Some benchers said policy balanced competing views, others said it was illegal
At convocation Thursday morning, the Law Society of Ontario passed a new policy clarifying the process by which the regulator deals with bencher information requests.
Some who supported the motion said it struck the right balance between a bencher’s oversight, fiduciary obligations, and management’s capacity to fulfil requests. One bencher, who recently sued the law society for refusing his information requests, said the balance struck is contrary to common law recognizing and affirming a corporate director’s right to information.
The policy on bencher information requests came from the Strategic Planning and Advisory Committee. The Treasurer created an advisory group to develop a policy in 2022, and the policy was considered and tabled at Convocation in September 2023. The committee revised the policy and brought it to convocation anew, recommending its approval.
The motion to approve the policy carried with 36 in favour, 13 opposed, and two abstentions.
Benchers passed a by-law amendment from the professional regulation committee requiring lawyers to maintain a client contingency plan. They also unanimously approved a motion from the professional development and competence committee to implement a practice essentials course for sole practitioners.
The policy on bencher information requests guides the process for requesting information not regularly provided and would be engaged when the bencher is denied the information they seek. Under paragraph one of the policy, the information requested “must be directly related to a bencher’s appropriate duty as a governor of the Law Society and reasonably required to fulfill their current oversight or policy-making responsibilities and be used for such purposes.”
The bencher must submit the request to the treasurer, who will consult the CEO, and they will have the discretion to decide whether to fulfill it. If denied on the basis that the request does not conform to paragraph one’s requirements, the treasurer must provide written reasons for the denial within 30 days of the decision, which will include what documents were reviewed and who was consulted in making the decision.
The policy “provides a process by which LSO directors’ requests for information can be assessed in the context of the director’s rights, case law and operational implications of meeting such a request,” says LSO spokesperson Jennifer Wing. “This policy was developed after extensive research and discussion by a committee of our benchers. This policy is intended to provide clarity and a process for information requests to support benchers in their oversight roles.”
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During the debate at convocation before the vote, bencher Heather Hansen said the policy represents a “fair compromise on the competing views.” She said that according to the caselaw, the directors’ right to information is a “very wide and expansive right.” The policy’s requirement that the treasurer provides written reasons within 30 days of a denial of a bencher information request and that those reasons include a description of the people and documents consulted in the process, provides a platform for the bencher “to expand or pursue the request further,” she said.
Wing says that if a bencher is denied access to information, they would have the same recourse available in most situations where they disagree with the treasurer's decision.
“The bencher could ask the treasurer to revisit the decision or bring a motion to Convocation to reconsider the decision,” she says. “It is anticipated that this process would only need to be used in very rare circumstances since the benchers are routinely provided with extensive information relevant to their roles as governors.”
Hansen is a partner at McCarthy Hansen & Company in Toronto and a certified specialist in family law. She noted that her discussions with the law society management and treasurer demonstrate that there would be “very few circumstances” where information requests would not be readily answered.
Bencher Murray Klippenstein recently sued the law society for denying his information request concerning internal documents related to its equity, diversity, and inclusion (EDI) programs. In February, the regulator reversed course and disclosed the documents he sought. He warned Convocation that the policy would give the treasurer and CEO “unlimited power” to keep information from benchers.
“For more than a century, dozens of courts in dozens of jurisdictions have said a director has an almost unqualified individual right to information about the corporation,” said Klippenstein.
He also criticized the strategic planning and advisory committee for lack of transparency.
“This comes from a secret process that is contrary to a resolution of convocation, and it's not right.”
Klippenstein told Law Times following the vote: “The majority of benchers apparently did not want to follow the law regarding a director’s right to information, so we are left with a top-down organization where bencher access to information rights are not recognized.”
Mitchell Kitagawa is a bencher from Ottawa and a partner at Kelly Santini LLP, practising insurance defence and litigation.
“We all start from the position that we believe that the directors will faithfully carry out their roles for the corporation,” Kitagawa said at convocation.
But what if, he said, a group of benchers sought to impose a political ideology on the LSO that was contrary to the law society’s statutory duties? What if those efforts included peppering management with non-stop information requests on trivial and irrelevant information?
“How do you stop the abuse? You do so by putting in reasonable controls on the ability for a rogue director from abusing their position,” said Kitagawa. “I think that is part of what we're doing here today.”
