KLIPPENSTEIN
AS A LAW SOCIETY BENCHER

“Law Society agrees to disclosure of internal EDI documents in lawsuit brought by Bencher Murray Klippenstein; documents confirm serious problems behind EDI policies”

(February 8, 2024) The Law Society of Ontario has agreed to provide to Law Society bencher and director Murray Klippenstein a large collection of previously undisclosed internal information and documentation regarding its array of Equity, Diversity and Inclusion (EDI) policies and programmes.

The documents have been requested by Bencher Klippenstein for years and had become the subject of an unprecedented lawsuit against the Law Society filed by Klippenstein in 2022.

Bencher Klippenstein had requested in his lawsuit that the Court order that the Law Society provide to him copies of an extensive list of EDI-related documents, set out in a detailed Schedule to his Statement of Claim, which was issued June 17, 2022 [Statement of Claim available here]. Klippenstein subsequently commenced a motion for summary judgment and filed extensive detailed affidavit evidence in support of the motion [Klippenstein affidavit available • here and here].

Klippenstein argued that as an elected bencher of the Law Society and a director of the Law Society corporation he had the right to such information because he believed that it was necessary for him to perform his governance and oversight duties on behalf of the organization and the legal professions, and that the Law Society had been wrongfully denying his requests for that information for years.

In December of 2023, after more than two years of resisting the disclosure requests, the Law Society through its counsel Paul Le Vay of Stockwoods agreed to provide all the requested information, and hundreds of pages of requested documentation were recently delivered to Klippenstein through Klippenstein’s legal counsel William Kenny, K.C. and Julian Savaryn of Edmonton, Alberta.

Klippenstein had retained Alberta counsel because he had been unable to find senior Ontario counsel willing to file a claim against the Law Society of Ontario.

The Law Society also agreed to pay Bencher Klippenstein’s legal costs of the lawsuit.

Bencher Klippenstein first began making internal inquiries for information after being elected as Toronto Regional Bencher in 2019, based on his concerns about the integrity and validity of studies and surveys used to justify a very extensive package of EDI policies adopted by the Law Society in 2016, policies still in force and being implemented to this day.

In January of 2020 Klippenstein distributed internally, and made public, a major Critical Review of the Law Society’s EDI policies, arguing that the statistical studies used to support the policies were clearly invalid and did not in fact justify the far-reaching policies. Klippenstein argued that: “the Challenges Report, which is the foundation and justification for all of the subsequent reports, consultations, and policy plans, is methodologically invalid, seriously misleading, and driven by a particular political ideology, and was and is an unacceptable basis for serious policy-making by the Law Society, in particular the policy initiatives which are currently being implemented.”

Klippenstein also stated in his review that various survey data numbers relied on for the conclusions in the Challenges Report but not disclosed in the Report should be released.

Klippenstein says that his concerns and numerous and repeated verbal and written requests for information, including his requests for disclosure of the statistical databases of several studies, were given the cold shoulder by senior LSO staff and by the bencher majority for years. Bencher Klippenstein asserted that he had a right to the information as a bencher and director, on the grounds of statutory and common law, and based on principles of good governance, and that the information was needed for him to fulfil his due diligence and oversight role. The Law Society took the position that a bencher/director had no such right to information, and that such information requests should be and would be determined by majority vote of benchers in Convocation in each case.

Klippenstein replied that such a majority vote policy meant that any bencher could be denied or blocked in pursuing or investigating legitimate oversight concerns for the good of the organization pursuant to his or her individual fiduciary duties. Klippenstein also based his views on a century of court precedents throughout the common law world, which have emphasized a director’s individual right to internal corporate information.

The Law Society’s Statement of Defence [available here] denied that Klippenstein had a right to the information, and even denied that Klippenstein was a director of the Law Society corporation (thus contradicting the Law Society’s own website which advises the public that benchers are directors).

The Law Society filed a 3,300 page responding affidavit by Law Society Treasurer Jacqueline Horvat in response to Klippenstein’s motion for summary judgment. Klippenstein says that he found almost nothing in the 3,300 pages that was actually even relevant to his positions or arguments.

