Ch 15 Ontario: A False Start, But On Its Way

OntarioA False Start, But On Its Way

ABS is poison. It is immeasurably harmful. It is like communism once was—a superficially appealing philosophy that garnered a number of adherents even in the West, but which, as history has proven, engenders and spreads harm like an ebola virus sneezed into a classroom. You may not appreciate it but I am trying to prevent you and the other misguided sponsors of this evil from later garnering for yourselves the scorn of history. Bradley Wright

Like the law societies described above, the Law Society of Upper Canada (LSUC) is also a regulatory body. The LSUC is governed by a Board of Directors whose members are also known as “benchers.” The LSUC’s Board is composed of 20 lawyers elected from inside Toronto, 20 lawyers elected from outside Toronto, eight appointed laypersons, and several ex-officio members.[1] As regards the elected lawyers, the electorate is composed of all licensed lawyers from the relevant region.

In September 2012, the LSUC established an “Alternative Business Structures Working Group.” For a period of three years, this group examined a possible change to the Ontario regulations in order to permit alternative structures. Their work involved extensive research including meetings with lawyers and paralegals, consulting with “experts” and reviewing research and related literature.[2]

A False Start

In February, 2014 the Working Group issued a report that opened by describing the extensive work it had done. [3] On the basis of that work, the Working Group made these conclusions and recommendations:

  1. Alternative Business Structures: The Working Group concluded that “there are negative consequences inherent in current regulatory limitations on the delivery of legal services in Ontario that could be addressed with the thoughtful liberalization of business structures and the related liberalization of what non-legal services can be provided by entities providing legal services.” The Working Group identified four structural and services models as options for consideration as permissible regulatory frameworks, and recommended that those four models be the subject of a formal consultation with interested groups and individuals.
  2. Firm or entity based regulation: The Working Group concluded that firm or entity based regulation is a necessary element of effective ABS regulation, and also that it is advisable regardless of whether any form of ABS is ultimately adopted. While the Law Society already has some rights to regulate entities, the Working Group recommended that the Law Society seek statutory amendment that would grant it full and express authority to do so.
  3. Compliance-based regulation: The Working Group observed that while there were many differences in regulatory changes introduced in Australia and England and Wales, that there were certain commonalities, including the introduction of firm or entity based regulation together with “compliance based regulation.” For the Working Group, compliance-based regulation means moving away from a complaints-driven, proscriptive and rules based approach towards an objectives-based approach, where firms have flexibility as to how they meet those objectives. In this context, the Working Group recommended that the LSUC consider compliance based regulation to supplement the existing rules based regulation.[4]

In September 2014, the LSUC issued a discussion paper seeking input “on alternative business structures (ABS) as a means for delivering legal services in Ontario.”

The Discussion Paper begins by outlining what business structures are currently available in Ontario, and by describing what an ABS is.

The Discussion Paper then explains that the LSUC is considering the ABS model “in light of several factors, including apparent gaps in the provision of legal services, the increasing globalization of the legal profession, and advances in technology and developments abroad, that significantly affect how legal services can be delivered.”[5] In addressing potential challenges to the ABS model, the Discussion Paper describes professional and ethical considerations such as potential conflicts of interest and confidentiality, as well as implementation issues, such as the extent of regulatory supervision.[6]

Finally, the Discussion Paper describes developments in this area inside as well as outside Canada, and notably in Nova Scotia, British Columbia, Australia and England and Wales.

The Discussion Paper proposes four ABS models for feedback:

Model #1: Business entities providing legal services only in which individuals and entities who are not licensed by the Law Society can have up to 49 per cent ownership.

Model #2: Business entities providing legal services only with no restrictions on ownership by individuals and entities who are not licensed by the Law Society.

Model #3: Business entities providing both legal and non-legal services (except those identified as posing a regulatory risk) in which individuals and entities who are not licensed by the Law Society would be permitted up to 49 per cent ownership.

