Regulatory Governance Reform – LSO missing golden opportunity

Though it is not surprising that governance is on the agenda of regulators, the coincidence of three of Ontario’s largest regulators looking at the issue at the same time is unusual. Within a couple of weeks the topic is on the agenda of the College of Physicians and Surgeons (see p 95 at https://www.cpso.on.ca/CPSO/media/documents/Council/Council-Materials_2018Dec.pdf ), the Ontario College of Teachers (https://www.oct.ca/-/media/PDF/Governance%20Review%20Report/Governance%20Review%20Report.pdf ) and the Law Society of Ontario ( p. 114 at https://lawsocietyontario.azureedge.net/media/lso/media/about/convocation/2018/convocation-governance-task-force-2016-report-november-2018.pdf )
Each of the Reports and the Task Force/Committee responsible for them pays deference to the groundbreaking work of the College of Nurses of Ontario whose Vision 2020 Report designed a new direction and articulated a vision for regulatory governance in Ontario. See http://www.cno.org/globalassets/1-whatiscno/governance/final-report—leading-in-regulatory-governance-task-force.pdf .
What is most striking about the reports and proposals being debated now is how out of step the Law Society is. When the nursing regulator began its work it was urged to ‘Be bold!’ and it took that challenge to heart. With the benefit of expert governance advice, it adopted some key principles that are also reflected in the proposals being considered by the teacher and the physician regulators. These include:
• create a board of about 15 (plus or minus) as every study of decision making shows that is the optimum size for a Board of Directors;
• the Board should be equally split between members of the profession and public members
• selection of Board Members should be based on skills and competence and done primarily by an open and transparent selection process. Elections via ‘politicized process’ should not be the means to select Board members;
• there should be a complete separation between the Board as the organization’s governing body and the regulatory work. Board members ought not to be doing front-line regulation as members of regulatory committees (think discipline);
• the diversity of perspectives and membership is crucial to public interest regulation and is more easily achieved through a robust selection process where the attributes and characteristics of Board Members are clearly articulated and selection is done accordingly.
• Linkages to the profession, for consultation, input and perspective are best done through a variety of mechanisms the regulator should establish in order to hear the voices of a wide range of professionals. Geographic, nature of practice, ethnic, racial and other characteristics and perspectives are crucial for a regulator’s effective decision making.

The Law Society likely was not urged to ‘be bold’ and its approaches do not come close to that standard. What is striking is that almost none of the noted best practices has been proposed in the Law Society’s Governance Report. The scope of the Task Force’s work was limited by its terms of reference. Anyone who watches the Law Society understands the degree to which tradition drives its thinking about what is possible. I have no doubt that Benchers have been inundated with calls and comments from the ex-officio Benchers who are still at the table and very much want to remain there. So maybe it was practical to address the ex-officio Bencher and the length of term issues first but when you compare the narrow focus with what the other regulators have done, it’s hard not to wonder if a golden opportunity has been lost.
Each of the other senior regulators has recognized the work they are responsible for is to regulate in the public interest; it is not to represent or speak for the profession. Yet as LSO embarks upon a Bencher election it is easy to see from social media that many who are contemplating a run for elected office are frequently doing so by invoking the ‘interests of lawyers’ as a key plank in their platform. A review of campaigns of the past (a concept which the other governance reports suggest is completely misplaced) shows that many seek office primarily to assert the interests of lawyers. I do not suggest that once in office, that motivation is not moderated considerably, but by having a politicized process, much of what public interest regulation ought to be is sullied.
The Attorney General, Caroline Mulroney, in her letter to the Governance Task Force urged a result that would have governance be ‘streamlined and effective’. Though reducing the number if Benchers may make Convocation smaller, it is hard to see, especially in light of the policy directions being adopted by other regulators, that the Law Society’s model will meet either of the criterion sought by the Attorney General.
Given that legislative amendments will be required for the Colleges to achieve their policy goals and the direction they are going reflects best practices for modern governance of regulatory oversight bodies, one hopes the Law Society will recognize it has not even begun to address real governance reform. It should know the government will likely be asking ‘If this is appropriate for CPSO, CNO and the OCT, why is it not the direction the Law Society has advocated?’
Surely the events of earlier this year in Toronto should cause the Law Society to pause. Then it should extend the mandate of its Governance Task Force. It should direct them, as a matter of urgency, to address the means by which the Law Society’s governance will be brought into the 21at century so it operates, at the Board level, in a manner appropriate to its role and responsibilities.