A week before cross-examinations on the affidavits scheduled for early December, 2023 the Law Society changed its position, and after discussions, agreed to provide all the requested documents, and to pay Klippenstein’s legal costs (on a partial indemnity scale).

Legal costs of the Klippenstein lawsuit

Although the Law Society has agreed to pay Bencher Klippenstein’s legal costs on a “partial indemnity” basis, Klippenstein says that the Law Society’s offer to pay only “partial indemnity” costs is inadequate, and that the Law Society should pay for all his legal expenses, on a “full indemnity” scale.

Klippenstein says he will argue in court that the Law Society’s years-long refusal and delay in providing the information was “egregious” and “reprehensible”, thus meeting the stringent legal test for payment of full indemnity costs.

Bencher Klippenstein says he has had to pay well over $100,000 in legal costs out of his own pocket simply to allow him to do his bencher duties. “These legal costs paid by me should simply never have been necessary at all. The Law Society’s benchers and staff, of all people or organizations, should have been aware of the actual law on directors’ rights to internal information, and I should have received this information years ago. I don’t feel at all good that the funds which I am now asking the Law Society to reimburse me will come from the pockets of dues-paying members, but our membership should know that this non-disclosure by the Law Society should simply never have happened, and maybe our membership will see that a change to better information disclosure is in the interests of us all in the long run.”

Staff and benchers secretly worked to discredit Klippenstein’s requests

Klippenstein has begun the process of examining the many hundreds of pages of newly disclosed documents, and on now seeing the previously hidden information, Klippenstein says he perhaps understands why some Law Society senior staff and some senior benchers were so reluctant to disclose the information, and held it back for years, and why the Law Society membership needs to know what went on behind the scenes.

The disclosed documents include internal staff and bencher emails revealing that some senior Law Society staff and some benchers worked quietly to sideline Klippenstein’s January 2020 critique, instead of seriously considering the potential validity of Klippenstein’s points. One senior staffer emailed others referring to “the folly in taking Klippenstein’s paper credibly”. Another senior staffer wrote: “In responding, I do think we need to be careful not to give Klippenstein’s piece legs or any more oxygen …”. In a pattern that continued for years, Klippenstein’s concerns and critiques were dismissed out of hand, even though they have turned out to be valid, and no one ever even attempted to respond to any of his actual points.

New documents confirm serious statistical abuse in the foundational EDI studies from the start

According to Klippenstein, the newly released background information and survey database for the critically important Challenges Report (the Report which served as the basis for a large omnibus package of Law Society EDI policies adopted a number of years ago and still in effect) confirm what he has long suggested, which is that there was no basis for the important claim in the Law Society’s Challenges Report that it presented an accurate picture of concerns about racism in the legal professions as a whole. Instead, the new documents show that the Challenges Report’s claim to accuracy was thoroughly spurious.

Says Klippenstein “The Challenges Report grossly distorted the survey numbers, and vastly exaggerated the concerns as they were actually expressed by the “racialized” legal community about the challenges caused by their race. The Report then disguised what it did by not disclosing almost all of the key data numbers, and by making false assertions about sample representativeness.”

According to Klippenstein “What makes the case of the Challenges Report especially concerning is that the Report was widely distributed and heavily promoted by the Law Society throughout the legal professions in Ontario, including with county and district law associations, law faculties, and the judiciary, spreading what was overall a very misleading picture into all sectors and corners of the professions.”

Law Society paid large amounts for seriously misleading study

The newly released information also reveals, for the first time, that the Law Society paid the consultant firm $171,000, perhaps more, to conduct the survey and prepare the Challenges Report. Klippenstein says “It is really concerning to me that we paid $171,000 of our members’ dues-money to obtain an incompetent and seriously fact-falsifying pseudo-study. We the Law Society of Ontario paid a consultant $171,000 and got a report that took as its foundation a survey methodology assumption that any Statistics 101 student knows can’t be taken seriously, and we bought it, hook, line and sinker. How could such a thing happen at the governing body of supposedly evidence-conscious lawyers, of all people?”

Possible political interference with study consultant

Klippenstein noted that “The consultant firm made clear that in preparing and delivering the Challenges Report, ‘we received clear direction from the LSUC and Working Group throughout the research process’. I see some signs that this mess of a report was the result of close political hands-on interference and direction in the study process by some benchers and staff with a predetermined EDI agenda.”

