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Representation - Lawyers - Law Society. Law Society of Ontario v Schulz
In Law Society of Ontario v Schulz (Div Court, 2023) the Divisional Court cited authority from the SCC as to the duties of the Law Society of Ontario:[19] The LSO is a self-regulatory body whose role is to protect the public interest. In Pharmascience v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513, at para. 36, the Supreme Court of Canada observed that “[t]he privilege of professional self‑regulation therefore places the individuals responsible for enforcing professional discipline under an onerous obligation.”
[20] Under s. 4.2 of the Law Society Act, the LSO, in carrying out its functions, duties and powers, is required to have regard to the following principles:1. The Society has a duty to maintain and advance the cause of justice and the rule of law.
2. The Society has a duty to act so as to facilitate access to justice for the people of Ontario.
3. The Society has a duty to protect the public interest.
4. The Society has a duty to act in a timely, open and efficient manner.
5. Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized. . Watson v. Law Society of Ontario [the numbered case cites can be accessed at the main Canlii case]
In Watson v. Law Society of Ontario (Div Court, 2023) the Divisional Court considers the duty that professional regulatory bodies owe to their members (here the Law Society of Ontario), especially regarding fairness as an disciplinary body:[84] It is well-settled that the Law Society has a duty to deal fairly with complainants, to investigate their complaints thoroughly, and to take action against any member’s wrongdoing for the protection of the public. However, the Law Society also has an obligation of fairness to any member against whom a complaint is filed, recognizing the seriousness of any negative finding to the career and livelihood of that member. Investigators and counsel for the Law Society do not stand in an adversarial position to the member against whom proceedings are brought, but rather have a duty to act fairly and impartially, more akin to the function of the police and Crown prosecutor in a criminal matter, than to private combatants in civil litigation. As stated by Dickson J. (as he then was) in Ringrose v. The College of Physicians and Surgeons (Alberta):The provision contained in The Medical Profession Act, R.S.A. 1970, c. 230, permitting a degree of overlapping between the council and the discipline committee, does not justify overlapping between the discipline committee and the executive committee. I think that, to avoid criticism, reliance should be placed upon such an overlapping provision as infrequently as the practicalities of the situation permit, since there rests upon the governing bodies of the professions in the exercise of their statutory disciplinary powers the duty to be scrupulously fair to those of their members whose conduct is under investigation and whose reputations and livelihood may be at stake. That is not to say that a profession should be slow to discipline. On the contrary, the public interest and the integrity of the profession may require immediate and stern action against a transgressor. But the investigation of the alleged breach, and the steps taken to determine culpability, must be such that justice is manifestly seen to be done, impartially and, indeed, quasi-judicially.[75] [Emphasis added] . Watson v. Law Society of Ontario [the numbered case cites can be accessed at the main Canlii case]
In Watson v. Law Society of Ontario (Div Court, 2023) the Divisional Court sets out briefly the essence of the Law Society's discipline procedures:[5] Section 33 of the Law Society Act[6] prohibits a licensee from engaging in “professional misconduct or conduct unbecoming a licensee.” One of the functions of the Law Society is to investigate any complaint as to the conduct of a member and determine its merits. Not every complaint will proceed to a hearing. After an investigation, Law Society staff provides a report to the Proceedings Authorization Committee (“PAC”), which then decides what action should be taken, including whether the matter should be referred to the Law Society Tribunal Hearing Division.[7]
[6] Where the PAC refers a complaint with respect to the conduct of a member to the Hearing Division, the parties will be the Law Society (which plays a prosecutorial role) and the member (essentially, the defendant). There is scope to add other parties, but that does not arise in this case.[8] Typically, the Hearing Division tribunal is composed of a three-person panel.[9] The Hearing Division Tribunal has broad powers, which include disbarment.
