty to promote, or even in favour of equality, diversity and inclusion. It does not force speech beyond acknowledgement of the existence of the duty to promote. Rather, it requires a licensee to identify ways that he can take steps to make the profession more equal, diverse and inclusive. What the licensee identifies is, within those parameters, up to him.

The problem, however, as Anne Vespry cogently argued on our legal ethics listserv (and “Bob Smith” also noted in comments on Omar Ha-Redeye’s SLAW column), is that it is not clear that there is a legal basis for claiming that Ontario lawyers have a duty to promote equality, diversity and inclusion understood as a requirement to take active steps toward making the profession more equal, diverse and inclusive. Or, to be more precise, the Law Society has yet to satisfactorily identify the source for the stated obligation, and a review of the Rules of Professional Conduct does not provide a clear basis for imposing it.

Rule 2.1-1 of the Law Society’s Rules of Professional Conduct requires a lawyer “to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity” and Commentary 4.1 to that Rule imposes “special responsibility to recognize the diversity of the Ontario community, to protect the dignity of individuals, and to respect human rights laws in force in Ontario. [emphasis added]”

Rule 6.3.1-1 imposes on Ontario lawyers

a special responsibility to respect the requirements of human rights laws in force in Ontario and, specifically, to honour the obligation not to discriminate on the grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences (as defined in the Ontario Human Rights Code), marital status, family status, or disability with respect to professional employment of other lawyers, articled students, or any other person or in professional dealings with other licensees or any other person [emphasis added].

The commentary goes on to require a lawyer to take “reasonable steps to prevent or stop discrimination” (Commentary 13) and also “acknowledges the diversity of the community in Ontario in which lawyers serve and expects them to respect the dignity and worth of all persons and to treat all persons equally without discrimination” (Commentary 1) [emphasis added].

All of those duties are, however, either passive (recognize and acknowledge) or negative (prevent, stop, respect). None of them seem sufficient as a basis for claiming that lawyers have a positive duty to advance equality, diversity and inclusion. Lawyers perhaps should have that duty, but unless they have it already the legal basis for requiring lawyers to acknowledge that they have it just doesn’t seem to be there. The Law Society’s mistake, therefore, was not in requiring an acknowledgement of an obligation to pursue a contested moral question. Its mistake was requiring an acknowledgement of an obligation it has yet to create or, at least, the source of which it has yet to satisfactorily identify.

Don’t Give Up

I really hope, though, that the problems with what the Law Society did here do not prevent it from exploring and embracing compliance-based regulation. The traditional model of regulating lawyers – create rules and then punish lawyers who break them – has obvious deficiencies. It focuses only on a narrow range of misconduct by a narrow sector of the bar (As I’ve written about here). It reacts to bad behaviour, without providing useful guidance on how to accomplish good behaviour. By contrast, compliance-based regulation creates the opportunity to encourage legal entities and institutions, as well as individual lawyers, to identify and acknowledge their regulatory obligations and to adopt (in conjunction with the regulator and best practices) strategies for achieving those obligations. It aims to achieve and support good practices, rather than occasionally and haphazardly punishing the bad.

Compliance-based regulation can look like what the law society did here, in which a licensee is required to acknowledge an obligation and identify a strategy to accomplish that obligation. But compliance-based regulation focuses on obligations that exist. It also tends to focus on entities and organizations, not on individual lawyers (unless that lawyer is in sole practice). Some obligations need to be imposed on individuals – because a lawyer is in sole practice, or because of the nature of the obligation (e.g., an obligation not to mislead the court) – but much of the time ensuring good practices occurs on an institutional level not an individual one.

Imagine that individual lawyers did have a duty to promote equality, inclusion and diversity. What would that look like for that lawyer? Individual lawyers make relatively few hiring decisions. They do not control entry to the profession. They do not impose standards of practice. What they do is represent clients within the boundaries of the law. While it is easy to see how an individual lawyer can be required to ensure that he does not discriminate, it is much more difficult to see the efforts of any individual lawyer meaningfully promoting equality, inclusion and diversity. That’s not to say that the choices of individual lawyers are irrelevant, or that there is nothing to be said for asking individual lawyers to reflect on problems of inequality and exclusion and on their own role in contributing to it. It is only to say that strategies to promote equality, diversity and inclusion are much more likely to be at effective at the institutional level than the individual.

Further, as Anne Vespry also pointed out, why should a lawyer who belongs to a racialized minority, who has to deal with the burdens of inequality and exclusion every day, have to further sign on to an additional responsibility to promote equality, diversity and inclusion? How is that fair or sensible?

Far more useful would be requiring law firms, organizations, corporations and law schools to have that positive obligation to promote equality, diversity and inclusion. Under a system of compliance-based regulation, in which that obligation was enacted, those entities could be required to acknowledge that duty, and come up with a strategy to achieve it and maybe – just maybe – some positive change could result.

Comments

  1. Is it the duty of the individual lawyer to promote equality, diversity and inclusion or is it the duty of the law society or regulating body to do so? Perhaps, the onus is placed on the wrong parties to carry out the duty or obligation. Perhaps, the law society as opposed to mandating that individual licensees have such duty should place that duty as that belonging to the regulating body and provide a strategy to carry out such duty. It would seem that only with the onus to carry out the duty being placed on the law society can there be compliance-based regulation if that is what is intended.

  2. You lost me at “The law regularly requires people to acknowledge their legal duties, and does so without much regard for the accuracy of that acknowledgement. I regularly click “Agree” to confirm my “understanding and acceptance” of terms and conditions I have never read, let alone understood and accepted.”

    The law forcing one to acknowledge an amorphous legal duty is different than a freely entered into contract. Also, such a term imposed by the LS might be void for vagueness in a contract.

  3. Alice.

    Great piece. I obviously agree with the thrust of your article, that the LSUC is asking its members to acknowledge an obligation that does not exist.

    I’m not sure, however, that I’d be so quick to dismiss the arguments made by Pardy and Cockfield et al. (the arguments made by Conrad Black can probably be dismissed, since it consisted of little more than an unusually verbose screed). Certainly, I agree with you that the law society does have the authority to require us to “say” certain thing. In order to get called to the bar we need to swear an oath acknowledging certain of our obligations as lawyers. Every year, we need to file an annual report giving them certain information. And, certainly, I agree with you that law society regulation (and, indeed, all law) is informed, to some degree or another by morality.

    That being said, the LSUC’s ability to regulate us is subject to charter limitations. Now, I’m happy to accept that the LSUC can probably compel me to do a great many things without breaching the Charter. Take, as an uncontroversial example, the obligation that I conduct myself with honesty. Now, that probably does infringe my freedom of expression – it prohibits me from lying on pain of losing my license (not, I hesitate to add, that I would be inclined to lie in the absence of such an obligation). But it’s an infringement which can be readily justified under section as being essential to protecting the public and upholding the integrity of the legal system, particularly given the limited value likely to be accorded to dishonest speech – this is so obvious, I doubt anyone would ever challenge it. I suspect a great deal of LSUC regulatory activity which might potentially infringe Charter rights could be justified in a similar manner.

    But this becomes more problematic in this case. First, if one accepts that the obligation to acknowledge one’s duty to “promote equality, diversity and inclusion generally” is a form of compelled speech, then it’s hard to see how such an obligation can be justified under section 1, given that no such obligation actually exists – hard to see how an obligation to acknowledge a non-existent obligation is a reasonable limitation that can be justified in a free and democratic society.

    Second, if such an obligation DID exist, query whether the obligation itself would be constitutional. As you note, the obligation to “promote” equality, diversity and inclusion goes well beyond the content of most obligations within the Rules – which are principally passive or negative in nature. Asking lawyers (or anyone) to promote certain values (however popular and, fundamentally, attractive they are) undermines the core of values underlying freedom of expression and freedom of conscience. I note that, in the past, provincial law societies have made the adoption (or rejection) of certain values a requirement to practice (e.g., adoption of Christian faith, rejection of Bolshevism) – those past practices are now regarded with considerable embarrassment. I’m pretty sure if we were to replace “equality, diversity and inclusion” with “Christianity” or “free markets”, the infringement of Charter rights would be obvious.

