This is the first part of a two-part series on Ryerson University’s application to found a new law school in Canada. Part I provides an argument for why Ryerson should not be granted approval for a law school based on the current market. Part II highlights some of the ways in which Ryerson’s application contributes innovative ideas that could potentially revolutionize the way in which legal education is taught. It also highlights how Ryerson’s application exposes some of the gaps in current models of legal education.

Last week, Ryerson University in Toronto, Ontario officially submitted their letter of intent to pursue a law school. This submission is the first step in the process to obtain a new Juris Doctor (JD) program in Ontario. While I have some comments on the proposal itself, this opinion piece will focus primarily on why I think it would be unwise to add another law school based on the current legal market. In addition, I argue that the introduction of a new law school runs counter to the purpose of the Law Practice Program, which serves as an alternative for students who are unable to secure articling positions.

i) Why Canada (especially Ontario) Does Not Need Another Law School

I, like many other students, understand that the current legal market is saturated with students. While Toronto is Canada’s largest legal market, jobs in Toronto for law students are scarce and there is heavy competition. One only needs to ask recruiters or second-year students going through On-Campus Interviews to learn that the number of law students is rapidly increasing while the number of summer student and articling positions are stagnating. The issue doesn’t get better as one leaves the city. I spent my first summer at a law firm an hour north of Toronto which, despite having only nine lawyers, receives hundreds of applications for a single position. It took me over two months and almost a hundred résumés to secure a 1L summer position.

While the articling position shortage is significant, Ryerson devotes less than one page of their entire letter of intent to its analysis, then insufficiently dismisses the crisis by arguing that their program would provide a different form of innovative legal education. Interestingly, Ryerson cites one of their recent studies, which found that in 2011, 91% of the province’s law firms did not provide articling positions and 10% of law school graduates could not find articling positions. Nowhere in the letter does Ryerson address the point that the creation of a new law school might further saturate the already overloaded market.

Instead of engaging in a substantive discussion about the articling student crisis, Ryerson uses charts and statistics to show that there is great student demand to go to law school. I do not disagree that Ryerson will be able to attract students. I also acknowledge that there is a large amount of students that go overseas for legal education because they cannot get into Canadian law schools. Just because students have the option of studying elsewhere does not change the fact that law degrees should be a highly limited commodity. Many students choose to go overseas because such schools do not require LSAT scores; as such, Ryerson would not be fully tapping into the core market of students going abroad. The concern about too many international students entering Ontario’s legal market should be addressed by the Bar examinations or the Law Society, and should not be used as a justification for a new law school.

Ryerson also relies on the lack of studies on legal labour market demand (excluding their own previously quoted study from this portion of their analysis). Despite several studies and commentaries published on the current saturation in the legal market, Ryerson chose to highlight a study from the Council of Ontario Universities, which found that law graduates from 2010 had an employment rate two years after graduation of 93.9%. The letter failed to mention if this employment rate was within the students’ field of study.

It is also noteworthy that, since 2010, Lakehead University in Ontario and Thompson Rivers University in British Columbia have opened up new law schools. These schools have both been struggling to establish a name for themselves amongst students and recruiters. Students have certainly applied there, but very rarely do these schools rank as a student’s top choice.

Furthermore, there is a general perception among law students that even once they are hired as an Associate in a law firm, the chance of one day becoming an equity partner is not what it once was. Uncertainty in the legal market and the ever-increasing costs of tuition are just two of several reasons why the amount of law students should be curbed. Ryerson’s assertion that the retirement of Baby Boomers will create a large gap in the market has yet to be seen.

Moreover, in 2008 the Ontario government announced that it would not contemplate funding new law schools. While one of these schools (Lakehead) was eventually funded, I am doubtful that the current government would be more inclined to fund a new law school with the government’s current budget constraints.

ii) Ryerson’s Law Practice Program

Ryerson is candid that the shortage of articling positions led to the creation of its Law Practice Program (“LPP”) in 2014, which serves as an alternative to the articles of clerkship required for admission to the bar. Even still, the Ryerson letter looks at this project as a “success” that shows that the university should expand their foothold in the legal market. What Ryerson fails to mention in its letter is that this program remains highly stigmatized by law school graduates and those in the legal profession. Surveys of students in the LPP show that students only took the program because they had to. In addition, one third of the students enrolled in the LPP were unpaid for their 4 months of placement. With ever-increasing debt loads, this program introduces a very significant opportunity cost. While the Law Society has considered removing the LPP due to its intense stigma and opportunity cost, it has recently extended the LPP to try to aid students struggling to find articling positions.