Model #4: Business entities providing both legal and non-legal services (except those identified as posing a regulatory risk) in which individuals and entities who are not licensed by the Law Society would be permitted unlimited ownership.[7]

The LSUC requested input on the Discussion Paper from “the public, the legal community and other interested parties.”[8]

In a notable contrast to the Working Group’s February, 2014 report, the September, 2014 Discussion Paper mentioned entity regulation and compliance-based regulation (PMBR) very briefly in passing, without explaining or developing either topic.

The September 2014 Discussion Paper triggered an avalanche. To begin, the Working Group received 41 written submissions in response, of which 21 expressed opposition,[9] and, in many cases, very strong opposition to the introduction of alternative structures in Ontario (10 expressed support[10] and 10 either expressed no position or their position was not clear[11]). Further, the Discussion Paper also spurred an intensified discussion of alternative structures in the legal press and on social media, one example being a December 2014 post on Slaw (“Canada’s online legal magazine”) by the commentator Mitch Kowalski entitled “Anti-ABS Arguments Continue to Be Based on Emotion—Not Fact.”[12] Over a 29-day period from December 2014 to January 2015 his post generated just under 100 comments, many of them extraordinarily lengthy (well over 3000 words), and, especially, many of them impassioned. Just a few examples of the statements made include:

“There is nothing that is claimed for ABS that cannot be achieved without ABS. We would be far better off if we put our talents and resources into achieving those benefits without resorting to the bottomless hell-hole of profit-motivated, bean-counter remote ownership of the legal profession… Every real benefit foolishly attributed to the ersatz panacea of ABS can be achieved … without resorting to the myopic and irreversible blunder of selling the ownership of the legal profession to mostly remote bean-counters.”[13]

“We stumble around like drunks attacking the modest cost of wills and work assiduously at being bootlicks to big business by offering to sell them our profession… Are we completely daft? Are we that blindly and brainlessly cavalier?”[14]

“[ABS] is poison. It is immeasurably harmful. It is like communism once was—a superficially appealing philosophy that garnered a number of adherents even in the West, but which, as history has proven, engenders and spreads harm like an ebola virus sneezed into a classroom. You may not appreciate it but I am trying to prevent you and the other misguided sponsors of this evil from later garnering for yourselves the scorn of history.”[15]

“ABS is an irreversible blunder of stunning proportions that will do nothing for the public except to harm them … It should be seen for what it truly is—the worst idea to hit the profession in centuries… [ABS] assuredly will prove to be, the most colossal, short-sighted, cynical, profiteering at the expense of the public, and unnecessary blunder in the history of the legal profession dating back 800 years.”[16]

This impassioned argumentation exposes how controversial the topic of ABS became in Ontario. Understood in this context, the decision of the Working Group in late September 2015 to not further examine “any majority or controlling non-licensee ownership models for traditional law firms in Ontario” (that is, Models #2 and #4) is not a surprise. Nor was its explanation that “such non-licensee ownership levels do not appear to be warranted based on current information when the potential benefits to such external ownership levels are weighed against the regulatory risks and regulatory proportionality.”[17]

The Working Group cited the following “concerns and risks” the submissions raised in relation to nonlawyer majority ownership: external ownership emphasizes profits over professionalism, it would be difficult to preserve client confidentiality and solicitor-client privilege due to pressure by non-licensee owners to learn about the firm’s cases, there would be increased risks of conflicts, and it would result in market consolidation thereby limiting the choice of the public to counsel in certain areas.[18]

In issuing its decision, the Working Group concluded that it had fulfilled much of its mandate, and explained that its next steps would be limited to: (i) staying informed on developments elsewhere in Canada and in other countries, (ii) considering the level, “if any,” and nature of any nonlawyer minority ownership that should be permitted, (iii) considering if any “franchise” arrangements should be permitted, (iv) considering if “civil society organizations, such as charities, not-for-profits, and trade unions,” should become owners of entities “in order to facilitate access to legal services,” and (v) considering when ABSs could be permitted “in areas not generally being served by lawyers and paralegals.”[19]

At the time this book went to press, there was no publicly available evidence that the Working Group had undertaken any significant further activities since issuing the September 2015 decision.