    Moreover, rather disturbingly, the LSUC guidance on the content of the Statement of Principles mandates that it “demonstrate a personal valuing of equality, diversity, and inclusion”. Now, I’m not aware of any law in Canada that requires Canadians to “demonstrate personal valuing” of any particular set of values. We require that Canadians comply with our laws – those laws (one hopes) reflect our communal values But we don’t demand that they adopt the underlying values as their own. The obligation to prepare a Statement of Principles acknowledging the purported obligation to “promote equality, diversity and inclusion generally” does.

    All of which is to say that I think you may have given short thrift to the Charter based critics of this proposal. Now, I think your argument is the more definitive argument – the LSUC folks have a suspect interpretation of the Charter, which they seem to think allows them to violate charter rights willy nilly, whereas the absence of an obligation to “promote equality, diversity and inclusion” is incontestable. So, in that respect, yours is the better argument to “bury” this proposal, but I think there is some merit in the alternative arguments.

    Anyhow, always a pleasure reading your work.

  4. For what it’s worth, I’ve written several letters to the LSUC asking for clarity on the source of the purported obligation to “promote equality, diversity and inclusion” generally. No answer.

    Maybe they’re busy…

  5. There are 2 aspects of this new regulation that I find troubling:

    1. It is not restricted to a member’s practice. This is demonstrated by the Law Society’s position that the obligation to produce a statement of principles applies to members who are retired or not engaged in the practice of law.

    2. The obligation to “promote” implies a positive duty to take action to fulfill the principles. If an anti-immigrant candidate were to run for public office, would it be now considered professional misconduct to vote for that person? To campaign for that person? To not vote for that person’s opponent? To not actively campaign against that person? If there were a referendum in Ontario concerning a law similar to the face covering law in Quebec, what obligations would Ontario lawyers have? Must they vote against it? Must they campaign against it? If such a law was passed in Ontario, would Crown lawyers defending a Charter challenge to that law be guilty of professional misconduct?

  6. Hi Bob,

    If Cockfield and Pardy had expressed the kind of reasoned analysis you set out here, I wouldn’t have called them out or dismissed it. It’s the OH MY GOD IT’S ORWELL AND NORTH KOREA MAN THE BARRICADES tone that led to my description of it as free speech hysteria.

    I think the points you make that are crucial, are 1) to be compliance based regulation this has to focus on actions not beliefs or personal affirmations of values; 2) anything it is asking you act upon/pursue has to be a value the regulatory can constitutionally and within its statutory mandate demand that you act upon. I think equality, diversity and inclusion meet the second test. Not as a sort of allegiance to values kind of thing, but as noting that human rights obligations require that as a profession and in terms of whom we represent we can’t be unequal and exclusionary, and that it is reasonable to turn that into a positive obligation to take steps to ensure the opposite is true – i.e., that we are more equal, diverse and inclusive.

    But I don’t think almost anything about how this has been rolled out has been satisfactory. I can’t see the legal underpinnings, and the phrasing makes it seem like what is wanted is a compelled personal statement of belief, even if I don’t think that’s what the Law Society likely intended. I think they wanted something focused on action, despite how they phrased it (I mean, maybe I’m naive but I can’t believe the law society would do something as ineffectual and silly as trying to advance equality by making licensees run around parroting their belief in equality. I think they just phrased it poorly). I also really do think imposing this on individuals is ineffectual.

    I would only add that I think the very worst outcome here would be the status quo plus the conscientious objection motion being passed. What that does is leave an illegitimate exercise of regulatory authority in place, while also undermining the ability to have future legitimate exercises of regulatory authority which occupy contested ground.

    And I always enjoy your comments too, so thanks for taking the time to make one here.

  7. Glad Bob made reference to the Barristers’ and Solicitors’ Oath in Ontario, which is also a required statement. Does this contain the legal basis for compelled declarations regarding promoting diversity, etc.? Would anyone object to having to re-commit to the Oath that they originally swore? Would anyone protest if LSUC’s regulators officially clarified with words to the effect of:

    “You will need to create and abide by an individual Statement of Principles that acknowledges your obligations under the Barristers’ and Solicitors’ Oath. You will be asked to report on the creation and implementation of a Statement of Principles in your 2017 Annual Report. The statement should make reference to LSUC’s recently published commentary on the modern interpretation of the oath regarding members’ requirement to “champion the rule of law and safeguard the rights and freedoms of all persons.” This duty has evolved, along with the definition of what is a just society, to encompass the obligation of members to promote equality, diversity and inclusion generally, and in members’ behaviour towards colleagues, employees, clients and the public.”

    Alice questions the action verbs (“recognize”, “respect”, “prevent”, etc.) in the underlying rules and commentary and asks which of them are tantamount to the level of action/duty that the word “promote” demands. So let’s parse the ones used in the oath and see whether they rise to the same level.

    Each action verb can be given a valence score from 1-10 based on the degree of positive action each connotes.

    To my mind “promote” has a valence of around 6. “Recommend” might be a 5; “evangelize” maybe a 7.

    Scale starts with “bare notice” on one hand, or the duty to merely “spot” a thing, and extends to the ultimate devotion at the ultimate price. (“Deify”, “retroactive and everlasting annihilation of all life for the benefit of”, etc.)

    Here we go… the verbs used in the Oath in the order they appear, and associated valence scores (I’ll leave out negated verbs like “don’t pervert” and “don’t refuse”):

    “Accept” (the honour/privilege/duty/privilege to practice law) = 2
    “Protect” and “Defend” (rights/interests of clients) = 7
    “Faithfully conduct ourselves” & “Do our best” (in cases we take on) = 5
    “Faithfully serve” & “Diligently represent” (best interests of client) = 6
    “Conduct with honesty/integrity/civility” (in all things) = agree that this is maybe a 3?
    “Seek to ensure” (A2J) = 5
    “Seek to improve” (administration of justice) = 5.5 or 6?
    “Champion” (the Rule of Law) = Easy 8
    “Safeguard” (the rights and freedoms of all people) = 7
    “Strictly observe” (ethical standards) = 3
    “Uphold” (ethical standards) = 4

    Seems to me that the “rights and freedoms of all people” could be interpreted constructively to include the dignity and diversity components contained in the Statements of Principle. Perhaps the regulator can just clarify that these specific components are now expressly a part of the modern interpretation required by this part of the oath.

    If a lawyer already has a sworn duty to safeguard these interests, i.e. to guard/protect/secure them, and if a lawyer can be required (as Alice argues) to positively affirm existing duties, then would this all be put to rest?

  8. Alice,

    I agree with you that this is likely a result of sloppy drafting more than anything else.

    Reading between the lines of the Challenges report, I *think* that the purported obligation to “promote equality, diversity and inclusion” was really intended to be a catch all summary of our existing obligations to – in essence – comply with Ontario’s human rights laws in accordance with section 2.1 or 6.3 and 6.3.1 of the Rules. Unfortunately, rather than describe those obligations with a degree of precision, the authors of that report chose a somewhat pithier and punchier phrasing (perhaps informed by some wishful thinking) which was adopted uncritically by the Benchers and the LSUC, and incorporated in the LSUC equity machinery without too much thinking. Certainly, the public statements by the Treasurer and other benchers since this new requirement was announced suggests that they think the obligation to “promote equity, diversity and inclusion” is simply a rehash of existing obligations which, would be great, if the description of the obligation actually tracked that of our existing obligations.

    If, for example, they had asked members for a Statement of Principles acknowledging our obligation to comply with the Ontario Human Rights Code and, in particular, our obligations under section 2.1, 6.3, 6.3.1 (and any other that I’ve missed) of the Rules and setting out what we would do to ensure that we complied with those obligations, well, I could hardly object to the substance of THAT proposal. Those are obligations that I have (and which, as far as I know, I comply with without much difficulty) and if they want me to sign a piece of paper to that effect, well, so be it. Even the objection that it’s a pretty useless exercise because people will simply adopt the LSUC template and leave it at that, is offset by the response, if that’s all you have to do, what are you complaining about? Certainly, the LSUC has done more foolish things in recent years.

    But, of course, that isn’t what they’ve asked for, and while I *think* that’s what they had in mind – because I can’t believe that the Benchers and the LSUC’s equity officers are either ignorant of the actual text of the Rules and the Code or so duplicitous that they would intentionally mislead members – that’s an interpretation that has been reinforced by precisely nothing substantive that’s come out of the LSUC since this new requirement was announced. Of all people, you would think that lawyers, and their regulators, would understand that words matter, and that if you’re asking people to acknowledge obligations, you need to draft language that closely tracks their actual obligations.

