Legal Feeds Blog

Law society releases interim articling report

Fri, 25 May 2012 17:28:41 +0000

The Law Society of Upper Canada released its interim articling task force report yesterday, finding many in the legal community are vying for the slow modification of legal training.

“The task force heard from anxious students and concerned lawyers that the law society should move quickly to respond to the current shortage of articling placements,” the report notes. “The clear consensus was that, at the very least, students currently enrolled in law school and recent graduates who have not passed through the licensing system should not be left to languish within the law society’s licensing program merely because of a shortage of articling placements. At the same time, numerous submissions urged caution and a gradual, considered approach to any departure from the status quo.”

As part of its consultation process, the task force spoke with members of the province’s legal community from January to April. They discussed articling as it currently stands and five additional training options.

Those five options included maintaining articling as it currently stands; replacing a pre-licensing transition requirement with a post-licensing transition requirement; and abolishing articling in favour of a practical legal training course. There is also the option of maintaining the status quo with quality assurance improvements to be determined at a later date, and a choice of either an articling requirement or a practical legal training course requirement that would be taken either after law school or during law school.

The report found many government and equality-seeking organizations wanted articling to be maintained in some form, but felt a secondary practical legal training course may be a viable option.

Many from that group felt the training course would help law students who find themselves in “licensing limbo” and would provide law students with more control over their career paths.

However, the report says many lawyers were strongly tied to current articling methods in contrast and felt the training course would be costly for students and members of law societies.

For their part, law students suggested creating either a co-op legal program or a practical legal training course within law school that would still give students the option of pursuing a three-year academic law program, the report notes.

Almost none of the feedback suggested keeping articling as it currently stands.

The task force is expected to consider the feedback it received over the upcoming months and will release a full report in the fall of 2012.

LSUC honour nine medal winners

Fri, 25 May 2012 14:55:12 +0000

The Law Society of Upper Canada awarded nine legal professionals the Law Society Medal, the Lincoln Alexander Award, the Laura Legge Award, and the Law Society Distinguished Paralegal Award during a reception at Osgoode Hall in Toronto, Ont. May 23.

This year’s medal winners are University of Ottawa law professor Vern Krishna; Ottawa lawyers Margaret Bloodworth and Bruce Carr-Harris, who received his medal in April during Convocation; Windsor family lawyer Mary Fox; James Caskey of London, Ont.; and former Orillia justice Doug Lewis.

The Law Society Medal honours lawyers who have excelled in their practice or academic area.

“Throughout their careers, these nine outstanding individuals have continued to enrich their profession, as well as their communities,” said Law Society of Upper Canada Treasurer Laurie Pawlitza. “They serve as true role models for the province’s lawyers and paralegals and we are extremely pleased to honour them with the law society’s highest awards of recognition.”

Thunder Bay practitioner Keith Jobbitt was also named this year’s Lincoln Alexander Award winner and was honoured for his commitment to the public and the legal community.

The Laura Legge Award was given to Sudbury’s Mary Weaver, who was honoured for her work in the legal profession.

Brian Lawrie was named this year’s first Law Society Distinguished Paralegal Award winner for his professional achievements and commitment to the practice of law.

News roundup — May 25, 2012

Fri, 25 May 2012 14:10:49 +0000

Canada

Youth charged in brutal murder of Alta. man, The Star Phoenix

Toronto police sergeants face disciplinary hearings for G20 arrests, CBC News

Judges can't force hospitals to take mental-health offenders: Ont. court, The Globe and Mail

United States

Man confesses to 1979 murder of N.Y. boy, Reuters

Calif. manager charged with fraud over $60M fund, Reuters

International

Former Guatemala attorney general facing charges, Reuters

Motorola infringed Microsoft patents: German court, Reuters

Top court to hear McKercher conflicts case

Thu, 24 May 2012 16:56:50 +0000

The Supreme Court of Canada has agreed to hear an appeal in a conflict-of-interest case involving a Saskatchewan law firm.

In 2008, Gordon Wallace retained McKercher LLP to represent him as the leading plaintiff in a class action lawsuit on behalf of Prairie farmers against Canadian National Railway, Canadian Pacific Railway, and others for allegedly overcharging them for grain transportation over 25 years.

When the class action was launched, McKercher, which has offices in Saskatoon and Regina, was also acting for CN Rail in a number of other unrelated matters. As a result, CN Rail sought to have McKercher removed from the class action.

The case went before the Saskatchewan Court of Queen’s Bench where Chief Justice M.D. Popescul ordered that McKercher be disqualified from acting on the class action. On appeal, the court reversed the lower court’s ruling and permitted McKercher to continue to act on the class action.

The central issue is whether it’s a conflict of interest for a law firm to accept a retainer to sue a current client on an unrelated matter without first obtaining their consent.

Gavin MacKenzie, a partner at Heenan Blaikie LLP, represents McKercher and Wallace in the case. He says it relates to the top court’s 2002 decision in R. v. Neil, which stated the general rule is that a lawyer or law firm shouldn’t act directly contrary to the immediate interests of a current client, even on an unrelated matter. However, the court also noted there can be exceptions, such as governments, banks ,or other large organizations that regularly appear in the courts and likely have a more tolerant attitude towards law firms they retain on unrelated matters acting against them.

“The most important question for the Supreme Court of Canada to address here is probably whether that extends to companies such as Canadian National Railway and in what circumstances that exception is applicable,” says MacKenzie.

“It’s probably going to be of the greatest interest to law firms that represent large organizations from time to time,” he says, adding law firms face this kind of a conflict of interest quite frequently so it will be useful to have set rules on how to handle it.