The Ugly Head of Self-Regulation

In April, 2015—seven months after the Working Group issued its Discussion Paper and during the Working Group’s consultation period—a bencher election was held in Ontario. In the run-up to the election, the Ontario Trial Lawyers Association (OTLA), a strident opponent to alternative structures, posted on its website a “Voting Guide for OTLA Members.” The guide explained:

Alternative Business Structures (ABS) has been presented by its supporters as a solution to access to justice in Ontario. After extensive research, the Ontario Trial Lawyers Association has determined that there is no empirical evidence to support this claim. In fact, evidence suggests that the implementation of ABS and Non-Lawyer Ownership of law firms will introduce unnecessary conflicts regarding professionalism and ethics, in addition to myriad regulatory issues.

As a result, it is the position of the Ontario Trial Lawyers Association that it would be unwise to implement ABS…

The timing of this discussion and the potential for a massive impact on members of the legal profession have catapulted the dialogue into a key Law Society Bencher Election issue.[20]

The guide then listed and endorsed 65 (out of 97) bencher candidates “that have signaled their opposition and that they would not vote in favour of the ABS examples as set out in the Law Society discussion paper.”[21]

The OLTA was criticized for this approach to the bencher election. Criticisms included that the OLTA’s approach was “hysterical” and threatened “to hijack Ontario’s bencher elections to the detriment of the profession and the public interest.”[22]

After the election, there was debate about the extent to which the OLTA’s campaign made a difference to the outcome, with some suggesting it made a significant difference[23] and others suggesting that if it did make a difference, it was limited.[24]

Others argued that regardless of the difference the OLTA’s campaign actually made to the election results, the campaign created “some risks and concerns about the viability of our current regulatory model” by raising the question can “elected lawyers be trusted to regulate in the public interest?”[25] This commentator, Alice Woolley, made a number of additional remarks regarding the OLTA’s campaign that merit being quoted at length:

The focus on ABS highlights starkly the disjunct that can exist between the electoral interests of the legal profession and the public in whose interests law societies must regulate… A lawyer voting in a bencher election, or running as a bencher, is likely to be influenced as much by lawyer concerns as by those of the public interest. This is not an indictment of those lawyers. Human beings are always influenced by our own interests; even when we try not to be, our cognitive biases and weaknesses make true abandonment of self-interest impossible… A lawyer voting or running may also use the public interest concerns simply for effective advocacy in relation to lawyer-focused concerns. And—worst of all—it will be impossible to know whether a lawyer voting or running for bencher is in fact motivated by lawyer-based concerns or public-based ones. That may mean that even a largely public-interest focused candidate or voter will appear as lawyer-interested.

Not all regulatory issues raise this concern. On questions of, for example, the maintenance of solicitor-client privilege, to a great extent the public interest and lawyer interests will be aligned. But with ABS the distinction between public interests and lawyer interests is significant, and making this the focus of the election, and encouraging people to vote on the basis of prospective bencher’s position on ABS, focuses attention on the difference between the interests of the regulators and those on whose behalf they are supposed to act. It has the potential to make the whole election as driven towards protection of lawyer concerns, rather than as attentive to who will do the best job of regulating in the public interest…

[T]he people whose interests benchers serve are not the same as those who elect them. Which makes a bencher having a closed mind problematic both legally and ethically. Because the bencher’s closed mind could result from a commitment to the interests of lawyers supported by an electoral outcome, not from a commitment to the interests of the public supported by an electoral outcome…

ABS isn’t decided based on a person’s values and beliefs. It’s something that may or may not be a desirable regulatory change based on available evidence and regulatory mechanisms for successfully implementing that change. Elected benchers need to assess it on that basis, and forcing them to declare a position prior to election—and the actual consideration of the issue as a regulator—is to ensure that the public interest will not be properly assessed, whatever the outcome.

An “OTLA List” election may also inhibit regulatory courage. With this precedent as a backdrop will an elected bencher be willing to take a stand unpopular with lawyers in an effort to protect the public interest? Or will she decline to do so because fully aware that such a stand will make her a target next time around.[26]

Back to the Drawing Board

In meantime—in June, 2015—the LSUC established a second group, the Compliance-Based Entity Regulation Task Force.[27] In early December, 2015—just over two months after the Alternative Business Structures Working Group issued its decision—the Task Force announced that it would conduct a consultation process with respect to compliance-based entity regulation.[28] Accordingly, in January, 2016, the Task Force issued a 24-page Consultation Paper in which it described its conception of entity regulation as well as compliance-based regulation and explained why the LSUC had taken an interest in it.