    I think there’s a fix here, which is go back, amend the new reporting requirement so that it actually tracks the language in the Rules and the Code and start over. It would be embarrassing, but it would be the right thing to do.

  9. Nate,

    The distinction is not that the words used in the rules and commentary are more positive or negative than the word “promote”. The distinction is that they ARE used in the rules and commentary and the phrase “promote equality, diversity and inclusion” (or any variant of it) is not.

    The law society is asking it’s members to acknowledge an obligation which is not found in the Rules (or the Code, or in any other legislation or jurisprudence – believe me, I’ve checked) and which cannot, in any reasonable way, be read into the rules.

  10. The legal opinion provided to the law society on Nov. 16, 2016, which I’ve made available here, spells out the constitutional basis far more clearly than anything I’ve seen thus far, including some quite embarrassing commentary from legal academics (i.e. Pardy). Part of the challenge, it appears, is that many of members of the bar are simply oblivious (or don’t care enough to investigate) the extent of the problems we have here in Ontario.

    When you have the most highly esteemed members of the legal community working closely with all of the equity seeking organizations, experts in human rights, and diversity consultants, I’d hope that the bar would give the recommendations some credibility, and at least try to understand what is behind them and what they are trying to accomplish.

  11. What a disappointing opinion.

    I make a couple of observations based off a quick read. First, their legal conclusion doesn’t actually support what the LSUC is doing. Take, for example, their conclusion with respect to recommendation 3(1). They conclude:

    “Recommendation 3(1) is consistent with the rights and obligations of the Law Society
    and its licensees under the LSA, the Code, and the Charter. The Law Society has an
    obligation to promote human rights in the legal profession and licensees are already
    bound by human rights equality, diversity and inclusion principles under their respective
    professional rules of conduct and the Code.”

    The obvious point is that the language of their opinion doesn’t actually track the proposal in recommendation 3(1). Crucially, they identify that the Law Society has an obligation to “promote human rights”, but they do not conclude that licensees have an obligation to promote anything. Rather, they conclude that licensees are already bound by existing obligations under the rules and the code, which is uncontroversial. Both of those propositions may be true, but the elide the point. The LSUC is not asking members to acknowledge their existing obligations – which, again, would be uncontroversial – they are asking them to acknowledge a purported obligation to promote equality, diversity and inclusion generally.

    I note that at no point in the opinion do they actually conclude that such an obligation exists. At one point they do say:

    “We concluded that promoting means “to encourage” and encouraging equality, diversity and inclusion is indeed something more than not discriminating. It connotes taking an active, not passive, role. However, given statutory mandates to “advance the cause of justice,” “act in a timely manner,” and act “in the public interest” nothing in this Recommendation was inconsistent with the three statutes.`

    Now, the obvious points here are two-fold. First, they interpret `promote` as meaning to encourage, which, in their view means doing more than `not discriminating`. Which is, I think, the proper way of reading it. But of course the actual obligations in section 6.3.1 of the Rules only requires that they honour their obligation not to discriminate, similarly, the obligations under the Code is not to discriminate. So, their interpretation is not consistent with the express language in the Rules or the Code.

    Second, no doubt reflecting that gap, they try to bootstrap by pointing to the statutory language in the Law Society Act. But, of course, those are statutory obligations (well, not obligations, but principles that inform the exercise of their obligations) of the LSUC, NOT obligations of licensees, so it`s hard to see how that advances their analysis. Moreover, there is nothing in the commentary to the Rules which suggests the existence of such a general obligation, and if such an obligation existed, it would render nugatory the lesser language in section 6.3.1 of the Rules, since, as they argue, the obligation to promote equality goes beyond simply not engaging in discrimination.

    Moreover, the opinion demonstrates some rather dubious legal reasoning. For example, it acknowledges the existence of concerns with proposition that licensees have an obligation to promote equality, diversity and inclusion “generally”, noting that:

    “We had difficulties interpreting the word “generally” in the Recommendation. Does the
    Recommendation mean that licensees have a general responsibility to promote equality, diversity and inclusion beyond their professional activities? This would be akin to a lawyer’s obligation, resulting from the lawyer’s position in the community, to encourage public respect for and to try to improve the administration of justice.

    Conversely, does the Recommendation mean that licensees must promote equality, diversity and inclusion in their professional practices only? Or does the word “generally” refer to the breadth and variety of the groups that are to be assisted under promotion of equality, diversity and inclusion? For instance, even though the focus of the Final Report is on racialized licensees, perhaps the Law Society is encouraging licensees to think of equality, diversity and inclusion in all its facets (gender, regional, income, etc.). Or alternatively, is the juxtaposition of “generally” and what follows meant to suggest that licensees have an obligation to promote equality, diversity and inclusion in their behaviour and other people’s behaviour towards colleagues, employees, clients and the public?

    We recommend that the Law Society clear up this ambiguity but, without necessarily knowing the Law Society’s exact intention here, we feel that the present language is not inconsistent with the LSA or the Code.”

    Now, the obvious point is that if they cannot resolve the ambiguity in the LSUC’s language, how can they conclude that it is not inconsistent with the LSA or the Code? If the LSUCs legal advisers don’t know what that language means, how can anyone else be expected to?

    Finally, the use of the double negative “is not inconsistent” throughout the opinion should be taken as a warning sign. In my experience the use of a double negative (“not inconsistent” rather than “consistent”) is a sign of a weak opinion – I wouldn’t accept an opinion like that from my legal advisers, I’m disappointed that the LSUC does from theirs – or worse, that the LSUC would ask for a “not inconsistent` opinion (since, in fairness to their advisers, the opinion may reflect what they were asked to do).

    I don`t think that opinion is worth what the LSUC paid for it.

  12. Hi Omar,

    Thanks so much for linking to this. The opinion is certainly thoughtful and considered.

    I can’t say, though, that I find it particularly compelling in showing that licensees in fact have an existing obligation to promote equality, diversity etc. that they can therefore be required to acknowledge (I’m noting in particular the analysis at page 23-24). They reference the statutory mandate, the existence of other vague terms in the Code like integrity, and the duties in the Code around recognizing diversity and not discriminating. But they don’t identify or explain how those specifically create an obligation on licensees to “promote” diversity that they can properly be required to acknowledge.

    I am particularly troubled by the statement “Furthermore, since the Law Society has identified systemic barriers facing licensees as a significant problem, and eradicating those barriers as a goal, lawyers have a duty to advance that goal (Rule 2.1-2). Mandating promotion of equality, diversity and inclusion is within the scope of permissible regulation, not something outside of it.”. I entirely agree that the Law Society **could** mandate promotion. But that is a very different thing from showing that they have already done so and licensees thus can be required to acknowledge that.

    Alice

  13. As always a thought provoking article Alice. I do wonder however about plain and clear Rules of Practice that have been in place for years but never enforced. Take for example Rule 3.2-9.6 passed in Ontario in roughly 1997. It says: “3.2-9.6 – A lawyer shall disclose to the client that no commission or fee is being furnished by any insurer, agent, or intermediary to the lawyer with respect to any title insurance coverage”.

    As the Financial Services Commission has found that compensation arrangements with lawyers are practically the norm in Ontario I’d like to see the “LS with no name” ask for annual statements confirming that very clear rule has been complied with. Would be interesting.

  14. Alice,

    That is a very different debate, and it’s not the one that the detractors are having. Their position is that the Statement itself is unconstitutional.

    Of course, none of them have actually provided the constitutional analysis demonstrating why this is so, or how it could not be saved by s. 1. I would be particularly interested in the constitutional analysis of how a gentle reminder is anything but minimally impairing of any supposedly infringed rights. Until they do so, I will continue to perceive such opposition, which is entirely different than your principled and careful analysis, as nothing but angry rhetoric.

    As has been noted now several times, the opposition to a rather benign Statement itself makes the case for how necessary it is in Ontario.

