Good governance

OJ Simpson died yesterday. And Ford issued a recall notice.

If your recall is foggy, or you were born on this side of Y2K, you can relive OJ’s historic trip down the interstate here.

Have a great weekend.

— Dylan Gibbs

• What does it take to have an independent legal profession?

• Taking government land with adverse possession

• Healthcare coverage for gender-affirming surgery

• Ontario’s housing reforms

LEGAL PROFESSION

Does BC’s new legal regulator give the government too much control?

On Wednesday, the BC government introduced a new regulator for the province’s legal professions. The proposed Legal Professions Act brings lawyers, notaries, and licensed paralegals together under one roof. Some are excited about the reform and what it could do for access to justice. But others say it jeopardizes the legal profession’s independence from government.

Why change? The self-regulating legal profession tends to be fairly … self-interested. A 2021 report on the Law Society of BC’s governance structure said the LSBC “is too involved in responding to the interests of the legal profession.” The government wants a framework that puts public interest first.

The new structure limits lawyers’ control. The proposed regulator’s 17-member board only has nine lawyers — a majority, but not by much. And lawyers don’t get to elect all nine of their representatives. Here’s how the structure breaks down:

• 7 elected directors: Lawyers elect five of their own. And notaries elect two of their own.

• 3 merit-based government appointments: The government gets three picks after consulting with the board to figure out “the desired skills, attributes and experience of persons to be appointed.” One of the appointments needs to be a member of a First Nation.

• 5 merit-based board appointments: The board, by majority vote, appoints four more lawyers and one more notary. One of those five appointments must be Indigenous.

• 2 elected or appointed paralegal representatives: If there are more than 50 licensed paralegals in the province, paralegals get to elect two of their members. Otherwise, the board appoints those two directors based on merit-based recommendations made by the BC Paralegal Association.

The nine-lawyer majority (five elected, four appointed) can run the show, but only if they all show up to vote — any 12 of the 17 directors can form a quorum.

Lawyer organizations are sounding the alarm: Citing a risk of “government direction and intrusion,” the LSBC said it will challenge the legislation if it passes. The LSBC didn’t spell out its reasoning. But with only 3 government appointees on the 17-member board, the LSBC seems to hold the view that independence from government requires more lawyer control. President of the Canadian Bar Association’s BC branch, Scott Morishita, put it like this:

But not everyone shares that view:

Big picture: The Supreme Court has already faced the argument that independence of the bar requires self-regulation. It didn’t have to decide the issue, but the Court did hint that the principle of lawyer independence isn’t as broad as some lawyers might like it to be:

HEARSAY ROUNDUP

Canadiana

🔍 Following Quebec’s footsteps, Alberta tabled legislation that would require provincial approval of agreements between the federal government and municipalities. Calgary’s mayor doesn’t like it:

🪧 BC wants to ban protests and disruptions outside schools, proposing a 20-metre protection zone.

🏘️ Ontario introduced legislation to encourage housing development. Some of the changes include exempting university student housing from planning requirements, scrapping parking requirements near transit stations, and implementing a “use-it-or-lose-it” policy for development approvals to encourage developers to get moving.

💰 Quebec plans to fine people who threaten politicians.

🏳️‍⚧️ Ontario’s Divisional Court confirmed that the Ontario Health Insurance Plan covers the cost of gender-affirming surgery involving a vaginoplasty without a penectomy — at least in a case where OHIP neglected to argue that the procedure isn’t “generally accepted”.

👑 MPs broke out in song after voting to save their oath to the King.

LEAVE TO APPEAL

Supreme Court weighing in on squatters’ rights to public land

Yesterday, the Supreme Court agreed to hear an appeal about whether public land is immune from adverse possession. The case deals with a small piece of land in Toronto (shown above), wedged between a home and a city park. At some point between 1958 and 1971, the property owner fenced the area in. And owners of the lot have been using the land as a backyard extension ever since.

If the fenced-in land belonged to a private party, the homeowner would get to keep it. But the lower courts held that public land gets special treatment. According to the Court of Appeal, municipal parks are “generally unavailable for adverse possession,” unless the municipality waives its rights or acquiesces to the squatter taking the land away.

Justice David Brown disagreed, in a dissent with Lord Denning vibes:

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