“These days in large law firms it’s very common to do a conflict search when a new matter comes into the office and find out that the party on the opposite side of a potential new retainer has retained one of your colleagues in a different city,” he says.

In an unrelated matter, the SCC has also granted leave to appeal in a slew of intellectual property cases in which a Quebec artist is suing several broadcasting companies for copyright infringement for allegedly copying his character sketches. They include: Weinberg v. Productions Nilem Inc., Cinar Corp. v. Robinson, Izard c. Robinson, and Robinson c. France Animation S.A.

News roundup — May 24, 2012

Thu, 24 May 2012 14:02:30 +0000

Canada

Ont. deputy attorney general retiring, The Globe and Mail

Over 500 arrested in Montreal student protest, The Gazette

2 more charges laid against alleged serial killer, Hamilton Spectator

United States

Google victorious in Android case, Reuters

Chinese man charged in U.S. for nuclear exports, Reuters

International

Kurdish politician jailed in Turkey over speeches, Reuters

Papua New Guinea top judge facing sedition charges, Reuters

Ontario has lowest rate of family violence: StatsCan

Wed, 23 May 2012 15:57:48 +0000

Ontario had the lowest rate of family violence in 2010, according to new data from Statistics Canada.

There were 196 victims of police reported family violence per 100,000 of population in Ontario, compared with a Canada-wide rate of 294 victims per 100,000, according to the report. Prince Edward Island and Nova Scotia were the only other two provinces that came in with a rate under the national average.

At the other end of the scale, Nunavut had 3,409 victims per 100,000 followed by Northwest Territories with 2,455. Yukon and Saskatchewan were next with 842 and 644 victims per 100,000 respectively.

Statistics Canada reported 99,000 family violence victims in total nationwide, accounting for one quarter of all victims of violent crime reported to police. About half the family victims were spouses, with the other half made up of children, parents, siblings or extended family members.

For the first time, the study also drilled down to census metropolitan areas, consisting of urban centres and their surrounding areas. Overall, the rate of family violence in CMAs was 232 per 100,000. In non-CMAs, which include small cities, towns, and rural areas, the rate almost doubled to 436 per 100,000. With a rate of 98 per 100,000, the Ottawa CMA recorded the lowest rate of family violence in the country. Saint John, N.B., had the highest rate among CMAs, at 420 per 100,000, more than four time higher than Ottawa.

The report found the risk of becoming a victim of family violence was more than doubled for females compared with men, with 407 victims per 100,000 women and 180 per 100,000 men. The distinction was starkest in the 25-34 year age group, where there were 709 female victims per 100,00 compared with 216 per 100,000 males. Women accounted for 70 per cent of the victims of family violence, and 81 per cent of all spousal abuse victims, according to the report.

Not all reports result in charges, but Statistics Canada found charges were more likely in incidents involving family members. In 2010, 56 per cent of accused family members were charged, compared with a 43-per-cent rate when the accused was unrelated. Charges were also more like when the family violence victim was female, with 60 per cent of accused charged, compared with 46 per cent when the victim was male.

News roundup — May 23, 2012

Wed, 23 May 2012 13:50:30 +0000

Canada

CP Rail employees on strike, Reuters

Feds appeal wheat board ruling, Winnipeg Free Press

Conservatives seek to quash election challenge, Ottawa Citizen

United States

$3.4B Native American settlement upheld, Reuters

Partner sues firm over alleged discrimination, Reuters

International

Spanish teachers protest cuts, Reuters

Nepal needs more time to write new constitution, Reuters

Dan Caldarone takes on GC role at Second Cup

Tue, 22 May 2012 16:18:15 +0000

The Second Cup Ltd. has a new general counsel effective today as Dan Caldarone leaves the in-house department at Cara Operations Ltd. to join the Canadian-owned specialty coffee company.

Caldarone will serve as general counsel, corporate secretary, and vice president of human resources for the company.

Second Cup is Canada’s largest specialty coffee café franchisor and retailer with 359 cafés operating under the trade name Second Cup in Canada. All but 10 of those stores are franchised in what is a highly competitive coffee market.

Caldarone joined Cara Operations in 2008. Cara is the owner and franchisor of restaurant brands including Swiss Chalet, Harvey’s, Kelsey’s, Montana’s, and Milestones.

Prior to going in-house at Cara, Caldarone was a partner at Aird & Berlis LLP. His primarily focus at the law firm was business and franchise law.

He says he was drawn to the position at Second Cup not only because it was a step up into the general counsel role but also because it puts him at the executive management table.

“At Second Cup, there is a senior management team of seven and the general counsel is one of the people that make up the senior management team, so for me it’s not only a step up into a general counsel role but also a step into the executive management team,” he says.

Given his background in franchise law, Caldarone says he’s looking forward to dealing with all of the franchisor partners the company has across the country. He also welcomes the challenge of working in the highly competitive coffee market.

“It will be a challenge to get up to speed and get familiar with all the franchise partners,” he says.

Caldarone is a member of the Ontario Bar Association’s franchise law section executive committee and the Canadian Franchise Association’s legal and legislative committee.