  15. Omar,

    As you well know, the onus on showing that a violation is justified under section 1 of the Charter is born by the Crown – so the onus lies with the LSUC (and by extension supporters of this proposal) to show that the violation is justified under section 1. I note that the opinion letter doesn’t provide any meaningful analysis on that point. (I also wonder whether the Dore proportionality test is the appropriate test in this context – Dore dealt with the Charter in the context of an adjudicative process, this is more of a rule-making process which, I would suggest, should have to survive a more robust section 1 analysis. I do believe Alice wrote a piece on TWU which made a similar distinction).

    Second, if the proposal consisted only of a “gentle reminder” of actual existing obligations, I agree with you, it would be minimally intrusive. But that’s a mischaracterization of what is expected. First, the proposal requires the acknowledgment of a non-existent obligation – which can’t possible be considered to be a reasonable limit. Second, the LSUC’s guidance as to the content of the Statement of Principles demands that it “demonstrate a personal valuing of equality, diversity, and inclusion” – I’m not sure how you can conclude that doesn’t constitute an infringement of freedom of conscience, at least. I would suggest that if we replaced “equality, diversity, and inclusion” with “the divinity of Jesus Christ”, “free market capitalism” or any other set of values, the infringement would be obvious and uncontested. It’s hard to see how regulating one’s personal values – as opposed to actual behaviour – is minimally intrusive, particularly when the evil being attacked is the behaviour.

    Finally, to the extent the obligation consists merely of a requirement to copy out an LSUC template and check a box, even if one accepts that the intrusion on rights is minimal, it’s not clear that the benefit of the proposal outweighs even that minimal intrusion. Indeed, I think this proposal can be fairly attacked for being little more than window dressing that makes the LSUC seem like its doing something, without actually doing anything- that it’s being vocally supported by people who are normally critics of LSUC inaction suggests that it will at least achieve that objective. That it’s doing nothing in a particularly ham-handed and sloppy way, however, which undermines both the credibility and integrity of the LSUC makes it much worse.

    As an entity devoted to the rule of law, it’s not that the LSUC can’t work to combat discrimination, it’s that it has to do so in a manner that is lawful and consistent with its governing principles. In it’s current form, the LSUC hasn’t done that.

  16. Hi Omar,

    While I take your point around the rhetoric, I don’t think it’s right to say this argument hasn’t been made by opponents. Anne Vespry as a bencher has made it clear that this is the basis for her objection to the Statement, and I think it is a concern that is shared more broadly. And to be fair to Arthur Cockfield, amidst his free speech ranting, he also did make this same observation about the uncertain legal foundation. Bob Smith here and in his correspondence to the law society has raised this issue.

    In short, while there are these other arguments made, the absence of legal authority is one. Besides, even if no one made the argument the Law Society really should be worried if it’s position is “well no one has yet noticed we did something without any legal basis for it”.

  17. Alice,

    Indeed, it should be concerning that people need to make this argument – how did the authors of the Challenges Report, the LSUC’s equity officials, and the Benchers (other than Anne Vespry, and no doubt others) not pick this up? Did no one read the Challenges Report, either at the draft stage, after it was released, or while they were deliberating on this proposal and say, “is that what the Rules actually say? How come I’ve never heard that before”? It’s a sad commentary on the governance of the LSUC. Is it that they don’t know what the Rules say? Is it that they don’t care?

    Perhaps had they allowed a recommendation by recommendation vote, instead of pushing them all through en masse, they could have resolved these sorts of technical flaws with the proposal. Would it have been so hard to tweak the proposal so that the requested statement of principles actually tracked the express obligations in the Rules? The end result would have been one that was technically correct, but also one that, likely, would not have triggered as negative a reaction among members. I mean, talk about shooting yourself in the foot. It’s hard to imagine a strategy better designed to promote cynicism about the LSUC’s commitment to equity. If nothing else, someone should lend them a copy of “how to win friends and influence people”.

  18. Alice,

    I believe I grounded the legal authority and ability to make the Statement under Rule 5.6-1, which I don’t think you touched on above. A lawyer who is working to “try to improve” is also “promoting.” The distinction is largely semantics. There is nothing more central to the administration of justice than human rights.

    But attempting to ground this exclusively in the professional responsibilities is misleading. There’s a reason why this legal opinion comes from a leading human rights lawyer in our jurisdiction. Ontario has gone further than other jurisdictions as it relates to equality measures, specifically as it relates to harassment.

    In other words, all employers are obligated to “promote” equality, diversity, and inclusion under our amendments to the Occupational Health and Safety Act and the new Accessibility for Ontarians with Disabilities Act. I touched on this briefly, as does the legal opinion, and again I’ve yet to see an analysis criticizing the Statement that is comprehensive enough to include these elements as well. The problem is that most wrongly feel they are immune to these statutory provisions, largely arising from a broader sense of impunity in the bar.

    Pinto’s legal opinion touches on the fact that our Code does not have the same proactive requirements to “promote,”

    The Ontario Code has no such requirement to develop and implement a human rights or diversity policy.

    Notwithstanding this lack of statutory obligation, in our opinion it is not inconsistent with the Code for the Law Society to be proactive and require certain legal workplaces to do so.

    First, the Ontario Human Rights Commission (the “Commission”) strongly encourages organizations to have an internal human rights policy for their workplace and the Commission has prepared two documents to assist organizations with developing human rights policies and procedures.

    Second, in the Human Rights Tribunal of Ontario’s (“Tribunal”) Form 2 (Response to an Application under Section 34 of the Human Rights Code), the Tribunal explicitly asks organizational respondents whether or not they have internal human rights policies related to the alleged discrimination.

    Third, section 45.2 of the Code vests the Tribunal with a remedial power to make an order in the public interest and aimed at future compliance with the Code. In practice, this often translates into an order requiring an employer that is found to have violated a right under the Code to develop and implement a human rights policy if it does not already have one.

    Thus, we can take from the above that the creation of a human rights and diversity policy under Recommendation 3(2) is consistent with the Code.

    Finally, there is another jurisdiction-specific component here that detractors appear to gloss over, and it’s one that has been highlighted in the respective TWU cases at the appellate level. The Court of Appeal in that matter stated,

    [108]  …The LSUC has an obligation to govern the legal profession in the public interest: see Groia v. Law Society of Upper Canada2016 ONCA 471 (CanLII), at para. 89. In setting and maintaining standards of learning, professional competence and professional conduct under s. 4.1 of the LSA, the LSUC is entitled to do so against the backdrop of the composition of the legal profession, including the desirable goal of promoting a diverse profession.

    [109]   It follows that one of the LSUC’s statutory objectives is to ensure the quality of those who practise law in Ontario. Quality is based on merit, and merit excludes discriminatory classifications. As explained by the Divisional Court, at paras. 95-97, the LSUC over its long history has strived to remove discriminatory barriers to access to the legal profession:

    As we attempted to set out in our recitation of the factual background of this case, the respondent has been engaged in determining the requirements of a legal education, necessary for the purposes of qualifying individuals for admission to the Bar, for more than 200 years.

    [I]n carrying out its mandate under its enabling statute, the respondent throughout its long history, has acted to remove obstacles based on considerations, other than ones based on merit, such as religious affiliation, race, and gender, so as to provide previously excluded groups the opportunity to obtain a legal education and thus become members of the legal profession in Ontario.

    In keeping with that tradition, throughout those many years, the respondent has acted to remove all barriers to entry to the legal profession save one – merit.

    [110]   That the LSUC is also subject to the Charter and the HRC means that Charter and human rights values must inform how the LSUC pursues its stated objective of ensuring equal access to the profession.

    You’ll note that the legal opinion provided to LSUC (now LSO) in TWU was the same person as the legal opinion here. The fact that the law society’s efforts here are also based on promoting merit, arising out of widespread consensus of systemic barriers and conclusive evidence of a culture of complacency towards discrimination and exclusion, the initiatives are grounded in the statutory objectives in this province.

