Legal Feeds Blog

Be vigilant for bad cheque scams over long weekend, warns LawPRO

yamri.taddese@thomsonreuters.com (Yamri Taddese) — Fri, 17 May 2013 15:52:21 +0000

LawPRO is warning lawyers to be vigilant about bad cheque fraud over the long weekend, when fraudsters are known to take advantage of bank closures and off-guard staff at law offices.

LawPRO sees a higher traffic of bad cheque fraud activity when lawyers and their staff are busy preparing for a day off and are less likely to spot a red flag, says Dan Pinnington, LawPRO vice-president of claims prevention and stakeholder relations.

“When the fraudsters are setting up the time for the fake cheque to show up and go through the lawyers’ office, if that happens just before a long weekend, when people are otherwise busy and rushing, there is a better chance that the fraud will go through undetected,” he says.

Fraudsters claiming to be legitimate clients would have a lawyer deposit a fake cheque into a trust account and prompt the lawyer to wire good money elsewhere. They are aided by bank closures over long weekends, which delays detection of bad cheques and gives them a bit more time to get money out of the account, Pinnington says.

“They’re taking advantage of the fact that people are distracted and rushing and busy before a long weekend so maybe they take a little bit less care or rush through to get it done,” he adds.

Lawyers who suspect they have received a fraud email can contact LawPRO or check AvoidAClaim.com for a list of confirmed fraudsters. Since the site started tracking e-mails in January 2011, 45 per cent of alerts were from Ontario lawyers. Another 45 per cent came from the U.S., while five per cent came from the rest of Canada and another five from outside North America.

Last month saw a high traffic of e-mails from the U.S., LawPRO also notes. The most common type of fraud e-mails in April was debt collection scams, followed by business loan collection scam. The lastest fraud posted on AvoidAClaim today comes from lawyers D.C and Connecticut who says they’ve been contacted by the purported Seina Bloomberg with regards to a to a collaborative family law agreement dispute. “This is a fraud we have seen before under several other names and similar scenarios,” says the blog entry.

“These frauds are getting are more realistic, looking more sophisticated,” Pinnington says. “Lawyers need to watch out for the red flags. If there’s anything that doesn’t add up, they should ask questions and dig dipper.”

News roundup — May 17, 2013

mallory.hendry@thomsonreuters.com (Mallory Hendry) — Fri, 17 May 2013 13:53:03 +0000

Canada

Brazeau claims his 'day in court' will clear his name, The National Post

Lawyer for accused Bosma killer promises the 'real story' will come out, Toronto Star

Civilian watchdog group launches investigation of northern B.C. RCMP officers, Vancouver Sun

United States

State time limits apply to securities arbitration: Florida court, Reuters

Judge will not stop Arizona from denying driver's licences to immigrants, Reuters

International

Britain's prime minister urges 'EU rebels' to back referendum law, Reuters

Brazil sends port modernization bill up for Senate approval, Reuters

French firm establishes beachhead in Quebec

heather.gardiner@thomsonreuters.com (Heather Gardiner) — Thu, 16 May 2013 17:06:57 +0000

The French are joining forces.

International business law firm DS Avocats, based in Paris, France, is partnering up with Welch Bussieres, a 30-lawyer business law firm that has offices in Quebec City and Montreal.

DS Avocats has five offices in France along with offices in China, Vietnam, and Singapore.

Jean-François Welch, managing partner at Welch Bussieres, says this move will help the firm compete with larger national firms.

“Our competitors, which are the national firms, have been growing outside of Canada with a variety of partnerships and mergers, and we’re just trying to be able to follow our clients all the way to China and Europe and be able to offer them the service that they would get in a national or international law firm,” he tells Legal Feeds.

“Multinational corporations have access to seamless services across the planet, we just try to offer the same thing to small and medium businesses,” he says.

DS Avocats has a strong global connection as a founding member of the DS Network, a group of firms in Barcelona, Brussels, Milan, Buenos Aires, and soon Brazil.

François-Xavier Simard Jr., one of the firm’s partners, had a strong influence on the partnership with DS Avocats. Simard conducts a lot of business in Europe and with the new comprehensive economic and trade agreement, currently being negotiated by Canada and the European Union, he convinced the firm to go global in order to take advantage of it, says Welch.

In addition, the firm already does a fair bit of work with the United States so it made sense to seek access to the European and Chinese markets as well, he says.

“We need to be able to follow our clients outside of the borders,” says Welch.

News roundup — May 16, 2013

mallory.hendry@thomsonreuters.com (Mallory Hendry) — Thu, 16 May 2013 13:59:56 +0000

Canada

'Hotheaded' Osgoode grad finally allowed to don robes in Ontario: LSUC, Toronto Star

Toronto man with multiple charges 'complicates court calendar' with two days earmarked to schedule trials, The Globe and Mail

SCC to rule on Walmart baby case tomorrow, Calgary Herald

United States

Plaintiffs' lawyers argue pro-business procedures add to litigation costs, opposite of their goal, Reuters

YouTube decision has judge reconsidering record companies' copyright claims, Reuters

International

UK lawmakers question Google over tax affairs, Reuters

New Zealand's Supreme Court orders case against Megaupload to be transferred from the U.S., Reuters

Trudeau scholars tackling fascinating legal issues

charlotte.santry@thomsonreuters.com (Charlotte Santry ) — Wed, 15 May 2013 16:53:38 +0000

How do courts assess whether brain-damaged babies should receive aggressive treatments? Is there a place for emotions in judicial decisions? Can we achieve equality for LGBT communities in criminal law?