News roundup — May 22, 2012

Tue, 22 May 2012 14:30:37 +0000

Canada

Mass arrests in Montreal student protests, Calgary Herald

Handwriting analyst targeted in forgery lawsuit, Toronto Star

B.C. animal law would ban information on farm outbreaks, The Province

United States

Top court to hear eavesdropping appeal, Reuters

Gucci awarded $4.6M in copyright lawsuit against Guess, Reuters

International

Egyptian police jailed over protest deaths, Reuters

Lebanese court releases anti-Syrian activist on bail, Reuters

Barreau criticized for stance on bill 78

Mon, 21 May 2012 13:00:00 +0000

The Barreau du Québec has ruffled the feathers of some members of the bar after it sent a letter to the Quebec government criticizing legislation that would give police more control over student protesters and public gatherings.

The letter, published on the barreau’s web site on May 16 by president Louis Masson, expressed concerns about the bill that it said could unduly limit freedom of expression and requires more debate before its adoption.

“The proposed regulation raises serious issues related to respecting fundamental freedoms of expression and of peaceful assembly and it is therefore likely to be subject to judicial debates,” the letter reads.

The letter continues: “In addition, the provision, as drafted, might give rise to charges against individuals who wished to participate in an event without being identified and having no intention to offend.”

Once adopted, the bill would requie the exact location and itinerary of a meeting, parade, or other gathering to be shared with the director of police; stop anyone involved at meetings, parades or public gatherings from having their faces covered without reasonable cause; and institute a range of penalties depending on the number and severity of the offences.

Some barreau members have balked at the letter, saying the bill is necessary given the continued rioting by student protesters that has rattled the province over the past three months.

“I have just read your press release this evening with the deepest distress and most complete disbelief," former Canadian Bar Association president Bernard Amyot wrote to the barreau president on Thursday evening, according to a La Presse report. “Silence would have been less damaging than the total abdication to anarchy in defiance of the rule of law, which you falsely claim to defend, from the authority of elected parliamentarians and authority of the judiciary and its independence. Shame to the Quebec Bar and to the president Masson.”

Massive protests have raged in Quebec for more than three months, particularly in Montreal, as the Quebec government goes head-to-head with students protesting college and university tuition-fee hikes.

Among bill 78’s proposals, student protesters would be barred from demonstrtating inside and within 50 metres of college and university buildings. The legislation would also fine protesters found guilty of an offence that forces the cancellation of classes. The fines would range from $1,000 to $5,000 depending on the offence. They could go up to $125,000 if the offence is committed by a senior officer or representative of a student group or federation.

Today, the Quebec legislature is continuing its section-by-section consideration of the law.

Deschamps to retire from SCC

Fri, 18 May 2012 16:28:27 +0000

The Supreme Court of Canada has another vacancy with the looming retirement of Justice Marie Deschamps.

Chief Justice Beverley McLachlin announced today that Deschamps will retire on Aug. 7, 2012. Her departure follows the retirements of justices Ian Binnie and Louise Charron last year. The government has since filled their vacancies with the appointments of justices Michael Moldaver and Andromache Karakatsanis.

“Justice Deschamps has made a very significant contribution to the Supreme Court and, more broadly, to the administration of justice in Canada,” said McLachlin. “We will miss her wisdom, intelligence, keen wit, and boundless energy. She has been a wonderful colleague and will always be a good friend.”

For her part, Deschamps hinted that she’s ready to explore other opportunities in life.

“I feel privileged to have been given the opportunity to participate in the work of the court,” she said. “I will leave behind a group of empathetic, respectful, and dedicated judges. After 37 years working mostly in courtrooms, including 22 years on the bench, I feel that it is time to explore other ways to be of service to society. There is much to do in so many areas.”

Deschamps has been on the top court bench since 2002. She had previously served on the Quebec Court of Appeal and the Quebec Superior Court.

News roundup — May 18, 2012

Fri, 18 May 2012 13:31:47 +0000

Canada

Supreme Court to decide on end-of-life treatment in December, The Globe and Mail

Crown seeks long-term offender status for B.C. pedophile, The Province

Greyhound bus killer to be granted temporary passes out of health centre, Regina Leader-Post

United States

Linebacker Vilma launches defamation suit against NFL commissioner Goodell, Reuters

Mississippi high court refuses to rehear pardon case, Reuters

International

Israel's high court to help fight gender pay gap, Reuters

Kazakhstan court sentences police officer in riot trial, Reuters

CJC clarifies role of independent counsel

Thu, 17 May 2012 19:16:14 +0000

The Canadian Judicial Council’s inquiry committee has released a ruling on preliminary issues in the case of Manitoba Court of Queen’s Bench Associate Chief Justice Lori Douglas.

The inquiry committee was established to investigate a sexual harassment and discrimination complaint filed against the judge in September 2010.

Alex Chapman, a client of the judge’s husband, Winnipeg lawyer Jack King, issued the complaint, claiming King showed him nude web photos of Douglas performing sexual acts and pressured him to have sex with her. It’s alleged that Douglas didn’t know the photos had been posted online or about King’s conversation with Chapman.

Douglas has been on leave from the court since the complaint was sent to the CJC.

King was reprimanded after he pleaded guilty to professional misconduct. He admitted to showing Chapman the photos.

One of the main purposes of the ruling was to clarify the role of independent counsel, which will be undertaken by Guy Pratte, a partner at Borden Ladner Gervais LLP. The committee ruled that independent counsel is there to simply present the case and that the committee will have the final say in the proceedings.

“The role of independent counsel is to assist the committee in carrying out its responsibilities by gathering, marshalling and presenting the case against the judge before the committee,” states the ruling.

“Independent counsel may make recommendations but must carry out his duties in a manner that does not impinge on the discretionary decision-making responsibility of the committee.”

In relation to a question of what to do about a second complaint, which arose in the form of two discs submitted anonymously to the CJC, the committee ruled that it will be handled separately from the complaint already under investigation.

