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Opinion: The boardroom is not the legislature

Updated: Feb 9, 2023

By Mark Surchin, Bencher candidate

The Law Society of Ontario is about to embark on an election to choose its Benchers, or governing board. Its last election was contentious and political, and this election likely will be similar. With that in mind, it is worth noting that boards are not legislatures, and board members are not politicians.

In particular, in legislatures the members have been elected by their constituents based on certain political positions they have taken and with the members typically organized by political party into identifiable political blocs. Debates in a legislature can be raucous and there is no expectation of civility as a guidepost, especially in today’s era.

Being a member of a board of an organization (whether for-profit or not) is a fundamentally different role that is the opposite of a political role. In particular, board members have the fiduciary duty to act honestly and in good faith and in the best interests of the organization, and they also have to meet the applicable standard of care. The latter means taking the role seriously and being diligent in preparing for and participating in board meetings. In my opinion, the model board member comes prepared to listen and think about what is being said by others, thereby being open to persuasion.

At the same time, the board does not manage the day to day affairs of the organization. A governing board’s role goes to overall mission and strategy, and with the duty to hire and evaluate the chief administrator of operations such as the organization’s president or chief executive officer. In doing so, good boards are careful not to veer out of that oversight lane and into operations. The board’s work is in essence to ensure that management of the organization is sound and in line with the overall mission and strategic goals of the organization.

In the world of for-profit corporate boards where directors are elected by the shareholders of the corporation, it is settled law in Canada that directors must consider what is in the best interests of the corporation. They do not adhere to their duties if they consider only what is in the interests of the shareholders who elected them. They also are permitted to consider all stakeholders, including things such as the environment, in assessing what is in the best interests of the corporation.

While there is controversy among legal commentators as to the wisdom of that result as a matter of Canadian corporate law, there ought not to be any analogous issue when it comes to the benchers of the Law Society of Ontario. The LSO is not a trade organization meant to advocate for legal professionals. It was created by the legislature to regulate the legal professions.

In particular, the LSO’s mission includes maintaining and advancing the cause of justice and the rule of law and acting so as to facilitate access to justice for the people of Ontario. The LSO has a duty to protect the public interest. And its core day to day role is to ensure that all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide and that the standards of learning, professional competence and professional conduct for the provision of a particular legal service in a particular area of law apply equally to persons who practise law in Ontario and persons who provide legal services in Ontario.

Does this sound political? I think not. It sounds to me like typical board work and with benchers meant to understand that they are there to serve the public interest and not do what is best for legal service providers.

For that reason I have agreed to run for bencher in the upcoming election and as part of a group of like-minded professionals who understand the role.

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