    The Divisional Court’s decision in TWU also highlighted how the enabling statute in Ontario has affected the development of the profession here,

    [21]           The respondent says that the principles of equity and diversity have been at the heart of its governance of the legal profession in Ontario for the more than two hundred years of its existence.  The respondent says that it has, throughout its history, actively sought to redress the evils of discrimination.  Indeed, the respondent says that it was actively so engaged long before the advent of constitutional and statutory obligations to do so, such as are now found in the Canadian Charter of Rights and Freedoms and the Human Rights Code, R.S.O. 1990, c. H.19

    [28]           In accordance with its governing statute, the respondent regulates the legal profession in the public interest and exercises discretionary public law powers.  Section 4.2 of the Law Society Act, R.S.O. 1990, c. L.8, states, in part:

    In carrying out its functions, duties and powers under this Act, the Society shall have regard to the following principles:

    1. The Society has a duty to maintain and advance the cause of justice and the rule of law.

    2. The Society has a duty to act so as to facilitate access to justice for the people of Ontario.

    3. The Society has a duty to protect the public interest.

    Again, I believe it’s largely semantics again, but the duty to advance the cause of justice and the rule of law, as well as to undertake measures to facilitate access to justice and protect the public interest, is also synonymous with a duty to “promote.” One point made by equity seeking groups to the Working Group was that not only is access to justice impeded by the systematic exclusion of racialized licensees in the province, but it also runs contrary to the public interest. Although issues of exclusion are not unique to the legal professions, they are certainly among the worst offenders, which has been substantiated by the Working Group’s investigations. It was within this context that we believe the law society here actually had a legal obligation to take some action, which is quite the contrary position from the detractors here. The actions they have chosen are consistent with best practices in the field, and certainly are minimally impairing as they are remedial in nature.

    Ontario has a different statutory regime than the regimes in place in other provinces, which in part explains the divergent results in TWU. It’s also why I’ve indicated that to the extent that there is a critique of the Statement of Principles, it will be further expanded upon by the SCC in TWU. At this juncture, however, the initiatives are on very solid footings, in light of our very different regulatory and statutory regimes in place here.

    A similar initiative in a different jurisdiction may in fact have a different result, especially where the analysis is limited to the Rules (or Rules gleaned from the Model Code). When we add the general statutory obligations for employers here, which differ than other provinces, and the unique role that our law society has had in promoting diversity based on their distinct statutory obligations, an analysis based on the Rules alone is insufficient.

    [Note that I’ve presumed that Bob Smith is a pseudonym (I may be incorrect in this), and based on Slaw’s policies it’s my preferred approach not to engage with him directly on that basis]

  19. Should LSUC (as it still is pending assumed Ontario government legislative amendment, which I’m sure is a priority for the government…) have awaited the outcome of the SCC TWU decision, which presumably will deal at least in part (!) with the scope of authority of LSUC, and possibly the freedom of conscience of would-be lawyers, before seeking to do this?

  20. Omar,

    OK, will you engage with me then?

    What sections of the Occupational Health and Safety Act and the Accessibility for Ontarians with Disabilities Act impose an obligation on employers (or anyone else) to ““promote” equality, diversity, and inclusion”?

    I ask because I’ve looked at those statutes and the words “equality”, “diversity” and “inclusion” or variants thereof are not used at all in the legislation. So if you are going to claim that those Acts impose an obligation to promote those values, I expect that you can cite the relevant sections of those Acts. I’m somewhat surprised that you haven’t.

    Furthermore, you are at least correct to say that such acts impose obligations on “employers”. Many lawyers are not employers. As in-house counsel, I’m not an employer, when I was an associate in private practice, I wasn’t an employer. Sole practitioners are often not employers. Even if you were correct in claiming that those acts impose an obligation on employers, it doesn’t follow that it is correct to say that lawyers, in general, have such obligations.

    You claim that “the duty to advance the cause of justice and the rule of law, as well as to undertake measures to facilitate access to justice and protect the public interest, is also synonymous with a duty to “promote”. Do you have any authority for that proposition? I’m not aware of any relevant caselaw interpreting the section 6.5.1 (or the similar provision in any other provincial legislation) imposing such an obligation. Certainly, one would think that, if such an obligation had been intended by the authors of the Rules, the Commentary to section 6.5.1 would have identified such an obligation explicitly. Or it would have been flagged for young lawyers in years of Bar Ad materials. It isn’t, and hasn’t been.

    Moreover, given that the Rules of Professional Conduct include specific language government lawyer’s obligations vis-a-vis equity issues (in the commentary to Section 2.1, section 6.3.1, to name the obvious ones), it’s inappropriate to try to interpret a general provision in a manner which renders nugatory the express provisions of the Rules.

    Finally, citing caselaw discussing the obligations of the LSUC isn’t particularly relevant to identifying the obligations of LSUC members – the LSUC is subject to statutory and constitutional obligations that you and I are not. The interpretation is based on the Rules because members are subject to the Rules, they are not subject to the Law Society Act.

    If lawyers actually have an obligation to “promote equality, diversity and inclusion” generally, proponents for that proposition should be able to readily identify express language binding on members identifying such an obligation. That they – you – haven’t done so is telling.

  21. Making people say things they don’t want to say is not going to improve life for racialized persons or anyone else. If an Ontario lawyer is demonstrably taking active steps to undermine equality, diversity, and inclusion, by all means nail that lawyer so hard that a concussion would seem like a blessing.

  22. Carl,

    I’ve already answered much of your questions in the linked materials, but I will expand here further.

    Bill 168, which came into force in 2010, created an obligation for employers to proactively assess the risk of workplace violence and harassment, as well as develop policies and procedures for investigating and handling complaints and incidents. Employers are also now required to implement protection programs for the proper communication of incidents and complaints. Bill 132, which came into effect last year, goes even further to ensure that those efforts are proactive in nature. The accessibility standards in the AODA are also proactive in nature, requiring training prior to any incidents, the development of appropriate policies with reviews, and modifying the workplace to prevent issues before they emerge.

    The cumulative effect of all of this is to promote workplace safety as it relates to equality, diversity and inclusion. Those particular words are not needed in the amendments to understand how the obligations actually achieve this, as they are commonly understood and referred to as workplace health promotion. All of this is rather common sense for lawyers who work in labour and employment law, which happens to be the primary practice area for the author of the law society’s legal opinion, as well as myself. The rest of the bar may not be properly informed or competent in these areas, which is why there will be additional CPD as part of these programs.

    Your point that not all lawyers are employers is still somewhat misguided. The primary thrust of this initiative is indeed focused on law firms as employers, which is why there are additional requirements for firms of 10 lawyers or more. Even in-house counsel, providing advice to the HR department about an organization’s internal legal obligations, would be incompetent if they did not convey the employer’s obligation to promote equality, diversity, and inclusion as described above. Additionally, sole practitioners often still employ law clerks and support staff, and we see quite a few problems in this area with how support staff are treated. Rule 6.3.1-3 refers to this obligation, and the commentary to this rule expressly refers to a duty to promote equality.

    Where there appears to be some resistance is in the misunderstanding that promotion now requires lawyers to undertake new responsibilities of activism in society generally. The legal opinion touches on this,

    Recommendation 3(1) represents the Law Society taking action on this problem by requiring that every licensee effectively promote equality, diversity and inclusion generally. At first glance, this particular aspect of the Recommendation gave us pause. We wondered whether the obligation on licensees to “promote” equality, diversity and inclusion is something wholly different than a mere obligation to not discriminate; and further, we were uncertain what promoting equality, diversity and inclusion “generally” meant (discussed below).

    We concluded that promoting means “to encourage” and encouraging equality, diversity and inclusion is indeed something more than not discriminating. It connotes taking an active, not passive, role. However, given statutory mandates to “advance the cause of justice,” “act in a timely manner,” and act “in the public interest” nothing in this Recommendation was inconsistent with the three statutes. We also do not think that the language of “promoting equality, diversity and inclusion” is so vague as to set an impossible standard of professional regulation. The Rules of Professional Conduct, for instance, contain other terms such as acting “honourably and with integrity,” which similarly have a broad meaning.

    The only reported discipline tribunal case that discusses 5.6-1 substantively (which is what I think you meant – the Relationship to the Administration of Justice) is Groia, which is perhaps why it is not a surprise that he is the one leading the opposition to the Statement within the legal community. His matter goes before the SCC tomorrow, and may expand on this further. There are other decisions outside of our jurisdiction, as well as judicial decisions on this generally. However, any scarcity of case law is really a distraction here, as discipline is not the intended consequence from the Statement – the main point that its detractors appear to ignore. We haven’t had Bar Ad materials in Ontario for many years, and in any case, the materials provided by the law society do not provide interpretive aids. As you’re well aware, interpretation of the Rules relevant to practice is something the law society provides discretion to the practitioner to implement in a reasonable manner. It’s why the argument of any compelled expression is rather spurious, as the Statement itself is not content-specific, and I’ve already had several colleagues radically modify it to reflect their own notions of professionalism around these areas.