The Consultation Paper describes the LSUC’s initiative as follows:

The Law Society regulates lawyers and paralegals to achieve appropriate professional conduct by setting rules and by-laws which are applicable to individual practitioners… [Further,] the regulatory process is primarily reactive, responding to conduct that has already occurred. It does not formally recognize the influence of practice arrangements on the way that legal services are being provided, and is based on proscriptive rules that must be followed by all individual lawyers and paralegals.

These limitations have led the Law Society to look for a new approach, one that includes not only lawyers and paralegals, but also the entities through which they provide legal services. Compliance-based regulation supports individuals and entities to achieve best practices in a manner best suited to their environment. Rather than reacting to misconduct after it occurs, it would be much better for both the public and for practitioners if the problem never occurred in the first place.[29]

The Consultation Paper points out that of 4,781 complaints referred to the Law Society’s Professional Regulation Division in 2014, more than half of these complaints—52%—involved client services and other issues relating to practice management infrastructure. The Consultation Paper explains that this 52% includes a variety of issues, such as “a lack of effective communication by the practitioner with the client.”[30]

Interestingly, the Consultation Paper draws directly upon the “Innovating Regulation” paper issued by the Prairie Law Societies of Manitoba, Saskatchewan and Alberta (described above). It does so, for example, in listing no fewer than six ways that “proactive regulation through a compliance-based approach could benefit legal practices.” The list includes the reduction of complaints, the ability for firms to develop with flexibility and autonomy the internal systems appropriate to their size and activities, and the ability for the regulator to respond to new issues as they arise without having to create new rules.[31]

The Consultation Paper briefly describes the relevant regulations in England and Wales and Australia—notably that both have implemented entity regulation as well as outcomes-focused (England and Wales) and proactive (Australia) regulation. In its description, the Consultation Paper makes one passing reference to the ILP structure in Australia.[32] However, the Consultation Paper seems to go out of its way to not use the expression “alternative business structure” or “ABS” or any variation of those terms, not only in its specific discussion of England and Wales, but, indeed, anywhere in the document’s 24 pages. Given how highly controversial that subject proved to be in relation to the work of the Alternative Business Structures Working Group, the absence of any discussion or indeed any reference to them in this Consultation Paper was surely intentional.

The Consultation Paper concludes with a series of questions calling for input from “practitioners and the public.” The questions are grouped into five categories relating to: (i) the key components, or principles, for compliance and entity regulation, (ii) the types of “practice arrangements” to which compliance-based entity regulation may apply, notably based upon size (small, medium and/or large firms), (iii) the roles and responsibilities of a “designated practitioner,” (iv) whether entities should be required to be registered, and (v) the anticipated benefits, drawbacks and challenges with compliance-based entity regulation.[33] The Task Force also posed the questions via an online questionnaire.

In support of the Consultation Paper, on February 12, 2016, the Chair of the Task Force, Ross Earnshaw, guest authored a blog post on Slaw.[34] In the post, he explained the Law Society’s reasons for considering compliance-based entity regulation and the work of the Task Force, and he urged readers to read the consultation paper and submit comments. In stark contrast to Kowalski’s December, 2014 post on Slaw regarding alternative structures and the numerous, lengthy and impassioned comments that it generated, not a single comment was posted in response to Earnshaw’s post.[35]

In its May 26, 2016 Report to Convocation, the Task Force reported that it had received 97 responses to its call for input, of which 77 came from individuals and the remainder from organizations.[36] A summary of the most pertinent responses includes:

–           Generally speaking, the respondents expressed support for entity regulation and for compliance-based regulation. In this context, however, some expressed reservations about additional regulatory burdens that may result. Others opined that the law society should not become involved in management issues because to do so would undermine the principles of a “free economy and normal market drivers.”

