Report on Federation of Law Societies Mid-Winter Meeting March 23, 2000 Report to Convocation Purpose of Report: Information Prepared by the Policy Secretariat
INTRODUCTION 1. The Federation of Law Societies of Canada held its mid-winter meeting in Whitehorse, Yukon Territories between February 24 and 26, 2000. A number of people from the Law Society of Upper Canada attended the meeting - the Treasurer (by telephone on February 26 to participate in the debate on MDPs), Gerald Swaye (the Law Society s delegate to the Federation), John Saso, Katherine Corrick (for the Secretary), Gord Lalonde (to present the report on a National Certification Body), and Janine Miller (to present the report on a National Virtual Law Library). Abe Feinstein also attended as the Vice-President of the Federation. 2. The purpose of this report is to inform benchers about the major issues discussed at the meeting. NATIONAL REAL ESTATE PROJECT 3. In February 1998, the National Real Estate Project - a joint project of the Canadian Bar Association and Federation of Law Societies - was approved by each of the participating organizations. The mandate of the project is to provide members of the legal profession and their governing bodies with a means to monitor, address, and manage issues arising from rapid changes in real estate and conveyancing practices across Canada. 4. A project plan was developed by a joint Canadian Bar Association and Federation of Law Society National Real Estate Committee and approved in February 1999. 5. The plan, which will be administered over three years, has seven primary goals. a. To create a clearinghouse and resource base of information on evolving real estate practices. b. To promote public awareness and lobby provincial and territorial governments on the importance of a continued role for lawyers and Quebec notaries in conveyancing. c. To promote the continued integrity of public land registration systems in Canada.
d. To liaise at a national level with other professionals and institutions on issues relating to conveyancing. e. To promote uniformity of real property statutes and practices in Canada. f. To develop national standards or products for lawyers and Quebec notaries, where appropriate. g. To liaise with provincial and territorial governments, in association with CBA branches and law societies, to assist in lobbying for the regulation of title insurance where appropriate. 6. The delegates at the February 2000 meeting were updated on the accomplishments of the project to date. 7. A project manager was hired in the fall of 1999 to implement the project plan. A web page for the project was launched in January 2000. It forms part of the CBA website. The Project Manager has established contacts with a number of groups, including the Canadian Bankers Association, TitlePlus, lawyers indemnity insurance companies and the CBA Real Property Section. NATIONAL PKI GROUP 8. The PKI Group of the National Technology Committee, chaired by Gord Lalonde, the Law Society of Upper Canada s Chief Information Officer, reported on its study of establishing a nationally coordinated system for certifying the identity and status of lawyers engaged in electronic business. 9. The details of the report are not set out here, as they are contained in a report of the Law Society of Upper Canada s Technology Committee also being presented to Convocation on March 23, 2000. - Page 2 -
NATIONAL VIRTUAL LAW LIBRARY 10. The report of the National Virtual Law Library Group of the National Technology Committee was presented at the meeting by Abe Feinstein. Janine Miller, the Law Society of Upper Canada s Director of Libraries, is a member of this committee and participated in the presentation of the report. 11. The details of this report will also be contained in a report of the Law Society of Upper Canada s Technology Committee being presented to Convocation on March 23, 2000. MULTI-DISCIPLINARY PRACTICES 12. A model rule for multi-disciplinary practices was presented to the meeting for discussion. Our Treasurer, Robert Armstrong, joined the meeting by conference call for this discussion. 13. The proposed model rule is extremely broad. Unlike the Ontario rule, it does not require that a lawyer control the MDP or that the MDP be engaged in the practice of law. The debate on the rule began with a presentation by Bob Armstrong speaking against the model rule followed by a presentation of Richard Margetts, First Vice-President of the Law Society of British Columbia, speaking in favour of the rule. 14. The debate that ensued demonstrated that there is no consensus amongst Canadian law societies about how the issue of MDPs ought to be handled. Many law societies, including Alberta and Quebec, indicated that they were adopting a wait and see approach. The Law Societies of British Columbia and Saskatchewan favour the adoption of the very broad model rule being proposed by the Federation s Committee. The Atlantic provinces supported Ontario s position, although the MDP issue is not that urgent for them at this time. 15. It is of note that when the issue of MDPs was raised at the Federation s meeting in Edmonton in August 1999, Ontario seemed to be alone among Canadian law societies in viewing the - Page 3 -
