FullStop members gain voice as LSO benchers; three named after judicial appointments leave vacancies

The Good Governance Coalition may have swept the 2023 Law Society Ontario Bencher election, but the FullStop slate that also ran for office has recently gained a voice as benchers, thanks to vacancies created by the appointment of some key benchers to the Ontario Superior Court of Justice.

Murray Klippenstein was elected as bencher to fill the vacancy created by the appointment of John Callaghan as a judge of the Ontario Superior Court of Justice, and Robert Adourian was elected as bencher to fill the vacancy created by the appointment of Catherine Rhinelander as a judge of the Ontario Superior Court of Justice. Both are members are the FullStop group.

This follows Howard Levitt, another member of the FullStop slate, earlier being named a bencher following the appointment of Julia Shin Doi to the Superior Court of Justice.

Following the election in late April, it was an all-out rout of FullStop candidates in favour of the Good Governance Coalition. The benchers at that time, from 20 from Toronto and 20 from outside Toronto, along with five elected paralegal benchers, all ran as part of the Good Governance Coalition.

The FullStop slate had fielded 36 candidates, and 42 ran unaligned with either the coalition or the slate.

At the June 28 Convocation of the LSO, Jacqueline Horvat, a re-elected coalition candidate, officially began her second term as treasurer. This opened a vacancy for the outside-Toronto candidate next in line in the vote count to become a bencher, making FullStop candidate Ryan Alford eligible to take a seat.

^{Ryan Alford}

The FullStop slate ran on a platform of reducing the law society’s budget, annual fees, and the “bureaucratic interference in the business of members and firms.” The slate also ran on the idea that the LSO had strayed from its core mandate of regulating competence and integrity in the public interest and veered into “social engineering, group identity politics” and promoting “woke” and other ideological agendas. They promised to “curtail mission creep.”

The Good Governance Coalition’s platform included bringing “decorum and respectful debate back to Convocation” and respecting the “law society’s professional management and staff.” The coalition pledged that each bencher would vote independently and not as a bloc and that when elected, they would establish an LSO working group to determine whether electoral reform is necessary to prevent slates from running in bencher elections.

New FullStop benchers will provide 'a bit more' in the way of dealing with uniformity of views

Klippenstein says that while having four FullStop members as benchers won't change the balance of power that much, it will provide "a little bit more" in the way of dealing with uniformity of views. "A lot of people I talked to were concerned that all the bencher seats were taken by a single coalition," he says, and "the lack of testing positions. Whatever their views are, they're concerned about uniformity."

He adds: "Lawyers tend to want to probe ideas and positions, see the other side of things, which I think is good.  And so whatever their views were, they were concerned about uniformity." 

How much he and his like-minded benchers will be able to shape debate among benchers is yet to be seen, Klippenstein says, noting that the "treasurer and the CEO have control over the constitution of committees and the dissemination of information."

Klippenstein recently filed a motion for summary judgment in a lawsuit launched in 2022 over the release of internal documents related to the regulator’s equity, diversity, and inclusion (EDI) initiatives.

Klippenstein and his lawyer, William Kenny, filed their motion record in April. The LSO has until Aug. 31 to file responding materials, and the court has set the hearing for June 20, 2024.

He notes that being a bencher will allow him to continue the lawsuit, which he says is "legally based on my rights as a director" of the law society, and the ability to have the information "from inside the organization so I can do my job correctly."

Lawsuit a quest for more details relating to 2013 survey

Some of the documents that Klippenstein seeks are related to a survey executed in 2013 by Stratcom Communications, which informed a working group studying the challenges faced by racialized licensees and led to a report and recommendations the LSO later voted to adopt.

After the Stratcom Report and a round of consultations, the LSO developed a policy paper called Working Together for Change: Strategies to Address Issues of Systemic Racism in the Legal Professions, Working Group Final Report.

The report included 13 recommendations, including that the LSO require every licensee to “adopt and abide by a statement of principles acknowledging their obligation to promote equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public.” Klippenstein was part of the StopSOP slate, which ran on a platform promising to eliminate the statement of principles, which Convocation repealed in 2019. (The StopSOP slate morphed into FullStop.)

The recommendations also included a requirement that legal workplaces have a diversity policy, complete an EDI self-assessment every two years, and for the LSO to publish a public inclusion index based on workplace surveys every four years.

Klippenstein’s lawsuit alleges statistical deficiencies in the Stratcom survey, including a six-percent response rate; a failure to note the number of people surveyed; a self-selected, rather than random, sample; a failure to differentiate between lawyers and paralegals; and a failure to mention or assess the significance of non-response.

"Yet the results are widely proclaimed as definitely being an accurate picture of lawyers and paralegals [views] overall," he says, and they are used to justify the "largest package of major and inclusive regulatory policies" in decades. "Who does a survey that way?"

When Klippenstein requested the information, the LSO’s treasurer said she lacked the authority to fulfill the request and referred it to the strategic planning and advisory committee (SPAC), which would consider it and make a recommendation to Convocation. In its statement of defence, the LSO said it is up to Convocation to decide whether the requested information is reasonably required by Klippenstein to fulfill his role and obligations as a bencher.

In Klippenstein's most recent filings with the court, he notes that after two years of raising issues about the Stratcom survey and report, the LSO hired three consultants to review the law society's data projects. When, in an Equity and Indigenous Affairs Committee, the consultants delivered their reports, they echoed many of his concerns, including the low response rate, the Stratcom report's failure to mention it, and how the low response rate made it impossible to validly extrapolate and generalize the findings, said Klippenstein.

Klippenstein later became aware that Stratcom's non-disclosure of the low response rate was a departure from previous practice, which was to include a "detailed description of the survey methodology."

LSO spokesperson Jennifer Wing has in the past declined Law Times’ request for comment, saying that the LSO cannot provide any information with respect to ongoing proceedings.

Alford, a professor at the Bora Laskin Faculty of Law at Lakehead University and incumbent bencher who ran with the FullStop slate, told Canadian Lawyer after the April election that increased voter base from the 2019 election was due to the resonance of the slate’s reform agenda.

But the issue of law library funding proved decisive, and he said, and the coalition deployed “significant institutional resources” to convince the bar that the slate was a threat to that funding.