Thomas Heintzman is the chair of the Law Society of Upper Canada’s task force on governance.  [Photo by Paul Lawrence for The Lawyers Weekly] Click here to see full sized version.

After a vigorous debate during which critics called the proposed changes undemocratic, Benchers of the Law Society of Upper Canada (LSUC) approved ending their current ability to participate indefinitely, as elected or life Benchers, in governing Ontario’s lawyers and paralegals.

The changes called for by a task force on governance include limiting Benchers to three four-year terms and ending the rights of former LSUC treasurers to vote and former attorneys general to attend and address Convocation.

Instead, former treasurers and Benchers who complete their third term will have the honorary title of emeritus Benchers without the right to attend Convocation or committee meetings, but with eligibility to serve as non-Benchers on committees and task forces.

Opening the debate, Task Force Chair Thomas Heintzman said the changes were designed to “maintain and enhance the role and credibility of Convocation.”

Terming the status quo “not appropriate for the 21st Century,” he said 32 of LSUC’s 83 voting Benchers are ex officio, either as former treasurers or Benchers who opted for life-Bencher status after serving 16 years. And if all those eligible to become life Benchers after the current term chose that route, the total number of Benchers eligible to vote would reach 91, only 42 of whom would be elected.

Appointed in 2006, the task force said its recommendations “address the need for a dynamic, accountable and rationally structured board that reflects the constituency it governs in the public interest.”

Roughly half the 55 Benchers who voted (out of the 83 eligible) spoke during the emotional debate at the Dec. 4 Convocation, with a majority of the speakers opposing term limits.

Among the opponents was the longest-serving elected Bencher, Toronto lawyer Clayton Ruby. First elected in 1977, he termed the proposed changes “anti-democratic” and observed, “No one has said we are functioning poorly.” Ruby suggested term limits were favoured mainly by large law firms and would penalize sole practitioners and small firms like his own.

His views were echoed by at least three former treasurers, including Vern Krishna, who served as vice-chair of the eight-member task force.

Harvey Strosberg, treasurer from 1997 to 1999, also opposed term limits and said that without unanimity for proposed changes there would be little chance of the government agreeing to the required changes in the Law Society Act. His experience in seeking changes to the Act when he was treasurer showed him that without a consensus first being achieved, “you will have an impossible situation.”

But Sydney Robins, treasurer from 1971 to 1974, told Convocation term limits were proposed but rejected in 1970. “This to me is déjà vu all over again.” He opposed them then, but has changed his mind. “I believe term limits are in the best interests of the profession,” said the former Ontario Court of Appeal judge, currently counsel to Toronto’s Goodmans LLP.  “None of us are indispensable.”

While most of those in opposition preferred the status quo, Toronto Bencher Bob Aaron said he knew he was alone in suggesting that what the law society should really do is admit to its failure to police bad lawyers and ask the provincial government to take it over.

Supporters of the changes saw them as making Convocation more relevant in the eyes of both the profession and the general public, by encouraging fresh blood and changing its image as an “old boys’ club.” They pointed to statistics showing that nearly all the incumbents who ran in the last two Bencher elections were either re-elected or returned to Convocation when a vacancy developed, having received more votes than other candidates.

A spokesman for the Ministry of the Attorney General told The Lawyers Weekly that since no communication had been received from LSUC concerning the proposed legislative changes, it would be premature to comment on the likelihood of them getting speedy passage.

However, a last-minute amendment to the task force report included an extension of “grandparenting” provisions to the Bencher term ending in May 2015. Heintzman told Convocation the amendment was made because the required changes to the Act might not be in place before the next Bencher elections in May 2011.

Benchers were told term limits of some sort are in place in seven other Canadian law societies, none of which has set a 12-year limit.

The toughest limits are in Nova Scotia, where Benchers of the Nova Scotia Barristers Society can serve up to six years — a maximum of three two-year terms.

After serving two consecutive three-year terms, Benchers of the Law Society of Saskatchewan must wait a full term before seeking re-election.

Benchers of the law societies of British Columbia and Manitoba are limited to four two-year terms, while in Alberta Benchers can serve a maximum of three three-year terms.

The Law Society of Newfoundland and Labrador requires Benchers to wait at least a year before seeking re-election on completion of two four-year terms.

In New Brunswick, Benchers are ineligible to run in a particular election if they have served the two previous two-year terms.