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Apprenticeship to academe: The history of law schools in Canada
By Christopher Guly

September 24 2010 issue


Osgoode Hall (pictured both inside and outside in this collage), located in downtown Toronto, ON, was where the law school was housed until 1968.
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Part 1  - the past - of a 3-part series on law schools

See part 2 of our series, on the present, here, and part 3 on the future here

While Canadian legal education has undergone profound change over the past two centuries, the debate continues over whether learning the practice of law is best suited within the halls of academia or at firms in a professional or vocational context.

'There has often been a drift between the profession and the academy where each has not been as respectful of what the other is doing — but they need to go together in combination,' says Brent Cotter, who recently stepped down as dean of the College of Law at the University of Saskatchewan (U of S) in Saskatoon.

That great divide was best illustrated in the control Osgoode Hall law school long enjoyed in Ontario.

Established by the Law Society of Upper Canada (LSUC) in 1889, Osgoode Hall was not associated with a university until 1968, when it became part of York University.

'It was no longer run by the law society because the province intervened and said it was not going to be subsidizing single-degree schools, therefore Osgoode Hall needed to find a university,' explains Mélanie Brunet, a University of Toronto (U of T) Ph.D. graduate in Canadian history, who wrote her doctoral thesis on gender, legal education and professional identity formation in Canada from 1920 to 1980. 'The Osgoode Hall building on Queen Street was also no longer big enough to support a full-fledged law school and a Bar admission course.'

York's acquisition of Osgoode Hall marked 'the victory of the university model' of legal education in Ontario to complement the practical skills acquired through articling with a more theoretical knowledge about law and society, according to historian Christopher Moore's 1997 book, The Law Society of Upper Canada and Ontario's Lawyers.

But it never quite stifled the debate over the merits of the classroom versus the law firm — especially in Ontario, says Brunet. 'For the longest time, Benchers had their own ideas of the proper way of training future lawyers and that was on the job, learning through doing articles,' she explains. 'But that apprenticeship basically gave the impression that law was more of a trade than a profession, which no one wanted.'

On five different occasions, the U of T, which began offering courses in law in 1887, tried to collaborate with the law society, but was rejected each time. Anyone who studied law at the U of T, or any other Canadian university for that matter, until 1957, when the LSUC relinquished its 'monopoly,' had to also attend Osgoode Hall and complete articles before being called to the Ontario Bar, explains Brunet.

She says the law society's position reflected views also held by the provincial Bars in Quebec and Nova Scotia in the 19th century that leaned toward a system of apprenticeship over an academic form of regulation.

Quebec's affinity for this approach dated back to 1785 when an 'Ordinance concerning Advocates' was introduced in the colony that required aspiring lawyers and notaries to serve a five-year apprenticeship with a legal practitioner.

However, as Brunet points out, students and their principals were unsupervised, and the process involving a judge — who would decide whether an applicant was fit to practice after interrogating him about his 'capacities and morals' — was perceived as a 'mere formality' and did not reflect whether or not the candidate was properly trained.

Legal education became more formalized with the arrival of the LSUC (1797), the Nova Scotia Barristers' Society (1825) and the Barreau du Québec (1849), which introduced entrance tests and articling.

But while mandatory legal training in Ontario did not include universities until the law society changed the Osgoode Hall requirement in the 1950s, the situation was less onerous in other provinces.

Students attending Montreal's McGill University, which opened its English-language civil law faculty in 1848 (and became Canada's first law school), or the Université Laval, in Quebec City, which opened its civil law faculty in 1852 (followed by the Université de Montréal, which opened its law school as a branch of Laval in 1878), were all recognized by Quebec's Bar.

Nova Scotia's Bar also recognized the common law program at Halifax's Dalhousie University, which opened in 1883 and currently bills itself as the oldest university-affiliated common law school in the British Commonwealth.

Yet while the law societies of Quebec and Nova Scotia were embarking on a path to professionalize the practice of law, their Ontario counterpart was accused of promoting a trade rather than a profession. Until 1958, Osgoode Hall offered a concurrent system of weekday lectures, often in the mornings and late afternoons, combined with work in a law office during the middle of the day, says Brunet.

'In the days when there were only apprenticeships, students weren't paid and sometimes had to pay a principal for the privilege of acquiring his wisdom and expertise,' she explains. 'For the longest time, you studied law because your family could afford it.'