    The duty or obligation to “promote” is obviously context dependent. The obligation to promote the administration of justice for an in-house lawyer is markedly different than a litigator in private practice. The same is true here for other obligations. In the judicial decisions in Ontario discussing this duty, it is discussed largely in the context of their professional obligations. However, as we know, Rule 1.1 describes conduct unbecoming a barrister or solicitor as including conduct that undermines this same administration of justice referred to in 5.6. The likelihood of the Statement itself resulting in conduct unbecoming seems to be a logistical impossibility, given what the law society has already stated around these measures, and concerns around the same appear to be entirely fictitious. Any conduct that would arise to this level is the type of conduct that would already violate existing professional and statutory obligations, and there is ample case law on discipline in that regard.

    The greater challenge here is the presumed expectation that individual racialized lawyers are the ones who should provide the explanation for the law society’s initiatives. It’s an unduly burden, as it really isn’t our role as fellow licensees, but the cumulative effect is also rather problematic when the detractors are largely non-racialized lawyers (I cannot comment on Vespry, as her list-serv comments are not available to me). What is more relevant is that the entirety of the equity-seeking organization in Ontario were involved in this, and wholeheartedly support it. For example, CABL, whose advocacy committee I sit on, just released this letter. There will be many more letters and greater mobilization by these groups in the weeks to come.

    Perhaps the law society could have started with CPD that better explains all of these theoretical underpinnings, and the well-established best practices that are being implemented to achieve the broader objectives. To David’s point, delaying these initiatives further in light of what were, at that time a theoretical leave to appeal, would not be an appropriate application of the Working Group’s mandate.  In any case, all of this will invariably become evident over time, and it is a first step towards a transformational change that we all hope will help strengthen and improve the legal professions.

  23. Hello Alice,

    “Besides, even if no one made the argument the Law Society really should be worried if it’s position is “well no one has yet noticed we did something without any legal basis for it”.

    Thank you for that one.

    You’re overlooking (not really, I know) that you’re talking to too many practitioners, here, who’ve learned, too well, from their Court of Appeal (and the SCC, too often) that it’s not really a problem if nobody notices the absence of legal basis. It’s the Humpty Dumpty “I’m the Master” approach to legal interpretation.

    Cheers,

  24. Omar,

    Finally, in all that hand waiving, you have one possible source of authority for the proposition that lawyers have a duty to promote equality – the commentary to section 6.3.1-3 of the Rules of Professional Conduct (the “Rules”). That you bury it in a mountain of hand-waiving suggests that even you realize it’s a tenuous basis on which to base your position.

    First, let’s cite this purported source in it’s entirety and in context (rather than in a throw-away sentence) so that readers can draw their own conclusion, shall we? For readers who are unfamiliar with the Rules, section 6.3.1-3 imposes on lawyers a duty to ensure that their employment practices comply with section 6.3.1-1, which highlights their special obligation to comply with Ontario’s Human Rights Code, and section 6.3.1-2, which imposes a duty on lawyers to ensure that their services are not denied to members of the public based on prohibited grounds. In essence, section 6.3.1-3 imposes on lawyers an obligation to ensure that their employment practices are non-discriminatory.

    This is made explicit in paragraph 1 of the commentary to that section which says:

    “Discrimination in employment or in the provision of services not only fails to meet professional standards, it also violates the Ontario Human Rights Code and related equity legislation”

    The commentary then spends several paragraphs interpreting the content of this duty of non-discrimination – a discussion which should be well worn ground for anyone familiar with the provisions and interpretation of Ontario’s Human Rights Code.

    Finally, in paragraphs (4) to (8), the commentary discusses a lawyer’s duty to accommodate employees (or potential employees) who cannot perform a particular task – again wholly uncontroversial claims – and then says in paragraph 8 (and I cite the entire paragraph so that readers can draw their own conclusions as to validity of your interpretation):

    “The duty to accommodate operates as both a positive obligation and as a limit to obligation. Accommodation must be offered to the point of undue hardship. Some hardship must be tolerated to promote equality; however, if the hardship occasioned by the particular accommodation at issue is “undue,” that accommodation need not be made.”

    Please note, at no point does it say that lawyers have a duty to promote equality. When you say that that “the commentary to this rule expressly refers to a duty to promote equality” you are mistaken – it expressly does not refer to any such duty. I assume you read it quickly and carelessly and did not intend to misrepresent the content of that paragraph for inattentive readers.

    Instead, it refers to a duty to accommodate – which duty is well founded in Ontario’s human rights law (section 11 of the Ontario Human Rights Code – see how easy it is to cite authority for actual obligations?). That duty of accommodation is intended to promote equality – that is one of the purposes of the Ontario Human Rights Code. Seen in context, it’s clear that paragraph 8 of the commentary to section 6.3.1(3) doesn’t impose a duty on lawyers to promote equality, it does impose an obligation on lawyers, in fulfilling their duty not to discriminate, to accommodate employees and clients – consistent with Ontario Human Rights Law, which has the effect of promoting equality. This is obvious from the broader discussion in paragraphs (5 ) to (7) of the commentary on the caselaw interpreting the duty to accommodate. This is an interpretation that is consistent with the text of the obligations in section 6.1.1(1)-(3) as well as the balance of the commentary thereto. Indeed, it would be very odd to impose a duty to promote equality in the sentence discussing circumstances where discriminatory results are permissible.

    Second, it should be obvious that this cannot be the basis for the LSUC’s claim that lawyers have a duty to “promote equality, diversity and inclusion generally”. For one thing, it says nothing about diversity and inclusion. For another, it is a comment made in the context of specific obligations not to discriminate in the provision of services or in employment practices – you cannot found a general obligation on specific language (indeed, the presence of specific language implies the absence of a general obligation).

    Indeed, it is telling that the opinion which you keep citing – without apparently reading too carefully – makes the point I’m making. It says:

    “We concluded that promoting means “to encourage” and encouraging equality, diversity and inclusion is indeed something more than not discriminating”.

    But the Rules and the commentary themselves (as well as Ontario’s Human Rights Code) make clear that a lawyer’s obligation is to not discriminate, in compliance with Ontario’s human rights laws. If the opinion you cite is right that “promoting” means “something more than not discriminating” (and, on this point, at least, I agree with them), then the Rules, which impose a duty not to discriminate, cannot be read as imposing a duty to do “something more” to promote equality.

    It is, however, somewhat telling that this is the best you can come up with. Look at all the other ethical obligations of lawyers that are set out in the Rules. All are set out expressly and unambiguously in the rules themselves. Sure, there may be disagreement over how those obligations are to be interpreted, but that they exist is clear. The LSUC has a statutory obligation to maintain and promote the rule of law (section 4.2(1) of the Law Society Act), a key tenet of which is that laws must be promulgated publicly and clearly. The Rules comply with that obligation by clearly stating our obligations – that they don’t expressly impose an obligation to “promote equality, diversity and inclusion generally” is evidence that no such obligation exists. If the LSUC wants to amend the Rules to impose such an obligation, that’s one thing, but they haven’t.

    I’m not going to bother to respond to the balance of your post – none of it identifies any alternative source of an authority to promote equality (indeed, much of it appears to deal with provisions of Ontario’s labour law which (a) don’t impose an obligation to promote equality generally, and (b) aren’t relevant to large numbers of licensees). At best it’s hand-waiving intended to provide a patina of authority to the otherwise thin gruel of a substantive basis for your claims.

    Best Regards
    Carl

  25. Carl,

    It’s possible that you are referring to a different part of the Rules than I am. In any case, as I’ve noted with Alice, it’s wrong to analyze this with the Rules alone as an authority absent the statutory and regulatory context.

    This is what you said:

    I’m not aware of any relevant caselaw interpreting the section 6.5.1 (or the similar provision in any other provincial legislation) imposing such an obligation. Certainly, one would think that, if such an obligation had been intended by the authors of the Rules, the Commentary to section 6.5.1 would have identified such an obligation explicitly.