–           With respect to the appointment of a “designated practitioner,” there were a number of comments on the potential range of responsibilities, and notably statements that the person in this role should not bear personal responsibility for firm violations.

–           Most respondents agreed that entities should be required to register with the Law Society (but not undergo a licensing process), some adding that the requirements should be different for sole practitioners in order to not unduly increase their regulatory burdens.

–           Several respondents expressed concern that entity regulation could lead to a reduction in the professional responsibility of lawyers as individuals.

–           Some respondents expressed concern on the relationship between entity regulation and alternative structures, stating, for example, that entity regulation should not become a “back door” for alternative structures.[37]

In its May, 2016, Report to Convocation, the Task Force made two recommendations: (i) that the Law Society seek to amend the Law Society Act to permit the Law Society to regulate the entities through which legal services are provided, and (ii) that Convocation approve the development of a regulatory framework based upon the principles of compliance-based regulation.[38]

In explaining its first recommendation, the Task Force stated that “In 2016, it is not realistic to treat law or paralegal firms as mere collections of autonomous individual practitioners who happen to share a firm name… Entity regulation recognizes that many professional decisions that were once made by an individual practitioner are increasingly determined by firm policies and procedures and firm decision-making processes.” For the Task Force, entity regulation has three main benefits: that it enhances the efficiency and effectiveness of professional regulation, harmonizes Ontario’s legislation with that of other provinces, and (cryptically) positions the Law Society “to respond more effectively to innovations in legal services delivery that may be required in the public interest.”[39]

With respect to the second recommendation, the Task Force explained that it would develop more options for a regulatory framework, which would be the subject of “focused consultation” with the professions (lawyers and paralegals) to obtain feedback on their potential feedback.[40]

At its meeting on May 26, 2016, Convocation approved the two recommendations. While it would be wrong to say that the approval went unnoticed, it certainly received little fanfare.[41] The Financial Post did run a short article about it, but the entire purpose of the article was to explain to a presumably otherwise uninterested audience why the Convocation decisions mattered. The article’s author, Drew Hasselback, understood well why it mattered: because, as he wrote, “a journey of a thousand miles begins with a single step.”[42]


Ross Earnshaw, Chair, Task Force on Compliance-Based Entity Regulation and Margaret Drent, Policy Counsel, Law Society of Upper Canada: Earnshaw and Drent explain that compliance-based entity regulation has a great number of potential benefits that have nothing to do with ABS. With the appointment of our Task Force, compliance-based entity regulation has been moved to be front and center, out of the shadow of the more controversial topic of alternative structures.

This chapter is an excerpt from Modernizing Legal Services in Common Law Countries: Will the US Be Left Behind? To learn more about the book, please click here.


[1] “Benchers,” Law Society of Upper Canada, accessed March 17, 2017,

[2] “Alternative Business Structures,” Law Society of Upper Canada, accessed March 17, 2017,

[3] Law Society of Upper Canada Professional Regulations Committee, “First Report to Convocation,” February 27, 2014, 1443,

[4] Ibid., 1443-1445.

[5] Alternative Business Structures Working Group, “Alternative Business Structures and the Legal Profession in Ontario: A Discussion Paper,” September, 2014, 4,

[6] Ibid., 17, 20-21.

[7] Ibid., 22-26.

[8] Ibid., 4.

[9] The submissions can be consulted at this link (accessed March 17, 2017): The 21 submissions that can be characterized as more or less clearly in opposition are those of: The Advocates’ Society, Barrie Real Estate Lawyers Association, Blair Botsford, Brendt, Lorne and group, Ken Chasse, The County District Lawyers Presidents’ Association, County of Carleton Law Association, Janis Criger, Criminal Lawyers Association, Essex Law Association, Nicholas Gehl, Gordon Harris, McLeish Orlando, Ontario Bar Association, Ontario Trial Lawyers Association, Southwest Region Women’s Law Association, Stewart Title, Murray Teitel, Thunder Bay Law Association, Waterloo Region Law Association and Women’s Paralegal Association of Ontario.