(It wasn't until the late 1960s, with the introduction of bursaries, scholarships, government student loans and more affordable tuitions, along with additional classroom space — in part in response to the baby boom and the emergence of post-secondary collegiate institutions — that law schools became more accessible to people.)

As one writer in Osgoode Hall Law School's student newspaper, Obiter Dicta, griped, the focus on articling could not teach 'the embryo counsel...how to think legally.'

The law society ignored student opinions and those of Cecil Wright, who, as Osgoode Hall's dean, tried to shift the emphasis from apprenticeship to classroom instruction based on his own experiences studying law at Harvard University. After years of pushing for the change, he and three other faculty members resigned from Osgoode in 1949 in protest (only one year after Wright became dean) and took positions at the U of T's law faculty, which had not yet been sanctioned by the Ontario Bar.

But as Brunet points out, while the LSUC focused more on the practical rather than academic training, students attending other law schools were often better qualified since they had attended university as undergraduates — if not obtained degrees, compared to the high school diplomas Osgoode Hall students sometimes only had.

'Even in the 1920s, the Canadian Bar Association told the law society it was going the wrong way and recommended students have at least two years of university based on what Dalhousie's law school had done — and became the first in Canada to have such a requirement.'

It took three decades for Osgoode Hall to take the CBA's advice — though by then most students had already attended university. But by the 1950s, other law schools began popping up at Ontario university campuses in Ottawa, Kingston, Ont. (Queen's) and London, Ont. (Western), followed by Windsor, Ont. a decade later.

Faced with new competition, Osgoode Hall maintained its position in wanting to be Canada's, if not the Commonwealth's, best law school in a rivalry with Dalhousie University (now the Schulich School of Law) that has endured to today.

Meanwhile, in the early 20th century, law schools began popping up in major cities across the West. Some endured — in Winnipeg, Saskatoon, Edmonton and Vancouver — and eventually became part of universities. Others, in Regina, Calgary and Victoria, B.C. had brief runs and either stopped and had university-based law schools reemerge decades later, (Calgary and Victoria, B.C.) or discontinued entirely, as was the case in Regina.

'The Maritimes was in the lead in Common Law Canada with Dalhousie and the University of New Brunswick,' says University of British Columbia (UBC) legal historian Wesley Pue.

But for those Western Canadian law schools that did survive, shades of Osgoode Hall were present in their growth. For instance, Alberta's Bar initially ran a hybrid apprenticeship-classroom training program, beginning in 1912. A decade later, the University of Alberta assumed control of the law school, turning out its first graduates in 1926.

Manitoba, meanwhile, ended up having 'the most fully formed law school in Canada' in the first half of the 20th century that was 'innovative and edgy,' says UBC's Pue, who holds a master's degree in law from the University of Alberta and a doctorate from Osgoode Hall in which he specialized in the history of the British legal profession in the 19th century.

He explains that Manitoba's law school was 'far ahead of its time' in attempting to introduce a post-baccalaureate program in law, while its counterparts were admitting students straight out of high school. Rather than following the British model of 'articles only,' it embraced — for a short period — the U.S.-style of classroom instruction.

Opened in 1914, Manitoba's law school began by offering classroom instruction in the morning followed by time in a law office in the afternoon for its first seven years until Joe Thorson — a future president of Canada's Exchequer Court — became dean and introduced a three-year, full-time program.

But following Thorson's departure, the training program reverted back to the four-year apprenticeship-classroom model in 1930. It remained so until 1964, when it began offering a three-year, full-time academic program — the last in Canada to make the transition.

During the previous three decades, the degree-granting school was officially a joint venture between the province's law society and the U of M — though the former 'really ruled the roost,' says 71-year-old Harvey, who obtained his bachelor's and master's degrees in law from Osgoode Hall in the 1960s and joined the U of M's law faculty on July 1, 1966 — the day the school joined the university as a faculty.

'Going to school and articling at the same time was not a good format because neither law firms nor the law school got the concentrated devotion of time from students, and their performance was affected by multitasking.'

However, he says there was one similarity with Osgoode Hall that was beneficial for Manitoba's law school. Both were located for years in law courts buildings until in Manitoba's case, the school was relocated to the U of M's Fort Garry campus in 1970.