The committee also issued several orders:

1) Independent counsel must provide the written complaint, review panel decision, and all related documentation immediately.

2) Independent counsel is also to provide notice of allegations to the committee, the judge’s counsel, and any other parties granted standing by 6 p.m. on May 18.

3) All written submissions in relation to the discs must be in by June 7.

4) The discs will be provided to the committee’s counsel immediately but will not be reviewed, subject to the committee’s decision.

Alberta Chief Justice Catherine Fraser, chairwoman of the committee, sought to have these preliminary issues clarified ahead of the public hearings into Douglas’ conduct set for May 19 in Winnipeg. It will focus on procedural matters, including who can take part in the inquiry.

For more background see: CJC launches public inquiry into Manitoba judge in sex scandal
CJC names committee to hear Douglas case
King reprimanded in wake of naked judge photo scandal

News roundup — May 17, 2012

Thu, 17 May 2012 13:49:54 +0000

Canada

Former Montreal politician arrested in anti-corruption raid, The Globe and Mail

Coroners' jury calls for inspections and training at mushroom farm inquest, The Province

Woman charged with manslaughter after killing mother while babysitting, Calgary Herald

United States

Teacher fired for pregnancy can sue religious school, Reuters

Activision Blizzard settles lawsuit against Electronic Arts, Reuters

International

ICC prosecutor OKs delay to trial of Kenyans, Reuters

Libya says Gaddafi's son refuses to appoint defence lawyer, Reuters

Americans not ready for Canada’s anti-spam law: report

Wed, 16 May 2012 19:37:24 +0000

American companies have yet to wake up to Canada’s stringent anti-spam law, according to a report by Fasken Martineau DuMoulin LLP.

Bill C-28, or CASL, as it’s become known, received Royal assent in December 2010, but has yet to come into force. When it does — likely January 2013 — it will contain some of the toughest anti-spam provisions in the world, banning senders from delivering unsolicited commercial electronic messages without receiving express or implied consent from the recipient.

It applies to all messages sent from, or received in, Canada, which means American firms marketing in Canada fall under its jurisdiction. Yet the Faskens’ study released today, found 60 per cent of American marketing executives were completely unaware of the new law.

“The bottom line is the U.S. doesn’t really know about the law, and they should try to become more knowledgeable before it comes into force,” says Charles Lupien, a lawyer in Faskens’ Montreal office, and one of the study’s authors.

And even among those with some knowledge of the bill, around a quarter were unaware of the potentially spectacular fines that can be levied under the law.

Individuals who breach the law can face penalties of up to $1 million, while corporations are liable for as much as $10 million. Officers and directors may also be held liable if they participated in, or acquiesced to the breaches. The act also creates a private right of action for CASL violators, paving the way for potential anti-spam class actions, with remedies capped at $1 million per day.

“Once you get people that do actually know, to say they’re not happy about it is an understatement,” says Lupien.

The Canadian law is more stringent than its U.S. counterpart, 2003’s CAN-SPAM Act, meaning most U.S. firms will not be compliant when CASL comes into force. CAN-SPAM allows companies to send messages unless consumers opt-out with an unsubscribe mechanism. CASL reverses the onus, requiring recipients to opt-in by consenting up front.

Lupien says some companies are waiting to see how strong enforcement will be, especially for non-Canadian senders, but others will simply abandon Canadian marketing efforts rather than going through the hassle of purging existing mailing lists of contacts where consent can not be proved.

“They’re saying, ‘never mind, we’ll stick to sending post cards in the mail, and do telemarketing instead,’” says Lupien.

News roundup — May 16, 2012

Wed, 16 May 2012 13:57:11 +0000

Canada

G20 activist acquitted of all charges, Toronto Star

2 more charged in Tamil migrant ship smuggling probe, The Globe and Mail

Youth pastor charged over sexual relationship with teen, Victoria Times-Colonist

United States

Former judge elected new Oregon AG, Reuters

Apple, publishers to face consumers' e-book lawsuit, Reuters

International

Court upholds Czech tax on solar power, Reuters

Russian court shuts down protesters' sit-in, Reuters

Queen’s joins list of universities warming to Access Copyright model

Tue, 15 May 2012 16:25:24 +0000

Queen’s University has indicated it will be signing a letter of intent to accept the model licence agreed on between the Association of Universities and Colleges of Canada and Access Copyright. The non-binding letter of intent, due by today, will allow the university more time to consider whether to accept the model licence.

Queen’s, as well as many other Canadian universities, has operated without a licence since the end of December 2010. In its place, Access Copyright proposed to the Copyright Board of Canada a tariff that is still under consideration. In August 2011, Kingston, Ont.-based Queen’s opted out of an interim tariff imposed by the Copyright Board.

Earlier this year Access Copyright recently signed new copyright agreements with the University of Toronto and Western University despite the fact many post-secondary institutions said last summer they were walking away from the tariff in place with the collective. They claimed they already license the works or could rely on fair dealing for research, private study, and eventually education.

“The tariff proposed by Access Copyright raised many concerns that Queen’s shared with other universities. Our concerns included issues relating to scope, cost, and privacy,” said Alan Harrison, provost and vice principal, academic, in a statement yesterday.

Universities have been reviewing the new model licence with those concerns in mind.

In a statement on the Queen’s web site, it states: “Any survey of an institution’s copying under the provision of this licence would respect the principles of academic freedom, would not extend to faculty emails or interactive portions of learning management systems, and would acknowledge each institution’s collective agreements.”