These are among the complex questions being tackled by this year’s Trudeau Foundation Scholarship recipients.

The scholarship supports social sciences and humanities students researching and sharing ideas aimed at solving issues of critical important to Canadians.

Five of the 14 Trudeau scholars, whose names were released yesterday, are looking at legal issues. They include Jean Frédéric Ménard, who’s researching the legal and ethical dilemmas faced in neonatal care, for babies up to 28 days old.

Ménard aims to address how health professionals, parents, judges and jurists weigh up whether to pursue aggressive interventions, or opt for palliative care, for babies with serious health problems. This includes babies with severe brain damage caused by asphyxiation during labour or those who have survived a very premature birth, the latter being increasingly common due to medical advances.

He says: “I worked for a year at Montreal children’s hospital as an ethics consultant and realized that there were big questions that don’t necessarily have an answer, so decided to go back to grad school to try to answer them.”

Courts and health workers are told to consider the “best interests of the child” but this is “very difficult to define,” says Ménard, who began his doctoral studies last October at University College London’s Faculty of Law. His research will look at Quebec, France. and the U.K.

Another Trudeau Foundation recipient is Kyle Kirkup, who’s just finished the first year of his doctoral program at the University of Toronto’s Faculty of Law. He’s researching whether it’s possible to achieve equality for LGBT community members in the domain of criminal law.

“Historically the LGBT movement in Canada was very much formed around considerations of the criminal law, he says. For example, it played a central part in the decriminalization of homosexuality in 1969 and in the bathhouse riots in the early 1980s.”

But after establishing some basic principles of equality, attention shifted to family law matters such as same sex marriage and adoption rights, says Kirkup.

“Now that we’ve achieved much of that equality in family law, maybe it’s time to go back to criminal law,” he adds, noting there are still many unresolved issues. For example, questions have arisen as to whether prisons should house transgender inmates in institutions based on their anatomical sex, and whether male or female officers should perform strip searches.

There’s also a debate to be had over how the law treats gay men who fail to disclose that they have HIV, argues Kirkup.

The scholarship provides a $60,000 annual grant for three years, as well as mentoring.

Also benefiting from the grant is Yale University student Ryan Liss, researching whether a common set of fundamental justice principles can “rally the nations of the world,” as in the case of international criminal justice.

Leah Trueblood, studying law at the University of Oxford, wants to see whether clarifying and improving the legal obligations faced in people’s daily lives could lead to a more just society.

Emily White, researching legal theory and human rights at New York University, is looking into a way to use emotions in the service of human rights and dignity.

“This cohort of scholars consists of the best minds in the best institutions studying crucial and complex issues for Canadians and the world,” says foundation president P.G. Forest. “The Trudeau scholarship will provide them with the conditions necessary to generate innovative solutions in their area of study.”

News roundup — May 15, 2013

mallory.hendry@thomsonreuters.com (Mallory Hendry) — Wed, 15 May 2013 13:59:35 +0000

Canada

Legal experts predict rumoured designation of Prince Charles as regent would send Canada into 'unchartered constitutional waters', Vancouver Sun

Ontario Human Rights Tribunal awards $22,000, 8 months pay to male labourer fired while undergoing sex change, Toronto Star

Millard faces first-degree murder charges as police seek two more suspects in Bosma case, The National Post

United States

Supreme Court to take up question of inequitable conduct, Reuters

Justice Department demands penalties for financial advisor Capstone, Reuters

International

Cuba charges Western businessmen with corruption after more than a year in custody, Reuters

Egypt's prosecutors charge Christian teacher for 'insulting Islam', Reuters

Blockade by individuals amounted to ‘abuse of process’

jen.brown@thomsonreuters.com (Jennifer Brown) — Tue, 14 May 2013 17:49:01 +0000

The Supreme Court of Canada has ruled that individual members of an Aboriginal group can’t use blockades or other “self-help” remedies when claiming a government breached its duty to consult, and in fact doing so amounted to “an abuse of process.”

In Behn v. Moulton Contracting Ltd., the SCC dismissed an appeal from individual band members of the Fort Nelson First Nation and endorsed the position taken by two lower B.C. courts.

Among the issues addressed by the SCC was whether it amounts to an abuse of process for Aboriginal individuals — in this case all with the last name Behn — to challenge the validity of government issued authorizations as a defence to a legal claim when they failed to take legal action to challenge the government’s authorization.

Writing for the court, Justice Louis LeBel noted:

In my opinion, the Behns’ acts amount to an abuse of process. The Behns clearly objected to the validity of the Authorizations on the grounds that the Authorizations infringed their treaty rights and that the Crown had breached its duty to consult. On the face of the record, whereas they now claim to have standing to raise these issues, the Behns did not seek to resolve the issue of standing, nor did they contest the validity of the Authorizations by legal means when they were issued.

In the case, members of the Aboriginal community had set up a camp blockade in October 2006 to interfere with a logging operation within Treaty 8 territory. The blockade meant the logging company, Moulton Contracting, couldn’t get access to or cut the timber within the traditional territory of the Fort Nelson First Nation where the company was authorized to do so.

The Crown had granted licences to the logging company to harvest timber in two areas of the Fort Nelson territory.

The company brought a tort action against the members of the band (the Behns), who argued the licences were void because they had been issued in breach of the constitutional duty to consult and because violated their treaty rights.

For its part, the logging company filed a motion to strike those defences. The lower courts held that the individual members of the Aboriginal community did not have standing to assert collective rights in their defence — only the community could do so. The lower courts also concluded a challenge to the validity of the licences amounted to an abuse of process, as the members of the community had failed to challenge the validity of the licences when they were issued.