    There is no such Rule in Ontario. Perhaps any “hand waving” can be avoided through greater precision of references, and by actually carefully reading everything I have written on the subject prior to Alice’s post.

    Here is the part I was referring to in the commentary:

    [8] The duty to accommodate operates as both a positive obligation and as a limit to obligation. Accommodation must be offered to the point of undue hardship. Some hardship must be tolerated to promote equality; however, if the hardship occasioned by the particular accommodation at issue is “undue,” that accommodation need not be made.

    This is not a quick reading. This is a comprehensive understanding of the Rules, looking at the textual, contextual and purposive analysis of the provision in question. Accommodation is not possible, without doing so for the purpose of equality, in the context of promoting a more diverse workforce, and with the goal of creating a more inclusive workforce.

    From this, we know that there is an obligation to promote equality in the context of human rights, that obligation can create hardship, and that there are limits to the obligation. All of that is consistent with what I have said, aligns perfectly with human rights practices as you note, and is indeed aligned with the entirety of 6.3.1-3.

    What seems truly bizarre is an objection by lawyers to the use of the word “promotion,” because it is not used consistently throughout the Rules. This is not a reasonable approach, and is not likely to be the analysis employed by any court reviewing this, though as I’ve now said repeatedly, the likelihood of any court reviewing a Statement that has no punitive consequences is slim.

    As I have already said, this is indeed intended to reflect the lack of implementation of human rights principles into the legal workplace. The broader duty does not come from this Rule, nor did I suggest that it did, but rather from other aspects of the Rules I’ve pointed to previously. It is impossible to implement a lawyer’s “special responsibility” for human rights under 6.3.1-1, for example, to honour those “obligations” with “any other person,” even outside of professional dealings, without considering the “adverse impact on individuals or groups on the basis of the prohibited grounds,” and ameliorative programs intended to affect discrimination.

    That, in its very definition, is the promotion of human rights. Again, how that duty is implemented will vary, but it certainly is something more than just not discriminating in a passive manner. Promotion, at its absolute minimum, can also constitute simply the responsibility “to honour the obligation not to discriminate.”

    Although the word “promote” can take on more active means, as in “to contribute to the growth or prosperity of,” it can also take on more passive meanings, such as to help or encourage to exist or flourish; further.” This latter meaning is entirely consistent with the duty under Rule 5.6-1 to “encourage public respect for and try to improve the administration of justice.”

    If your objection is that the law society should have implemented its EDI initiatives better, perhaps by amending the Rules first (which is incidentally also recommended by the Working Group), providing CPD around what the Statement means and is intended for, or some other means, we can indeed have a more productive conversation. I’d likely agree with many of them. I am not, by any means, a cheerleader for the law society and how they implement everything that they do.

    There are even contemporary disputes over the amendment at Convocation which extended the EDI initiative beyond racialized licensees, which are arguments I also believe have some merit. I had reservations with those amendments at the time, and still think they have the potential to detract from our stated outcomes if efforts are distracted along the way by other controversies.

    All of these can be productive conversations.

    But simply dismissing the entirety of the EDI initiatives as lacking legal authority, especially in the context of a study that has said that lawyers are resistant to preventing discrimination in their workplaces and the legal industry in general, only highlights further that the goals of many licensees differ from the broader objectives of creating a more inclusive legal community where systemic discrimination does not occur.

    That is an approach that is only likely to alienate racialized licensees further, and create an environment where they feel that the legal community is hostile towards ameliorative programs. It may not have been your intent to do so, but given this context I would suggest that it’s wiser for all of us to redirect these energies into more productive forms of advancing and promoting the administration of justice.

  26. Omar,

    That is a disingenuous post. I am clearly not referring to a different section of the rules than you are – I quoted expressly from the relevant sections.

    Yes, the commentary to section 6.3.1-3 which I cited in full, uses the words “promote equality”. It does not use them in conjunction with the words “duty to” or “obligation to”. It does not, contrary to your claim to the contrary, expressly refer to a duty to promote equality.

    There is no provision of the Ontario Human Rights Code which imposes a duty to “promote equality. It may well be that the purpose of the duty of accommodation is to “promote equality”, it doesn’t follow that lawyers have a duty to promote equality – they have a duty not to discriminate in accordance with the OHRC (which includes an express duty to accommodate), that is not the same, as the opinion cited by you clearly concludes, as promoting equality.

    Indeed, a proper textual, contextual and purposive reading of section 6.3.1 makes clear that it merely imposes a duty not to discriminate in compliance with Ontario’s human rights code. That’s what the express text of the various provisions of sections 6.3.1 say, that is the content of commentary to those sections and that is consistent with the broader purpose of those rules. No competent court would find an express duty to “promote equality, diversity and inclusions” based on on the inclusion of the words “promote equality” found in the commentary to the rules.

    You are right that the word “promote” can be interpreted in many different ways. Maybe it can be interpreted as being consistent with actual obligations in the rules. But being consistent with those obligations does not mean being the same as them. If we are asked to acknowledge our obligations, we are being asked to acknowledge our actual obligations, not merely obligations that are “consistent” with them.

    Furthermore, precisely because the word “promote” has many meanings, one would expect that if such an obligation were imposed on members, the relevant commentary would include language clarifying the intended meaning. It is telling, for example, that section 6.3.1, which largely reiterates long standing, and well-trodden, obligations under the OHRC contains extensive commentary on what it means. Yet, you believe that the LSUC imposes, apparently implicitly, a potentially ambiguous obligation to “promote” equality et. al., and provided zero commentary? Hardly likely. Without such clarification, if such obligation existed it would be void for vagueness.

    Finally, no one is dismissing the entire EDI initiative as lacking legal authority. We are dismissing the claim that lawyers have a duty to promote equality, diversity and inclusion generally as lacking legal authority, because there is no legal basis for that claim.. This is not a minor point, purporting to impose obligations which are unfounded in law is – or at least should be – problematic to all lawyers and the LSUC. Certainly it is inconsistent with the LSUC’s statutory obligation to maintain and advance the rule of law. Moreover, by puporting to impose an unlawful obligation, the LSUC has done great harm to the EDI initiative – as I noted previously, had they merely asked us to acknowledge actually existing obligations in the Rule (which you really shouldn’t object to since you believe they are “consistent” with a duty to promote equality), no one would have said “boo”.

    Doing good things is fine, but good things have to be done in the right way. If you want to create a duty to promote equality, fine, propose an amendment to the rules and let’s debate that duty, define it’s scope, and clarify it’s meaning. That hasn’t been done. Until it is, lawyers can’t be expected to acknowledge a phantom obligation.

    Best Regards.

  27. Carl,

    Indeed, I believe you are being far more disingenuous by suggesting I have not carefully read the Rules, or that I am “hand waving.” Your ad hominem attacks are just distracting, and reminiscent of the precise type of attitude towards discussing discrimination that we are trying to eradicate here.

    You’re still going in circles when you say that “It may well be that the purpose of the duty of accommodation is to “promote equality”, it doesn’t follow that lawyers have a duty to promote equality…” The lawyers involved indeed have a duty to accommodate under the Code within their workplaces, which again is the primary thrust of the Statement. To suggest that Rule (not section) 6.3.1 allows lawyers as employers to have a lower threshold or duty than employers generally in society would indeed by highly problematic.

    Your response completely skewers my explanation, so I will try again. This is what I said:

    This is a comprehensive understanding of the Rules, looking at the textual, contextual and purposive analysis of the provision in question.

    The provision from which I have indicated a broader duty can be found is not Rule 6.3.1, but Rule 5.6-1, which I used specifically in conjunction with equating the duty to “promote” as encouraging public respect for human rights and improving their administration. I also indicated this in my very first comment to Alice in the above thread,

    I believe I grounded the legal authority and ability to make the Statement under Rule 5.6-1, which I don’t think you touched on above.

    I suspect you would now challenge the notion that Charter and quasi-constitutional principles are at the core of the administration of justice, given that your interpretation above would absurdly allow lawyers to treat quasi-constitutional principles differently than the general public. In any case, analyzing the wrong Rule (again, not section) in any discussions of how a competent court would analyze the situation would create a less than competent critique.

