I. Discrimination and Harassment (Rules 6.3-1 – 6.3-4)
Discrimination
Rule 6.3 of the Code has been amended significantly to clarify the relevant obligations. Rule 6.3-1 reminds counsel of the obligation not to discriminate. The prohibition on discrimination became the first rule in this section of the Code because it is the broadest duty, and as indicated in relevant case law, encompasses the duty not to harass.
The Commentary to Rule 6.3-1 provides guidance on the obligation not to discriminate. The first paragraph addresses the special responsibility of lawyers to respect the requirements of human rights laws. The amended Commentary also refers to the requirement to respect workplace health and safety laws, reflecting the fact that these laws contain duties relevant to the obligations not to discriminate or harass and to create safe work places.
The second paragraph in the proposed Commentary reminds lawyers that discrimination and harassment undermine confidence in our profession and in our legal system. In addition, the Commentary affirms that a professional environment is one that is respectful, accessible, and inclusive. Finally, the Commentary reminds legal professionals to be mindful of the existence and impact of unconscious biases.
The third paragraph draws on the Truth and Reconciliation Commission’s Calls to Action, as well as the Federation’s commitments to reconciliation, by noting that legal professionals should be aware of the ongoing repercussions for Indigenous peoples of Canada’s colonial legacy and advising that they should take particular care to avoid engaging in, allowing, or being willfully blind to actions which constitute discrimination or any form of harassment against Indigenous peoples.
In keeping with recent case law, the fourth paragraph notes that discrimination includes adverse effect and systemic discrimination and can result from organizational policies, practices, and cultures.
The fifth paragraph provides a definition of discrimination.
The sixth paragraph notes that the principles of human rights and workplace health and safety laws and related case law apply to the interpretation of this Rule and to Rules 6.3-2 to 6.3-4.
The seventh paragraph provides a non-exhaustive list of behaviours which amount to discrimination. This list is intended to help legal professionals interpret their obligation of non-discrimination. Many of these examples are drawn from Supreme Court of Canada case law or human rights statutes. Other examples have been drawn from the reports of the International Bar Association and law societies.
The eighth paragraph advises that providing ameliorative programs, services or activities is not discrimination. This clarification is drawn from s. 15(2) of the Canadian Charter of Rights and Freedoms and human rights legislation.
The final paragraph of the Commentary reminds lawyers that the provisions of this Rule do not only apply to conduct related to, or performed in, the lawyer’s office or in legal practice. This is in keeping with Rule 2.1-1, and with jurisprudence affirming that rules of professional conduct can apply to conduct outside of practice.
Harassment
New Rule 6.3-2 expresses the prohibition on harassment (replacing former rule 6.3-4) with Commentary providing guidance about this obligation.
The first paragraph of the Commentary defines harassment for the purposes of the Model Code. It also expresses the well-established principle of human rights law that intent is not required to establish harassment.The second paragraph of the Commentary provides examples of behaviours that constitute harassment. Like the examples used in the Commentary to Rule 6.3-1, these examples are drawn from case law, statutes, and law society reports.
The third paragraph provides a definition and examples of bullying, which is a form of harassment.
The final paragraph of the Commentary reminds lawyers that the provisions of this Rule do not only apply to conduct related to, or performed in, the lawyer’s office or in legal practice. This is in keeping with Rule 2.1-1, and with jurisprudence affirming that rules of professional conduct can apply to conduct outside of practice.
Sexual Harassment
The prohibition on sexual harassment in Rule 6.3-3 was revised slightly to ensure its consistency with the changes to the language in Rules 6.3-1 and 6.3-2. New Commentary defines sexual harassment, acknowledges that it can be directed at someone based on their gender, gender identity or gender expression, and provides a non-exhaustive list of examples of behaviour that amounts to sexual harassment. As in the Commentary to Rule 6.3-2, the Commentary to 6.3-3 clarifies that sexual harassment may be found in the absence of intent on the part of an alleged harasser. The Commentary concludes with a provision identical to the Commentary to Rule 6.3-2 on the scope of the obligation.
Reprisals
The new Rule 6.3-4 prohibits reprisals against persons inquiring about their rights or the rights or others, complainants, witnesses, and those assisting in investigations or proceedings related to a complaint of discrimination, harassment or sexual harassment. The Commentary to the new rule contains a non-exhaustive list (drawn from legislation) of behaviours which amount to reprisal.
The former Rule 6.3-5 (the prohibition on discrimination) has been deleted.
II. Ex Parte Communications (Rule 5.1-2B and 5.1-2C)
Some concerns had been raised with the Standing Committee about legal professionals engaging in communications with courts and tribunals contrary to the general rule against discussing specific cases with judges in the absence of the other party except in exceptional cases. After reviewing the issues, the Standing Committee proposed the addition of rules and commentary to Chapter 5: Relationship to the Administration of Justice to note the exceptional nature of ex parte proceeding and to highlight the care lawyers should take when engaging in routine, single-party correspondence with a tribunal.
New Rule 5.2-1B addresses the duties of counsel in ex parte proceedings. It expresses the duty to act with utmost good faith and inform the tribunal of all material facts, including adverse facts, known to the lawyer that will enable the tribunal to make an informed decision.
The Commentary to the Rule reminds counsel of the exceptional nature of ex parte proceedings and the special obligations which arise as a result. The Commentary provides guidance about two obligations in particular: the duty of candour to the tribunal and the obligation to proceed ex parte only when it is justified.
The first paragraph of the Commentary reminds counsel of the special disclosure duties that arise in ex parte proceedings: the duty to make “full, fair and candid disclosure.” The second paragraph of the Commentary clarifies that this disclosure obligation is subject to the duty of confidentiality.
The third paragraph of the Commentary reminds counsel that they should only initiate ex parte proceedings where doing so is permitted by law and justified. The Commentary suggests that if a lawyer’s client would not suffer prejudice the lawyer should consider proceeding with notice even when an ex parte proceeding is permitted.
Rule 5.2-1C sets out the established ethical principle that communicating with a tribunal on a matter of substance in the absence of opposing counsel or parties is not permitted except (1) where authorized by law or the tribunal, (2) where the opposing counsel or party has been made aware of the content of the communications and has consented, or (3) where the opposing counsel or party has appropriate notice. The Commentary that follows the rule provides guidance on the types of single-party communications that are and are not permitted.
The first paragraph reminds legal professionals that it is improper to attempt to influence, discuss a matter with, or make submissions to, a tribunal without the knowledge of the other party or the lawyer for the other party (when they are represented). It also makes specific reference to diligence when engaging in single-party communications with a tribunal by electronic means.
The second paragraph highlights the principle that even where a tribunal requests or invites a communication from counsel, counsel should still consider whether to inform the opposing counsel or parties. The general rule remains that the opposing counsel or party should be given notice of a communication or should be copied on the communication.
The third paragraph of the Commentary notes that communications on routine administrative matters are permitted but, suggests that counsel should still consider providing notice.
The fourth paragraph of the Commentary notes that legal professionals should review relevant local authorities when considering whether a single-party communication with a tribunal is authorized by law.