'I don't think it was the right move because we lost the close contact we had downtown with the courts and with the profession, and inevitably became more of an academic institution,' says Harvey.

While the Great Depression and the Second World War took its toll, leaving law schools with two or three — if any — students, Dalhousie law professor George Curtis was brought to UBC in 1945 to serve as dean of its new law school and welcomed veterans returning from the battlefield to pursue law studies.

'The school was admitting women from the first day and was not discriminatory in terms of race,' says Pue, who, in 1993, joined UBC's Faculty of Law as the first incumbent of the Nathan T. Nemetz Chair in Legal History.

'It was able to develop innovative curricula with the support of the profession, without replicating the battles in Ontario.'

However across the country, university-based law schools, offering three-year programs (followed by a year of articling) didn't become the norm until the 1950s, explains the U of S's Cotter, a 1974 law graduate of Dalhousie, where he taught law for 15 years.

Yet, unlike today's rigid requirements for admission, practically anybody who applied for law school was accepted, often regardless of their qualifications or abilities.

'In a lot of law schools in the 1960s, one-third of the class probably flunked out after [the] first year,' says Cotter.

'Now, maybe the failure rate is under five per cent nationally, and over 90 per cent of everyone in law school in Canada already has at least a baccalaureate degree.'

Following the Second World War, the length of articling was reduced from the original five-year apprenticeship to three years for anyone who completed a three-year law degree program in Canada. 'The more you sat in the classroom, the less you had to sit in the office,' says Brunet.

But the most significant change to legal education has been the shift from training people for a professional vocation to an academic environment for the study of law, says 60-year-old Cotter, who served as Saskatchewan's deputy attorney general from 1992 to 1997 when Roy Romanow, a former attorney general, led the NDP provincial government.

Still, Cotter believes that learning law both in a classroom and in a law office 'bring value' as they did for him.

He will never forget the year he spent articling in 1974 with Finley, Barrett and Hood, a small law office in Saskatoon. The principal partner and future judge — Bob Finley — asked Cotter to draft a will for a client, a relatively straightforward request despite his not having studied wills and estates law at Dalhousie.

'I did it and he brought it back to me and asked, 'Have you thought about A, B or C?' We went back and forth five times before I got it right,' Cotter recalls.

'We probably charged the client $25 — it was absolutely uneconomical. But this guy taught me how to do some of the basics in delivering a legal service, and that was a terrific learning experience for me.'


Coursework

From the 19th century to the mid-20th century, law studies in Canada provided instruction in the basics, such as torts, contracts, evidence, constitutional law, criminal law, real property and the legal history of British common law.

Specialty courses emerged after the Second World War and often as a result of developments within the legal profession, according to historian Mélanie Brunet.

'After the war, the government became more involved in people's lives, so specialty courses resulted — in particular, in labour law and tax law.'

The latter was controversial, and was 'unwelcome' to some in the profession as 'critical race theory or feminist legal studies were for some in subsequent generations,' says UBC's Wesley Pue. 

But as University of Saskatchewan law professor Brent Cotter explains, law schools — apart from mighty Osgoode Hall Law School of York University — were smaller than they are today with fewer specialists on the teaching staff. However, over the past three decades, law schools have adopted greater flexibility with their curricula and have fashioned specialized coursework — often based on the school's location. So, the law schools at the universities of Alberta and Calgary (the latter which opened in 1976, making it the second-youngest in Canada behind the Université de Moncton's school, which opened in 1978) could offer students a course in oil and gas law, while Dalhousie University introduced coursework in marine and environmental law.


Women

In terms of demographics, only men attended law school until Clara Brett Martin applied to become a student-of-law in Ontario in 1891. The law society rejected her request for admission and ruled that women were not recognized as 'persons' under the Law Society Act.

However, Sir Oliver Mowat, the premier and attorney general (and de facto bencher of the law society), intervened on her behalf and, in 1892, the Ontario legislature passed a bill that gave women access to legal education — but only to practise as solicitors once called to the Bar. The law society followed suit and passed a motion, with a narrow 12-11 vote, for the admission of women.

In 1897, Martin became the first female lawyer to be admitted to the Bar not only in Canada, but throughout the British Empire. (That year, the law society also allowed her to be admitted as a barrister.)

