Wise Law Roundtable - Stop and Drop the StopSOP Slate of Bencher Candidates

Commentaries from Wise Law's lawyers on current cases of interest 

Garry J. Wise: I'll begin with a bit of background.  

Every Ontario lawyer and paralegal is required to create and abide by a Statement of Principles that acknowledges an obligation to promote equality, diversity and inclusion generally, and in behaviour towards colleagues, employees, clients and the public.

Wise Law's own Statement of Principles is here.

Elections for Law Society of Ontario Benchers will occur on April 30, 2019. Benchers, who serve as the LSO's board of directors, fulfil a central role in the governance of Ontario lawyers and paralegals. As noted at the LSO's bencher FAQ: 

A total of 40 lawyer benchers are elected - 20 from inside Toronto, and 20 from outside Toronto. A total of five paralegal benchers are elected. 

...Benchers attend monthly committee and Convocation meetings to develop policies related to the governance of individuals licensed to practise law and licensed to provide legal services in Ontario. Benchers also attend ceremonial calls to the bar and paralegal licensing receptions. Benchers may also be appointed to the Law Society Tribunal and sit on hearings to consider cases related to the competence, conduct and capacity of licensees

A group of Bencher candidates, self-identifying as the StopSop slate, has organized itself to run on the singular platform of using "best efforts to revoke the Statement of Principles upon election."  

We are a group of lawyers and paralegals in Ontario who are concerned about the directive by the Law Society of Ontario (LSO) that each legal professional must abide by a Statement of Principles (SOP) that acknowledges an obligation to promote equality, diversity and inclusion generally, in our behaviour towards colleagues, employees, clients and the public.

We believe that the LSO has no business telling legal professionals what principles they must profess, value or promote, and that this is an encroachment on fundamental freedoms under the Charter of Rights and Freedoms. It does not matter whether you agree with the spirit or intent of the values which you are asked to promote; the fact that an arm of the state can dictate your beliefs to you, on pain of the loss of your livelihood, is deeply troubling.

We are putting forward a slate of candidates for the upcoming Bencher election (for governance of the Law Society) in April 2019. Each candidate undertakes to use best efforts to revoke the Statement of Principles upon election.

In this week's Roundtable, Wise Law's lawyers comment on the StopSlop gang:

Simran Bakshi: I entered the legal profession with a sense of optimism (and if I am being completely honest, naivety) about the diversity I would find within the Ontario Bar. 

My law school class had been fairly diverse, and I assumed that this is what I would find in the workforce as well. What I discovered, however, is that while there is some degree of diversity at law firms, particularly in the junior pool of professionals, the extent of diversity tends to get watered down in climbing the ranks. 

In fact, in my nearly five years of practice, I have come across many “racialized” articling students and associates, perhaps a handful of “racialized” partners and exactly one “racialized” judge. 

While I am not suggesting that there is a rampant issue of racism in the Bar, to say that we do not have a problem with diversity in our profession would frankly be burying our heads in the sand. 

Given the lack of representation of minorities in the Bar, I am hard pressed to find a reason why an effort to promote the Law Society’s mandate is being met with such resistance.

Some of our colleagues seem to take great issue with the fact that the Law Society imposes a positive obligation to affirm a commitment to  equality, diversity and inclusion. What they fail to recognize is that an act of discrimination is not necessarily mutually exclusive from a failure to be inclusive of minority groups. 

In any case, imposing a positive obligation on lawyers to give teeth to the principles set out in our Charter and the Ontario Human Rights Code is hardly unreasonable.

The irony of decrying the Statement of Principles on the basis that it supposedly infringes on upon civil liberties to decide whether or not to encourage and promote equality, diversity and inclusion cannot be lost.

Think about the message we would be sending here - it is not okay to discriminate against racialized groups, but it is okay to exclude them? Or rather to not promote their inclusion? 