The abuse of process is a key factor in this case, says Thomas Isaac, who heads the national aboriginal law group at McCarthy Tétrault LLP in Vancouver.

“They shouldn’t have been attacking the private third party [Moulton],” says Isaac. “What the court said was if they had a problem with this, they should have gone after the Crown approval, per se. That’s not a surprise but we haven’t had a court to date expressing it that way. It adds further credence to the view the law is becoming reasonably clear in this area.”

Isaac says the decision is contrary to the perception that provincial governments try to convey that the law is uncertain in this area.

“It is another decision in which the court has said ‘we are unwilling to point the finger at private third parties in terms of remedies.’ Unless the private third party has dirty hands in this, you see the court really being reluctant to applying remedies against private third parties,” he says. “If First Nations have a problem with the permits they should be attacking the permits, not the permit holder.”

The decision states: “To allow the Behns to raise their defence based on treaty rights and on a breach of the duty to consult at this point would be tantamount to condoning self-help remedies and would bring the administration of justice into disrepute.”

News roundup — May 14, 2013

mallory.hendry@thomsonreuters.com (Mallory Hendry) — Tue, 14 May 2013 14:30:58 +0000

Canada

After 25-year legal battle, hijacker finally deported following Canada's 'clamp down' on immigration, Reuters

Hudak wants full judicial inquiry into Ontario power plant cancellations, Toronto Star

Navigating officer convicted of criminal negligence causing death over 2006 ferry sinking, The National Post

United States

Shareholders challenging executive pay packages suffer another loss as judge throws out latest case, Reuters

After a century and a half, justices finally rule on what 'defalcation' means in bankruptcy code, Reuters

International

Russia detains CIA agent allegedly caught trying to 'recruit a spy', Reuters

Former Guatemalan dictator convicted of genocide, crimes against humanity, Reuters

City’s challenge of cleanup order for others’ pollution rejected

glenn.kauth@thomsonreuters.com (Glenn Kauth) — Mon, 13 May 2013 18:08:48 +0000

The Ontario Court of Appeal has dealt a blow to the notion that polluters are responsible for fixing their messes. The court rejected a municipality’s bid to challenge an order putting it on the hook for someone else’s spill by calling evidence that another party was at fault.

“Evidence of the fault of others says nothing about how the environment would be protected and the legislative objective served if the director’s order were revoked,” wrote Justice Stephen Goudge in Kawartha Lakes (City) v. Ontario (Environment) on Friday.

“Indeed, by inviting the tribunal into a fault finding exercise, permitting the evidence might even impede answering the question in the timely way required by that legislative objective.”

Environmental lawyers have been closely watching the case since the Environmental Review Tribunal upheld the Ministry of the Environment’s order under the Environmental Protection Act directing the city to remediate and prevent any further discharge of furnace oil on its property. But the 2008 spill happened on the property of Wayne and Liana Gendron during a delivery of fuel oil. The oil migrated onto the city’s property and into Sturgeon Lake. While the ministry first issued an order to the Gendrons, they had run out of money to do offsite remediation by March 2009.

The city then unsuccessfully sought to challenge the ministry director’s order at the tribunal and later the Divisional Court. All parties agreed the city wasn’t at fault, a fact that made the case an important one for environmental lawyers accustomed to the notion of making polluters fix their messes.

“Just picking on someone innocent and making them pay for it . . . it’s scary,” says Toronto environmental lawyer Dianne Saxe, who notes the rulings make it more difficult to advise clients affected by a neighbouring spill who may now question whether they should report an event to the ministry.

Despite the concerns, the appeal court emphasized the overriding objective of protecting the environment.

“I agree with the tribunal and the Divisional Court that evidence that others were at fault for the spill is irrelevant to whether the order against the appellant should be revoked,” wrote Goudge. “That order is a no fault order. It is not premised on a finding of fault on the part of the appellant but on the need to serve the environmental protection objective of the legislation.

“The tribunal had to determine whether revoking the director’s order would serve that objective. Deciding whether others are at fault for the spill is of no assistance in answering that question.”

Rulings throughout the case have faulted the city for blaming other parties without offering a solution for the pollution should it succeed in getting the order revoked. But for Saxe, that’s exactly what the city was trying to do in arguing there were other parties involved that could fix the problem.

“There’s no effective right of appeal,” she says in summarizing the implications of the case.

In the end, the appeal court dismissed the city’s appeal but made no order as to costs. Of course, the ruling doesn’t stop the city from trying to recover its costs through other means. As Goudge noted, the city has made use of s. 100.1 of the act that allows a party subject to a no-fault order to seek to recover its costs.

That matter involving the Gendrons, Thompson Fuels Ltd., and the Technical Standards and Safety Authority is ongoing, according to Goudge. But according to Saxe, success in recovering costs is very rare.

“Almost always they don’t get it,” she says.

This week at the SCC

heather.gardiner@thomsonreuters.com (Heather Gardiner) — Mon, 13 May 2013 14:34:03 +0000

It’s going to be a busy week at the Supreme Court of Canada with nine appeals scheduled to be heard.

May 13 — Federal Court — Eli Lilly Canada Inc. v. Novopharm Ltd.

Intellectual property law: This case relates to a patent dispute over the medicine olanzapine, which could potentially be used to treat central nervous system diseases like schizophrenia. Eli Lilly applied for the patent and then Novapharm sought to bring a generic version of olanzapine to market. The central question is whether the Federal Court of Appeal’s creation of a new non-statutory test for utility is a matter of public importance.

