Focus On
Malcolm_Mercer_sm

Contentious motion on equity group’s involvement at LSO tabled, censure motion ruled out of order

Friday, February 28, 2020 @ 10:30 AM | By Amanda Jerome


The debate on two motions before the Law Society of Ontario (LSO) dissolved into a shout of “shame!” as benchers expressed feelings of being attacked, made claims of bullying and demands for apologies before the treasurer called issues out of order and closed the public portion of the meeting.

The motions were both moved by bencher John Fagan and seconded by bencher Jared Brown. The first motion was to censure a representative of the Equity Advisory Group (EAG) for making a “serious and highly damaging Twitter allegation” against a bencher and to censure the Discrimination and Harassment Counsel for retweeting the remark.

LSO bencher Jared Brown

Treasurer Malcolm Mercer clarified that the individual who posted the tweet was EAG chair, Nima Hojjati, and the bencher it related to was Cheryl Lean.

Before the motion could be introduced, Mercer noted that he would be calling it out of order, but he gave Fagan and bencher Ryan Alford time to speak before explaining his reasoning.

Alford was concerned about ruling the motion out of order because it raised an issue that could be addressed in a proceeding and was “an overly restrictive interpretation” of the bylaws that would eliminate the potential for motions of this kind in the future.

“I think that we have to remember that censure plays a very important role in the governance of the law society,” he said, noting that it allows for Convocation to “state that it disapproves of something.”

Mercer noted that the “essence of the motion to censure is that those who assist the law society should not be permitted to speak publicly about alleged, serious bencher misconduct even if the allegation is true.”

“The stated rationale is that bencher work would be impaired by injurious social media campaigns as a result of such allegations,” he added.

The treasurer reminded the room that Convocation has adopted a code of conduct for benchers as well as rules of professional conduct for lawyers and paralegals.

“The bencher code sets out the conduct required of benchers and establishes a procedure whereby allegations of breach are to be addressed. Those sought to be censured at this motion are not benchers,” he explained.

LSO treasurer Malcolm Mercer

“Going forward, it is open to Convocation to require that those who participate in meetings of committees agree to be bound by the bencher code, variations may be required, or some other code as a condition of participation. That has not been done to date,” Mercer said, adding that if this were done, standards to be met by participants and the process to be followed, including notice and a right to be heard, would be needed where a breach is alleged. 

Mercer thanked Fagan, Brown and Alford for their submissions on jurisdiction and procedural fairness, but he did not think they applied in this context. He boiled down the question to “discipline of members of the law society.”

“The Law Society of Ontario is a public interest regulator with a statutory authority to regulate the conduct of its licensees. There is a statutory regime for discipline,” he stated, adding that the rights of licensees and the public interest are “protected by investigative prosecutorial and adjudicative processes established by the Law Society Act.”

“Convocation once had the role the [Law Society] Tribunal now has. Convocation once sat as discipline Convocation and addressed questions of discipline; that is no more. That is now the matter for the Tribunal,” he explained.

Mercer concluded that the “censure” motion concerned “a matter in respect of which, subject of course to investigation and authorization, there could be a hearing conducted under the Act.”

“Therefore, I conclude that the motion is out of order. If I’m wrong and there couldn’t be a hearing because what is addressed could not possibly be professional misconduct or conduct unbecoming, then I find there is no jurisdiction to censure,” he added.

The second motion moved that the Equity and Indigenous Affairs Committee (EIAC) is “hereby directed to recognize the right of all Benchers to attend, to participate and to speak at EIAC committee meetings and other EIAC events,” and called for a committee to be established to review “the advisability of according to non-benchers the privilege of regular attendance and participation at meetings and other events of the Committees of Convocation” and “the advisability of creating and maintaining a standing group of unelected advisers such as the EAG.”

Brown said the motion went to the heart of “good governance” and “accountability.”

Referencing the Twitter allegation brought up in the first motion to establish a background for the second motion, Brown said the tweet made after a committee meeting was a “breach of the sanctity of the committee process.”

Brown noted that certain people are not bound by the governance or accountability structures that apply to the benchers and law society staff.  

“The equity and advisory groups are afforded a special status in this place. And that’s what equity has come to mean: special status. They’re not elected by the membership, they’re not answerable to an elected government, not bound by our policies or the code of conduct, no fiduciary duties to the public or the membership, no duty of confidentiality and, I suggest, no accountability,” he explained.