[10] The 10 submissions that can be characterized as more or less clearly in support are those of: Julie Audet, Julie Audet and Nathalie Picard, Centre for International Governance Innovation, Cognition LLP, Conduit Law, Joseph Granton, Mitch Kowalski, Devon LaBuik, Liam Ledgerwood, and Baruch Lipinski.

[11] The 10 submissions that can be characterized either as expressing no position or their position was not clear are those of: Lee Akazaki, James Ball, Canadian Defense Lawyers, Equity Advisory Working Group on ABS, Federation of Asian Canadian Lawyers, John Hollander, Law Students’ Society of Ontario, LawPRO, Ontario College of Social Workers and Social Service Workers, and David Wiseman.

[12] Mitch Kowalski, “Anti-ABS Arguments Continue to Be Based on Emotion — Not Fact,” Slaw, December 30, 2014,

[13] Bradley Wright, December 30, 2014 (6:28 pm), comment on Mitch Kowalski, “Anti-ABS Arguments Continue to Be Based on Emotion — Not Fact,” Slaw, December 30, 2014,

[14] Bradley Wright, January 2, 2015 (1:43 pm), comment on Mitch Kowalski, “Anti-ABS Arguments Continue to Be Based on Emotion — Not Fact,” Slaw, December 30, 2014,

[15] Bradley Wright, January 7, 2015 (10:31 am), comment on Mitch Kowalski, “Anti-ABS Arguments Continue to Be Based on Emotion — Not Fact,” Slaw, December 30, 2014,

[16] Bradley Wright, January 23, 2015 (5:38 pm), comment on Mitch Kowalski, “Anti-ABS Arguments Continue to Be Based on Emotion — Not Fact,” Slaw, December 30, 2014,

[17] Law Society of Upper Canada Professional Regulation Committee, “Report to Convocation,” September 24, 2015, 111,

[18] Ibid., 116-117.

[19] Ibid., 111-112, 130.

[20] “2015 LSUC Bencher Election Voting Guide For OTLA Members,” Ontario Trial Lawyers Association, accessed March 17, 2017,

[21] Ibid.

[22] Cristin Schmitz, “ABS Issue Dominating Bencher Vote,” The Lawyers Weekly, April 17, 2015,

[23] EM, May 5, 2015 (11:33 am), comment on Alice Woolley, “Bencher Elections – The Challenge to Self-Regulations Legitimacy,” Slaw, April 30, 2015,

[24] Malcolm Mercer, May 18, 2015 (10:15 am), comment on Woolley, “Bencher Elections.”

[25] Woolley, “Bencher Elections.”

[26] Ibid.

[27] Law Society of Upper Canada, “Report to Convocation: Treasurer’s Report,” June 25, 2015, 8-13,

[28] Law Society of Upper Canada Compliance-Based Entity Regulation Task Force, “Report to Convocation,” December 4, 2015,

[29] Compliance-Based Entity Regulation Task Force, “Call for Input Consultation Paper: ‘Promoting Better Legal Practices,’” January 2016, 4,

[30] Ibid., 6.

[31] Ibid., 7 and Notes 10 and 12-14, Ibid. 21-22.

[32] Ibid., 8-10, 17-18.

[33] Ibid., 13-20.

[34] Ross Earnshaw, “Promoting Better Practices – a Proactive Approach to Lawyer and Paralegal Regulation,” Slaw, February 1, 2016,

[35] Ibid. A comparable blog post on Slaw by Herman Van Ommen, Chair of British Columbia’s Law Firm Regulation Task Force, also did not generate any comments in response. Herman Van Ommen, “Law Firm Regulation,” Slaw, February 16, 2016,

[36] Compliance-Based Entity Regulation Task Force, “Report to Convocation,” May 26, 2016, 50,

[37] Ibid., 52-56.

[38] Ibid., 3.

[39] Ibid., 3,6.

[40] Ibid., 24.

[41] See, for example, Amy Salyzyn, “Law Society of Upper Canada to Move Forward with Proactive Entity Regulation,” Canadian Association for Legal Ethics, May 28, 2016,

[42] Drew Hasselback, “Why the Law Society of Upper Canada’s Move Toward ‘Entity Regulation’ Matters,” Financial Post, May 31, 2016,


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