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‘No one thought this would happen’: outgoing benchers react to turnover at LSO

Monday, May 06, 2019 @ 12:45 PM | By Amanda Jerome

The Law Society of Ontario’s (LSO) recent election has cast the spotlight on a divisive issue: the Statement of Principles (SOP). A “well organized” slate of candidates campaigned to repeal the SOP and took 22 of the 40 lawyer seats available at Convocation, effectively displacing 19 of the benchers running for re-election.

A common sentiment from defeated candidates is one of surprise and concern for the work they’d done on diversity, access to justice and governance.

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Jonathan Rosenthal, criminal lawyer

“No one thought this was going to happen. I think that’s clear that no one thought this sort of sweep [would happen] because no one realized how well organized they [StopSOP] were on a single-issue campaign,” said Jonathan Rosenthal, an outgoing bencher for Toronto.

Rosenthal, a sole practitioner in criminal law, said this election is different from any other as it’s “the first time in the history of the law society that you’ve seen a well-organized, obviously well-funded, group of individuals run as a slate on a single issue.”

“I think this will, sadly, be a real wakeup call to the profession that if you don’t vote this is what can occur. You can have a one issue, single slate campaign get together. I think they [StopSOP] well recognized that they would be able, if they ran on a slate, to accomplish what they did. If you look at all the diversity groups in our province, they did not run a slate,” he said.

Rosenthal believes in the Statement of Principles, seeing first hand the power privilege can have to open doors. He used to use his bencher ID to get into courthouses across the province, but never realized, until a security guard pulled him aside one day, that his ID didn’t state he was a lawyer or a member of the law society.

“That’s how I got into courthouses in the last four years and no one has ever stopped me. I know that doesn’t happen to brown lawyers. I know that doesn’t happen to black lawyers. So as someone who’s had this privilege, I’ve always recognized that privilege, and that’s why this is such an upsetting issue for me,” he said, noting that it’s easy for people who have privilege to say, “there isn’t a problem in the profession.”

“In the law society one day, Sandra Nishikawa, who is now a judge, was stopped by security when she was walking with all the other benchers,” he added, stressing that the legal profession doesn’t “represent the diversity of the population of our country.”

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William McDowell, Lenczner Slaght Royce Smith Griffin LLP

“All the Statement of Principles is,” he explained is a statement to say, “ ‘I will not be a racist in the practice of law.’ ”

“Whether it’s repealed or not, I will still publicly declare that I will not be a racist in the practice of law,” he said, adding that “it’s very easy for people who have never walked in the shoes of a racialized lawyer to say ‘well, it’s not important.’ ”

According to a statement from the LSO, approximately 30 per cent of lawyers and 17 per cent of paralegals voted, which is a lower turnout than the 2015 election.

William McDowell, a partner at Lenczner Slaght Royce Smith Griffin LLP and an outgoing bencher for Toronto, said the amount of benchers not re-elected is “stunning.”

“It’s a remarkable achievement on their [StopSOP] part because, frankly, many of them don’t have a profile in the profession, so they have to be congratulated for their determination and organization,” he added.

McDowell noted that if he has to get “thrown out of office for something and the something is standing up for equality,” then he can live with that.

“The Statement of Principles wasn’t perfect. I think it was poorly explained at the front end, but it formed part of a package that seeks to improve the problem of barriers into the profession,” he said, adding that the population he sees at the call to the bar is “dramatically different” than the population at law firms at King and Bay.

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John Callaghan, Gowling WLG

The former bencher thinks there’s some apathy in the profession, but believes the electronic ballot, which came with a 15-digit code, was a barrier to voters as an e-mail can get lost in a full inbox. He said it’s different from the days when the “ballot arrived on your desk in a large envelope prominently marked.”

John Callaghan, a defeated candidate for Toronto and a partner at Gowling WLG, said it appears that for many this was a “one-issue election.”

“I think the profession has to begin to realize that we are very fortunate to have an independent regulator which, I think, is essential in a civil society that the government doesn’t begin to regulate lawyers. Lawyers are going to have to take some responsibility by voting and ensuring that the right people are there. I’m not suggesting that these people [the current bench] aren’t the right people, but the independence of the bar depends on the participation of the bar. So, while 30 per cent may sound like an adequate turnout for a municipal election, I think our independence should warrant more attention by the members of the bar,” he said.

Callaghan said the election outcome came as a surprise because he wasn’t aware of how organized the StopSOP slate was. He said the slate “showed a lot of people how to campaign.”

“I’m a little concerned that slates are now the future because I would hate to think that we’re going to be one step short from party politics where it’s driven by slates. The independence of the profession shouldn’t be a dogmatic approach to issues, by which I mean based on a party politic rule. We need people of diverse backgrounds and people who speak for the wider profession. I think slates will be a little bit too engineered in that there needs to be a broader view,” he explained, noting that the StopSOP ran a successful campaign.

“Hopefully this bench has the same experience that I had of working with good people in the public interest and, hopefully, furthering the independence of our profession because anything else would be a disaster,” he added.

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Howard Goldblatt, Goldblatt Partners LLP

Howard Goldblatt, also ousted in the Toronto region and a partner at Goldblatt Partners LLP, views this election from his perspective as a former vice-chair of the Challenges Faced by Racialized Licensees Working Group, which brought forward the recommendation for the Statement of Principles. He said he firmly stands behind the working group’s proposals and is “very concerned that those principles will be eroded” which could have an “adverse impact on issue of diversity, equity and inclusion.”  