The Inclusion Index fiasco

The newly released documents also shed new light on the Law Society’s “Inclusion Index” project, a part of the EDI policy package that was promoted with great fanfare years ago by the Law Society, but was quietly shelved in 2022 when it became clear that the statistical work in the draft Inclusion Index report was defective and worthless. The new documents reveal that the consulting firm which worked on the Inclusion Index for the Law Society, and presented a draft Index to the Law Society, was paid more than $270,000 for the work which was eventually junked.

The Inclusion Index was a plan to use some collected data numbers to assign an “Inclusion Index” number to each of hundreds of Ontario law firms, which number purported to be an indicator of how “inclusive” that firm was. The Law Society would then publish a list publicly ranking all those hundreds of firms numerically from best to worst based on their inclusion number – essentially a political “shaming” exercise.

Bencher Klippenstein had written to Law Society staff and benchers as early as September of 2020 pointing out in detail that the Inclusion Index project was entirely based on a statistical sampling strategy which used samples that were too small to produce valid or reliable results, and that the publication of the resulting data and law firm rankings by the Law Society would seriously harm the reputation of scores of Ontario law firms based on invalid data. Bencher Klippenstein also emphasized that this fatal defect should have been obvious from the start, since it was the subject of a specific warning in an earlier expert report which the Law Society’s committee cited in recommending the project, a clear warning which they apparently ignored.

As with other concerns expressed by Klippenstein, his points, later accepted as valid, were ignored for years by staff and the bencher majority.

When Law Society staff and a bencher working group eventually realized that the project was untenable, it was quietly cancelled, and the Law Society issued a press release blaming the cancellation on covid delays.

Bencher Klippenstein said “We spent a quarter of a million of our members’ dollars launching an ideologically motivated EDI ship which in fact had a gigantic and obvious hole in its bottom from the start, and when the ship inevitably sank, the Law Society blithely told the public that it was due to covid.”

The Peer Review Panel

Several years after Bencher Klippenstein began raising his concerns, the Law Society CEO announced to an LSO committee that she had approved an internal and confidential “Peer Review Panel” to review the Law Society’s “Working Together for Change” report, which had been based on the Challenges Report (which Klippenstein had strongly critiqued). That Working Together report had recommended a large omnibus package of EDI policies which the Law Society eventually adopted and is still currently implementing.

Bencher Klippenstein expressed concern at the time that the Peer Review Panel was a cover-up exercise, to repair or paper over serious errors in the past studies. The new recently released documents show that the Peer Review Panel was indeed a cover-up. The purported experts who were supposed to be checking the quality of the Challenges Report were, incredibly, not provided with the consultant’s database for the key survey in the Challenges Report, thus depriving the Reviewers of precisely the information they were supposedly commissioned to review.

In the end, the Reviewers’ reports in fact echoed and validated the various concerns previously expressed by Bencher Klippenstein, but Law Society staff delayed release of the Reviewers’ reports and withheld them from Bencher Klippenstein and other benchers and the professions at large until the issue had been successfully sidelined by the public release of misleading information.

Conclusion

Bencher Klippenstein stated that “Overall, it looks like the EDI partisans at the Law Society hid the survey data numbers from the key foundational EDI Report because the data numbers did not show what they had expected or hoped for, in fact they showed the opposite. The actual numbers, which were not revealed, showed a low rate of interest in issues of race in the profession. That is not what the EDI proponents wanted to hear, so they hid the actual data numbers, and then completely distorted and misrepresented the statistics when presenting them, to achieve the policies they wanted.”

Says Klippenstein: “The deliberate failure to originally disclose the actual data numbers at the times of the Challenges Report, and the constant refusal thereafter of benchers and staff at the Law Society to disclose the actual data over years of requests and demands, seriously undermines the credibility and integrity of the Law Society as a whole and of its EDI policies and programmes in particular. It is increasingly clear that the whole EDI edifice as it has been constructed at the Law Society and in the legal professions is a scam and a con job. No wonder the actual data numbers have been kept hidden for so long.”