Read the Federal Court of Appeal’s decision.

Other related articles:
Federal Court of Appeal upholds invalidity of olanzapine selection patent, Smart & Biggar/Fetherstonhaugh

May 13 — Ontario — Attorney General of Canada v. Zajicek

Criminal law: The Czech Republic sought Bretislav Zajicek’s extradition to stand trial on charges of robbery and property offences from nine years prior. Zajicek had confessed to Czech authorities but he claims the confession was obtained through torture. The minister of Justice wasn’t convinced that his allegations of torture established an abuse of process and therefore issued a surrender order.

Read the Ontario Court of Appeal’s decision.

Other related articles:
Ottawa: Bretislav Zajicek facing extradition over allegations of robbery and property damage in his native Czech Republic, CIReport

May 13 — Alberta — Mian v. R.

Charter of Rights and Freedoms: Mohammad Hassan Mian was charged with drug-related offences but the trial judge found his Charter rights had been breached and excluded the evidence pursuant to s. 24(2) of the Charter. Mian was acquitted. The Court of Appeal allowed the appeal and ordered a new trial.

Read the Alberta Court of Appeal’s decision.

May 14 — Ontario — Katz Group Canada Inc. v. Minister of Health and Long-Term Care

Health law: Shoppers Drug Mart and the Katz Group, which own, franchise, and operate pharmacies in Ontario, applied to quash provincial regulations that prohibit private label generic drugs from being sold. Shoppers and the Katz Group wanted to use their own private label generic drugs instead of purchasing them from an arm’s-length third party, however amendments to the regulation of prescription drug sales in 2010 prevent them from doing so.

Other related articles:
Supreme Court to hear appeal of Ontario generic drug rules, The Globe & Mail

May 14 — Ontario — Shoppers Drug Mart Inc. v. Minister of Health and Long-Term Care

Health law: This case is related to the one above. The main question is whether the Ontario government can lawfully ban private label generic drugs by regulation or if it has to receive approval from the legislature.

Read the Ontario Court of Appeal’s decision.

Other related articles:
What’s in a Name? Ontario Pharmacies Fight to Substitute Brand-Name Drugs with Private-Label Equivalents, Canadian Appeals Monitor

Will Ontario drug victory be a boost for Shoppers Drug Mart? Financial Post

May 15 — Quebec — Ibanescu v. R.

Criminal law: Mihai Ibanescu was charged with driving with a blood alcohol level over the legal limit and impaired driving. The central issue is whether the Court of Appeal erred by not complying with the stare decisis rule.

Read the Quebec Court of Appeal’s decision.

May 16 — Manitoba — Telecommunication Employees Association of Manitoba Inc. v. Manitoba Telecom Services Inc.

Pensions: When the Manitoba Telephone System was no longer a Crown corporation, employees and retirees became members of a new pension plan. The pension assets and liabilities attributable to members under the old plan were transferred to the new plan. The difference in value was determined to be approximately $43.3 million. The employees and retirees launched an action for payment of the surplus and sought declarations relating to the governance of the new plan. The Court of Queen’s Bench allowed the action in part and ordered MTS to pay the surplus to the applicants. The Court of Appeal allowed the appeal.

Read the Manitoba Court of Appeal’s decision.

Other related articles:
MTS employees taking pension money case to Supreme Court, Metro News

May 16 — Alberta — Vuradin v. R.

Criminal law: Fabian Vuradin was convicted of the sexual interference of an 11-year-old girl along with the sexual assault of two others. Vuradin appealed to have his pretrial custody count towards his sentence. The Court of Appeal allowed the appeal in part. There is a publication ban on the victim’s name.

Read the Alberta Court of Appeal’s decision.

May 17 — Ontario — Castonguay Blasting Ltd. v. R.

Environmental law: Castonguay Blasting was the subcontractor at a highway construction site when rock debris damaged a house and a vehicle on neighbouring private property. The property owners were compensated for the damage but Castonguay was charged one and a half years later for failing to report the discharge of a contaminant into the natural environment contrary to the Environmental Protection Act. The Ontario Court of Justice acquitted Castonguay, but that decision was reversed by the Superior Court. The Court of Appeal allowed the appeal.

Read the Ontario Court of Appeal’s decision.

Other related articles:
Castonguay Blasting Limited fined $25,000 for fly rock discharge, Ministry of the Environment

Castonguay Blasting — A Case Comment, Gowlings

News roundup — May 13, 2013

mallory.hendry@thomsonreuters.com (Mallory Hendry) — Mon, 13 May 2013 14:32:11 +0000

Canada

Some Toronto law firms, in-house lawyers outsourcing legal work to India, Toronto Star

Anti-piracy enforcement firm looking to bring U.S.-style copyright lawsuits to Canada, The National Post

Simple immigration cases to be 'fast tracked' in Federal Court pilot project, Calgary Herald

United States

Former FTC lawyer calls for more antitrust scrutiny for patent pools, Reuters

Increased focus on misclassification in cable installer judgment, Reuters

International

Argentina to face 'very different debt default' if loses legal battle, Reuters

Capital group files lawsuit over sale of Mexican plant used by drug cartel, Reuters

Court orders more costs for Cassels Brock

yamri.taddese@thomsonreuters.com (Yamri Taddese) — Fri, 10 May 2013 16:09:00 +0000

Cassels Brock & Blackwell LLP can now feel some sense of security about recovering its legal costs in Mauldin v. Cassels Brock & Blackwell LLP after the Ontario Court of Appeal changed the terms of the cost orders in the investment fraud case.

