The scene is the bandshell at Simcoe Park in Niagara-on-the-Lake, Ont., in June 1997. On this sunny afternoon, the benchers, senior staff, and members of the bar were present to celebrate the bicentennial of the Law Society of Upper Canada.
In keeping with the spirit of the bicentennial, I volunteered to be one of 10 benchers to dress up in period costumes to re-enact the founding of the law society.
As we sat in our costumes on the lawn, a seagull with an intestinal disorder flew over the celebrations and decided to inaugurate my expensive rented costume with a large dollop of poop.
I have often thought of that incident as a metaphor for my 16 years as an elected bencher: a mixture of enjoyment and accomplishments liberally scattered with frequent occasions when the presence at Convocation of a seagull with diarrhea would have improved the mood of the day.
My term as an elected bencher with full voting rights ends the day before Convocation this month. My forced termination follows the implementation in December 2009 of the recommendations from a deeply flawed governance task force that prevented seven current benchers from running for re-election.
We remain as emeritus benchers with all existing rights and privileges except for the ability to make motions and vote at Convocation.
When I asked Treasurer Laurie Pawlitza if I could share some memories and issue a challenge to the incoming benchers at our last voting Convocation in April, the answer was no.
So here are the remarks I was not able to deliver to my bencher colleagues at Convocation. I have listed them in no particular order as highlights, seagull moments or challenges.
• Highlight: Being at Convocation allowed me to get to know some of the greats of the legal profession who are now gone from our midst. I am eternally grateful for the opportunity to have known, among others, Stuart Thom, Brendan O’Brien, Laura Legge, John Arnup, Don Lamont, Ron Cass, Barry Pepper, and Ken Jarvis.
• Highlight: Convocation approved many significant milestones since I became a bencher in 1995. Among these, I count the payout of the $154-million insurance deficit; the passage of a statement of principles acknowledging the law society’s respect for religious and spiritual beliefs; the bicentennial celebration; the passage of a paid parental leave policy; the implementation of the task force reports on sole and small-firm practitioners and retaining women in the legal profession; the decision not to hold Convocation on any day that conflicts with the religious beliefs of a bencher; and the institution of the position of a complaints resolution commissioner.
• Top highlight: To me, the most significant milestone in my 16-year term was the creation of TitlePLUS by the law society. It aimed to counter the efforts of established title insurers who arrived in Canada with thoughts of setting up closing centres and repealing Regulation 666 that requires the involvement of lawyers in title-insured real estate transactions.
With the co-operation of Convocation and the Ontario government, former treasurer Harvey Strosberg was able to bring TitlePLUS into being in the face of intense lobbying efforts by American insurers who wanted to bring the no-lawyer model of U.S. title insurance to Canada.
Without TitlePLUS in the marketplace, as many as 8,000 Ontario real estate lawyers would be out of business now.
• Seagull moment: Convocation’s undermining of its own specialist certification program by allowing the uncontrolled use of the word expert in lawyers’ promotional materials.
• Seagull moment: Convocation’s rejection of my proposal for an ethical investment policy for its millions of dollars in invested funds.
• Seagull moment: Convocation’s reluctance to publish benchers’ expense accounts and remuneration.
• Seagull moments: Lack of civility at Convocation. Sadly, there are too many examples of insults and epithets in Convocation’s transcripts, and my colleague Gary Gottlieb and I have suffered the brunt of many of them.
• Seagull moments: In any properly governed organization, the ultimate authority for the agenda is the board itself. The law society’s agenda has been manipulated in the past without the knowledge or consent of the benchers.
Committee reports have disappeared, and individual bencher motions have never made it to the table. This should never be allowed to happen again. At the same time, in-camera proceedings should always take place without any staff, unlike the present policy.
• The worst seagull moment: Convocation’s awarding of an honorary doctorate to archbishop Desmond Tutu, who is quoted as saying that Zionism has “very many parallels with racism.” The award ranks as one of Convocation’s worst decisions in its history.
• Seagull moment: Creation of a real estate issues working group that in years of navel-gazing has accomplished virtually nothing.
Challenges to the new bench:
• Marginalizing of benchers: Through the administration of several treasurers, I have seen hugely disproportionate responsibilities and honours sprinkled amongst benchers. This, of course, resulted in a number of us, notably me and my friend Gottlieb, being marginalized. This lack of transparency in the appointments process must stop with the new crop of benchers.
• Law society governance: As a government-appointed member of the board of Tarion Warranty Corp., I was privileged to see state-of-the-art corporate governance at work and was shocked at how far behind the law society had fallen.
Tarion enthusiastically encouraged its board members to take an intensive three-day course on board effectiveness at the University of Toronto Rotman School of Management. During three days last fall and 2 1/2 years at Tarion, I learned more about proper and effective board governance than I did in 16 years at Convocation.
Convocation should encourage its members to take similar courses. This is not meant as a criticism of the LSUC’s excellent CEO Malcolm Heins or the superb senior staff at the law society.
But clearly Convocation must come out of the 19th century in terms of board governance. It needs to learn how to work better as a group in order to more effectively govern itself and the profession. At the moment, we earn a failing grade in this area.
• Disappearing policy decisions: Over and over again, Convocation makes policy decisions and promptly abandons them. Proper policy governance dictates regular followup on board decisions.
• Ombudsman: If Convocation is serious about modern corporate governance, it will immediately implement the position of ombudsman to act as an intermediary and problem solver between the law society and its stakeholders.
Despite the concerns, perhaps the most rewarding part of being a voting bencher for 16 years was the opportunity to represent the voice of the little guy at Convocation. Over the years, I have heard by phone and e-mail and in person from hundreds of my colleagues in the profession asking for advice or information or expressing their opinions about the hijinks in the benchers’ quarters.
My colleagues have elected me as bencher four times. I am truly grateful for their trust and humbled by their support. Although I am no longer able to vote at Convocation, I look forward to being their eyes, ears, and voice at Osgoode Hall during the years to come.
To those who have honoured me with the opportunity to serve, thank you.
Bob Aaron is a Toronto real estate lawyer. As of May 25, he becomes an emeritus bencher.