As much as I am a proponent of the mandate behind the Law Society’s Statement of Principles, I am less than optimistic that it will be effective in bringing about the change it is meant to. 

I simply do not believe that you can condition a person to believe in equality, diversity and inclusion by requiring that they affirm to do so. 

A resistance to embracing diversity is typically premised on a sense of fear and ignorance about what is different. Signing an acknowledgement to act differently hardly goes to the root of the problem, and is a band-aid solution, if anything.

Still, the Law Society is to be commended for recognizing that there is, in fact, a real issue with minorities being fairly represented in our profession, even if its proposed solution leaves much to be desired.

Paul Adam: Many employees of large companies are forced to act as ‘ambassadors’ of their employers, and spout a lot of vacuous nonsense that has made its way into the ‘mission statement’ of International Consolidated Widgets LLC, or what have you. They have no Charter protections from being required to make those statements.

And what the Law Society is asking its members to do is actually affirm that they believe that the legal profession has a duty to hire and represent minority communities, in accordance with the Ontario Human Rights Code. So never mind the posturing about rights - what is it that you do not want to have to say?

Is it that you do not, in fact, believe in hiring people in accordance with the Human Rights Code?

Or is it that you believe, in the abstract, in hiring people in accordance with the Human Rights Code, but you don’t believe you should ever have to demonstrate that you do so in action?

In the recent decision of Trinity Western University v Law Society, 2018 SCC 33, the Supreme Court had this to say about the Law Society:

[20] In our view, the LSUC was entitled to conclude that equal access to the legal profession, diversity within the bar, and preventing harm to LGBTQ law students were all within the scope of its duty to uphold the public interest in the accreditation context, which necessarily includes upholding a positive public perception of the legal profession.

[21] To begin, it is inimical to the integrity of the legal profession to limit access on the basis of personal characteristics. This is especially so in light of the societal trust enjoyed by the legal profession. As a public actor, the LSUC has an overarching interest in protecting the values of equality and human rights in carrying out its functions (see Loyola High School v. Quebec (Attorney General), 2015 SCC 12 (CanLII), [2015] 1 S.C.R. 613, at para. 47).

[22] As well, eliminating inequitable barriers to legal training and the profession generally promotes the competence of the bar as a whole.

Maybe these Bencher candidates disagree with this finding, which is now part of the law of the land.

But the fact is, businesses, schools, and governments have had the right to take measures to promote substantive equality, not just theoretical equality, even when that requires others to make adjustments to things they find inconvenient, or uncomfortable.

Maybe they agree with it in principle, but disagree that they themselves should be required to do anything affirmative to make it so. The Anti SOP-slate writes:

It is correct that we have a duty not to discriminate on prohibited grounds, but there is no positive legal duty to promote equality, diversity and inclusion. The LSO is effectively forcing lawyers to do something which it has no legal authority to require.

I suppose they think that equal access to the legal profession will descend like dew from heaven, and melt those inequitable barriers all by itself, without a single member of the legal profession having to put any money where his or her mouth is.

Unfortunately for them, they are wrong. The Statement of Principles is not, as StopSOP insinuates, a Maoist Cultural Revolution coming to sweep away individual rights and subject them to struggle sessions led by law students of colour who ask to be referred to by gender-non-binary pronouns.

It is perfectly in line with the law of Canada for the past 20+ years, as articulated by the Supreme Court of Canada in Eldridge v. British Columbia (Attorney General)   [1997] 3 SCR 624:

77 This Court has consistently held, then, that discrimination can arise both from the adverse effects of rules of general application as well as from express distinctions flowing from the distribution of benefits.  Given this state of affairs, I can think of no principled reason why it should not be possible to establish a claim of discrimination based on the adverse effects of a facially neutral benefit scheme.  Section 15(1)  expressly states, after all, that “[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination . . .” (emphasis added).  The provision makes no distinction between laws that impose unequal burdens and those that deny equal benefits.  If we accept the concept of adverse effect discrimination, it seems inevitable, at least at the s. 15(1)  stage of analysis, that the government will be required to take special measures to ensure that disadvantaged groups are able to benefit equally from government services.  