    The broader use of the word “promotion” in the workplace is not limited to lawyers. It is found throughout management theory, in best business practices, and human resource discourse, throughout Canada. We use the word “promote” extensively in the health sector, another industry that I work in, because health promotion is how we take preventative steps to reduce or minimize health problems, thereby saving taxpayers unnecessary expenses. Nobody understands the use of the word “promote” in these contexts as becoming an activist for a cause, and instead appreciate it to be a contextual term that typically involves the reduction of harm through preventative measures where it is reasonable and appropriate to do so. There is no vagueness here, except for those completely devoid of understanding of how these words are used by the vast majority of professionals in Canada.

    The fact that some lawyers lack the ability to appreciate these rather obvious subtleties of the English language is not the failure of the law society, but rather indicative of either a generalized aversion to the regulator engaging in any form of change management, or possibly the concern that a lawyer’s personal and potentially reprehensible would come under scrutiny. Again, so that I’m not misunderstood, the latter would not likely occur on the basis of the Statement.

    If one is to concede that the EDI initiative has legal authority, then that same claim that lawyers have an EDI duty also has legal authority. The extent of generality is still limited by the constrictions I’ve proposed in the forgoing. If the statutory authority to create or interpret these obligations exist, then these measures are also consistent with the rule of law.

    I believe I’m done here now, because ultimately I do not speak for anyone except myself, which is a heavy burden and a responsibility I did not ask for. The law society, Working Group, racialized benchers, and equity seeking organizations, will all speak for themselves and provide their own interpretations for the sources of any stated obligations. I have my own issues with the process employed by the law society, and with many particulars in the EDI initiative, but this allows for me to highlight one final point.

    When equity issues are being discussed by others who are not part of that equity seeking group, it can be incredibly problematic and even aggressive to undermine or critique activities or perspectives without first acknowledging the framing injustice. For example, those who offhandedly attacked Black Lives Matters Toronto for stopping the Pride Parade last year, or characterize the TDSB’s removal of “Chief” as being silly (both true stories from lawyers I know), ultimately do more damage and create a greater injustice. They are, in effect, part of the oppressive force that has created the institutional racism affecting these groups.

    Instead, very healthy conversations can be had about whether BLM should have employed this particular tactic, as there were elderly and disabled people in the parade (i.e. marching next to me) who were left in the sun without explanation. Not only does that not engender sympathy, but it runs contrary to BLM’s own expressed values of advocacy. At the same time, there were valid issues that they had with the development of the parade.

    Although the TDSB is a leader in recognizing and accepting TRC principles, this measure may not actually accomplish substantive change, and does very little in actually advancing the broader goals of the TRC. Instead, they might be more productive in adopting some of the measures being launched by the Lambton Kent District School Board.

    The distinction is that the shared goal is emphasized at the outset, and frames the entirety of the conversation. Eventually you may have finally gotten to the proximity of that region in your comments, but it certainly did not characterize the approach you employed throughout. It was not a principled-based analysis as Alice’s was attempting to seek an explanation. Perhaps if that “duty” were in the forefront of your head, those core values in the Code that are central to the administration of justice, the entire exchange may have been different. Maybe a Statement and some CPD will help change that for the future.

    There is an upside to this, no matter how upsetting it is to see some members of the bar object in this manner. The one thing that all of us looking at this general resistance to the Statement of Principles have concluded is how badly the law society needed to finally step in to address this. I would agree that they should have stepped in sooner, and certainly should be clearer so that the semantics are not left to be debated on blogs.

  28. Omar,

    You continue to make statements to support your claim which are unfounded.

    You say:

    “the lawyers involved indeed have a duty to accommodate under the Code within their workplaces, which again is the primary thrust of the Statement.”

    Well, we agree that lawyers indeed have a duty to accommodate under the Code. And if that were the primary thrust of the statement, I would likely not object to the statement. But it isn’t. I’m not being asked to acknowledge my duty to accommodate under the Code within my workplace”, I’m being asked to acknowledge my purported obligation to promote “equality, diversity and inclusion generally”. If acknowledging the “duty to accommodate” were indeed the “primary thrust” of the Statement of Principles, one might think that it would be mentioned in both the LSUC’s template statement of principles or the “key concepts” document accompanying them. It isn’t.

    Now, if you think those mean the same thing – I’m not sure how you can come to that conclusion, different words mean different things – you would presumably support my suggestion that the Statement of Principles initiative should be reworked so that the language we are being asked to acknowledge conforms with actual existing language in the Rules and the commentary thereto.

    Second, you say:

    “The provision from which I have indicated a broader duty can be found is not Rule 6.3.1, but Rule 5.6-1, which I used specifically in conjunction with equating the duty to “promote” as encouraging public respect for human rights and improving their administration. I also indicated this in my very first comment to Alice in the above thread”

    OK, but what language do you look to in that Rule to support the conclusion that our purported obligation to “promote equality diversity and inclusion generally” is founded therein. I note that the words “promote”, “equality”, “diversity”, “inclusion” and “generally” do not appear in that Rule or the commentary thereto. Nor is there any express language suggesting an obligation to “encourage public respect for human rights and improving their administration” – in fact the words “human rights” don’t appear at all in that rule or commentary either.

    I called the purported obligation to “promote diversity, equality and inclusion generally” a phantom obligation, and you appear to agree with me, since you can’t actually point to any language that imposes it. The problem is not that the word “promote” is vague (it is, but set that aside) but that it is not used in the rule you cite.

    I keep coming back to this point – if lawyers have an obligation to “promote equality, diversity and inclusion generally” it should be easy to provide authority for that obligation. That in dozens of paragraphs of commentary you’ve failed to do so speaks volumes.

    In any event, we’ll know soon enough which one of us is right, a Professor from Lakehead is seeking a judicial declaration that – inter alia – lawyers are not subject to an obligation to “promote equality, diversity and inclusion generally”: http://mailchi.mp/theccf/canadian-constitution-foundation-to-challenge-law-societys-new-ideological-test-2613233

  29. Hello Carl,

    I’m the applicant in the challenge you mentioned. I am certainly hoping that the LSUC and its members will welcome a clarification of the Law Society’s powers, which seems to be timely given the changes that in the framework that might follow in the wake of the pending decisions in Groia, etc.

    This might also provide an opportunity to reflect on how better efforts can be made by LSUC to promote the important values equality, diversity and inclusion in a more effective manner, in a way that does not run afoul of the Charter.

    Best,

    Ryan

  30. Ryan,

    I just wanted to thank you for bringing your application. The issues you raise are fundamental to an organization with a statutory obligation to maintain and advance the rule of law. It’s disappointing that it takes a legal challenge to ensure they comply with that obligation.

    Like you, I believe that there are strategies the LSUC could pursue which would achieve their substantive goals, strategies which accurately reflect existing (and unambiguous) legal and ethical obligations and which are consistent with constitutional requirements and principles (as I’ve noted above, if the current requirement around a Statement of Principle merely required acknowledgement of our actual existing obligations under the Rules, rather than a general duty to promote equality, diversity and inclusion which is found nowhere in the Rules, I suspect much opposition would melt away and the LSUC would be on far stronger Charter grounds). And I suspect that, done properly, such strategies would be more effective than the current clumsy and unprincipled approach – which merely provokes principled opposition.

    In any event, best of luck in your application. I’ve spoken with dozens of people who have serious concerns with the current approach and who, from discussions I’ve had today, are overwelmingly supportive of your application.

    Best Regards
    Carl

  31. Carl,

    I appreciate your very kind words; I share all of these concerns, and I believe that the Law Society should be made aware of the breadth of that concern with the larger legal profession.

    So little would need to be changed to address all of these concerns, but sadly I predict that the LSUC will double down on its position rather than to think practically about how to promote its undoubtably important objectives. I hope it proves me wrong.

    Derek From and others at the CCF would be very interested in hearing your thoughts and those of your colleagues, I am sure. In times like these, it is important to know that you are not the only one who has serious concerns that cut to the core of one’s profession.

    Best,

    Ryan

  32. Ryan,

    Unfortunately, I have written several letters to the Law Society setting out my concerns and asking for clarification and have not (after almost two months) received a response – indeed, not even the courtesy of a pro forma dismissal. So I share your suspicion that it will double down on its position, which is unfortunate.

    Cheers
    Carl

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