CASE SUMMARY AND ANALYSIS: Alford v. The Law Society of Upper Canada, 2018 ONSC 4269

On July 8, 2018, the Ontario Superior Court of Justice released its decision in a motion brought by the Law Society of Ontario (LSO) in an application brought against it by one of its licensees, Ryan Alford. While the motion itself turned on a question of jurisdiction, the substantive issue at the centre of Alford`s application is of extreme importance to the legal profession and has received quite a bit of attention from the legal community in the last year, namely, the LSO Statement of Principles.

Summary of Case

In November 2017, Alford filed an application at the Ontario Superior Court of Justice against the LSO pursuant to Rule 14.05 of the Rules of Civil Procedure challenging the authority of the LSO to require that all licensees create and abide by a Statement of Principles that acknowledges their obligation to promote equality, diversity, and inclusion. 

The LSO brought a motion before the court raising a question of forum, namely, whether the Superior Court had the jurisdiction to deal with the issue, arguing that the matter ought to be brought before the Divisional Court as an application for judicial review.

The Superior Court of Justice agreed with the LSO and ordered the application transferred to the Divisional Court to proceed by way of judicial review. Before we get to the Court’s reasoning, however, it may be of assistance to provide some background on the underlying issue at the heart of this matter.

Background on the Statement of Principles

In 2012, the LSO established a Working Group on Challenges Faced by Racialized Licensees, as part of its commitment to advancing equity and diversity in the legal profession. The Working Group’s mandate included investigating the barriers faced by racialized licensees and considering strategies for enhanced inclusion at all career stages. 

Over the course of approximately four years, the Working Group organized focus groups, conducted online surveys, analyzed findings from its consultations and developed thirteen recommendations. The Working Group published their recommendations in a Report titled “Working Together for Change: Strategies for Addressing Issues of Systemic Racism in the Legal Profession.” Of the thirteen recommendations, one in particular received much attention from members of the legal profession and became a polarizing issue within the legal community.

Recommendation 3(1)

The recommendation in question was Recommendation 3(1) which proposed the following requirement:

The Law Society will: 

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.

Some licensees opposed the recommendations arguing it violated their right to freedom of expression.  Several more vocal opponents wrote op-eds arguing that LSO`s requirement that all licensees must adopt and abide by a statement principles was an infringement on their constitutional right to freedom of expression.

Much of this debate came to a head at LSO’s December 2017 Convocation where Bencher Joseph Groia brought a motion that, if passed, would exempt licensees who had a “conscientious objection” to the statement of principles. Following a fulsome debate on the merits of the statement of principles requirement and Bencher Groia’s motion, a roll call vote was taken with Benchers voting either ‘for’ or ‘against’ the motion; with 16 benchers voting in favour and 38 voting against, the motion failed. As such, all members of the LSO are required to abide by the statement of principles requirement and no “conscientious objector” exemption available.

Meanwhile, Alford`s application at the Ontario Superior Court of Justice (filed November 2017) was making its way through the court process.

The Court’s Reasoning in Alford 

In its motion before the Court, the LSO argued that its decision to require licensees to adopt and abide by a statement of principles was an exercise of statutory power as defined in section 1 of the Judicial Review Procedure Act (JRPA). Accordingly, since challenges to the exercise of a statutory power are adjudicated by way of judicial review, the application should have been filed before the Divisional Court, which has exclusive jurisdiction over applications for judicial review and not before the Superior Court of Justice.

In his response, Alford argued that his application was essentially a challenge to the constitutional validity of the LSO’s decision to require licensees to abide by a statement of principles. As such, the Superior Court, through its inherent jurisdiction to adjudicate challenges of the constitutional validity of subordinate legislation, was the appropriate forum.

The Superior Court articulated the crux of the issue as “whether the challenge brought by Professor Alford [was] an application for judicial review” (at para. 21).  In considering this issue, the Court focused on the relief sought. In particular, the Court noted that Alford was only seeking declaratory relief “in relation to the exercise […] of a statutory power”, (at para. 23), a remedy available to applicants bringing applications for judicial review.

In making its finding that Alford had brought his application in the inappropriate forum, the Court did take the time to address the declaratory relief sought by Alford with regards to his argument that the statement of principles requirement infringed upon section 2 of the Canadian Charter of Rights and Freedoms (the “Charter”). In particular, Favreau J. found that the application was “not uniquely or even primarily a Charter challenge” (at para. 41). Favreau J. further found that while the LSO cannot make decisions or act in a way that violates the Charter, the issue before the Court was whether the LSO had the authority to exercise its statutory powers in the way that it did (at para. 42).