Even if I agreed with these candidates, I could not in good conscience vote for Benchers with such a poor understanding of our laws.

Garry Wise: The “compelled speech” arguments against the Statement of Principles strike me as both weak and grating.  Not to mention intellectually dishonest. 

The Rules of Professional Conduct represent the Law Society’s ultimate “statement of principles” applicable to the legal profession, and govern our dealings with the Courts, our clients, the general public and our professional colleagues. 

I hear nobody anywhere suggesting these Rules are offensive to any sensibilities, despite their deep regulation of what can, cannot, and at times, must be said in various circumstances we encounter each and every day. 

The Law Society also requires us to make many “compelled” declarations in our professional dealings.  As but one example, our Annual Reports naturally require us to affirm the truth of the practice-related and financial disclosures we make in these annual findings.  These compelled statements promote critical LSO objectives.  Is there anyone who would seriously raise an objection to that?

Would the anti-SOP gang also object if the Law Society required an affirmation that we promote the importance of ethics in practice and haven’t violated any Rule of Professional Conduct over the proceeding year?  

“You can’t force us to say that!”

Please. Call the proverbial whaaambulance. 

If the Law Society can “force“ us to list to the decimal the percentage of our time that we allocate to each area of practice and to state our trust account information is accurate, why shouldn’t it also be permitted to mandate that lawyers state that we affirm values of inclusion and don’t discriminate in our dealings with our employees, clients and each other?

It’s the law, after all. 

The objectors typically go to great length in pointing out that they, themselves, are nothing short of heroic in their own personal and professional diversity initiatives.  I’m sure that’s likely true, in many cases. 

They just don’t want to be forced to say it out loud, except in their self-serving bencher-election pamphleteering, where they’re arguing all-against the Statement of Principles.

That is a bit confusing.  

The legal profession continues to have significant and virtually unmovable diversity-related concerns. 

Why certain lawyers would devote even a moment of time to arguing against the Statement of Principles, let alone run entire political campaigns around their specious anti-SOP arguments, remains an unsolvable mystery to me. 

This so-called "debate" is not happening in a vacuum. We live in a time of escalating, record hate crime, incendiary political rhetoric and open racial intolerance in certain quarters.

Given this context, perhaps the anti-SOPPERS could better benefit society by devoting some of their misdirected energy toward real efforts to promote racial tolerance and inclusion - throughout the profession and throughout the planet.

StopSlop deserves to flop.

- Wise Law, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Wise Law Roundtable: Forced Retirement, Age Discrimination and Wrongful Dismissal

Commentaries from Wise Law's lawyers on current cases of interest 

Garry J. Wise:  Employees over the age of 60 are a perennially vulnerable sector of the Canadian workforce. 

Forcing an older employee to essentially retire through an unwarranted dismissal is now discriminatory and illegal in most circumstances.  This new legal reality, however, still hasn't fully filtered down into the cultures of many workplaces, where age discrimination remains alive and well.

The sorry truth is that for many employees aged 60 and over, the end of career is possibly nearer than they wish.

In a May 2018 ruling in Dawe v. Equitable Life Insurance Company, Mr. Justice D.J. Gordon of the Ontario Superior Court considered the enitlements of Michael Dawe, a 62 year old Senior Vice President with 37 years of service with the insurer who had been terminated without cause.  Mr. Dawe claimed it had been his intention to work until at least age 65.

He asked the Court to award him 30 months' pay in lieu of notice.  The Court not only granted this claim, but in fact, Mr. Justice Gordon indicated he would have been prepared to award Mr. Dawe 36 months, had a claim for that higher amount been asserted.