The creation of a new law school directly opposes the LPP’s objective, and would only push more students who are unable to secure articling positions into the program. What Ryerson fails to mention is that the LPP is funded through an additional $1900 licensing fee from the more than 2000 people entering the legal profession each year. Increasing this cost due to the inability of even more students to secure articling placements will only breed resentment towards this program and new law schools in the legal field.

iii) Conclusion

The entire Ryerson proposal reflects what would be in the school administration’s best interest, rather than what is best for both future and current Canadian law students. While the letter of intent is just the first step, the proposal still needs to go through the Federation of Law Societies of Canada, the Law Society of Upper Canada, and the Ontario government.

The overly saturated legal market is not ready for another Ontario-based law school. In fact, the university’s proposal  goes against the very purpose of its LPP, which serves as an alternative to students unable to find articling positions. While Ryerson’s letter of intent brings to light a number of innovative ideas for the future of legal education (to be discussed at length in Part II),  the university cannot simply ignore the realities of the market it is trying to enter. I feel that a new law school would push more students into Ryerson’s LPP as they are unable to secure articling placements. Perhaps it would be a better idea for Ryerson to collaborate with the already-established law schools on how they can better improve their curricula.

The post Ryerson Applies for a Law School—Does Canada Really Need More Law Graduates? appeared first on TheCourt.ca.

This is the second part of a two-part series on Ryerson University’s application to found a new law school in Canada. Part 1 provides an argument for why Ryerson should not be granted approval for a law school based on the current market. Part 2 highlights some of the ways in which Ryerson’s application contributes innovative ideas that could potentially revolutionize the way in which legal education is taught. It also highlights how Ryerson’s application exposes some of the gaps in current models of legal education.

Last month I addressed why I thought it would be unwise to grant Ryerson University’s proposal to gain a JD program and a new law school. While I disagree that Canada, especially Ontario, needs another law school, the Ryerson letter of intent exposes some critical gaps in current legal education as well as presents some innovative ideas that traditional law schools should consider adopting. For this article, I draw from several personal experiences based on my legal education at Osgoode Hall Law School and the University of Ottawa. I understand that this is a controversial topic, so I welcome others to share their alternative viewpoints in the comments below.

Ultimately, Ryerson argues that it should have a new law school, disregarding the current legal job market, because there is a societal need for new forms of legal training. What the proposal fails to consider is the ability of traditional law schools to innovate and that some of Ryerson’s “innovative ideas”have already been incorporated. With that being said, there are some great ideas worth emphasizing, such as more attention to real life simulations, a broad introduction into legal entrepreneurship, more technology and legal data skills, as well as methods of assessment other than 100% exams.

Ryerson’s Proposals:

Legal Professional Interaction

Throughout the proposal, Ryerson highlights how important it is for students to interact with legal practitioners at the early stages of their education. While I think this idea is a valuable networking opportunity and a chance to teach students the real-life implications of the materials they are studying, I believe an academic researcher who is the leader in his or her field should be just as sought after as someone with “real world”experience. What matters to me as a student is that the professor can teach and has a genuine passion to benefit his or her students.

My own experience being taught by practicing lawyers (within a “traditional”law school) has been mixed. Some “professional”teachers offered great war-stories and highlighted what material a student would actually need to know in real-world practice. However, others have been too preoccupied by their professional responsibilities to put forward a coherent lesson plan and have made a habit of going off onto tangents about unrelated cases. Similarly, I have had good and bad teachers from “academia”— though I always love hearing about novel research being done in my field of interest.

I would note that for the most part I believe that law schools, especially the more established ones, have developed solid faculty recruitment plans and have put in place systems for consistent teacher evaluations.

i) Co-Teaching between Faculty and Practitioners

To expand perspectives, Ryerson suggests co-teaching between faculty and practitioners. Their plan would essentially give students two professors in each class. While I have been in a great class with two professors, I have more frequently found that pairs of teachers tend to “double teach”materials, as communication between the professors about what was covered can never be perfect. Moreover, the decreased in-class interaction a student has with each teacher, by splitting their interaction between two instructors, may impact the teacher/professor bonds that are critical for navigating first year.

ii) Formal Mentorship

To compensate for decreased interaction, the professors at Ryerson would have a “formal mentorship role.”The proposal even muses about creating mandatory meetings for all students with their mentors. I think it is helpful to have someone guide you through the legal field. While this support would certainly help students, I question whether it is essential such as to make it mandatory and question the degree of paternalism it invites.

