On Thursday, regulator also approved a LawPRO premium increase
At Convocation Thursday, the Law Society of Ontario debated the appointment of a bencher to the Law Society Tribunal, an occurrence which several benchers noted was unprecedented during their time at the LSO.
Convocation also voted to approve LawPRO’s 2023 insurance program proposal, which included a premium bump to prepare for an economic slump expected in 2023.
And after Convocation voted to discontinue the certified specialist program in May, the law society voted Thursday to review the program, consult the profession again, and decide on its fate before the end of 2023.
Debate over appointments
The Law Society’s consent agenda included a motion that bencher Joseph Chiummiento be appointed to the Hearing Division of the Law Society Tribunal, as well as a motion that Convocation appoint former Treasurer Teresa Donnelly as the Law Society’s representative on the Council of the Federation of Law Societies of Canada.
Bencher Jonathan Rosenthal asked that the motion for Chiummiento’s appointment be removed from the consent agenda and bencher Gerard Charette requested the same for the motion concerning Donnelly’s appointment.
Before Rosenthal gave his reasons, bencher John Fagan requested that the debate surrounding the appointments occur in camera. Treasurer Jacqueline Horvat denied the request.
“This would be the first time I think we’ve ever even debated such an appointment,” said Poliacik of Chiummiento’s appointment.
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Both benchers Ryan Alford and Seymour Epstein expressed their surprise that Convocation would publicly discuss the motion. Epstein noted that debating such routine appointments could set a dangerous precedent.
“I have a great fear that if we start reassessing decisions of the treasurer on appointments, it's going to create tremendous turmoil,” he said. “The Law Society meetings will be highly political, and I fear reputations will be damaged.”
Rosenthal said that sitting on the tribunal, and upholding the duty to protect the public, was among a bencher’s most important roles. Tribunal members are entrusted with interpreting the Rules of Professional Conduct, even those rules an individual bencher does not like, he said.
“It is one of the greatest honours to sit on the tribunal. I would be derelict in my fiduciary duty as a bencher if I did not oppose Mr. Chiummiento being appointed to the tribunal, where he will be entrusted with that task of determining whether fellow licensees have breached rules of professional conduct, are not honest, or have the integrity to be admitted to the profession.”
Bencher Joseph Groia also opposed Chiummiento’s appointment.
“As we know, the tribunal regularly deals with matters of interpretation and application of the rules of professional conduct, and it's increasingly common that they make decisions about character and integrity. And I do not believe that this bencher is qualified to make those determinations, and I intend to vote against his appointment.”
Bencher Jared Brown began his remarks by noting that the discussion marked the first time during his tenure as bencher that convocation had publicly debated this type of appointment.
“And there's a reason for that, and you've heard it the in the defamatory comments of my colleagues, bencher Groia and bencher Rosenthal, with respect to my colleague, bencher Chiummiento. We don't debate appointments in public.”
Brown added the reason Convocation was debating this particular appointment was because Groia and Rosenthal had a “personal vendetta” against Chiummiento.
“I'm not going to get into what's going on behind the scenes, but it's disgusting. And the benchers who are casting the aspersions against my colleague today should be ashamed of themselves for what they've done behind the scenes.”
Rosenthal later told Law Times, “I’d love to say more, but I can’t.”
Convocation then took a vote on whether to add Chiummiento to the Tribunal. The motion carried, in favour of Chiummiento’s appointment, with 34 voting yes, six voting no, and seven abstentions.
"I thought it was unfortunate that these veiled personal attacks came out in a forum in which I could not practically defend myself," Chiummiento told Law Times.
"I am, however, very pleased to have been appointed to the Law Society Tribunal, and look forward to further contributing in that role," he says.
On Donnelly’s appointment to the Federation of Law Societies of Canada, Charette noted that the former treasurer was “exceedingly qualified” for the role, but he had concerns about the system of appointments, including around the flow of information. “I vote for the person or not the process,” he said.
