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| Michael Lesage |
Unlike Ontario’s hockey teams (or at least the Leafs), our universities (also public institutions) have proven they can be internationally competitive. The University of Toronto for instance (including its law school), is frequently ranked within the top 20 universities in the world while Waterloo engineering proudly advertises itself to be “ranked among the top 50 engineering schools worldwide.” Conversely, our court system (again, populated largely by local legal graduates) is not competitive, either within Canada or internationally. The question then arises as to what responsibility, if any, Ontario’s law schools bear for this state of affairs.
Like our court system itself, many of our law schools seem unaware (other than what they charge for tuition, where they are very much in the now) that it’s no longer 1970 (or 1870). This is reflected in the curricula, which while inclusive of traditional subjects such as contracts, constitutional law and oral advocacy, omits any requirement that students be familiar with data analysis and/or coding (perhaps with the notable exception of the Lincoln Alexander School of Law, which requires 2Ls to take a five-day coding bootcamp in year 2). Likewise, despite Hryniak, what if anything is being taught regarding the need for a legal culture of urgency, experimentation and customer service (Hryniak v. Mauldin, 2014 SCC 7).
This myopic focus upon legal history and tradition has not served the public nor students well. For instance, Ontario’s legal graduates (and specifically the court system) apparently failed to notice the advent of the Internet until circa March 2020, taking few steps to digitize any part of the court process. This of course resulted in the entirety of the court system going “offline,” where parts of it (i.e. various small claims courts are still not holding motions or trials) remain two plus years later. Unsurprisingly, this adversely affected the income of many Ontario lawyers, to say nothing of the public being deprived of a functional court system during this time.
Additionally, even if entirely lacking in technical skills themselves, had Ontario’s legal graduates a more solid basis in geography, statistics or current affairs, they would have been positioned to inquire how the Ontario court system was performing vis-à-vis its peers (i.e. benchmarking), and ideally, taken steps to address glaring performance deficiencies and the aforementioned “culture of complacency.”
As such education was apparently lacking, Ontario’s legal graduates were seemingly ill-equipped for a discussion much deeper than “unicorns are better for society than murder,” and court performance suffered accordingly (with all types of cases taking multiple times as long to resolve via trial in Ontario than in competing jurisdictions). This problem could perhaps have been avoided entirely had our schools a stronger focus upon urgency, innovation, experimentation and providing customer service, but that may have meant less time dedicated to such everyday topics as the rule against perpetuities or the study of the arcane (in Ontario) concepts of civil procedure.
Of course, it must be recognized that the Ontario court system is subject to a “unique” three-headed management structure (with each, at least at senior levels, largely populated by graduates of Ontario’s law schools), comprised of the Ministry of the Attorney General, the law society and the judiciary (with a fourth head if you count the federal government which appoints superior court judges). Each of these parties has a unique role to play. The Ministry of the Attorney General for instance is responsible for, and largely capable of operating the lights, locking and unlocking the doors and keeping the bathrooms reasonably clean (i.e. facilities maintenance). The law society in turn regulates the conduct of Ontario’s lawyers, while the judiciary must somehow, try to keep it all functional, largely in the absence of anyone providing effective courts administration (as some of our courts are currently rejecting 45 per cent of all civil documents being filed.
The law society has, unsurprisingly, done Ontario’s law schools few favours, and in fact, has effectively signalled its disdain for the calibre of local legal education provided. This is chiefly demonstrated in several ways. Initially, for all Ontario law schools less two (Lakehead and the Lincoln Alexander School of Law), a minimum of eight months of remedial training (articling) is required prior to licensure. Thus, what takes less than three years for students at U.S. schools to accomplish takes most Ontario law students closer to four. What more effective way to communicate a lack of confidence in the education provided than requiring graduates to obtain remedial training from someone else prior to licensure?
The law society’s apparent scorn is reinforced by its licensing exams, which essentially test the concept of whether graduates can locate a term within an index, then turn to the page indicated, and then rinse and repeat for nine hours over two days of examination. For unknown reasons, and despite the statutory mandate set forth by section 4.2 of the Law Society Act, the law society does not, in any way, test prospective lawyers as to their technological competence (and currently does not even test if they are able to turn on a computer), or upon any comparative statistics that seemingly, would be necessary to advance and facilitate the cause of justice in Ontario (given the current state of systemic dysfunction).
Recent events indicate that the law society’s lack of confidence in Ontario’s law schools (and their graduates) is not entirely misplaced. For example, in response to a cheating scandal, the bar exam had to be postponed, affecting many hundreds of law students. Many tens of them were so upset that they went to the University of Toronto Students’ Law Society site, copied and pasted a template complaint into their e-mail, and sent it to the various benchers whose e-mail addresses were also listed on the page (in almost all cases, without modification other than name). Clearly, even at our best schools, there are issues with the teaching of basic advocacy (which are also not being flagged given the nature of the existent bar exam).
Troublingly to date, there has apparently been little academic study from Ontario’s law schools or self-reflection as to their role in the poor comparative performance of the Ontario court system or the functioning of their graduates within same. To the extent curriculums have been updated post Hyrniak, what has been done to implement the “culture shift” and “change of direction” called for (R. v. Jordan 2016 SCC 27? Likewise, why are the only law schools in Ontario trying anything new those most recently licensed? Where is the intellectual curiosity?
In the absence of leadership or direction from the Ministry of the Attorney General (which from experience should be assumed), the responsibility to improve the Ontario legal system falls to the other system participants. The judiciary for instance, should not hesitate to press for modernization (and functionality), and to ask the law society, profession and even the schools to assist with the provision of basic administrative services (answering the phones, providing judicial clerks, tabulating basic statistics on operations, setting performance targets), that in other jurisdictions, would be provided by a functioning courts administration (as mentioned, we are generally fortunate that the Ministry of the Attorney General can properly operate the lights).
The law society also has a significant role to play. Given its sizable budget, it is well positioned to tabulate and publicize basic statistics on the operation of the court system (which it already does within its tribunal), and to work with the judiciary in the setting of performance targets (and to act as liaison to other, better performing legal jurisdictions in an effort to close the performance gap). With respect to the hundreds of students who fail to secure articling positions yearly, perhaps they could be assigned as clerks to the judiciary, to help free up judicial resources and address backlog? Additionally, the law society should revisit its licensing exam to ensure that lawyers entering the system have the skills and technological competence to operate in a modern court system. Candidly, this is not captured by the current paper-based page turning exercise.
Finally, our law schools should engage in some self-reflection, and ask what role they played in getting us to “here” and specifically to the “here” of March 2020. For Ontario to end up with as dysfunctional a legal system as was and remains the case, there was either “something in the water” or “something wrong in the state of Ontario” to badly paraphrase Shakespeare. While our law schools aren’t positioned to directly address problems with the water, they can take steps to ensure that their graduates are curious, technologically competent, innovative and competitive enough to not willingly settle for last place. While they’re at it, perhaps they can ask the law society to revisit its licensing examinations, to test whether Ontario’s law students actually learned anything for their money?
Michael Lesage is a trial lawyer and the founder of Michael’s Law Firm, a litigation boutique that specializes in complex cases involving professional negligence, business litigation, insurance coverage disputes and cases of serious injury. When not representing clients, he can often be found playing competitive sports. He also sits as a bencher at the Law Society of Ontario and obtained his JD in the U.S. You can e-mail him at michael@michaelsfirm.ca.
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