The university has received contingent approval from its board of trustees to charge a fee of up to $22.50 per full-time equivalent student, in the event the university does sign the agreement. The university will pay the difference between the licence’s proposed $26 per FTE charge and any student fee imposed.

On April 16 the Association of Universities and Colleges of Canada reached an agreement with Access Copyright having negotiated the model licence that will allow universities to reproduce copyright-protected materials in both print and digital formats.

“We believe that this negotiated agreement provides a successful outcome for universities, their students, and faculty,” said AUCC president Paul Davidson. “It provides long-term certainty on price, and access to a new range of digital materials. Most importantly, the agreement respects the principles of academic freedom and privacy that are important to universities, and ensures that the administrative burden on institutions is minimized.”

Access Copyright’s executive director Maureen Cavan said, “We are pleased to have negotiated this licence with the AUCC. The licence provides easy, legal access to copyright-protected works for students, professors and staff, in a simple, fast and cost-efficient manner.”

The model licence will see institutions pay Access Copyright a royalty of $26 per FTE student annually. This royalty includes what used to be a separate 10-cents-per-page royalty for coursepack copying, so there will no longer be a separate royalty for such copying.

The agreement will be in place until Dec. 31, 2015 and will renew automatically for one-year terms during which any party can cancel or request to renegotiate the agreement.

Over the course of the next six months, a survey will be designed to gather reliable bibliographic and volume of usage data to allow Access Copyright to make fair distribution of royalties to its affiliates and to assist in establishing appropriate future licence rates.

News roundup — May 15, 2012

Tue, 15 May 2012 14:50:27 +0000

Canada

Cab driver charged with murder in skateboarder's death, CBC News

Brampton teacher accused of sexually assaulting student, Toronto Star

Ex-Olympian Donovan Bailey charged with drunk driving, The Globe and Mail

United States

HP loses $190M court battle with IRS, Reuters

Judge won't delay BofA, Merrill settlement, Reuters

International

Anti-whale hunting activist held by German court, Reuters

Ukrainian court delays hearings in ex-PM's appeal, Reuters

New LSUC treasurer to focus on articling

Mon, 14 May 2012 15:55:43 +0000

Thomas Conway has been elected treasurer of the Law Society of Upper Canada. Conway will begin his term following Convocation proceedings on June 28 and will serve as the law society’s top elected official.

He will replace current law society treasurer Laurie Pawlitza, who has held the position since June 2010.

“I’m very humbled and honoured to be elected and I hope to continue the really great work of the treasurers before me,” Conway tells Legal Feeds. “I have big shoes to fill and I hope I am able to help ensure the law society meets its core responsibilities.”

While Conway says he doesn’t plan to make any drastic changes to the law society in his new role, he says he does hope to listen to the needs of Convocation and focus on key areas like articling and tribunal reform.

“I think this Convocation has been particularly vocal about wanting to focus on improving the law society’s commitment to its core responsibilities, particularly in light of these challenging economic times,” says Conway. “They want to ensure law society dues are spent judiciously and wisely and I intend to carry that forward.”

Conway is a partner at Cavanagh Williams Conway Baxter LLP in Ottawa where he practises civil and commercial litigation.

In the past, he has served as president of the Carleton County Law Association and an adjunct Faculty of Law professor at the University of Ottawa.

Conway was first elected as bencher of the law society in 2007 and has served as chairman of the professional development and competence committee and co-chairman of the retention of women in private practice working group. he is also chair of the law society’s articling task force.

Conway says he hopes to carry on the work of those initiatives in his new role.

“I certainly intend to continue the very important work of those programs and I will see them through to the end,” says Conway. “Certainly if the Articling Task Force makes recommendations and Convocation accepts them, I’ll be intent on ensuring articling reforms are implemented in a timely way.”

Conway was elected by acclamation and will be the law society’s 64th Treasurer.

Read more on this story in next week’s Law Times.

This week at the SCC

Mon, 14 May 2012 15:45:41 +0000

The Supreme Court of Canada will hear the following appeals this week including the highly anticipated R. v. Cole, about a high school teacher who was charged after nude photos of a Grade 10 student were found on a laptop issued to him by his regional school board. The photos were ruled inadmissible by the Ontario Court of Appeal a year ago on the principle that Cole had a right to expect his personal files on the computer’s hard drive would remain private.

May 14 — Federal Court — Callaghan v. Chief Electoral Officer of Canada

Administrative law: This case relates to expenses during the 2006 federal elections. The chief electoral officer wouldn’t reimburse certain expenses submitted by some Conservative party candidates because he was concerned that the party might have incurred the advertising costs but then transferred them to the candidates since it had almost reached its spending limit. The candidates successfully challenged the officer’s decision before the Federal Court but the Federal Court of Appeal allowed the appeal.

May 15 — Ontario — R. v. Cole

Charter of Rights and Freedoms: Richard Cole was a computer science high school teacher. One of the school’s information technologists found naked photos of a female student on Cole’s computer, which he had accessed through another student’s email account. He was charged with possession of child pornography and fraudulently obtaining data from another computer hard drive. At trial, the judge determined that Cole’s s. 8 Charter rights had been violated and excluded the evidence. The Court of Appeal then allowed the appeal and remitted the case for trial. There is a publication ban in the case.

May 16 — Nova Scotia — Aucoin v. R.

Charter of Rights and Freedoms: Brendan Aucoin was convicted of possessing cocaine for the purposes of trafficking. On appeal, he argued that his s. 8 Charter rights had been violated when the police officer conducted a pat-down search, which the majority of the Court of Appeal dismissed.