Group Work and Real-life Simulations

On a related note, the proposed curriculum stresses group work and real-world applications (for example, a simulated case file from start to finish, complete with role-playing). I believe this would be an invaluable learning experience. My only concern, and it is a minor one, is how a large proportion of group work would factor into an industry that requires competitive grading.

One of Ryerson’s interesting ideas is to require students to develop a business plan for a simulated firm, which includes looking at the operation and marketing of a law firm. This simulation would also investigate how to incorporate access to justice within the firm. This level of ingenuity presents an exciting learning opportunity. Some traditional law schools do offer a legal entrepreneurship class, however it is segregated from the core curriculum. The prospect of greater emphasis in the area legal entrepreneurship is an exciting step in the right direction.

Mandatory Intensive Placements

In the Ryerson law program, all students would be required to take an intensive practice element (e.g. law clinic experience, pro bono placement, internship). While I agree with Ryerson’s statement that the best legal education blends theory and practice and that these opportunities are great for students, I question whether adding more cheap and even free labour to the legal market will only further exacerbate the difficulty articling students are facing in not being able to find (even unpaid) employment.

I participated in an internship program at UOttawa where I agreed to work for free in exchange for a credit. While it was an incredible, door-opening experience that I strongly advocate for expanding to traditional schools, it does not change the fact that it took me over 2 months to find a placement. The university’s law clinic was full and extremely competitive to enter. Many charity organizations wanted someone with law experience or did not have enough law work for students. All the big law firms were subject to strict recruitment guidelines. The only alternative was to work an unpaid internship  at a small firm, where they are unlikely to have the resources to take on one student, nevermind an entire program.

Additional Mandatory Competencies

The detailed, proposed curriculum sets out new mandatory courses that are typically treated as electives in other schools: business of lawyering, tax, wills and estates (usually compressed into a property law class), evidence, international private law and Indigenous law. While I believe these courses are extremely useful to students, when made mandatory they take away from student electives and a chance to further specialize in an area of law.

Shift Away from Traditional 12 Week Lecture Programs

Ryerson says its model would shift away from traditional 12 week law courses. I note that UOttawa has experimented with this model, creating a January semester where students only take a single intensive course for the month. At UOttawa, I noticed the content in the February to April course was a little rushed and the students were deprived of the opportunity to delve deeper into concepts and theory. I did, however, find January gave me a much-needed break. In law school, mental health is a big issue and the ability to have a month focusing solely on a single topic⎯with breaks in-between the semesters⎯really helped me refocus and perform at a higher level in second semester.

i) Intensive Bootcamps

The letter advocates for all semesters, with the exception of the professional placement seminar, to begin with a compulsory one-week “bootcamp.” The topic of the first semester would be things such as career planning and networking. In the second semester, the topic would be legal technology such as data analytics, artificial intelligence (AI) and quantitative legal prediction (QLP). The third semester would focus on accounting and financial analysis, and finally, The fourth semester would be devoted to emotional/cultural quotients.

I strongly agree that all the above-listed topics should be taught in law school and that traditional law schools have not sufficiently integrated these skills into their general programs. Having come from a statistics background, I am highly interested in taking a course in artificial intelligence and the law. However, drawing from that same background, I question whether these complex topics can be taught in a single week.

ii) A Four Semester Model?

It was not made clear in the proposal, but I believe that Ryerson is advocating for four short semesters within a single school year. I am unsure how the core, fundamental basics of some legal fields could be taught in these compressed time frames.

iii) Less Elective Courses

The letter states that due to Ryerson’s proposed additions to mandatory competencies, only one semester out of the five (confusing me about the number of semesters within a year) would be an elective course. Later in the proposal, it indicates that it wouldn’t be until third year until students would be exposed to four elective courses.

Multiple Assessments

Ryerson believes that students should be assessed on their competencies in different ways than by 100% exam. I wholeheartedly agree with this statement.

More Technology in Law Schools

While technology is rapidly expanding in traditional law schools, I find there are few standalone courses dedicated to learning complex legal technologies in law school. Sure, I was shown how to use Quicklaw, CanLII and Westlaw, but I was never shown anything beyond that. The letter also stresses learning cloud based management tools, real estate title search software and new technology for virtual file simulations. I learned contract law from renowned robotics law expert Ian Kerr, and while he unconventionally incorporated the topic of artificial intelligence programs into reading contracts, there was never an opportunity to get hands-on experience with that technology.

Access to Justice and Enhancing Diverse Individual Access to Legal Education

The Ryerson proposal states that the school would have a strong commitment to access to justice and would accept many racial, ethno-cultural and linguistic minorities to their school. Having studied at both Osgoode and UOttawa, I would just like to comment that, while there is certainly ground to be made in this area, this is something that many traditional schools are incorporating.

