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A. Selecting the LCO’s Projects
This section describes the process of the selection and approval of research projects. The research and communication processes are described in the next section.
1. Sources of Projects
The Creative Symposium held in November 2006 produced a lengthy list of possible law reform projects in “administrative justice,” “civil justice,” commercial law, criminal law/provincial offences, family law, guardianship and trustee law, torts and insurance law and miscellaneous topics. There was no discussion of these topics, merely a listing; however, they do represent a useful “brainstorming” of potential law reform topics of which the Research Advisory Board was aware in considering the first potential LCO projects. The Board of Governors subsequently asked Professor Lorne Sossin of the Faculty of Law at the University of Toronto to prepare a “Research Priorities” document; Professor Sossin identified seven projects from 60 proposals for law reform from academics, community groups, government and legal organizations in a report released April 27, 2007. The Sossin Report assisted in the identification of the initial LCO projects and will continue to be helpful in the determination of future projects. Other project proposals were subsequently submitted to the LCO by individuals and groups.
In the future, the LCO will invite proposals for law reform projects, using its website and other communication vehicles to reach as many groups as possible with an interest in law reform. Members of the Board of Governors and the Research Advisory Board may also hear about possible projects. Although the LCO will issue “formal” calls for proposals, it encourages the submission of proposals at any time. Ideally, the LCO will have list of projects approved by the Board of Governors from which it can select based on availability of resources.
2. Selection of Projects
The Board of Governors approves the projects to be undertaken by the LCO, on the advice of the Research Advisory Board and the Executive Director.
The LCO’s projects will potentially encompass all areas of law within provincial jurisdiction, including those overlapping with federal jurisdiction. They will affect a wide range of communities, including those defined geographically, linguistically, socially and demographically. The projects will address socially relevant justice issues and narrower questions of law, always with the objective of making the legal system more relevant, effective and accessible. In the usual course, the LCO will have on-going at least two or three narrowly focused projects and at least two complex projects. In all its work, including the selection of projects, the LCO will conform to the values articulated above in Part III.
In selecting projects, the LCO takes into account wide-ranging factors, not all of which are applicable or applicable in the same way to all potential projects. A project must conform to the LCO’s mandate. Preferably, it will contribute to the LCO’s broader objective of producing holistic or multidisciplinary recommendations, but some projects will not lend themselves to this kind of analysis. Many projects will address the exclusion of particular communities from effective access to the law; however, this will not be true of all projects. The LCO has committed to using its resources effectively and to this end, will attempt not to duplicate work being done elsewhere. Where appropriate, however, it will collaborate with others working on the same or similar project. At any given time, the LCO will balance a mix of small, focused projects and large projects that will address major social questions about the law and its relationship to other disciplines, as well as a variety of areas of law.
The factors relevant to project selection are:
1. Relevance to the LCO’s Mandate and Objectives
a) Is the project consistent with the LCO’s mandate to make recommendations to increase the relevance, effectiveness and accessibility of the legal system, to clarify and simplify the law, to consider the use of technology to enhance access to justice and to contribute to law reform scholarship?
b) How well might this project contribute to the LCO’s goal to be holistic, innovative, socially conscious and pragmatic in its selection of projects, research and recommendations?
c) Is the project likely to result in feasible recommendations or to influence in a constructive fashion the dialogue on law reform in the area?
2. Impact on the Law and Communities
a) Who is likely to benefit from this project?
b) How many people will this project benefit?
c) Will this project likely have a significant impact on improving access to the law?
3. Efficient Use of Resources
a) Is this issue already being addressed by government or another institution or does it more properly fall within another institution’s mandate? The LCO does not want to duplicate work being done by others or overstep the mandate of another organization.
b) Would this project provide the opportunity for collaboration with other law reform bodies or other organizations?
c) Will this project be understood by the public as a good use of the LCO’s resources?
d) Will the LCO be able to complete this project within the relevant timelines and resources available?
4. Other Factors
a) Is the subject matter of this project being litigated? The LCO will not select as a project an issue that is explicitly the subject of litigation intended to resolve disputed interpretations of the law.
b) How does this project fit into the LCO’s on-going mix of narrowly focused and complex projects and areas of law that are already being researched?
3. Available Resources
The LCO has an in-house research capacity of a full-time staff lawyer, who also has administrative responsibilities, a part-time research lawyer and, beginning January 2009, a term contract research lawyer, in addition to the Executive Director (the CEO and Chief Spokesperson for the LCO). The administrative staff is composed of the Executive Assistant and from September 2008 to February 2009, a part-time Receptionist, a position replaced by a full-time Office Assistant. The LCO also benefits from secondments from Osgoode Hall Law School (the OHLS LCO Scholar in Residence) and the Ministry of the Attorney General (the MAG LCO Counsel in Residence). It also relies on contract researchers and students. Osgoode Hall Law School provides administrative and IT assistance to the LCO. The LCO researchers have access to the Osgoode and York libraries and electronic databases. The funding partners have committed to providing $1.2 million in funding and in-kind contributions annually for five years.