News roundup — May 14, 2012

Mon, 14 May 2012 15:14:47 +0000

Canada

Suspects charged in Montreal métro smoke bomb, The Gazette

Ont. man seeks return of abducted sons from Poland, Toronto Star

Ottawa bus driver charged after pedestrian collision, Ottawa Citizen

United States

Anonymous blogger summoned to N.Y. court, Reuters

Fisherman sues cruise line for passing disabled boat, The Washington Post

International

Justice minister to speed up Italy's legal system, Reuters

Polish court upholds competition watchdog's ruling, Reuters

SCC restores Quebec assault conviction

Fri, 11 May 2012 16:57:16 +0000

The Supreme Court of Canada has restored the indecent assault conviction in a case that dates back more than 30 years after concluding the Quebec Court of Appeal went too far in assessing the evidence at trial.

“Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A court of appeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interfere with those assessments unless it is established that they ‘cannot be supported on any reasonable view of the evidence,’” wrote Justice Marie Deschamps in quoting from R. v. Burke.

The case, R. v. R.P., hinged in large part on the evidence of two witnesses: the complainant M.L. and her sister G.L., who was also the accused R.P.'s wife. M.L. was 13 years old at the time of the assaults, which occurred more than 30 years before R.P.’s trial. Among M.L.’s allegations were that R.P. sexually assaulted her while babysitting for the couple when G.L. was about to leave for the hospital to give birth to their second child. But G.L. testified that M.L. didn’t babysit on that occasion. Instead, she said she brought the first child to stay with her mother. M.L., the court noted, didn’t contradict G.L. Instead, she could only say repeatedly: “I have no idea. I don’t know.”

Nevertheless, the trial judge believed M.L.’s testimony. It was clear, Deschamps noted in this morning’s decision, that he took into consideration the weaknesses of the complainant’s testimony and found they weren’t determinative given that the incident had taken 34 years before the trial and given M.L.’s young age at the time.

“The trial judge’s approach was coherent and was also supported by the evidence,” Deschamps wrote on behalf of the majority that included justices Rosalie Abella, Thomas Cromwell, Michael Moldaver, and Andromache Karakatsanis. “It did not justify the intervention of the Court of Appeal.”

Key to the ruling was the question of how far the Court of Appeal should have gone in considering the evidence.

“It is now well established that where a trial judge draws inferences or makes findings of fact that are contrary to the evidence, he or she engages in an ‘illogical or irrational reasoning process’ that invites appellate intervention,’” wrote Justice Morris Fish in his dissenting opinion that referenced R. v. Sinclair.

The inconsistencies in the case, including the evidence related to the assault around the time of the birth of the second child, made the trial judge’s findings unreasonable, Fish concluded.

“In short, the complainant testified that she was abused by R.P. while babysitting when G.L. was in the hospital giving birth to their second and third children,” wrote Fish in a dissenting opinion supported by Justice Louis LeBel. “G.L. testified that the complainant did not babysit on either occasion. The complainant’s evidence was that R.P. again abused her ‘practically every time’ she babysat during the five years covered by the indictment. G.L. testified that R.P. was rarely home without her and that, when home, she had an unobstructed view of the scene of the alleged abuse during much of the relevant period.

“It thus seems to me unreasonable, if I may say so with respect, to find that G.L.’s testimony does not ‘interfere with’ ― or tend to contradict or render implausible ― the evidence of the complainant, M.L.”

News roundup — May 11, 2012

Fri, 11 May 2012 13:49:36 +0000

Canada

SCC to hear cases involving RCMP drug dogs, The Vancouver Sun

Jury in Rafferty trial in first full day of deliberations, The Gazette

Woman arrested in connection to babies' deaths in U.K., CBC News

United States

Muslim Americans challenge no-fly list, Reuters

Landmark foreclosure lawsuit in Fla. court, Reuters

International

Indian court orders probe into iron ore mining, Reuters

South African court grants leave to appeal in mining case, Reuters

The name remains the same

Thu, 10 May 2012 16:12:27 +0000

More than 50 Law Society of Upper Canada members showed up at the regulator’s annual general meeting last night and overwhelming showing their support to keep its 215-year-old name.

The lively debate at Osgoode Hall last night was mixed with passionate comments and bursts of laughter to discuss Federal government lawyer Thomas Vincent’s formal motion in a battle that saw traditionalists and modernists divided.

“I didn’t expect the motion to go forward. But I do think it was important to have that discussion,” says Omar Ha-Redeye, a family lawyer in Toronto and one of the few who supported Vincent’s motion. “From my impression of the debate, the vote wasn’t actually based on merits but rather on tradition, which is disappointing, given lawyers are trained to debate issues on their merits. “

The formal motion to change the law society’s name to the Ontario Law Society was brought by Vincent last month and has been a hotly contested issue among members of the bar ever since.

Vincent argued the law society’s current name created confusion among the public and needed to be modernized to reflect Canada’s current geography.

“Typically law society members are dealing with highly educated and sophisticated individuals and so they may not be aware of people in the general public who might be confused by the name,” says Ha-Redeye. “In this case, I would say the absence of information doesn’t lead to a conclusion and we should study the issue further to see if there truly is a problem and then find the best way to address it.”

Still, Alan Heisey, a lawyer at Papazian Heisey Myers who has been following the debate and opposes the name change, says he was encouraged by the debate.

