Thursday, June 25, 2015

Raj Anand '78Raj Anand is a partner, arbitrator and mediator with WeirFoulds LLP. His practice includes administrative, human rights, constitutional and employment law, civil litigation, professional negligence and regulation. Raj graduated from the University of Toronto Faculty of Law with the Dean’s Key in 1978.

He has served as president of the U of T Law Alumni Association, the Minority Advocacy and Rights Council, the International Commission of Jurists Canada, and Pro Bono Law Ontario; Co-Chair of the U of T Tribunal; and board member of the Advocates’ Society, Legal Aid Ontario, the Law Commission of Ontario, the Centre for Addiction and Mental Health, Justice for Children and Youth, and the Income Security Advocacy Centre. 

Raj was Chief Commissioner of the Human Rights Commission in 1988-89, Board of Inquiry from 1989-94, and founding Chair of the Human Rights Legal Support Centre in 2008-10. In his third term as an elected Bencher of the Law Society, he is currently the Vice-Chair of the Law Society Tribunal’s Hearing Division. He was a member of task forces or working groups on admission requirements, articling, good character, Law Society governance and Tribunal reform. He was Vice Chair of the Equity and Aboriginal Issues Committee for five years, and is currently Co-Chair of the Working Group on Challenges faced by Racialized Lawyers and Paralegals in Ontario and Chair of the Three Year Review of the Tribunal reforms.

James Elcombe,  2L, summer research assistant at the Asper Centre, conducted this Q & A with Raj Anand:

 

JE: Why did you decide to become the next Constitutional Litigator in Residence at the Asper Centre?

RA: There are a number of things that drew me to the position. First, I look forward to working with Cheryl Milne again. Second, University of Toronto is my Alma Mater and I’ve always had a certain connection with the Faculty of Law. I was the president of the alumni for a time, as well as an adjudicator at the University. More generally, I think the main benefit of teaching is what I learn from the students, and I think there’s a lot to learn in constitutional law so I’m looking forward to it. Finally, my firm WeirFoulds LLP has a strong relationship with the Faculty of Law, and is very active in public interest litigation. Many of my partners teach at law schools.

 

What made you decide to pursue constitutional law?

It was primarily the challenge of addressing equality rights. When I started practice there was no Charter, only division of powers. I took constitutional law under John Laskin in my third year at the Faculty of Law, and we discussed some unusual cases in which judges had effectively applied a bill-of-rights analysis to division of powers or civil cases. For instance, one case involved refusal to serve a black man at the bar attached to the Montreal Forum.

It was a real challenge to try to limit majoritarian power, and to balance the rights of the collectivity with the rights of those who are relatively powerless. That continues to be the case in democracies, because the democratic process is anything but perfect. I actually wrote about that in my class with John Laskin, and since then I’ve always been trying to make use of the law as a tool to redress power imbalances. That has been my goal in my union work, in my human rights work, in my constitutional work, and in my policy work.

Since the Charter came out, the challenge has changed, but it has still been a challenge. Overall, I think my main interest has been section 15, the Charter’s equality provision, and to a lesser extent the other legal rights protected by the Charter. I’ve only been involved in one division of powers case in 35 years, and it was also a human rights complaint.

 

Tell me a little bit about your human rights work.

I’ve done a lot of work in the area of creating enforceable human rights, a lot of policy work in addition to substantive legal work at the Human Rights Tribunal and the Commission. In many cases, we are dealing with Charter rights and human rights issues together, but the analysis is essentially aligned.

About 15 years ago I gave advice to Justice LaForest, who had just retired from the Supreme Court, when he headed a blue ribbon committee to look at the substance and procedure of the Canadian Human Rights Act. They consulted widely across Canada, meeting with federally regulated employers and unions, individuals, and advocacy groups. Their conclusion was that the system was broken, but they couldn’t agree on how to fix it. They asked me for a prescription and I drafted a direct access model, and attached a legal assistance arm to it to avoid privatizing the human rights process. The LaForest task force adopted it, but the Government didn’t acknowledge the report for several years and the present Federal Government has done nothing about it. Some years later, Michael Bryant took up the same kinds of principles when he was Attorney General of Ontario. I got quite involved with that, and I was asked to set up the Human Rights Legal Support Centre, which is essentially that access arm for Ontario.

