An Independent Tribunal Within a Self-Governing Law Society:

Ontario’s New Law Society TribunalDavid A. Wright

Chair, Law Society TribunalAdjunct Professor, Osgoode Hall Law School

Ontario is Canada’s largest province (population 13.6 million)

Law Society of Upper Canada established in 1797

Governs approximately 46,000 lawyers and 5,000 paralegals

Rules of Professional Conduct established by the Law Society

National model code recently established by the Federation of Law Societies of Canada

The Context: Law Society of Upper Canada

Most benchers serve four-year terms 40 elected lawyer benchers 5 elected paralegal benchers 8 lay benchers (non-lawyers and non-

paralegals) appointed by the government

Also grandparented ex officio benchers

Law Society Governance

Cases come before the Tribunal following complaint (if applicable) and investigation process Conduct Licensing Capacity And others

In house and sometimes external counsel represent the Law Society

Cases before the Tribunal

Cases heard by the Hearing Division, may be appealed by either party to the Appeal Division

Appeal Division decisions may be appealed to Court

Appeals

Hearing Panel and Appeal Panel each led by a part-time bencher chair

Tribunals Office with eleven employees (Counsel, Clerks, Office Staff)

Hearing panels primarily composed of benchers; some non-bencher adjudicators added in recent years to increase linguistic, scheduling capacity

Adjudication mandatory for benchers Mandatory adjudicator education

The Previous Model

Little case management by the Tribunal LS counsel generally steered the proceeding Rules and processes based on criminal and

civil law models; sometimes complex and technical

Volunteer duty counsel available to self-represented licensees

No support to adjudicators on substantive law or reason writing (other than editing)

The Previous Model

Increasing complexity of cases Need for systematic and effective

adjudicative structure Delays due to unavailability of panels Successful appeals

◦ Insufficient reasons◦ Violations of procedural fairness◦ Misapplication of established principles of

substantive law

Reasons for Change: 2012 Tribunals Committee Report

Establish a tribunal in the model of other administrative tribunals

Leadership: full-time, independent non-bencher chair and two elected bencher vice-chairs

Increased use of appointed non-bencher adjudicators appointed by convocation

Appointments of new appointed adjudicators to be based on merit, adjudicative experience

Performance evaluation of all adjudicators, including benchers

Key Features of the New Model

Benchers are not required to sit as adjudicators; can decide to focus on policy work

Benchers must apply for tribunal membership; will be appointed to a first term if they agree to abide by requirements

Performance evaluation of all adjudicators, including benchers, by the chair and unsatisfactory evaluation will lead to non-reappointment

Mandatory enhanced training and education

Key Features of the New Model

Chair appoints each hearing panel By regulation, three-person panels on

lawyer hearings require at least one elected bencher and at least one lay adjudicator; chair can depart

Three-person panels on paralegal hearings require one lawyer, one paralegal, one lay adjudicator

Most appeals heard by five adjudicators – similar regulatory requirements

Key Features of the New Model

Chair started September 2013 – background in administrative tribunal leadership

Legislation to formally establish Tribunal took effect March 12, 2014

Eleven new non-bencher adjudicators appointed in September 2013, training session conducted in November, fully on the schedule starting January 2014

Progress on Implementation

Early priority was to work on identity for the Tribunal as a whole◦ Developing mission statement and core values◦ Logo and stationery to visually separate the

tribunal from the policy and prosecutorial arms of the Law Society

◦ Website (including guides for self-represented licensees)

◦ Enhance the view of the Tribunal as a unified team consisting of staff, appointed and bencher adjudicators

Defining an Independent Identity

Who We AreThe Law Society Tribunal is an independent adjudicative tribunal within the Law Society of Upper Canada, consisting of staff and appointed adjudicators. Adjudicators include benchers and other lawyer, paralegal and lay appointees.

Mission StatementThe Law Society Tribunal processes, hears and decides regulatory cases about Ontario lawyers and paralegals in a manner that is fair, just and in the public interest.

Mission and Core Values

Core ValuesFairness:

We will be fair and impartial in our processes and proceedings, treating all with respect, courtesy and dignity.

Quality:We strive for excellence, acting with dedication and professionalism. We aim for continuous improvement, valuing diverse perspectives. We commit to an atmosphere that enables all to perform at their best.

Transparency:We will act in a manner that bears the closest scrutiny. Our decisions, rules, processes and policies will be available to licensees and the public, accessible and easily understandable.

Timeliness:We are guided by the importance of timely resolution of all matters. We will schedule hearing and continuation dates expeditiously and complete written reasons promptly.

Mission and Core Values

Established description setting out competencies and duties in various parts of the work:◦ Fairness and Collegiality◦ Quality and Continuous Improvement◦ Transparency◦ Timeliness◦ Responsibilities of panel chair, author of reasons

and in case management

Position Description

Self-evaluation in relation to the competencies established in the job description followed by meeting with the chair

To be conducted six months before the end of the adjudicator’s term

Further follow-up and performance management if the chair has concerns about the adjudicator’s performance

Evaluation System Proposal

Revamping the scheduling system◦ Moved away from a “list” model◦ New model provides more certainty for parties,

adjudicators◦ Tailor expertise to cases

Stakeholder outreach◦ Established Chair’s Practice Roundtable, made up

of counsel who regularly represent the Law Society, counsel who regularly represent licensees, and duty counsel

Other Early Priorities

Building Collegiality, Consistency and Expertise◦ Colleague review of and comment on draft

reasons (common practice in Canadian administrative tribunals)

Stakeholder outreach◦ Established Chair’s Practice Roundtable, made up

of counsel who regularly represent the Law Society, counsel who regularly represent licensees, and duty counsel

Other Early Priorities

Greater focus on case management to reduce costs for the parties, hearing time and adjournments

Possible involvement of duty counsel during pre-hearing conferences

Recruitment of additional adjudicators

Upcoming Priorities Include

For more information, see our website at:

www.lawsocietytribunal.ca

www.tribunaldubarreau.ca