“I thought the debate was very healthy and it was encouraging to see so many people who knew about the law society’s history,” says Heisey. “I learned quite a bit and I think those who were dissatisfied with the name perhaps didn’t know the law society had such a history. Maybe there should be a component in the bar admission course related to that.”

A formal vote was not taken at the annual general meeting, however, of the more than 50 members who attended, three supported the motion. Those three were Vincent, Ha-Redeye, and past Ontario Bar Association president Lee Akazaki.

During the meeting, it was estimated the cost to the law society to change its name would be between $1.4 and $1.5 million — a figure that would likely come have to come from increases to member’s annual fees.

See Monday’s issue of Law Times for more on this story.

Update: 4:39 p.m. - Clarify that Alan Heisey was not at the LSUC meeting.

Province-wide UFC finally coming to Ontario?

Thu, 10 May 2012 15:26:19 +0000

Ontario’s family law bar may finally get its wish of a province-wide unified family court system after inter-governmental discussions got underway with a view to expanding the service.

The unified court started as a pilot project in Hamilton, Ont. 35 years ago, and currently operates at 17 sites across Ontario, about one-third of court locations in the province.

The federal government is responsible for judicial appointments to the unified court, and speaking this morning at the Law Society of Upper Canada’s Sixth Annual Family Law Summit, Ontario’s Attorney General John Gerretsen told the audience of that expanding the UFC is key to his plans for improving the justice system.

“I have started discussion with the federal minister of justice Rob Nicholson, as well as other members of the federal cabinet, and there seems to be a willingness to expand the unified family court process across this province on an incremental basis,” said Gerretsen.

Gerretsen said his own time as a sole practitioner in Kingston, Ont., where he did some family law work before he went into politics, gave him an insight into people’s troubles with the current division of powers in most locations.

The Ontario Court of Justice deals with custody, access, child and spousal support, adoption, and child protection applications, but not divorce or division of property matters. The Ontario Superior Court of Justice can decide disputes involving divorce, division of property, child and spousal support, and custody and access, but not child protection or adoption matters.

“If there was one thing people could never understand, it was why they had to go to two different courts to get their family situations dealt with,” Gerretsen said. “I must admit that when I came into the ministry, since we’ve had a unified family court in the Kingston area and most of eastern Ontario since the late 1990s, I had assumed a unified court was pretty well standard across the province.”

The UFC has been a hot topic at previous years’ summits. In 2011, then- attorney general Chris Bentley, LSUC Treasurer Laurie Pawlitza, and Chief Justice Warren Winkler all teamed up to demand its immediate expansion.

“We’ve studied the UFCs enough,” Winkler said in 2011. “We need to spread that right across the province.”

With a 35-year wait already behind them, Gerretsen warned attendees at the summit that their well-exercised patience could be tried further in the future.

“We are currently experiencing a challenging fiscal climate and given that, province-wide expansion may take longer, and may be done in incremental fashion,” he said. “There is no doubt there will be many challenges as we unify more court sites, but the important thing to remember is the unified family court system will allow us to focus on the goal of providing what’s best for the people who are using it.”

Treatment of mentally ill female prisoners ‘inhuman’: report

Thu, 10 May 2012 14:51:52 +0000

Canada’s treatment of mentally ill female prisoners is “cruel, inhuman, and degrading,” says a report released yesterday by the University of Toronto Faculty of Law’s International Human Rights program.

The probe into Canada’s corrections system was conducted as a result of the death of 19-year-old inmate Ashley Smith, who died from asphyxiation after tying a ligature around her neck in October 2007 at the Grand Valley Institution in Kitchener, Ont. Smith had been transferred 17 times during approximately one year of incarceration.

“Smith’s death was a direct result of the interaction between her mental health issues and the prison environment, and the failure of the Correctional Service of Canada to respond appropriately to her mental health needs,” states the report.

IHRP director Renu Mandhane, along with 2L students Elizabeth Bingham and Rebecca Sutton, set out to prove that Smith’s case was not an isolated incident. They met with female prisoners at Grand Valley and found they also faced the same kind of “inhuman” treatment.

According to their research, at least one in three federally sentenced women suffers from a mental-health issue and close to half have attempted to harm themselves. Corrections Canada’s treatment of these women is discriminatory and violates the rights to liberty and security of person, health, access to justice and information, says the report.

“The lack of treatment for mentally ill women, especially in light of Ashley Smith’s in-custody death, is to me, still really quite shocking,” Mandhane tells Legal Feeds. “We’re five years out from her death and I can’t believe that things have not significantly changed.”

Mandhane says one of the problems is that the public doesn’t hold Corrections Canada liable. “Corrections tend to operate outside of the public view. They aren’t accountable in the same way as some of the other parts of the justice system,” she says. “[T]here’s so little public understanding of what goes on in our prisons that we don’t hold the government to the same standard as we do in terms of the protection of rights of, for example, accused people in criminal court.”

She is hopeful that the report will spur Corrections Canada to be more accountable to the public for its treatment of mentally ill prisoners, but she’s not overly optimistic.

“[G]iven what I’ve learned through the researching of this report, I really don’t think that the correctional system can be adequately fixed to house mentally ill women without violating their rights,” she says. “If it could, Ashley Smith’s death would’ve prompted that, and the fact that it hasn’t just gives me no faith in their commitment to protection of the human rights of these women.”

