TAB 12A - Dispelling the Myths of the new Law Society of Ontario Diversity Policy - Commentary
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TAB 12A
2018 CanLIIDocs 10848
27th Annual Institute of Family Law
Fairmont Le Château Montebello
Friday, April 13 – Saturday, April 14, 2018
Dispelling the Myths of the new Law Society of
Ontario Diversity Policy
Michael Wonham
Galarneau & AssociatesDispelling the Myths of the new Law Society of Ontario Diversity Policy
Background
2018 CanLIIDocs 10848
When I have discussed the requirements of the new diversity policy with
colleagues 1 three questions have come up time and time again: What is this? What do I
need to do? How does this affect me? It is my intention for this paper to succinctly
answer those questions.
Following the Equality, Diversity and Inclusion initiative 2, the Law Society made
changes to the professional obligations of practitioners in Ontario. The most visible
aspects of the changes are the requirement of every licensee to have a Statement of
Principles; the requirement of every workplace with ten or more licensees to have a
Human Rights and Diversity policy; and the new Continuing Professional Development
requirements.
The requirement for licensees to adopt a Statement of Principles is part of the
Law Society’s efforts to break down barriers faced by racialized lawyers and paralegals.
There is not a prescribed form for the Statement of Principles. Instead, licensees are to
create their own Statement of Principles which does not need to be disclosed to the Law
Society.
The Statement of Principles has received considerable coverage in the media.
Much – but not all3 – of the commentary has been negative. The essence of the
negative attention is the categorization of this requirement as being compelled speech.
1 Due to geography and my area of practice they have primarily been family lawyers in Ottawa.
2 Summary may be found online at: https://www.lsuc.on.ca/uploadedFiles/Summary-of-
Recommendations.pdf
3 A succinct defence was written by Alice Woolley in her editorial to the National Post, published on
November 16, 2017: http://nationalpost.com/opinion/the-law-societys-statement-of-principles-may-be-
useless-but-its-critics-are-wrongIn public discourse, the requirement to espouse a Statement of Principles has
been described as both “Orwellian” 4 and “an empty gesture” 5. The Statement of
Principles has inspired a motion before the Law Society to allow for conscientious
2018 CanLIIDocs 10848
objection to the requirement (the motion failed), a website 6 opposing it, and an
Application to the Superior Court by a law professor7 at Lakehead University seeking a
review of the legality of the requirement.
Public commentary has focused on the arguments that the Law Society has
overstepped its mandate or vitiated the intellectual freedom of the Bar. While there is
an academic argument to be made in support of the position on overstepping, in
practice the obligations being imposed 8 overlap with existing ones under Human Rights
legislation and the Rules of Professional Conduct governing civility.
Professional Obligations
There are three obligations – for those in a workplace of fewer than ten
licensees, only two – to be met under the new Diversity Policy.
The first obligation is the Statement of Principles. This entails creating a written
statement which you pledge to follow. A template approved by the Law Society follows
later in this paper.
4 Brian Smeenk editorial in the Financial Post, January 18, 2018:
http://business.financialpost.com/opinion/freedom-is-slavery-at-the-law-society-of-orwellian-ontario
5 Joseph Brean editorial in the National Post, December 1, 2017:
http://nationalpost.com/news/canada/ontario-lawyers-must-say-they-promote-equality-or-else
6 http://stopsop.ca/
7 Dr. Ryan Alford. An editorial written by Dr. Alford was published by the CBC on November 25, 2017 and
can be found here: http://www.cbc.ca/news/opinion/law-society-statement-1.4418125
8 In as much as the diversity policy carries any obligationThe second obligation is to complete at least three professionalism hours of
Continuing Professional Development that focus on advancing equality, diversity and
inclusion in the lawyer and paralegal professions. This must be completed between the
period of January 1, 2018 and December 31, 2020. From 2021 onwards each licensee
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will need to complete one professionalism hour per year with this focus 9.
The third obligation, which applies to workplaces with ten or more licensees, is to
develop and maintain a Human Rights/Diversity Policy. A word document with a
10
template approved by the Law Society is attached separately .
Sample Statement of Principles
The following template is available through the Law Society website 11:
As a licensee of the Law Society of Upper Canada, I stand by the following principles:
• A recognition that the Law Society is committed to Inclusive legal workplaces in
Ontario, a reduction of barriers created by racism, unconscious bias and discrimination
and better representation of Indigenous and racialized licensees in the legal professions
in all legal workplaces and at all levels of seniority;
• My special responsibility as a member of the legal profession to protect the
dignity of all individuals, and to respect human rights laws in force in Ontario;
• A commitment to advance reconciliation, acknowledging that we are collectively
responsible to support improved relationships between Indigenous and non-Indigenous
peoples in Ontario and Canada; and,
9 Summary of the Law Society CPD requirement changes can be found here: https://www.lsuc.on.ca/CPD-
Requirement-Changes/
10 In the alternative, relevant information and the sample can be found here:
https://www.lsuc.on.ca/human-rights-diversity-policy/
11 The webpage can be found here: http://lsuc.on.ca/with.aspx?id=2147504074• An acknowledgement of my obligation to promote equality, diversity and inclusion
generally and in my behaviour towards colleagues, employees, clients and the public.
The above Statement of Principles meets our obligation as licensees.
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Impact on the Profession
The direct impact on the profession from these obligations is, at this time,
minimal. As a part of the Law Society’s “Accelerating Culture Shift” they are intended to
address barriers faced by racialized licensees. Thus, it will only be the passage of time
that any impact can be assessed.
For the individual licensee today, the Law Society’s message is to be mindful. In
considering the requirements imposed by the Law Society to meet its goal, it must be
acknowledged that the possibility is open to pay lip service and otherwise ignore their
existence. There lacks any enforcement mechanism not already present under the
Ontario Human Rights Code or Rules of Professional Conduct.
The Law Society’s adoption of the recommendations made by the Equality,
Diversity and Inclusion initiative ought to improve the Public’s esteem in the profession.
Despite the perceptions portrayed in the media, the new Diversity Policy has not
introduced an onerous commitment for licensees. Instead, it encourages
thoughtfulness while providing licensees with a reminder of existing obligations.
This paper was written by Michael Wonham of Galarneau & Associates for the CCLA
Annual Institute of Family Law 2018.You can also read