Final Thoughts

Ryerson has shown there are gaps in the legal market and it has an innovative method of teaching planned. I believe traditional law schools have a lot to learn from Ryerson’s proposal.

The post Ryerson’s Law School Proposal: Gaps in Legal Education appeared first on TheCourt.ca.

This guest post was contributed by Kathryn Chan. Kathryn Chan is an Assistant Professor of Law at the Faculty of Law, University of Victoria, where she teaches Constitutional Law, Administrative Law, and Non-profit Sector Law.

We have recently reached the end of the penultimate round of court cases involving Trinity Western University (“TWU”) and the various provincial law societies that have declined to accredit its proposed faculty of law. The well-known conflict revolves around TWU’s “Community Covenant,” which requires, among other things, that “members” of the TWU community refrain from same-sex sexual intimacy. The law societies of three common law provinces—British Columbia, Ontario, and Nova Scotia—declined in 2014 to accredit the law school for reasons related to the discriminatory nature of the Covenant. TWU sought judicial review of all three decisions, arguing, among other things, that they unreasonably infringed the religious freedom of TWU. The Ontario courts sided with their law society, while the Nova Scotia courts sided with TWU. This month, a five-member panel of the Court of Appeal for British Columbia also decided in favour of TWU, setting the stage for a showdown at the nation’s highest court.

The latest decision in the TWU saga contains a number of statements that are likely to be challenged on appeal. Objection will almost certainly be taken to the Court of Appeal’s assertion that regulatory approval of TWU would only ‘minimally’ impact the access of LGBTQI persons to law school, (para 191) and to the veiled suggestion that the Law Society of British Columbia may have lacked the expertise or the independence to properly weigh the Charter rights at issue (para 82). There will be argument on the procedures the Benchers adopted, and the standard of review applicable to their decision.

These are all important issues. However, I believe that as the dispute over TWU’s proposed law school makes its way towards the Supreme Court of Canada, we need to also refocus our attention on the question at its heart: what is the scope of the institutional autonomy to which TWU is entitled under section 2(a) of the Canadian Charter of Rights and Freedoms? This is a difficult question, and we can only do it justice by engaging more seriously with the legal nature of TWU. For like the law societies, TWU has objects, duties, powers, and decision-making procedures that are relevant to its position on the Community Covenant. It is not solely (or perhaps even) a “private institution”: it is a university, a not-for-profit society continued by private Act of the legislature, a charitable corporation with a written governance code, and a registered charity under the federal Income Tax Act, RSC 1985 c 1 (5th Supp) [Income Tax Act]. All of these legal statuses contribute to TWU’s legal personality, endowing it with rights and duties and providing context for its religious freedom claim.

Grappling with TWU’s corporate personality is particularly important because of the degree of doctrinal uncertainty around TWU’s primary Charter argument. It is not presently clear whether corporations even enjoy religious freedom protections in Canada, though recent case law suggests that the Supreme Court of Canada is leaning that way. In the 2015 Loyola High School v Quebec (Attorney General) decision, three members of the Supreme Court declared themselves willing to recognize the religious freedom of a “non-profit religious corporation” constituted for the purpose of offering a Jesuit education to Catholic children in Quebec. These minority judges also proposed a general test for an institutional religious freedom claim, stating that an organization should meet the requirements for section 2(a) protection if “(1) it is constituted primarily for religious purposes, and (2) its operation accords with these religious purposes” (para 100). However, the majority of the Court declined to decide whether corporations “enjoy religious freedom in their own right under the Charter”, since the Minister was in any event bound to exercise her discretion in a way that respected the religious freedom of the members of the Loyola community who wished to offer or receive a Catholic education. Although we have a proposed test for institutional religious freedom, therefore, there is not yet a clear consensus on the central and logically prior question of whether institutions can independently claim the protection of section 2(a).

Because the status of corporate religious freedom claims remains uncertain in Canada, we haven’t yet grappled with the difficult questions that such claims raise. For example:

• What does it mean for a corporation to enjoy religious freedom? Do corporations have rights and freedoms distinct from those of the natural persons who compose them, or do they simply represent the common individual interests of their members?

• To what class of corporations, and what class of corporate acts, does religious freedom extend? What criteria should be applied to determine the boundaries of institutional religious freedom?

• How should the rights of corporations be measured against the rights of individuals in cases where the two collide?

