The Law Society of Upper Canada (“LSUC”) has filed a motion to have the application of law professor Dr. Ryan Alford challenging the new “Statement of Principles” requirement transferred to Divisional Court from the Ontario Superior Court of Justice. The motion will be heard on March 8, 2018.
This procedural delay is extremely disappointing, as Dr. Alford and the Canadian Constitution Foundation (“CCF”) have taken pains to be accommodating in dealing with the LSUC, and given the March 31, 2018 deadline for licensees to complete their Annual Report.
Dr. Alford and the CCF remain hopeful that, consistent with the new “Guidelines,” LSUC will abandon this needless and divisive legal wrangling that runs contrary to the interests of all Ontario licensees.
Background
The CCF announced, on November 6, 2017, that it was supporting Dr. Alford’s application challenging LSUC’s new mandatory requirement that all licensees draft a personal “Statement of Principles” acknowledging their obligation to promote “equality, diversity and inclusion” both “generally” and in their profession.
Dr. Alford challenged the requirement as a violation of the Constitutional protection against compelled speech and as exceeding LSUC’s statutory authority.
Shortly thereafter, LSUC issued a new “Guide to the Application of Recommendation 3(1),” which appeared to respond to some of Dr. Alford and the CCF’s objections. The Guide says the mandatory requirement:
does not require lawyers to say they believe or agree with any specific principles (including any ideological interpretations of “diversity, equality, and inclusion”);
merely affirms the requirement that lawyers follow existing human rights laws and the Code of Professional Conduct; and
that lawyers will not be required to show their Statements to the Law Society.
But guidelines posted on LSUC’s website do not carry the force of the actual requirement, and the text of Recommendation 3(1), which imposes the Statement of Principles requirement and which was approved by the benchers remains the operative requirement. As it stands, the Statement of Principles remains mandatory and amounts to compelled speech.
In an attempt to reach a timely and mutually-acceptable resolution, Dr. Alford amended his application to seek alternative relief under which the LSUC would agree that it is merely requiring licensees to acknowledge existing obligations under applicable laws. Rather than consent to this interpretation, which reflects what it seemed to say in its revised Guide, LSUC instead brought this procedural motion to transfer the application.
LSUC’s motion will only serve to delay needlessly the timely hearing of Dr. Alford’s application while increasing the costs associated with this litigation. This legal manoeuvring by LSUC should be of great concern for all Ontario licensees who must complete their annual reports, including stating whether they have complied with the “Statement of Principles” requirement, by March 31, 2018.
The Statement of Principles
A September 2017 email to all lawyers and paralegals licensed by Ontario described this new mandatory requirement as follows:
You will need to create and abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public. You will be asked to report on the creation and implementation of a Statement of Principles in your 2017 Annual Report.
According to LSUC, “[t]he intention of the statement of principles is to demonstrate a personal valuing of equality, diversity, and inclusion with respect to the employment of others, or in professional dealings with other licensees or any other person.”
For more information, please go to theccf.ca/noforcedspeech
Howard Anglin, Executive Director of the CCF, said:
“The Law Society of Upper Canada is talking out of both sides of its mouth. First it says that the Statement of Principles requires licensees to ‘demonstrate a personally valuing of’ a particular set of values; now, without changing the language of the requirement, it is publicly trying to reassure licensees that all it is requiring is an acknowledgement of their existing obligations under the law. Both of these cannot be true.
“Dr. Alford has offered LSUC an opportunity to clear up this confusion by consenting in court to an interpretation of the Statement of Principles that limits it to an acknowledgment of existing legal obligations. Instead of agreeing, LSUC has chosen to engage in procedural manoeuvring, which will unnecessarily delay the timely hearing of this important Charter challenge.”
The Canadian Constitution Foundation (“Freedom’s Defence Team”) is a registered charity, independent and non-partisan, whose mission is to defend the constitutional freedoms of Canadians through education, communication and litigation.