News roundup — May 10, 2012

Thu, 10 May 2012 14:00:54 +0000

Canada

B.C. mushroom farm owner tells inquest 'I'm a victim, too', The Globe and Mail

Lawyer defends firm that allegedly charged 'criminal rates', The Province

46 arrested in massive debit and credit card scam, Winnipeg Free Press

United States

Second masseur accuses John Travolta of sexual assault, Reuters

Jury begins deliberations in Jennifer Hudson family murders, Reuters

International

EU court rules against French fund tax regulation, Reuters

Radical cleric Qatada loses European appeal bid, Reuters

FACL celebrates in style

Wed, 09 May 2012 17:43:30 +0000

The Federation of Asian Canadian Lawyers held its annual gala last night. Organizers say about 250 people filled the Great Hall at Hart House in the University of Toronto to mix, mingle, eat, and hear Nova Scotia Court of Appeal Justice Linda Lee Oland speak. Jeannie Lee of the CBC was the evening’s MC and Ontario Attorney General John Gerrestsen was also there to say a few words. My hosts for the evening were the lawyers from North York litigation boutique Landy Marr Kats LLP.

Photos: Gail J. Cohen

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Launched in 2007, the Federation of Asian Canadian Lawyers has grown substantially from its first meetings in a local Toronto Chinese restaurant.

Thierry Ntumba and Mariott Gilpin from the Royal Bank of Canada join in the festivities at Hart House.

Former FACL president Jason Leung of Ridout & Maybee LLP, Jennifer Leung, Neil Kothari of RBC, and visiting National Asian Pacific American Bar Association executive member Jin Hwang of Verizon Wireless in New Jersey.

Law Society of Upper Canada Bencher Raj Anand of Weir Foulds LLP, Heydary Green managing director Michael Cochrane, and Ontario Superior Court Justice Faye McWatt.

A little light entertainment.

More members of the RBC legal team: Mahira Mohtashami and Karen Sladden.

Patrick Gervais from Blaney McMurtry LLP, and Paliare Roland’s Manpreet Dhaliwal and Gregory Ko.

Some of the organizers of the FACL gala: Rosa Kang of Bennett Gastle PC; Jazz Li from Cappell Parker LLP; Andrea Yau of Koskie Minsky LLP; Cynthia Aoki of Jones Harley LLP; and mylawbid.com founder Jeffrey Fung.

Law Society of Upper Canada benchers Linda Rothstein and Janet Minor.

Vanessa Lam of Macdonald & Partners and Landy Marr Kats LLP’s Anna Wong.

Alwin Kong of Cancer Care Ontario; Brendan Wong from Borden Ladner Gervais LLP, Janet Chong from Osler Hoskin & Harcourt LLP, and Rogers Communications’ Trung Lam.

Ontario Attorney General John Gerretsen.

Keynote speaker Justice Linda Lee Oland of the Nova Scotia Court of Appeal. Her advice for the crowd was: “Don’t self select out” of applying for judicial positions.

B.C. unveils plans for swift online dispute resolution

Wed, 09 May 2012 16:33:49 +0000

The B.C. government has unveiled plans for an online tribunal to take small civil claims and strata property disputes out of the courts.

Bill 44, the civil resolution tribunal act, introduced in the provincial legislature earlier this week, promises a 60-day dispute resolution process, compared with the 12 to 18 months it can currently take for cases to wind their way through the province’s Small Claims Court.

The government claims the tribunal, planned for launch in 2013 or 2014, will cut legal fees and travel costs for parties.

“Both individuals and business owners will find this a convenient and affordable way of reaching agreements,” B.C. Attorney General Shirley Bond said in a statement. “Few people want to go to court to solve a legal dispute, which can be costly, intimidating and time consuming. A tribunal offers an innovative alternative to settling a dispute in a faster, more amicable way.”

The tribunal will be available for disputes worth up to $25,000 where both parties agree to participate, leaving open the alternative of going to court. However, the government has said the process could be mandatory for strata corporations in certain property disputes.

Strata property disputes covered by the new legislation include non-payment of fees or fines, unfair actions by strata corporations, arbitrary by-laws, and financial responsibility for repairs. Matters that affect land, such as those involving liens and phased strata plans, will continue to be heard in the supreme court, as well as other more serious matters, like the appointment of an administrator or liquidation.

Tony Gioventu, the executive director of the Condominium Home Owners’ Association of British Columbia, welcomed the government’s move.

“The introduction of the Civil Resolution Tribunal Act is the first of several steps forward in developing new dispute resolution alternatives for strata corporations” he said. “The next step will be developing the rules and regulations which are vital to the success of a tribunal. We look forward to continuing our partnership with government to ensure the establishment of a tribunal that benefits the strata community.”

According to the B.C. government, the new tribunal would progress in four stages, with participants progressing to the next stage only if they were unable to reach agreement:

An interactive dispute resolution guide, with information, tips and templates to help the parties reach a settlement.
Party-to-party negotiations, using online tools to make contact and exchange information, with the tribunal monitoring discussions and intervening if necessary.
Case manager contacts the parties by phone or online to discuss the issues and attempt a facilitated settlement.
Tribunal hearing, with a tribunal member discussing the issues with parties online, by phone, videoconference or occasionally in person, and giving a binding decision on the dispute.

News roundup — May 9, 2012

Wed, 09 May 2012 14:11:28 +0000

Canada

Mentally ill female prisoners mistreated: report, Toronto Star

B.C. approves new rules against scrap metal theft, The Vancouver Sun

Environmental laws updated to accelerate projects: MP, Windsor Star

United States

Lawyer charged in mortgage-fraud scheme, Reuters

Twitter refuses to hand over protester's tweets, Reuters

International

Interpol seeks arrest of Iraq vice president, Reuters

Mongolia dilutes draft law on foreign investment, Reuters