Simran Bakshi:  From the sounds of it, perhaps the pendulum may be shifting back toward employees, especially older employees, on questions of the length of notice.

What is most interesting about this decision is that the court awarded a notice period of 30 months without hesitation, going considerably beyond the usual upper ceiling in the range of 24 months of notice.

This decision in large part was based on the fact that the employee had devoted his career to working at the company, and was only a few years away from retiring at the time of his wrongful dismissal. In view of his age, retirement plans, long service, and the senior nature of his position, the Court was convinced that it would be extremely difficult for him to find comparable employment:

[33]           Mr. Dawe was 62 at the time his employment was terminated.  He had devoted his entire working career to Equitable Life and its predecessor, 37 years in total.  Mr. Dawe was a senior vice-president.  He was a member of the senior management team.  There are no similar employment opportunities.  No doubt, Mr. Dawe’s age is a significant factor.  His mitigation efforts demonstrate the lack of other opportunities.
.
[35]           Mr. Dawe had commenced the process of retirement planning, not uncommon at his age and logical given the nature and focus of the life insurance industry.  Mr. Dawe had made no decision as to when retirement would occur.  He says he was committed to working at Equitable Life until at least age 65.  Retirement, if voluntary, may have occurred sooner or later.  On the evidence, I conclude it is more likely Mr. Dawe would have worked at Equitable Life until age 65.  I would add, it was more likely he would have worked there to a later age than an earlier one.

[36]           Counsel referred to a number of cases as examples of a reasonable notice period.  Such were helpful in my review.  Mr. Dawe is at the extreme high end of each of the Bardol factors.  He should have been allowed to retire on his own terms.  With no comparable employment opportunities, in particular, I would have felt this case warranted a minimum 36 month notice period.

[37]           Mr. Dawe’s position of a 30 month notice period is more than reasonable.  I conclude he was entitled to that in this case.

This decision, if upheld by the Court of Appeal, is likely to have a significant impact on employment law cases going forward. In fact, it has already been relied upon in at least one case –Saikaily v. Akman Construction Ltd., to support an award of 24 months’ of notice, for a far more junior and short serviced employee nearing the age of retirement.

Paul Adam:  Well, this is a bold decision with some very bold language.

As Simran mentioned, the conventional wisdom has generally been that there is a “soft cap” of 24 months on notice, if the employee was at the highest levels of seniority, when four key "Bardal factors" are considered:

(a)           age of the employee;

(b)         the character or nature of the employment;

(c)           the length of service to the employer; and

(d)         the availability of similar employment, having regard to the experience, training and qualifications of the employee.

Mr. Justice Gordon in this case made it explicit that these factors were traditionally applicable to employment environments in which the longest possible tenure of an employee was assumed to be maxed out at age 65.

Then he goes on to say that assumption no longer necessarily applies:

[31]           Whether it is exceptional circumstances or recognizing a change in society’s attitude regarding retirement, the particular circumstances of the former employee must be considered.  For many years, the usual retirement age was considered to be 65.  Pension plans improved as a result of the labour movement, introducing, for example, an 80 factor for most employees in the public sector and many in large companies in the private sector.  That lead to some individuals retiring between the age of 50 and 60.  But many were not ready to fully retire.  They sought out additional employment or simply continued to work in their existing position.  Further, mandatory retirement was abolished in 2006 in Ontario to protect against age discrimination.  Many employees have continued past 65.  In result, it is important to recognize that each case is unique.  Presumptive standards no longer apply. [emphasis added]

The Court lays out two paths of legal reasoning to arrive at this conclusion- one is that this case is an exceptional departure from the “24 months” rule, the other is that the “24 months” no longer applies to senior employees because it was based on assumptions about how long we work that now belong to a bygone era.

It’s not very often that a judge will say that an established legal presumption “no longer applies.”

That being said, I think the ruling is correct. There’s lots of empirical data and anecdotal evidence that age discrimination against older employees, despite the fact that they are working even longer, has remained stubbornly pervasive or gotten worse.