The case, which saw Toronto businessman Robert Hryniak convicted of civil fraud, was back in the appeal court this week for a decision on who should pick up the legal tabs.

Cassels Brock and its former partner Jack Peebles were named as co-defendants for allegedly allowing Hryniak to access to the firm’s trust accounts as he wished. But while Hryniak was found guilty in a summary judgment and ordered to pay $2 million, the court dismissed a summary judgment motion against Peebles and the law firm, deciding the allegations against them must go to trial.

Two groups of plaintiffs, known as the Mauldin group and the Bruno group, sued Hryniak. Both groups had originally won in a summary judgment, but later, an appellate court reversed the decision in the Bruno case, which it sent to trial.

In October 2010, a Superior Court judge had ordered Hryniak to pay Cassels Brock and Peebles for their costs in both motions. The judge had used the Sanderson model to order costs, which follows that the losing defendant pays the cost of the successful defendants.

One of Hryniak’s grounds of appeal was that he shouldn’t have to pay the legal costs of his co-defendants in the Bruno motion. Cassels Brock and Peebles agreed with this appeal, arguing the Sanderson order is inappropriate since Bruno was unsuccessful with all three defendants.

The law firm also said “it is not fair and equitable for it to continue to bear the risk of non-recovery of costs payable by Hryniak under the Sanderson order,” according to the decision.

This week, the appeal court agreed.

“Since Bruno’s motion failed against all three defendants, we set aside the motion judge’s Sanderson order in respect of the costs of the Bruno motion,” the appeal court said.

“The Sanderson order reduced Bruno’s obligation to pay the costs awarded to Cassels Brock and to Peebles by $21,212.27 and $4,545.45 respectively. Bruno is now responsible for payment of these amounts. Hryniak’s obligations to Cassels Brock and Peebles are reduced accordingly.”

When reached by Legal Feeds, a Cassels Brock spokeswoman said the firm would not comment on matters before the courts.

The Supreme Court of Canada has heard and reserved Hryniak’s appeal in relation to the summary judgment in Mauldin case.

Upadate: May 13. Fixed comment from Cassels Brock.

News roundup — May 10, 2013

mallory.hendry@thomsonreuters.com (Mallory Hendry) — Fri, 10 May 2013 13:25:38 +0000

Canada

Winnipeg couple calls Canada's laws 'out of step' with new realities of family making, The National Post

Ontario man facing charges for ties with Al Qaeda facing new trial in Mauritania, Toronto Star

Canadian train attack case sees man charged with visa fraud, Reuters

United States

Supreme Court ruling in hospital merger could prompt more antitrust challenges, Reuters

Book publisher backed by litigation-funding firm loses suit against Apple, Reuters

International

Indian Supreme Court judge denounces top police agency, Reuters

Serbian retail tycoon indicted over disputed privatization deal, Reuters

SCC dismisses Kopyto appeal on paralegal regulation

heather.gardiner@thomsonreuters.com (Heather Gardiner) — Thu, 09 May 2013 15:50:45 +0000

In a long-standing battle with the Law Society of Upper Canada, former lawyer Harry Kopyto took his case all the way to the Supreme Court of Canada, and ultimately lost.

Today the SCC dismissed his application for leave to appeal.

Kopyto sought to be grandfathered as a paralegal in Ontario after he was disbarred as a lawyer in 1989 for overbilling legal aid. The law society initiated a good character hearing, which Kopyto used to challenge the LSUC’s jurisdiction to regulate paralegals, arguing it violates the Constitution and federal competition laws.

The law society began regulating paralegals in May 2007.

“It actually restricted access to justice by giving lawyers a monopoly for legal services and legal advice and eliminating the more affordable competition, the paralegals,” Kopyto told Law Times in February 2011.

“They claim they took over because paralegals were committing criminal acts and were incompetent. I want to see that evidence but I don’t think it exists. It was no worse with paralegals than it was with lawyers. The real reason they did it was to advance their own economic agenda.”

The case has been through three separate hearing panels, beginning in late 2009, after Kopyto made repeated accusations of bias.

Kopyto filed a motion to stay the good character hearing, claiming the regulatory regime was unconstitutional. The law society then sought to have the motion quashed, which was granted by the hearing panel on the basis that the panel wasn’t competent to hear constitutional challenges as they are better suited for the courts.

Kopyto sought judicial review of this decision, but the Divisional Court sided with the hearing panel. So Kopyto took his statement of claim to the Ontario Superior Court seeking five declarations:

that bylaw 4 of the Law Society Act constituted an “anti-competitive act” as defined in the Competition Act;
that the LSUC had abused its position by restricting access to justice due to its assumption of regulatory jurisdiction over paralegals;
that the LSUC acted in bad faith and was in a conflict of interest by dealing with the paralegal profession;
that bylaw 4 was not in the public interest because it restricted paralegals’ practice, contrary to the enabling statute; and
that bylaw 4 violated the constitutional right of access to affordable justice.

The court ultimately ruled against him. In November, the Ontario Court of Appeal also dismissed Kopyto’s appeal.

“[W]e see no possibility that the appellant’s attack on the constitutionality of the legislation can succeed,” stated the appeal ruling. “It is plain and obvious that this claim, no matter how drafted, is doomed to fail.”

For more on this story, read “Kopyto’s long battle with LSUC."

