Ontario Appellate Bar Series - Duty Counsel Details
This is one article in a series which reviews the composition of counsel who appear before the Ontario Court of Appeal.
Duty counsel at the Ontario Court of Appeal serve an important function, and ensure that self-represented litigants who have matters being addressed on days duty counsel are present are supported and can receive summary advice on materials, court proceedings, and have submissions made on their behalf. A brief analysis of the composition of duty counsel who appeared on matters in 2024 before the Ontario Court of Appeal is included below.
Interestingly, the composition of duty counsel reflected a greater proportion of men appearing in the role. There were approximately 66 cases which involved duty counsel, most of which involved duty counsel assistance for a self-represented litigant in the role of appellant. Certain duty counsel appeared more than once (and some appeared several times across multiple matters), and one matter had more than one lawyer appear as duty counsel.
Of the duty counsel who appeared, two have since been appointed to the bench. The two appointees included one man and one woman, and as LSO numbers are no longer available in the LSO Lawyer and Paralegal Directory, they have been excluded from the seniority summary on duty counsel included below. However, since the appointments were equal in gender, and it can be assumed that any member of the profession who is appointed to the bench has more than ten years of experience (which was confirmed, as the woman who was appointed called to the bar in 2010 and the man who was appointed called to the bar in 2002) and therefore fall in a LSO number band above the 60000s and the 70000s, as discussed in further detail below, these appointments do not affect the overall analysis in this article series.
The majority of duty counsel appearances were by men. Of the 68 duty counsel appearances, men accounted for approximately 71% (48) of the appearances, and women accounted for approximately 29% (20) of the appearances.
With respect to seniority, excluding appearances by those who have since been appointed to the bench, and no longer have LSO numbers listed in the Lawyer and Paralegal Directory, for total number of 61 appearances (not unique by lawyer, as many duty counsel had multiple appearances), there were approximately 41% (25) with a LSO number in the 40000s, approximately 16% (10) with a LSO number in the 50000s, 26% (16) with a LSO number in the 60000s, and 16% (10) with a LSO number in the 70000s.
With respect to the gender division of the appearances, 20% of appearances were by women in the lawyers with a LSO number in the 40000s, 10% were by women in the lawyers with a LSO number in the 50000s, 56% were by women in the lawyers with a LSO number in the 60000s, and 10% were by women in the lawyers with a LSO number in the 70000s. However, these numbers reflect the total number of appearances, not the unique counsel who appeared before the court, and therefore should be viewed with caution and in context given the fact that certain counsel appeared multiple times over a number of matters.
When unique lawyers are considered, approximately 29% of the duty counsel with a LSO number in the 40000s were women, 25% of the duty counsel with a LSO number in the 50000s were women, 71% of the duty counsel with a LSO number in the 60000s were women, and 25% of the duty counsel with a LSO number in the 70000s were women.
Overall, men comprised the majority of the duty counsel ranks and appearances, particularly at more senior levels.
For lawyers interested in learning more about how to assist litigants in a duty counsel role at the Ontario Court of Appeal, there are several programs, including:
Interested in this article series? Future articles will include appearance leaderboards and an analysis of appearance data as compared to lawyer population data.
A note on this article and analysis:
The figures included above are for information purposes only (and are obviously not legal advice). The information collected was drawn from publicly available decisions released by the Ontario Court of Appeal as published on CanLII for 2024, and is subject to certain limitations which are inherent in relying on only publicly available information as to seniority and gender. The gender information for counsel is not publicly available from the Law Society of Ontario. In order to ascertain the gender of counsel, after counsel’s name was searched in the LSO Lawyer and Paralegal Directory (or provincial equivalent), a general online search was performed for the lawyer to locate their law firm biography, academic publications, news articles or online commentary, LinkedIn profile, and/or any other social media or online presence which indicates the pronouns used by the lawyer. Lawyers using he/him pronouns are identified in the analysis as men, while lawyers using she/her pronouns are identified in the analysis as women. No lawyers using they/them pronouns were identified as part of the analysis, and therefore a category for non-binary individuals has not been included. There were several cases which included counsel of record with a more common name. For these lawyers, there were several potential matches in the LSO Lawyer and Paralegal Directory. As such, it was not possible to determine with any degree of accuracy which lawyer listed in the LSO Lawyer and Paralegal Directory was the lawyer who appeared as counsel of record. In the matters in which this was the case, an assumption was made as to the gender of counsel based on counsel’s name. Lawyers who are not licensed with the LSO are excluded from the LSO number information as they do not have a LSO number.
Given its dominant position in Canadian appellate advocacy relative to the other provincial courts of appeal, the matters heard by the Ontario Court of Appeal and who appears as counsel is information which certainly calls for at least some measure of analysis. Admittedly, a more robust review would include the ethnic, cultural, and gender diversity of both the litigants and their counsel of record. However, information about cultural or ethnic backgrounds, for example, is of a more personal nature and not publicly available. Conducting such an analysis would necessarily require more invasive research methods, such as interviews, focus groups, and/or surveys. This project is limited by both time and structural constraints, with its primary goal to serve as a methodological and intellectual interest-driver, potentially encouraging others to consider the appearances by counsel before the Ontario Court of Appeal and other appellate courts across Canada. A further study of this information, as well as the ethnic and gender diversity of counsel who appear before the courts, would provide the basis for a comprehensive longitudinal study.