“I hope, and trust, that the next group of benchers will keep the public interest foremost in their mind as they sit in Convocation and consider the significant issues that we have to address as a regulatory body,” he said.

“I very much enjoyed the work that I did. I think we did a lot of good work and I’m frankly quite surprised at how many very good, qualified, dedicated, committed people were not re-elected,” he explained, noting that he’ll miss his fellow benchers and he hopes they stay in touch.

Goldblatt also expressed disappointment in the low voter turnout and believes it indicates that voters weren’t “attuned to how important the election was.”

“Another thing that’s really disappointing is the number of women who were elected. That’s gone down to 11, the lowest it’s been in a long period of time, which is unfortunate,” he added.

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Barbara Murchie, Bennett Jones LLP

Barbara Murchie, a partner at Bennett Jones LLP and an outgoing bencher for Toronto, also expressed concern over the low voter turnout for lawyers, noting it’s “an indication, perhaps, that the law society doesn’t impact their lives very much on a day-to-day basis, so they’re not paying attention to it.”

“The second point that is perhaps a little troublesome is that this is probably the most political election that I’ve ever seen. It may be that it’s a product of our times with single issue voters and parties with particular axes to grind or concerns. It was a very effective campaign by the anti-SOP and I can’t do anything but give them credit for running a very effective campaign. They clearly touched a nerve in the profession and that is something we have to take note of,” she added.

Murchie noted that along with the Statement of Principles, many people on the StopSOP slate expressed concerns about the law society budget, which she believes is a “fair concern.”

“There’s transparency at the law society on the budget and we should welcome scrutiny from our members and from the benchers themselves,” she added.

“Given that we elect benchers who are not only making decisions for the profession and the public, but are sitting on the Law Foundation, legal aid, representatives on the LawPRO board, sitting as adjudicators on the tribunal, making decisions about what discipline matters proceed to a hearing and what ones get settled in another fashion, there’s a real range of responsibilities and positions that benchers have. I guess I would have thought that more lawyers would be alert to that issue and want to ensure that the members of the profession that were representing them in that capacity would be people that they were comfortable with,” she said.  

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Anne Vespry, sole practitioner in family law

Anne Vespry, an outgoing bencher and sole practitioner in family law from Ottawa, reacted to the election results with “huge relief.”

“I’m very glad that I didn’t get re-elected. I cared too much, perhaps,” she explained, adding that discovering she hadn’t been re-elected gave her a sense of freedom.

“The results of the election were, to my mind, very predictable,” she said, noting that she abstained from the vote on the recommendations, including the SOP, brought forward by the Racialized Licensees Working Group at Convocation.

Vespry argued strongly at that time that the SOP “would be a completely ruinous thing to bring to the profession.”

“It, essentially in any reasonable balancing, would have at best a very small positive effect and quite easily a really huge negative backlash. I seconded Joe Groia’s motion to bring in some sort of opt out provision for conscientious objectors,” she added, noting she’s not surprised that candidates organized around this issue.

Vespry is not concerned that the StopSOP slate is going to “march in lockstep off of some cliff and destroy the law society.” She said she’s far more worried about decisions the “old guard” made that “weakened” the law society.

She pointed to the removal of voting rights for life benchers and former treasurers as an example.

“They could be our sober chamber of second thought, our version of the Senate, and our history. They could bring history to the table, which I expect the new group is going to be very, very lacking just because of the amount of turnover,” she explained, urging the new bench review the decisions made on that issue.

Vespry noted that benchers are “a relatively small cog” in a “huge wheel” and having members connected to the organization’s history as guides is beneficial when dealing with important issues.

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Heather Zordel, Gardiner Roberts LLP

Like Vespry, Heather Zordel, a partner with Gardiner Roberts LLP and an outgoing bencher for Toronto, was not “wholly surprised” by the outcome of the election as she noted the SOP had received a negative reaction from the profession.

“There’s a big commitment being made here by people elected as benchers as well as the continuing ones. I don’t have any concerns about the fact that we’ll have good quality governance from people elected as benchers under this new group,” she said, encouraging the new bench to re-elect Malcolm Mercer as treasurer for a second term.

Peter Beach, of Beach & Starkie, Associates and an outgoing bencher from Ottawa, was expecting this election result. He could tell by speaking to people in his region that a number of lawyers were upset with the LSO because of the SOP and the change of the law society’s name.

“In my view, certain members of Convocation and the treasurer took very high-handed attitude towards members, particularly those of us who are in the outer regions,” he said, adding that he was opposed to the law society’s name change.

“It’s a small thing, but it’s indicative of an attitude that the membership doesn’t matter. And the same thing with the Statement of Principles, it was obvious that a number of people were opposed to it,” he explained.

Beach is concerned that the Statement of Principles will “take on a life of its own,” which will take away from the implementation of the report it springs from. He’s also concerned that the SOP will take away from the various other important issues that Convocation has to decide, such as “legal aid, self governance, entry into the profession, articling, keeping standards up and discipline.”

“I don’t know where this is all going to end up. I fear there’s going to be a battle. I think it’s all likely to get rather unpleasant and, in that sense, I’m kind of glad I’m not going to back,” he added, stressing that the Statement of Principles needs to be rapidly resolved.

Benchers elected in this election will take office at the May 23 Convocation.

The Statement of Principles will also be the subject of discussion at the May 8 Annual General Meeting, as a motion regarding guidance materials for the SOP will be on the table.