Simran Bakshi: To date, Dawe has only been cited in one case, being the Saikaly decision.

What is interesting about this case is what sets it apart from the Dawe decision.

Mr. Saikaly had been the office manager of the Defendant company, a far less senior role than that of Mr. Dawe, who held the position of Senior Vice President. While Mr. Saikaly was a long term employee, having been employed for a period of twelve years, his tenure was no where close to that of Mr. Dawe’s thirty-seven years of service.

What they had in common, however, was that Mr. Saikaly and Mr.Dawe were both employees over the age of 60 at the time of their respective terminations.

In each case, the court takes note of the difficulties older employees are likely to encounter in finding a comparable position of employment following a dismissal, particularly as they approach the age of retirement.

As Justice D.J. Gordon in Dawe described it, a dismissal in such cases is tantamount to a “forced retirement”.

The Saikaly decision appears to zero in on this aspect of the Dawe decision. As Corthorn J. summarized:

28  For an individual at or over the age of 60, a notice period in excess of 30 months might be reasonable (Abrahim v. Sliwin, 2012 ONSC 6295, 2013 C.L.L.C. 210-004, at para. 25). It is not uncommon for individuals over the age of 62 and/or terminated from senior level positions to be entitled to 24 months' notice. (See: Dawe v. Equitable Life Insurance Company, 2018 ONSC 3130; and Bovin et al v. Over the Rainbow Packaging Services Inc., 2017 ONSC 1143.)

Garry Wise:  In summary, with respect to the lengthy notice awarded in Dawe, note that the proximity to retirement, the the employee's lack of desire to retire early, and the likely unavailability of comparable employment led the Court to suggest even a virtually unheard-of notice period of 36 months would have been reasonable in the circumstances.

While time will tell, this ruling could represent a judicial warning shot to employers that new rules now apply to the improper termination of older employees.  The consequences of all forms of age discrimination could become increasingly severe and expensive for employers.

Dawe is also noteworthy because the issue of entitlement to bonuses upon termination is also addressed.

The court noted that the entitlement to bonus upon severance is ultimately a contractual question, to be determined based on the agreement between the parties.

Dawe is apparently winding its way toward appeal right now.

- Wise Law Office, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Wise Law Roundtable: Rogue Articling Students and a Lawyer's Duty to Supervise

Commentaries from Wise Law's lawyers on current cases of interest 

Background

All lawyers are expected to be good ambassadors of the profession and the justice system. This is not only when in court or in the office, but also when online and in the public eye generally.

In Law Society of Ontario v. Marco Forte, 2019 ONLSTH 9 (CanLII), a senior lawyer recently accepted disciplinary penalty from the Law Society because he failed in his duty to adequately supervise an articling student who was not living up to the standards of professional conduct on some online message boards, and Twitter.

But how far does this duty go? How much online activity can a lawyer - and should a lawyer - be expected to police?

A senior criminal lawyer, Marco Forte, hired his first-ever articling student. Her conduct online quickly became a problem, according to the ruling. Less than a month after she began articling, the student got in a verbal altercation with Court staff, flipped them her middle finger, and had to be escorted from the Courthouse by police. She took to twitter to allege that she had been illegally arrested.

She also made a number of posts on a Criminal Lawyer’s Association listserve, in which she made comments about “white male privilege” that other members found offensive and disparaging. She also made comments that apparently seemed to break rules about confidentiality. She also tweeted derogatory comments about Justices of the Peace, Crown attorneys and her firm’s clients:

...a Twitter post on September 3, 2015 reads as follows: “welp. apparently some JP’s just love to powertrip for no fucking reason at all, wasting everyone else’s time while at it.”

This pattern continued from July 2015, to December 2015. The lawyer put her on suspension, after being informed that she had tweeted publicly “about the inefficiencies of the court system and how all court clerks should be fired and replaced by robots [and] also described them as having jobs that were incredibly ‘futile and outdated.’”