“So, what happens when these groups violate the deliberative process of this place? Nothing,” Brown added, noting that the first motion being ruled out of order should give Convocation pause “to learn that we do not have the ability to call our own house to order and command accountability in respect to the equity and advisory groups.”

Brown asked why these groups are afforded “special privilege.” He wondered why “activist law groups” moved so quickly to voice condemnation of the motions before Convocation.

“The answer’s quite simple: it’s equity. Equity has come to mean special status for some people. They are privileged. Equity is beyond rebuke, critique, or oversight. Equity has been elevated to religion in this place. That’s not good governance,” he stated.

Brown noted that in the past reforms were made to make the law society more efficient. He explained that these reforms removed the status of ex-officio benchers, but what “escaped” the eye of the governance review, he said, was the “special status called ‘equity.’ ”

“I’m of the opinion that the public interest demands that nothing in this place be sacred,” he stressed.

LSO bencher Julian Falconer

“There is no justification for any special interest group, unelected, unaccountable, to have status that is not afforded to other groups representing other interests. It’s undemocratic, it’s elitist, it’s not in the public interest,” he added.

Bencher Julian Falconer requested a point of order, noting that Hojjati has brought a code of conduct complaint against Lean in respect of her comments, which were the subject of the tweet brought up by Brown in speaking to the motion.

“That code of conduct complaint laid against bencher Lean includes Mr. Hojjati also reaching out to the Discrimination and Harassment Counsel,” he said, adding that the first motion can’t be ruled out of order while the same issue is used to support the second motion.

Falconer argued that the second motion was, as the first, out of order.

Mercer did not accept the point of order and stressed that there’s a material distinction between Convocation “addressing conduct” and “censuring or reprimanding or commenting favourably or unfavourably.”

LSO bencher and chair of EIAC, Dianne Corbiere

Bencher, and chair of EIAC, Dianne Corbiere, moved to table the second motion. Bencher Robert Burd seconded her motion.

Corbiere stressed that a “working group or a committee to examine the role of our equity partners should be established through the Equity and Indigenous Affairs Committee as it clearly falls within its mandate.”

She noted that EIAC’s mandate includes consultation with Indigenous, francophone and other equity seeking communities in the development of policy options.

In response to the motions brought by Fagan and Brown, the law society received over 30 pages of letters from legal organizations stating their support for the continued participation of equity groups.

“It is also worth noting that external groups participating in law society committees is not unique to equity. The law society continually seeks advice from non-elected individuals to inform policy decisions. This lends credibility and legitimacy to our work,” she added.

Corbiere stressed that if the relationship with EAG, which has existed for over 20 years, is now subject to a review, “EIAC needs to be the body to take a principled, structured approach to understanding the concerns and coming up with solutions that ensure the law society continues to meet its duty to protecting and advancing equality in the legal profession and operating in the public interest.”

Corbiere’s motion to table was carried 29-23. Therefore, debate on Fagan and Brown’s motion is deferred indefinitely.

LSO bencher Cheryl Lean

Lean, speaking as a point of privilege, said that she was “the subject of the Twitter attack” and claimed, “without reservation” that she “did not make those statements that were alleged to me.”

“I feel that at this point the issue of having unelected, unappointed people attending our meetings, and then without any restraint, feeling that they can go and attack on the Internet; it violated all our privileges. He [Hojjati] didn’t say who made this allegedly racist statement. He said an unidentified bencher did it and then got a Twitter storm. So, in fact that violated all of our privileges, not just mine. I was forced to publicly speak to the matter because, as you know, you did not feel that you could do much about it. I feel that tabling this in this manner and just burying this issue is a threat to all of us,” she argued.

Falconer, also speaking on point of privilege, stated that Lean’s speech was “entirely inappropriate” as it was made after the motion had been tabled.

“The bottom line is there’s a total other side to this, which is a young man, who was called [to the bar] in 2018 is the subject of attack by lawyers with decades of experience. It is a classic example of bullying and I think, I say sadly, that everything we’re supposed to stand for as a law society has been lost. We owe a deep, deep apology for the alienation that we have caused to organizations that have been our partners for years. This is a very sad day. There’s not victory here,” he stressed.

Falconer’s remarks were met with applause from members of the public as other benchers called out points of privilege and “shame.” Mercer ended the public portion of the meeting and the issue of equity groups participating in committees was left to be dealt with at a later date.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Amanda Jerome at Amanda.Jerome@lexisnexis.ca or call 416-524-2152.