Laforme v Law Society of Ontario, 2020 ONLSTH 112

Ontario’s Law Society Tribunal – Hearing Division granted Retired Justice Harry Laforme permission to appear as counsel in two class proceedings against Canada regarding drinking water advisories based on exceptional circumstances, including the enhancement of the administration of justice by allowing him to assist Indigenous communities with these specific proceedings. 

Indigenous Law Centre – CaseWatch Blog

The Honourable Harry S. LaForme [“Licensee”] is a retired judge of the Ontario Court of Appeal. He has applied for permission to appear as counsel before the Federal Court of Canada and the Manitoba Court of Queen’s Bench on two specific matters relating to access to clean drinking water on First Nation reserves.

The test for approval required by Rule 7.7-1.2 of the Rules of Professional Conduct [“Rules”] is onerous. The Licensee must establish that “exceptional circumstances” exist to grant approval and the hearing panel must also determine whether any restrictions should apply to the Licensee’s appearance as counsel.

The Licensee is Anishinabe of the Eagle Clan of the Mississaugas of the Credit First Nation in southern Ontario. In 1994, the Licensee was appointed a judge of the Ontario Court of Justice (General Division), which is now the Superior Court of Justice. He was one of the first Indigenous judges appointed to this level of trial court in Ontario, and only one of three in Canada.

OKT and McCarthy Tétrault LLP [“McCarthys”] are jointly representing three First Nations in their class actions against Canada regarding drinking water advisories on First Nation reserves across the country, alleging breaches of the Canadian Charter of Rights and Freedoms rights of security of the person and equality, as well as the Crown’s fiduciary duties to First Nations for failure to provide clean drinking water on reserves. The actions seek to compel Canada to provide compensation and safe drinking water on reserves.

OKT has been jointly retained with McCarthy’s to act as class counsel in these proceedings and represents Curve Lake First Nation, Neskantaga First Nation, and Tataskweyak Cree Nation to prosecute the class action, including certification and a common issues trial. The Licensee is requesting to appear as counsel throughout both proceedings. All three First Nations want the Licensee to appear as one of their counsel along with other members of the McCarthy’s and OKT teams. None of the other members of those teams has the combined personal experience of living on reserve and the extensive professional experience working with First Nations that the Licensee possesses.

Canada, the sole defendant in both the Tataskweyak and Curve Lake Actions, does not oppose this application and will abide by the Tribunal’s decision. The Law Society consented to the Licensee’s application and together with the Licensee submitted that exceptional circumstances exist in this matter.

The concerns expressed about former judges appearing as counsel in the courts are related to apprehension of bias, conflict of interest, and most importantly, public perception and confidence in the justice system. While the Rule does not provide any guidance as to what constitutes exceptional circumstances, based on the particular facts of the application in question, the concerns identified above – apprehension of bias, conflict of interest and public perception and confidence in the justice system – have either been eliminated or materially ameliorated.

It is determined that exceptional circumstances exist such that the Licensee should be granted permission to appear as counsel in the two class proceedings. The applicant is restricted from using his honourific or making any reference to his status as a retired judge in any appearances in the two class action proceedings as listed above, in the courtroom and any pleadings, affidavits or other documents to be filed as part of the court record, except as required by the applicant’s professional responsibilities or any direction or order of the respective court.

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