need for lawyer control of an MDP as essential. It seems that there has been a significant shift of opinion, at least among some law societies. 16. As the model rule was presented to the meeting simply for discussion, no resolution was presented or voted upon. NATIONAL WORLD TRADE ORGANIZATION COMMITTEE 17. Since 1996, the federal government, particularly through Industry Canada, has kept the Federation of Law Societies apprised of the work of the Working Party on Professional Services (now known as the Working Party on Domestic Regulation) of the World Trade Organization with respect to the accountancy profession. The accountancy sector began discussions with the Working Party on Professional Services in 1996. Those discussions ultimately culminated in the adoption of the Accountancy Disciplines in December 1998, which is a document binding amongst the 132 member countries of the World Trade Organization. 18. Prior to December 1998, there had been no indication that from Industry Canada that the Working Party would be examining other professions. However, since that time, architects, lawyers and engineers have been asked to entertain discussions about what disciplines should be adopted for their profession. 19. Industry Canada asked the Federation of Law Societies to examine whether the Accountancy Disciplines would be acceptable to the legal profession. To comply with this request, the Federation struck a National World Trade Organization Committee in August 1999. Every Canadian law society is a member of that committee. The Law Society of Upper Canada is represented by Richard Tinsley and Allan Lawrence. 20. Trudi Brown of British Columbia, chair of the Federation s committee, presented a draft response of the Federation to the Disciplines adopted for the Accountancy Sector to the - Page 4 -
meeting in Whitehorse. The draft response is an attempt to give the federal government some feedback on whether or not the Accounting Disciplines will be in some form applicable to the Canadian Legal Services Sector. 21. The purpose of presenting the report was to get some form of consensus from the delegates to continue an ongoing dialogue with the federal government. 22. The final report forwarded to the federal government will include a preamble dealing with matters such as the paramountcy of the protection of the public over the enhancement of trade in services; the recognition that the legal profession is more than a supplier of legal services; that lawyers are officers of the Courts; and that the justice system is a pillar of any democratic society. 23. The report was received by the delegates and the committee will continue with its dialogue with the federal government. LE BARREAU DU QUÉBEC V. BROUSSEAU 24. Pierre Gauthier, the Executive Director of Le Barreau du Québec reported on an interesting court challenge facing Le Barreau at the meeting of the Secretaries and Executive Officers of the Law Societies. 25. Briefly, the case involves an applicant (Mr. Brousseau) to the Bar Admission Course in Québec. Mr. Brousseau was convicted of the murder of his mother when he was 13 years old. He was refused entry on three occasions to the Bar Admission Course on the basis of the good character requirement. Mr. Brousseau challenged this refusal by appealing it through many committees of Le Barreau and ultimately to the courts. At some point during the challenges, Le Barreau admitted Mr. Brousseau to the Course subject to the ruling of the court. While in the Course, Mr. Brousseau successfully completed four examinations. - Page 5 -
26. The court ruled against Le Barreau and held that Mr. Brousseau ought to be admitted to the Course. Le Barreau has appealed this decision to the Québec Court of Appeal. The case revolves not around the process Le Barreau has followed to refuse Mr. Brousseau admittance, but around the finding of fact that he is not of good character for admission to the bar. Mr. Gauthier indicated that Le Barreau intends to pursue the matter to the Supreme Court of Canada. If that occurs, Le Barreau may approach other Canadian Law Societies to determine their interest in intervening in the matter. - Page 6 -