TWU v the Law Societies has provided us with a valuable opportunity to start thinking through these difficult issues in the context of a concrete dispute. If we are to do so, however, we need to look more closely at TWU’s corporate personality and the obligations and privileges it enjoys. There are at least three features of this personality that, in my view, are relevant to TWU’s religious freedom claim: its sole corporate object, its small and closed membership, and its obligation to act “for the public benefit.” I discuss each of these features of TWU more thoroughly in my paper “Corporate and Trust Law Dimensions of the Trinity Western University Law School Debate.”

(1) TWU has a sole corporate object

Pursuant to section 3(2) of the Trinity Western University Act, TWU has a sole corporate object:

to “provide for people of any race, colour, or creed, university education in the arts and sciences with an underlying philosophy and viewpoint that is Christian.”

Section 3(2) has not figured prominently in the TWU proceedings so far. Several of the judgments do not mention the provision at all, appearing instead to take TWU’s descriptions of itself as a “private religious educational community” and “an educational arm of the Evangelical Christian Church” at face value. The courts’ tendency to ignore TWU’s corporate object and jump immediately to the merits of its religious freedom claim stands in striking contrast to those courts’ careful parsing of the enabling statutes of the provincial law societies. From the perspective of a non-profit or trust lawyer, the juxtaposition is jarring. For just as the objects clauses in the various Legal Profession Acts set the boundaries of lawful action for the various law societies, so section 3(2) sets the boundaries of lawful action for TWU. The governors of TWU can use their powers only to further this object, and any act directing those powers towards another end will be void.

If we accept that section 3(2) provides the baseline against which all of TWU’s actions and statements must be measured, we should also consider its relationship to TWU’s religious freedom claim. I begin this task in my longer piece, offering three related reflections. First, in light of TWU’s corporate object, it may be appropriate to characterize the governors’ legal defence of the Community Covenant as a fiduciary obligation, and to consider the implications of that obligation. Second, in light of TWU’s corporate object, it is not certain that TWU would meet the Loyola minority’s threshold test for an institutional religious freedom claim. Third, in light of TWU’s corporate object, we may need to revisit the Supreme Court of Canada’s earlier suggestion that TWU fits within the “group rights” exemption of the BC Human Rights Code. For it is not immediately obvious how an institution whose sole corporate purpose is to provide university education “for people of any race, colour, or creed” could have as a primary purpose the promotion of the educational needs of Evangelical Christians, nor how it could refuse to educate LGBTQI individuals who embrace their sexuality in the light of their faith.

(2) TWU has a very small membership

The second aspect of TWU’s corporate personality that merits reflection in the context of the ongoing dispute over the proposed TWU law school is that TWU has very few “members” in the legal sense of the term. In a non-profit corporation, members play a role analogous to the shareholders of a for-profit corporation: they have important legal rights and generally control the composition of the Board. However, TWU’s bylaws stipulate that the only members of TWU are the members of its Board of Governors, and faculty and administrative staff are specifically excluded from this Board. TWU’s closely-held governance structure is relevant to the dispute over the Community Covenant, in part because recent case law from Europe and the United States suggests that religious corporations possess religious freedom not in their own right but on behalf of those who comprise and control them. I argue in my longer piece that TWU’s closely held membership likely strengthens its religious freedom claim. However, given TWU’s corporate structure, and the evidence of its intention to exclude its academic members from any direct role in its governance, we need to be cautious in assessing which “members” of the TWU community the institution can be understood to represent.

(3) TWU must act for the public benefit

The third aspect of TWU’s corporate personality that merits reflection is that TWU must operate “for the public benefit.” This is a criterion that flows (as a corporate law matter) from TWU’s status as a charitable corporation and (as a tax law matter) from its status as a registered charity under the Income Tax Act. The public benefit criterion is relevant to the dispute over the Community Covenant because recent case law from England and Wales suggests that the public benefit criterion limits the autonomy of charities to target their charitable projects at persons sharing a protected characteristic, such as sexual orientation or creed. An institution that engages in unlawful discrimination contrary to that jurisdiction’s Equality Act cannot be a charity. In my longer analysis I suggest that we need to think hard about whether we want to follow England and Wales’ move to align the criteria for charitable status with human rights law. Such alignment could have profound consequences for Canadian charities, particularly because our provincial human rights standards are so variable. I also challenge the near-universal practice of describing TWU as a “private” entity, arguing that TWU’s charitable status endows the institution with significant public dimensions that should affect the treatment of its religious freedom claim.

As we approach the final round of the TWU litigation, it is tempting to want to simplify the dispute, rather than complicating it by engaging with TWU’s corporate structure and charitable status. If we want to engage seriously with the institutional dimensions of TWU’s religious freedom claim, however, we must be attentive to the legal personality of the institution that has brought it, and the rights and obligations it enjoys.

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