Ironically, Martin could practise law but could not choose those who made the laws until Parliament granted her and other women the right to vote in federal elections decades later in 1918 — and even longer than that (1940) in Quebec elections. Historian Mélanie Brunet explains that Mowat went to bat for Martin, in part, because he wanted to appease suffragists without actually giving women the vote, 'which was deemed even more controversial.'

But the number of women attending Canadian law schools in the 20th century did not exceed 15 per cent of the student population until the 1970s, when the women's movement and new career opportunities drove them to pursue higher education, according to University of Saskatchewan law professor Brent Cotter, who has tracked law school admissions over the past 30 years.

He says that in 1985, 40 per cent of students at Canadian law schools were women. By 2009, that percentage was 51, where it essentially has been for the past decade.


Minority Groups

Although law schools haven't regularly tracked students based on visible minority characteristics, the University of Saskatchewan's College of Law has kept an eye on First Nations admissions, according to former dean Brent Cotter.

He says the numbers peaked in the 1980s and have since flattened out. But the U of S, along with the University of British Columbia's law school, has the most aboriginal law students in Canada. For the U of S, that's largely the result of a national pre-law eight-week program that starts in May and is run by the Native Law Centre of Canada on campus.


Profile - No (formal) admission

Today, Tom Molloy is one of Canada's most respected practitioners of First Nations law.

He has played a leading role in several landmark aboriginal claims settlements, including the negotiations with the Inuit of Nunavut that led to the creation of Canada's third territory in 1999 and headed the team that negotiated the Nisga'a Final Agreement, British Columbia's first modern-day treaty, the following year.

To think that Molloy, now 70 years old and an Officer of the Order of Canada, studied law without ever being formally admitted to law school.

One night in September 1961, he went drinking with some buddies, who were law students at the University of Saskatchewan (U of S). At the time, Molloy was studying philosophy and political science in the general arts program at the U of S, where he also served on the student council through his role as co-chairman of the National Federation of Canadian University Students.

Though he planned to apply for law school the following year, his friends encouraged him, as he recalls, to 'Go now, since you never know what's going to happen.'

Molloy, who was an average C+ student, got up late the following morning, but decided not to act on his pals' advice.

'At 4 p.m., I ran into the guys I was with at the bar the night before and they asked, 'What did the dean say?' and I said, 'I haven't seen him.''

'So they said, 'You're crazy, he's still in his office. Why don't you go up and talk to him?''

Dressed in 'grubby old clothes,' Molloy went to see the acting dean, Otto Lang, a future federal cabinet minister (including as attorney general) in Pierre Trudeau's government who, at 29, was only eight years Molloy's senior.

Lang, who has since become a good friend of Molloy's, told him to complete an application, which he cautioned would take some time.

'Since classes were already underway, I asked him what I should do,' remembers Molloy, who serves as counsel, in Saskatoon, with the full-service western Canadian firm, MacPherson Leslie & Tyerman LLP.

'He said, 'I think you should start taking classes until you hear otherwise.' So I did, and the next time I heard back was three years later when I received a letter telling me that I had graduated.'

'I think they just needed students because no one wanted to go to law school back then.'

But those three years he spent studying law were marked by learning from some of the best legal minds in Canadian academia, and socializing with both students and professors alike.

On the faculty were U of S law grads Walter Tarnopolsky, the late pioneer of human rights law and civil liberties, and future Federal Court of Appeal Justice Barry Strayer, who, as an assistant deputy minister of justice in Ottawa, worked on the initial drafts of the Canadian Charter of Rights and Freedoms — as well as Jacob Ziegel, who went on to teach law at McGill University, Osgoode Hall Law School of York University and the University of Toronto, and to serve as editor-in-chief of the Canadian Business Law Journal.

Back then, everyone at the U of S College of Law took the same classes — save for a few elective seminars in third year. And, there were fewer than 100 students enrolled at any given time.

'There was a lot of intermingling and collegiality, where professors took part in our social events. They'd come to house parties, sporting events, play cards with us — that sort of thing,' says Molloy.

'Perhaps law schools today are a little more impersonal. I assume they don't have the same relationship that we did with the faculty because of our size.'

Still, it wasn't all fun and games.

Just before Christmas, third-year U of S law students had to write two, three-hour comprehensive exams on subjects covered in previous courses from the day they began law school.

'You had to go back and review everything you had done — and that's when you started to discover the holes in your notes,' says Molloy.

'It drove everybody nuts.'


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