News roundup — May 9, 2013

mallory.hendry@thomsonreuters.com (Mallory Hendry) — Thu, 09 May 2013 14:23:05 +0000

Canada

Canada threatens to take EU to the WTO over accusations of 'breaking international trade rules', Reuters

Elections commissioner says Manitoba premier did not break elections law, Calgary Herald

Former Laval mayor arrested by Quebec corruption squad, Toronto Star

United States

Chief prosecutor denies investigation into file-sharing site shows Washington 'bowing' to Hollywood, Reuters

American Antitrust Institute launches plan to teach judges about antitrust, Reuters

International

China-based online services provider Subaye sued over 'fraudulent scheme', Reuters

Prosecutors aim for another trial for Berlusconi over alleged bribing of a senator, Reuters

AG doesn’t need to be a lawyer: B.C. appeal court

charlotte.santry@thomsonreuters.com (Charlotte Santry ) — Wed, 08 May 2013 18:40:06 +0000

British Columbia’s attorney general is not required to be a lawyer, the province’s appeal court has ruled.

The B.C. Court of Appeal yesterday said it would uphold the B.C. Supreme Court’s decision in Askin v. Law Society of British Columbia.

The case was sparked after Shirley Bond was appointed as acting attorney general in August 2011, before becoming minister of justice and attorney general in February 2012. She is the first woman to hold these positions in B.C.

B.C. resident Lesslie Askin believed Bond was unqualified to hold the post and contacted the law society, which rejected her complaint on the grounds it lacked the necessary jurisdiction.

Askin took the case to court as a self-represented litigant, arguing that Bond’s appointment was statute barred due to her lack of legal training, and the LSBC was incorrect to say it lacked jurisdiction.

In a decision last June, Justice Stromberg-Stein said the LSBC was correct and Askin’s overall petition was “devoid of merit.”

She added: “To conclude that only persons entitled to practise law qualify for the appointment as attorney general would impermissibly constrain the Crown prerogative of ministerial appointment exercised by the lieutenant governor and the lieutenant governor in council.

“Many predecessor attorneys general have been non-lawyers and non-practising lawyers,” she said.

Askin appealed the decision, basing her argument on four provincial statutes: the Constitution Act, the Attorney General Act, the Queen’s Counsel Act, and the Legal Profession Act.

Cameron Ward, whose firm represented Askin in her appeal, says he argued at the April 29 hearing that: “Applying all the principles of statutory interpretation, the only conclusion one can draw is . . . that the attorney general must have practised for five years and be entitled to have membership at the Law Society of British Columbia.”

A transcript of the decision is not expected for another two weeks, but the court confirmed to Legal Feeds the appeal was dismissed.

LSBC chief legal officer Deborah Armour told Legal Feeds in an e-mailed statement: “The Law Society’s position has been that the relevant statutes in the province did not require the attorney general to be a practising member of the law society and the B.C. Supreme Court was in agreement. Now, the Court of Appeal has agreed that there is no requirement for the attorney general to be qualified to practise law. The law society is content to have the matter once again resolved and to have confirmation of our interpretation of the Legal Profession Act and other statutes.”

Ward has been instructed by Askin to file an appeal with the Supreme Court of Canada against the latest decision.

He says: “There are some important constitutional and policy implications surrounding this issue as to who may be qualified to hold this position.”

The “primary importance” of the case was highlighted by the attorney general’s counsel during the appeal, he adds.

Bond is the fourth attorney general in the history of British Columbia who has had no legal education or training; federally and in other provinces this has only happened in “exceptional” circumstances, according to Ward. Lawyers have served as attorneys general in the U.K. since 1461, he notes.

Update 3:15 pm: Comments from LSBC

Paralegal motion withdrawn hours before law society AGM

yamri.taddese@thomsonreuters.com (Yamri Taddese) — Wed, 08 May 2013 18:13:00 +0000

A controversial motion seeking action to expand the scope of paralegal practice was withdrawn hours before the Law Society of Upper Canada’s annual general meeting tonight.

After intensive discussions over the past week with the law society and the Canadian Bar Association, the 10 paralegals who proposed the motion have decided it’s best not to go head with it, says John Tzanis, president of the Paralegal Society of Ontario.

“We had assurances from the law society treasurer and staff that everything we’re asking for is being done,” Tzanis says, adding that the paralegal group has also heard from OBA president Morris Chochla.

The motion would have asked the law society to look into training programs for paralegals so they can practise fully in areas like family law and immigration law.

Law Times recently reported on the fierce debate the motion had stirred between paralegals, who say it’s time they practised with fewer limitations, and lawyers who argue only law school can prepare a person for the kind of work they do.

“Lawyers and paralegals should be colleagues, we should be working together on all of these issues . . . not in opposition or going to a battle,” Tzanis told Legal Feeds. “It doesn’t make any sense . . . if we’re both fighting for access to justice for the public, why are we battling each other like this?”

The withdrawal of the motion is also meant to thwart the animosity that was expected at tonight’s meeting, which had been moved to a larger venue in expectation of unprecedented attendance due to the controversy.

“We’ve done so much to help build bridges and the last thing we wanted was to create a war of words,” said Tzanis. “I thought there will be some paralegals who don’t represent the majority of us or there will be some lawyers who don’t represent the majority going out there and making some comments that will put us back here.”

Tzanis also said the law society promised to communicate more openly about its follow through with the 2012 Morris report, which recommended creating training programs for paralegals that will allow them to practise more broadly.

Response on Twitter to the motion’s withdrawal was swift with a number of lawyers commenting that if the reason taking it off the table was the moblization of the bar against the motion, it shows the inherent conflict of having one regulator for both lawyers and paralegals.

