Vote Vladimir

13. Costs of Justice.

With this video, I continue my reflection on strengthening public confidence in tribunal justice within our own self-governance.

I have looked very closely at the available Law Society Tribunal records and annual reports as well as the Tribunal Committee reports.  And in the previous video, I have already identified not only major transparency gaps, but the fact that paralegals give rise to a disproportionately higher rate of discipline matters and receive suspensions and fine penalties at an alarmingly higher rate than lawyers.

The available reports and records however, provide no statistical data on costs.  

Regulatory compliance cost recovery is essentially also a penalty.  Naming it a cost recovery does not change its penal and retributory nature.  Just as a fine, it is levied as a direct result of a finding against the licensee in a disciplinary action.  And the effect of a cost recovery fee for a paralegal could be far greater than a fine. 

Case in point, I’ve come across one decision, where a 74-year-old paralegal under a disability was ordered costs to the Law Society in the amount of $175,000 in addition to losing his license.  And he may have done some terrible things, but consider that a maximum fine allowed under the Law Society Act is only $100,000.

And without the necessary transparency, I would make an educated guess that when faced with a disciplinary action, a sole operator or a small firm paralegal is more likely than anyone to just take a loss by way of joint submissions in order to resolve the matter, rather than taking the risk of taking the Law Society to task. 

When costs exposure itself discourages the licensee from holding the Law Society to the standard of proof in a disciplinary matter, it is capable of undermining access to justice for our own membership.

In fact, I have also reviewed the Law Society Tribunal Appeal Division records.  I found that in the entire available history of appeal records there have only been four paralegals who have ever challenged the Hearing Division decision in the Appeal Division.  Not surprisingly they all lost with additional costs payable to the Law Society ranging from $6,000 to $18,000 in each case.

But the problem is amplified by the fact that any judicial safeguards in tribunal and discipline matters could be astronomically expensive for a licensee.

Most of you probably heard about Joseph Groia, a lawyer and now a bencher, who fought the Law Society all the way to the Supreme Court of Canada, whose victory came with a seven-digit price tag.  Only very, very few lawyers are capable of putting up that kind of defence.  Paralegals are simply defenseless against this regulator. 

Something that the rest of our society including other self-regulated professions generally take for granted, a right to make a full answer and response, a right to hold the accuser including the regulator to the strict proof of their case, now seems less of a right, and more of a privilege.  A privilege, which is costly, or at least comes with a risk of exposing the respondent to significant costs.

When elected a bencher, I will stand for the Law Society operating under the principles of a full and proactive disclosure leading to a complete transparency on costs and other aspects of the administration of justice within our own self-governance.  And I will go further than that.  I will also advocate for reforming the way costs are being ordered by the Law Society Tribunal.

I am not comfortable with the idea of Law Society Tribunal having the ability to order costs for the Law Society in unlimited and unpredictable amounts far in excess of statutory limits set for fines.  In fact, I will stand to advocate that the approach to disciplinary costs should be at least in line with a number of other self-governing regulators.

For example, the Disciplinary Tribunal of the College of Physicians and Surgeons has a fine limit of only $35,000, and fines are payable to the Minister of Finance, not to the College.  Compare it to the Law Society fine limit of $100,000 and fines payable to the Law Society itself.  Also, the College Tribunal Rules provide a clearly defined tariff for costs for the College.  Costs are based on the number of hearing dates or half dates, but not unlimited billable hours for the Discipline Counsel, and their law clerks and support staff.  No costs are payable when the matters is settled, and physician members have a much wider range of opportunities to seek costs against the College.  Similar rules apply to other regulated health professions.

Real estate agents in Ontario are also self-regulated.  The regulator’s Discipline Committee Rules provide for clearly defined costs based on flat daily rates inclusive of preparation, and those are $3000 per day.

It makes no sense to me that a paralegal who is responding to a discipline matter has to balance their response strategy against the risk of being exposed to unpredictable and unlimited costs.  

But what if I also told you that we could actually cap those cost recoveries in a revenue neutral manner?  Or better yet, even reduce the net Law Society expense in enforcement operations.

The regulatory enforcement and hearing expenses at the Law Society are very high.  They exceed 30 million dollars annually for both professions combined. 

When elected a bencher, as a matter of responsible and efficient governance, I will seek to reduce those expenses by adopting more preventative measures such as working proactively with categories of licensees who are the likely subjects of complaints and discipline.  If practice reviews have not done enough, then we need to be even more proactive in reaching out to those high-risk licensees with preventative and remedial measures, which should ultimately result in saving the Law Society’s investigative and tribunal costs.

An ounce of prevention is worth a pound of cure.  I am very familiar with how that works in running a corporation.

When elected a bencher, I will also support reducing the size of the Law Society enforcement operation in favour of those preventative and remedial measures.

Those are my platform views on issues that need to be addressed for a fair operation of the Law Society Tribunal, and removing the inequities that all licensees and especially paralegals face within the Law Society discipline process.  Thank you for getting to know them. 

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