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[9] A party before a Hearing Division Tribunal is entitled to appeal any final order to the Law Society Tribunal Appeal Division.[11] The Appeal Division Tribunal is also typically a panel of three. It has the jurisdiction to determine any question of fact or law that arises in a proceeding before it.[12] The Appeal Division Tribunal may: make any order or decision that ought to or could have been made by the Hearing Division Tribunal; order a new hearing; or, dismiss the appeal.[13]
[10] For a proceeding that started as a conduct hearing under s. 34 of the Act (which includes this case), the Act provides a right of appeal to the Divisional Court from a final decision or order of the Appeal Division Tribunal.[14] . Lawyers’ Professional Indemnity Company v. Canada
In Lawyers’ Professional Indemnity Company v. Canada (Fed CA, 2020) the Federal Court of Appeal - in the course of determining whether a Law Society of Ontario (LSO) subsidiary, the Lawyers’ Professional Indemnity Company (Lawpro) was taxable (it was) - set out the legal basics of the two bodies:[5] Lawyers and paralegals practicing in the Province of Ontario are regulated by the Law Society of Ontario (formerly the Law Society of Upper Canada). The Law Society was founded by an Act of the Legislative Assembly to serve the people of Ontario and to defend and maintain constitutional principles such as the cause of justice and the rule of law: An act for the better regulating of the practice of law, S.U.C. 1797 (37 George III), c. 13.
[6] In its current incarnation, the Law Society of Ontario is a corporation without share capital created by statute, whose functions, powers and duties are set out in the Law Society Act, R.S.O. 1990, c. L-8, in the regulations made thereunder, and in the by-laws of the Society itself.
[7] Section 4.1 of the Law Society Act grants the Law Society the authority to ensure that all persons who practise law or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services provided.
[8] Section 4.2 of the Act further provides that in carrying out its functions, duties and powers, the Law Society is to have regard to certain principles. These include "“the duty to maintain and advance the cause of justice and the rule of law”", as well as the duty to act "“so as to facilitate access to justice for the people of Ontario”". In addition, the Law Society is required to "“protect the public interest”" and to "“act in a timely, open and efficient manner”".
[9] The Law Society is governed by a board of directors, whose members are referred to as "“Benchers”", with the president and chair of the board being known as the "“Treasurer”". Lawyer licensees elect 40 of the Benchers and paralegal licensees elect five. The Attorney General for Ontario appoints eight "“Lay Benchers”". In addition, certain individuals are Benchers by virtue of their office, if and while they are members of the Law Society. These include the Minister of Justice and the Attorney General for Canada, the Solicitor General for Canada, the Attorney General for Ontario and every person who held the office of Attorney General for Ontario at any time before January 1, 2010.
[10] The Law Society is not funded by taxpayers, but rather by fees paid by its licensee members. Accumulated fund balances have been used to mitigate fee increases for members of the Society.
[11] In accordance with its mandate to protect the public interest, the Law Society maintains three statutory funds to protect the public. These include a Compensation Fund, which is used to address financial losses resulting from the actions of dishonest licensees; an Errors and Omissions Insurance Fund, which consists of levies collected from lawyers to fund professional liability insurance; and an Unclaimed Trust Fund, into which unclaimed funds from lawyers’ trust accounts are deposited.
[12] Subsection 5(4) of the Law Society Act authorizes the Society to "“own shares of or hold a membership interest in an insurance corporation incorporated for the purpose of providing professional liability insurance to licensees and to persons qualified to practise law outside Ontario in Canada”". Paragraph 61(a) of the Act further authorizes the Society to make arrangements for licensees for indemnity for professional liability and for the payment and remission of premiums therefor. Paragraph 61(b) of the Act provides that the Law Society may require that licensees pay levies to the Society for such indemnity.
[13] The Lawyers’ Professional Indemnity Company is a Canadian-controlled private corporation for the purposes of the ITA. It is an insurance company, licensed to operate in Ontario, carrying on under the trade name "“LawPRO”". While LawPRO is licensed to operate in other jurisdictions in Canada, its income from activities carried on outside of Ontario did not exceed 10% of its total annual income for the relevant years. LawPRO was incorporated by the Law Society in 1990, and the Society owns at least 90% of LawPRO’s capital.
[14] LawPRO provides mandatory professional liability insurance for lawyers and paralegals licensed by the Law Society who engage in the practice of law in Ontario. It also insures law firms in Ontario, and provides comprehensive title insurance to real property owners and lenders in all jurisdictions in Canada, including Ontario. LawPRO realized revenues of approximately $124 million in 2013 and $143 million in 2014.
[15] The Law Society requires that all lawyers and paralegals engaged in the practice of law in Ontario pay levies for professional liability insurance provided by the Society through LawPRO. The levies are collected by the Law Society, which then pays the monies collected to LawPRO as insurance premiums.
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