“If Ontario benchers/lawyers mobilized against it, that is a massive conflict for @LawsocietyLSUC,” tweeted Mitch Kowalski. “And exactly why @LawsocietyLSUC has no business regulating paralegals in the first place.”

Once a lawyer, always a lawyer

heather.gardiner@thomsonreuters.com (Heather Gardiner) — Wed, 08 May 2013 15:40:44 +0000

“Follow your heart.”

This was one of the main messages from last night’s Diverse Careers for Women in Law panel discussion at the Law Society of Upper Canada.

Hosted by the Women’s Law Association of Ontario, the panellists at this annual event shared their thoughts on issues women face in the legal profession, such as finding your career path, mentorship, and leaving private practice.

Ontario Court Justice Miriam Bloomenfeld told the audience to “remain true to your inner compass.” As a shy student, she said she hated law school but stayed the course and ended up finding her calling as a Crown attorney.

When she was appointed to the bench in December 2005, she said it was difficult to find a place for herself and remain who she was in this new environment, but she persevered and now has great relationships with the other judges, especially other female judges with whom she has built personal connections.

“Don’t do anything because you think it’s something you should do,” said Bloomenfeld.

On the other hand, don’t be afraid to take chances, they advised.

“Just say yes,” said Senator Elaine McCoy. “It’s a great way to move forward in life.”

When McCoy was a young woman, she said she didn’t know what she wanted to be but an older male lawyer suggested she go to law school. So she enrolled and it was one of the best decisions of her life.

Elizabeth Jordan, director at RBC Capital Markets Compliance, encouraged women to get into business, adding that a legal degree provides so many transferable skills that can be applied to other industries.

The women had differing opinions on how to get a mentor, but they all agreed it’s important to have mentors for every stage of your career.

Susan Lightstone, the senior educational consultant at the Ontario Court of Justice, said mentors will help push your career forward but you have to earn the right to be mentored. Don’t complain to your mentor, she advised, instead come to them with focused questions about your career.

Jordan said you should be strategic about the way you ask someone to be your mentor.

The panellists also acknowledged that for many women, it’s difficult to maintain a work-life balance in private practice. Marla Burstyn, vice chairwoman of the Ontario Health Services Appeal and Review Board, said she left private practice after having two children because she wanted more flexibility.

When considering leaving private practice, she said it’s especially important to network.

“The only way to land on something is to know what’s out there, to know your options,” she said.

For women contemplating leaving the legal profession altogether, Lightstone said “Don’t do it!”

After having her second child, she could only get four months of maternity leave and was forced out of the law due to health issues. To make ends meet, she became a freelance legal writer. It’s hard to get back into the legal profession once you leave, she said. So rather than leaving the law, “think about how you can work as a lawyer in a different way,” she told the audience.

“I always thought of myself as a lawyer [and] I am damn glad I never gave it up,” said Lightstone.

News roundup — May 8, 2013

mallory.hendry@thomsonreuters.com (Mallory Hendry) — Wed, 08 May 2013 13:51:18 +0000

Canada

Canada loses appeal at WTO in renewable energy case, Reuters

CSA suing Calgary-based family business for copyright violation over electrical guide, The National Post

Judge halts enforcement of judgment against Chevron, Reuters

United States

Labour Board decides tour guide unlawfully fired after Facebook post about working conditions, Reuters

Fannie Mae, KPMG settle shareholder lawsuit with $153 million payment, Reuters

International

Lawyer says her client is the first activist to be arrested in China for 'pressuring officials on their wealth', Reuters

Several people charged in alleged kickback scheme with Venezuelan financial official, Reuters

Ontario government hints it may address limitation periods

jen.brown@thomsonreuters.com (Jennifer Brown) — Tue, 07 May 2013 20:17:08 +0000

It’s one bullet point buried deep in the Ontario budget but it could have big implications for the class action bar.

On page 290 of last week’s budget, under a section regarding consultations with the Ontario Securities Commission, it’s noted the government “plans to propose further changes to update the Securities Act.” That may include, “if needed, following current court cases that the government is monitoring closely, suspending the operation of the secondary market civil liability limitation period while leave to proceed is being sought.”

“My assumption is that it’s speaking to the Timminco case,” says Jeremy Devereux, a partner with Norton Rose Canada LLP, referring to Sharma v. Timminco Ltd., which denied a class action based on limitation period.

Devereux notes there are also three major cases going before the five-judge panel of the Court of Appeal.

“The government wants the public to know it’s an issue they’re aware of and state their position, which seems to be that if it turns out the limitation period does expire in three years, even though leave is being sought, it seems this government’s is saying they are going to change that.”

The cases include Silver v. Imax, Trustees of the Millwright Regional Council of Ontario Pension Trust Fund v. Celesetica Inc., and Green v. Canadian Imperial Bank of Commerce.

“It looks like they’re waiting to see what happens with the cases currently before the Court of Appeal,” he says. “If the Court of Appeal finds a way of saying that the limitation period does expire in three years — provided you’re actually seeking leave to appeal from the court — even if it hasn’t been granted yet, I presume the government would say there is no longer a problem, we won’t do anything.

“But if the Court of Appeal says no, the limitation period does expire within three years, if you have not obtained leave, the government will intervene and amend the legislation to make it clear the limitation period stops running while leave is being sought.”

If a plaintiff intended to commence a securities class action, once they served the materials for leave under the Securities Act, then it would have the effect of stopping the limitation period from running.