Bencher Cecil Lyon echoed the view of Charette and other benchers that Donnelly is “fully qualified,” but took issue with the process. “My concern is about the process and the way that convocation is being treated as a rubber stamp in this matter without a fulsome discussion.” He added that, in the future, Convocation should look to current benchers, who are accountable to licensees, to fulfill this role.
The vote to appoint Donnelly the LSO representative on the Federation of Law Societies of Canada carried with 45 in favour, three against, and two abstentions.
LAWPRO raising premiums
Bencher Andrew Spurgeon, who is on the board of LawPRO, presented its 2023 insurance program proposal.
While he said LawPRO’s investments in equities and fixed income – accounting for 96.6 percent of its investment portfolio – had beaten industry benchmarks, “global financial markets have had negative returns” due to interest rate hikes, persistently high inflation, recession fears, and the Russian war in Ukraine.
On top of that, he added that Canada’s GDP is expected to contract in Q2 and Q3 of 2023, unemployment is expected to rise, and the real estate market is expected to continue on its downtrend.
“This is significant for LawPRO’s bottom line, as we use investment income to help pay operating claims and expenses thereby reducing the amount of funds that must come from premium sources.”
Market conditions also require that LawPRO increase the rates it pays defence counsel who work on its files, something they have not done in 17 years, he said.
Because of the financial challenges many lawyers experienced over the course of the pandemic, LawPRO had deferred making premium increases in both 2021 and 2022, said Spurgeon.
LawPRO will increase its base-premium by $250 – or eight percent – to $3,250. Spurgeon noted that the premium was $3,350 from 2011 to 2016. “So today, the proposal I'm bringing to you is still $100 less than it was 10 years ago.”
The motion passed with one opposed and two abstentions.
Law Society will take another look at certified specialist program
Convocation approved a motion to suspend the wind-up of the certified specialist program, previously slated for the end of 2022, pending Convocation’s further consideration.
In May’s Convocation, LSO benchers voted to discontinue the certified specialist designation, effective Jan. 1, 2023, following a profession-wide consultation and review by the LSO’s Competence Task Force. the Indigenous Legal Issues specialization was not included in the wind-up.
Through the motion approved Thursday, Convocation will refer the Competence Task Force report to the Professional Development and Competence Committee for reconsideration, which will include a consultation with the profession before the committee reports back to Convocation before the end of 2023. At that time the committee will recommend that Convocation either proceed with the wind-up of the program, amend the recommendation to wind-up the program, or revoke that recommendation.
New supplement to Guide for Lawyers Working with Indigenous Peoples
Thursday’s Convocation occurred on the eve of Canada's National Day for Truth and Reconciliation, and the Law Society, in partnership with the Advocates' Society and the Indigenous Bar Association, released the 1st Supplement to the Guide for Lawyers Working with Indigenous Peoples.
The supplement builds on the initial guide, released in 2018, which the LSO said served as “a starting resource to help lawyers and others in the justice system learn about Indigenous cultures, understand the interplay between Indigenous legal orders and the Canadian legal system, and develop practical skills to effectively represent Indigenous clients.”
"As we make this journey towards Truth and Reconciliation, it is incumbent on us all to learn about the history and current plight of Indigenous people,” said Jacqueline Horvat, Treasurer of the LSO, in its announcement. “Put simply, without public awareness of the unvarnished truth about the mistreatment of Indigenous people, including within the legal system, there can be no reconciliation. The Law Society remains committed to not only enhancing its members' cultural competency, but to ensuring diversity and inclusion within the legal professions."
The supplement includes chapters on land acknowledgments, trauma-informed legal practice, the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, the United Nations Declaration on the Rights of Indigenous Peoples Act, Indigenous child welfare legislation, treaty litigation and interpretation, evolving duties to consult and accommodate, and the ongoing development of the Gladue principles.