B. Researching a Project: The LCO’s Participatory Processes and Approaches
Once a project has been approved by the Board of Governors, the Executive Director will determine when work on it should proceed, given available resources. For narrowly focused projects (expected to take less than a year to complete), the Executive Director and the Staff Lawyer will determine whether the research should be accomplished in-house or by a contract researcher, possibly with the assistance of a student. For complex projects, a member of staff will be designated “head of project.” For each project, the Staff Lawyer or head of project, as appropriate, in consultation with the Executive Director, will develop a plan, including timelines, required resources, methods of consultation and a list of interested groups (this list is likely to evolve as the project proceeds). These larger projects will benefit from advisory groups “representing” different perspectives on the issue. Consideration of the expertise required for each project will take into account the nature of the knowledge required and the need to consider the place of technology in its analysis and recommendations. For both focused and complex projects, this preliminary stage will include at least a brief look at the work done by other law reform bodies in Canada and elsewhere, as well as by other relevant bodies. Where appropriate, the LCO will collaborate with other organizations in completing the research. The LCO will not knowingly duplicate the work of others, nor carry out projects that can be better implemented by others.
Narrowly focused projects are more likely to be primarily legal issues, but may involve other areas of expertise (for example, the project on division of pensions on marital breakdown required actuarial expertise, although it was primarily a legal analysis). In most cases, the LCO will issue a consultation paper, but will not issue an interim report in these projects, although it will engage in consultation. Longer, more complex, projects will almost always attract the multi/interdisciplinary, holistic approach to which the LCO is committed. These projects are likely to take two to three years to complete. As of 2009, the LCO’s projects relating to the impact of the law on older adults and on persons with disabilities are examples of these large projects. These longer projects will almost inevitably require expertise in disciplines other than law and this will be taken into account in designing the research team of in-house lawyers, contract researchers and students. These projects will likely make use of the multidisciplinary teams created by the Research Advisory Board, as contemplated by the Foundation Agreement. The LCO will release discussion papers for most of its longer projects, inviting public input and input specifically from groups evidencing an interest and/or experiential expertise in the area. After consultation, the next stage will be the release of the draft report before the LCO finalizes its recommendations. Recommendations are directed not only towards government, but also to other public and semi-public actors and to private actors, since the latter’s conduct may affect how effective the law is.
C. Reporting Recommendations
Once approved by the Board of Governors, final reports are distributed through the website and in hard copy to government and again, to those particularly interested in the subject matter. Final reports are available to the public.
The release of reports and of discussion papers will provide an opportunity to publicize the LCO’s work, whether through press conferences, collaborative events with affected groups, the tabling of reports by the Attorney General in the Legislature or through other means. The LCO will take these opportunities to publicize, as well, its processes and approach to law reform, as appropriate.
With all reports, the Executive Director or head of project will follow up with the appropriate government body to determine the fate of the report.
D. Completed Projects as of January 2009
The LCO completed its projects on charging fees for cashing government cheques and division of pensions on marital breakdown in fall and early winter 2008. Discussion papers and final reports are available on the LCO website at http://www.lco-cdo.org. Some of the LCO’s recommendations in its pension project were accepted by the Ontario government for inclusion in Bill 133’s Family Law Act amendments.
E. Ongoing Projects as of January 2009
At the beginning of January 2009, the LCO has the following projects underway:
The development of a coherent approach to the law as it affects older adults: a multidisciplinary project that involves contract research, two discussion papers, an interim report and a final report, this project is scheduled to be completed in late summer 2010;
The development of a coherent approach to the law as it affects persons with disabilities: a multidisciplinary project that involves contract research, at least three discussion papers, an interim report and a final report, this project is scheduled to be completed in fall 2010; the OHLS LCO Scholar in Residence, Professor Roxanne Mykitiuk, is working on this project;
Vulnerable employees and precarious work: in its early stages, this project is expected to take 18 months to complete.
Reforming cross border litigation, judicial jurisdiction: in association with the OHLS LCO Scholar in Residence, Professor Janet Walker, this project involves a consultation paper and final report and is expected to be completed by mid-summer 2009.
F. Potential Projects
The LCO has engaged in a lengthy consultation process in order to develop a project in family law, including a Family Law Roundtable in September 2008 and a project options consultation paper in January 2009. The Board of Governors’ approval is required before the LCO can begin any project in family law.
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