EXCERPTS from the GOVERNANCE REVIEW WORKING GROUP REPORT AND RECOMMENDATIONS – Report to the CBA Board of Directors, through the Governance and Equality Committee by the CBA Board Composition Working Group, November 2023

CONTENTS

1.0 Overview

2.0 Working Group Considerations and Consultations

3.0 Recommendations

1.0 OVERVIEW

In 2016 the Canadian Bar Association went through a “ReThink” culminating in significant changes to the way in which the CBA governs itself. One of those changes, the enactment of the CBA Governance Resolution 16-01-A, which became effective September 2017, included a requirement to review the governance structure three years after it came into effect. Between December 2019 and March 2022, the CBA Governance Review Task Force completed a review and made recommendations, but no clear consensus was reached on the Board’s Composition and whether the branch presidents should once again sit on the national board.

The ReThink board structure intended that we move from a representative board to a skills-based board but we are experiencing unintended consequences from the lack of representation. There is a strong case to be made that given the skill sets of our members generally, a lack of skills was never an issue on our board.

While the current governance model requires that there be a member of the CBA National Board from each of the provinces and territories, and while there have been many excellent governors who have filled those positions, the model does not reliably facilitate the building of a pan-Canadian consensus at the national board or ensure that the national board’s decisions reflect such a consensus.

In May 2023 twelve of the branches and the CCCA put forward their recommendations with respect to CBA Board Composition that each branch and the CCCA choose a representative, in a manner determined by each branch/CCCA, to sit on the national CBA board.

Meetings, including a Leadership Forum, were subsequently held but the recommendations in the May 2023 memorandum were not specifically addressed. The 2023/2024 Governance and Equality Committee (G & E) was tasked with reconsidering Board composition and term lengths and making recommendations to the Board. G & E met on September 28, 2023 and passed a motion creating a new Governance Review Working Group (GRWG) to consider the suggestions shared by our Pan-Canadian leadership and make recommendations with respect to the composition of the CBA Board and term lengths.

G & E appointed the following leaders to the GRWG:
Tuma Young – Director from Nova Scotia/
Jordan Brown – Director from Prince Edward Island
Loreley Chekay – Director from Saskatchewan
Johanne Bray – CBA CEO
Denise Cameron – Executive Director, New Brunswick
Kerry Simmons – CEO and Executive Director, British Columbia
Alex Chyczij – Executive Director Canadian Corporate Counsel Association
Lynne Vicars – CBA Vice President & Chair of G & E

2.0 WORKING GROUP CONSIDERATIONS AND CONSULTATIONS

The GRWG met on October 3rd to discuss potential changes to the CBA Board structure and term limits. In preparation for those discussions the following materials were considered.

1. CBA Mission and Universal Needs arising out of RE-Think a document provided by Maureen Armitage, Executive Director of the Alberta branch which helped ground our discussions in the importance of being focused on our members, not how we govern ourselves. This the focus emphasized the importance of our task to resolve the debates over CBA board structure. (Appendix A)*
2. May 4, 2023 Memorandum sent to the CBA President and Board with the near unanimous approval of branches and the CCCA. (Appendix B)
3. The Governance Task Force Report 2019-2022 (Appendix C)
4. The Key Findings Report from the Leadership Forum Discussion in June 2023 which addressed some operational issues but did not squarely address the concerns raised nor consider the recommendations made in the in the Branch/CCCA Memorandum. (Appendix D)

2.1 Issue

The national board has decision-making power that affects all branches. For example, the national board alone decides whether membership fees will reflect an indexation increase in any given year and has a veto over some decisions affecting branches. The CCCA is the 4th largest CBA entity and pays the 4th largest share of the Shared Services budget yet CCCA members have no voice on the board. The existing structure has caused unanticipated frustrations, divisions and stalemates that have diverted energy from serving our members.

2.2 Proposed Solution

Allowing the branches and CCCA to each appoint a board member having regard to both social diversity and skills requirements and adding two Director positions, to be appointed by the national board, with advice from a new national Leadership Development Sub-Committee, to fill gaps, first to ensure we always have an Indigenous perspective on the board and otherwise to fill gaps in any other lived perspective, will provide us with a diverse Board more connected to all of our Pan-Canadian constituents and will enable us to focus all of our attention on member service.

2.3 Consultations

GRWG members prepared and revised draft by-laws over a 17-day period then sent the draft to the branches and the CCCA for consultation. In addition to branch presidents and Executive Directors, the proposed by-law changes were sent to all members of the CBA Board of Directors to keep them apprised of the GRWG’s progress on this critical task.

… (consultation responses from CCCA, CBA-NL, CBA-NS, CBA-PEI, CBA-NB, CBA-QC, OBA, MBA, CBA-SK, CBA-AB, CBA-BC not reproduced here. All supported, at least in principle) …

3.0 RECOMMENDATIONS

3.1 Board Composition

3.1.1. The Board should increase from 15 members to 18 members.

3.1.2. Branches and the CCCA should each “select” a CBA Board member - the word “select” is suggested as the intention is branches and the CCCA will determine themselves whether the member from their constituency will be appointed, elected or selected through some other mechanism, at their discretion. (this will add one additional director from the current composition)

3.1.3 The requirement that a CBA Board member “reside” in the province or territory will also be subject to branch discretion provided that the Board Member has connections to the Province or Territory satisfactory to the branch. (This is to specifically address the situation faced by branches whose Board member moves to another province or territory but the branch continues to want the individual to serve on the CBA Board as the member from their province or territory).

3.1.3. Two additional board positions are being proposed to provide lived experience on our Board, one specifically for Indigenous lived experience and the other to fill gaps in other lived experiences. The suggestion is that at least three candidates for each of these positions be (1) identified / recruited by a new Leadership Recruitment and Development Sub-Committee to G & E, (2) considered by G&E in accordance with new regulations to be drafted in consultation with the Equality Sub-Committee and other stakeholders, and (3) then appointed by the Board. (this will add two additional members from current composition)

3.2 Terms and Term Limits

Initial Director terms should continue to be two-years but now with extensions available of up to two additional one-year terms (some Directors may not feel able to commit to an additional two-year term, but may be comfortable committing to a one-year extension)

3.3 Other Recommendations

3.3.1 Establish a National “Leadership Development” sub-committee to the Governance and Equality Committee to recruit and develop talent across the Association, drive diversity in applications to the Board Appointed Director positions and develop a diverse pipeline of leaders for national sections and other committees.

3.3.2 Requirement that all CBA Board members attend a Director Education Program if they have not already completed one. (This could be a CBD program developed by a CBA entity)

3.3.3 Design a new mandatory communication template to ensure CBA Board members are collecting all branch concerns, ideas, feedback etc. to provide to CBA Board AND providing necessary information flow to the branches from the CBA Board.

3.3.4 The CCCA National Section Chair, should also carry the title CCCA President, (with corresponding changes for the Vice-Chair and Past Chair)

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