Meanwhile, even while on suspension, the student:

“...continued to post tweets on the Lawyer’s firm Twitter account in the Lawyer’s name, without his knowledge. She also continued to operate a personal website, containing a link to the Lawyer’s website, which at one point listed the names of more than 50 “Bad Cops,” two “Bad Crowns” and two “Bad Judges.”

The Tribunal decision acknowledges that Forte knew about much of the student’s conduct all along, and was trying to address it with her, and supervise her, to prevent her from this kind of rogue social media activity.

However, the Tribunal found that Forte hadn’t gone far enough to curb her behaviour. While he did not “abdicate” his responsibility to rein her in, the Tribunal found:

“...the Lawyer’s well-intentioned efforts at supervision were inadequate; he failed to monitor or control [her] Twitter account, failed to review the contents of her website, trusted her assurances for far too long, and failed to take appropriate disciplinary measures until it was far too late. The Lawyer’s unfamiliarity with social media, or the demands of his busy practice, do not excuse this conduct.”

Our lawyers had these thoughts on this ruling:

GARRY WISE: A problem here is that this was a  consent disposition, and none of these issues appear to have been argued or adjudicated in any meaningful way.  I suspect this lawyer agreed to a slap on the wrist to avoid the enormous costs that would have been incurred in defending this.

SIMRAN BAKSHI: Reading between the lines, I think that the Law Society may have been troubled by the fact that the Lawyer requested the student to create a twitter account and website for the firm, which he did not monitor. As well, the disciplinary action that he did take was a suspension over what would have been Christmas break.

PAUL ADAM: The passage that bothers me is this one:

[46] “The Lawyer did not abdicate his responsibility to supervise his student; the problem was that his efforts, while well-meaning, were ineffective. As one of the Lawyer’s character witnesses put it, the Lawyer “struggled to assist [her] as best as he could” and “often spoke of his frustration” in helping her. He did not fail for lack of trying.”

PAUL ADAM: I do wonder if Courts and tribunals are swinging from a position of having no interest or faith in technology, to having wildly unrealistic expectations of how lawyers ought to be using and monitoring technology to accomplish things that are just not possible.

GARRY WISE: I’m not sure what more the lawyer could have done.  How does one monitor an undisclosed Twitter account?  Does linking a Twitter page to a firm website really equate to advertising?

SIMRAN BAKSHI: I agree that it seems problematic to connect a personal twitter page to a firm simply because it contains a link to the firm's website; however it seems that in this case at least several different members of the public drew a connection between her inappropriate conduct and the firm, simply from looking at her page.

PAUL ADAM: It reminds me of a costs decision that was reported a few months ago, Cass v. 1410088 Ontario Inc., 2018 ONSC 6959. It was a summary judgment motion on the issue of occupier’s liability. Whitten J. was not prepared to allow a $900 billing for legal research, on the grounds that the use of “artificial intelligence sources” could have cut down on counsel’s time on the file- no further explanation as to what that would entail. It’s a further case of a challenge is being put to lawyers involving the changing use of technology but we’re missing a meaningful standard of what a lawyer actually should or should not be doing, it’s just an admonishment to “do better.”

GARRY WISE: I’d be curious what an employment lawyer would have recommended had the lawyer consulted with one as these events were unfolding. At what point could termination for cause have been a viable option?  The termination of an articling student is not a decision to be taken lightly.

SIMRAN BAKSHI: I can understand how the lawyer may have had some responsibility to monitor the student’s Twitter account and take disciplinary action where warranted, after he was made aware of some her disparaging comments, but to require that he “control” her personal Twitter feed strikes me as being unreasonably onerous.

What are your thoughts?  Let us know in the comments or @wiselaw on Twitter.

- Wise Law, Toronto

Visit our Toronto Law Office website: www.wiselaw.net