The Court granted three remedies to the LSO on its motion, including transferring the matter to Divisional Court to proceed as an application for judicial review. What is perhaps more interesting with respect to the remedies granted is how the Superior Court dealt with costs.  Alford had argued that if he was found to be unsuccessful on this motion, he should not be ordered to pay costs because the case involves public interest litigation (para. 52). The Court disagreed on the basis that the issues before it were not novel and ordered Alford to pay costs to the LSO (para. 53). 

The Remedies Sought by Alford: A Brief Discussion

In bringing his application before the Superior Court of Justice, Alford sought seven different remedies, with the last remedy being comprised of 4 parts.

For the purposes of this discussion, we will focus on one particularly interesting remedy sought by Alford in his application. Namely, Alford sought a Declaration that the Rules of Professional Conduct (Rules) do not support the Statement of Principles requirement. In seeking this remedy, Alford requested the Court to engage in an interpretive exercise of the Rules.

Alford articulates this remedy as follows:

A Declaration that the Law Society [of Ontario]’s requirement that licensees are required to create and abide by an individual Statement of Principles that acknowledges licensees’ obligation to promote equality, diversity and inclusion generally and in licensees’ behaviour towards colleagues, employees, clients and the public (the ‘Statement of Principles’) is not supported by the Rules of Professional Conduct. [Emphasis added]

A preliminary review of the Rules, with which all licensees should be familiar in their day-to-day practice, demonstrates that all licensees are responsible for abiding by the Ontario Human Rights Code. For example, the commentary to Chapter 2, Section 2.1-1 at 4.1 states, 

[4.1] A lawyer has special responsibilities by virtue of the privileges afforded the legal profession and the important role it plays in a free and democratic society and in the administration of justice, including a special responsibility to recognize the diversity of the Ontario community, to protect the dignity of individuals, and to respect human rights laws in force in Ontario. [Emphasis added]

Further, section 6.3.1-1 speaks to licensees’ responsibility to respect human rights laws, 

[6.3.1-1] A lawyer has a special responsibility to respect the requirements of human rights laws in force in Ontario and, specifically, to honour the obligation not to discriminate on the grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences (as defined in the Ontario Human Rights Code), marital status, family status, or disability with respect to professional employment of other lawyers, articled students, or any other person or in professional dealings with other licensees or any other person. [Emphasis added]

This obligation to respect the rights enshrined in the Ontario Human Rights Code, requires licensees not only to abstain from discriminating against others, but to take action to prevent and stop discrimination they may witness. To this end, section 13 of the Commentary to section 6.3.1-1   

[13] A lawyer should take reasonable steps to prevent or stop discrimination by any staff or agent who is subject to the lawyer's direction or control.

The question then is whether the obligations set out in the Rules, amount to an “obligation to promote” as stated by Alford. According to a purposive approach to the Rules, it is evident that the special responsibility bestowed upon licensees demonstrates an obligation to abide by the Human Rights Code by way of example. The expectation that licensees treat everyone with dignity and respect and to not only abstain from discriminating against employees, peers, clients and the general public but to prevent any discrimination should they be witness to it, should not come as a surprise to any lawyers or paralegals regulated by the LSO. This special responsibility falls directly in line with the other duties expected of licensees, including refraining from conduct that would bring the administration of justice into disrepute.

This, of course, is a discussion more appropriate for when we have a decision on the merits of Alford’s legal challenge. It is with great anticipation that we await the Divisional Court hearing and its decision on the matter.

Conclusion

The statement of principles matter has been both enlightening and frustrating for those of us in the legal profession who consider it a badge of honour to abide by, uphold, defend and promote diversity and inclusivity within our profession. Even more so for those licensees who have lived experience of facing barriers in the profession based on their race, ethnic origin, sexual orientation, disability, gender and so on. The statement of principles is by no means a cure-all, but it is one small step forward in the legal profession’s commitment to ensure that the systemic racism (among other systemic “-isms” including sexism and ableism within the profession) that continues to be all too common is not only acknowledged but that proactive measures are taken to erode this othering of licensees based on protected characteristics.

ARCH continues to be supportive of the statement of principles, and has always taken the position that this requirement is not only necessary, but beneficial to the profession. ARCH provided a letter in support of the statement of principles and against Bencher Groia’s motion to all Benchers in December 2017. ARCH has continued its support and dedication to promoting inclusivity within the legal profession by drafting its own statement of principles, which can be found here: http://www.archdisabilitylaw.ca/node/1270. A physical copy which has been signed by all licensees employed by ARCH can be found hanging in ARCH’s office. 

We will continue to monitor this case and provide further analyses and updates.