 

You have also done a lot of administrative law, as well as arbitration and mediation. Is there something that connects these areas for you, and makes you want to pursue these seemingly disparate fields?

Increasing access to justice. They are different routes to the same goal. An administrative tribunal, if it's functioning effectively, can use scarce resources to provide access to substantive rights in a way that more formal court systems cannot.

I’ve recently written a checklist that a tribunal can use to determine whether it is providing effective access to justice. The prescription is about more than just money. To get a result that is in the best interest of the public takes the right combination of rules, information, independence and ethical and high quality adjudication as well.

The same thing is true in arbitration and mediation. I’ve been involved with labour law from the beginning. I did my first hearings when I was articling. The increasing reliance on alternative dispute resolution systems in adjudication today had its forerunner in the use of ADR in labour relations. Again, it's a matter of using scarce resources to get at a result in a cost-effective and principled way. Arbitration has become more formal than that overall, but arbitrators are still among the best mediators.

 

So that idea of access to justice is also the main value you see in section 15?

Yes, absolutely. And indeed access to section 15 is a real quandary, because it's such a complicated jurisprudence. It requires a lot of evidence in order to invoke section 15. You can’t rely on reasonable inferences.

Access to justice and equality have been the two major areas of my work, including as a Law Society bencher. As a bencher, I got to head a group to reform the tribunal process. We created a full time Law Society Tribunal Chair, hiring a non-bencher to create independence. And we hired the co-chair of the Human Rights Tribunal, because these are two very allied areas.

 

Is there something in the area of equality and access to justice that you would like to pursue in your upcoming bencher term?

I have been working on a project to research and analyze the obstacles faced by racialized lawyers and paralegals in the province. I think we have done a lot of cutting edge work in trying to establish a new foundation for understanding these issues in Canada. Now we’re getting to the hard part, which is asking what concrete measures the law society can take to improve the situation, and address those challenges. That is going to be a substantial part of my forthcoming term as a bencher.

The other part is still working with the Law Society Tribunal. We have a system which has just been put into place a couple of years ago, and it's being fine-tuned and tailored, and the jurisprudence refined, and there’s lots of exciting work to be done there. I teach in this area as well. I have taught a course called New Administrative Law, which is about how to improve administrative structures, and explores the advances taking place in administrative law.

 

What was the most memorable moment in your career?

It was when I received the first Advocates’ Society Award of Justice. That award recognizes two things: the highest quality of advocacy, and making an impact for those who are powerless in society. It was a very special moment for me, because those have been my two goals since I went to law school.

But more than that, it was because I was nominated by the lead plaintiff of the spouse-in-the-house case [Falkiner v Ontario], Sandy Falkiner, who was superwoman. She was a woman who had never been on social assistance in her life who was forced onto social assistance because she and her partner broke up. They had been sharing care responsibilities for a child with special needs, who needed to be constantly accompanied and cared for, and had managed it by taking complementary shifts, day and night. As a result of the breakup she couldn’t take either shift, so she was on social assistance. While she was in this position she got together with a boyfriend, and she was declared a spouse and lost her independent welfare benefits. Ten thousand women in Ontario lost their welfare benefits as individuals under the Mike Harris government in 1995. The clinic system had lots of clients in that position, so they asked me to work with them in bringing forward a constitutional challenge. It took 8 years in all, and it was a cooperative effort between the clinics who knew their clients and welfare law far better than I do, and my experience in constitutional work and court advocacy.

 

Any advice for students who want to pursue the kind of work that you do?

My advice would be in line with my two goals in this area. First is to be able to devote at least a portion of one’s practice to socially progressive work, whether it is pro-bono or legal aid or policy work, that assists those who are disadvantaged in society. The second is, at the same time, to attain the highest standards of advocacy in whatever field you’re in. I find that these are complementary, because the beneficiaries of your socially progressive work need your ability to draw analogies, and explain specialized areas of law to generalist judges. The quality of advocacy that you bring to the work you value is very important. It’s fine to devote oneself to valuable work, but it’s also important to do it very well. So my advice would be to try to pursue both of those goals, and pursue them simultaneously.