Devereux notes that Justice Katherine van Rensburg in Imax and Justice Paul Perell in Celestica both found a way to allow the cases to continue even though leave had not been granted within the three year period.

Last July, in Green v. CIBC, Justice George Strathy took a different position and refused to certify based on expiration of the limitation period. In his view of the law, he wasn’t able to allow the case to continue. However, he noted in his decision that if it had not been “time-barred” he “. . .would have granted leave to pursue the statutory cause of action, and would have certified this action as a class proceeding for that purpose.”

Other items noted in the budget regarding the OSC indicate there is interest in updating the Securities Act including:

expanding the insider-trading and self-dealing provisions, including in relation to their application to investment funds
updating disclosure requirements for the exchange traded funds to provide plain-language, concise and comparable disclosure to investors that is more consistent with requirements that apply to mutual funds
updating early-warning reporting and related requirements for take-over bids to provide more transparency to regulators and the public.

News roundup — May 7, 2013

mallory.hendry@thomsonreuters.com (Mallory Hendry) — Tue, 07 May 2013 14:23:07 +0000

Canada

Farmer who spent a year in Beirut jail sues Canadian government for failing to protect his Charter rights, The Globe and Mail

Lawsuit against B.C. government alleges Liberals received 'major' political donations from pharmaceutical companies, halted drug-safety research, Vancouver Sun

Correction worker loses appeal to get job back after being fired for inciting jail riot, Winnipeg Sun

United States

Rail antitrust case rare in that there are major businesses on both sides, Reuters

Judge hears closing arguments in credit card antitrust case, Reuters

International

BNP Paribas and Deutsche Bank make unusual suggestion that the bank suing them should 'sue itself' to recover losses, Reuters

Lawyer files to withdraw counsel over client's inability to pay in Ecuador rainforest pollution case, Reuter

Weird case of the week

gail.cohen@thomsonreuters.com (Gail J. Cohen) — Mon, 06 May 2013 20:54:53 +0000

Some Guy v. The World, Ontario Superior Court

While our plan is to focus on odd decisions with the Weird Case of the Week, this motion could not go by unremarked.

Thanks to Chris Jaglowitz (@chrisjaglowitz), a Toronto condo lawyer with Gardiner MIller Arnold, for his tweet alerting us to this case on the docket for Justice Peter Cumming at the courthouse at 330 University Ave. in Toronto for tomorrow. His tweet describes it thusly: "Here's the door sheet for some guy's lawsuit vs the whole world. Waste of judges' time and precious court resources."

Des Rosiers named U of O common law dean

glenn.kauth@thomsonreuters.com (Glenn Kauth) — Mon, 06 May 2013 16:17:07 +0000

The University of Ottawa named Canadian Civil Liberties Association general counsel Nathalie Des Rosiers as the new dean of its common law program.

Caroline Milliard, manager of media relations at the university, confirmed Des Rosier’s appointment this morning. The five-year appointment is effective July 1, says Milliard.

“I’m very pleased and honoured by the appointment,” Des Rosiers tells Legal Feeds. “It’s a great faculty,” she adds, noting she aims to “makes sure it continues to shine as it has.”

Des Rosiers will fill the vacancy created by the upcoming departure of common law faculty dean Bruce Feldthusen.

The incoming dean, of course, is no stranger the University of Ottawa. Currently a professor in the civil law section, she was dean of the civil law program from 2004 to 2008.

After leaving that position, she moved to the CCLA to replace the departing Alan Borovoy, who retired from the organization after 40 years of leading some of Canada’s most important social battles. Since then, she has found herself taking high-profile roles in many of the current social battles, including the widespread concerns over police actions during the G20 summit in Toronto in 2010. Throughout the controversy, the CCLA pushed strongly for a single public inquiry into police actions during the summit.

The CCLA also made a significant mark last year with a report calling for changes in how police keep records of their interactions with people that don’t result in an arrest. Among other things, the report called for the destruction of non-conviction records given the concerns about the effect on the presumption of innocence.

Des Rosiers says there’s no replacement yet for her CCLA role yet but says she expects the organization to launch a competition for the position soon.

“It’s a great job,” she says, noting “it was a very difficult decision” to leave a “very useful, very needed” organization.

Besides the University of Ottawa and CCLA postings, Des Rosiers was president of the Law Commission of Canada from 2000 to 2004 and taught at the University of Western Ontario prior to that. During her career, she has received a number of honours, including the medal of the Law Society of Upper Canada in 1999. For the past two years, Canadian Lawyer has named her one of Canada’s 25 most influential lawyers. l

Feldthusen leaves the dean’s post after more than a decade in the role.

News roundup — May 6, 2013

mallory.hendry@thomsonreuters.com (Mallory Hendry) — Mon, 06 May 2013 14:26:40 +0000

Canada

Canadian courts 'choking' on handling of evidence in trials, The National Post

Justice Canada survey finds majority of sexual assault victims have no confidence in judicial system, Chronicle Herald

Transgender bride prompts Saskatchewan human rights group to demand change to province's human rights legislation, Toronto Star

United States

Appeals court struggles with railroad antitrust case involving thousands of freight-shipping customers, Reuters

Boss violated labour law in firing manager who refused drug test without first speaking to union rep, Reuters

International

Berlusconi trials to stay in Milan despite arguments he will not face fair trial: judge, Reuters

Trial of neo-Nazi forces Germany to acknowledge 'blind spot', Reuters

Ontario budget falls short on fixing legal aid: Boxall

yamri.taddese@thomsonreuters.com (Yamri Taddese) — Fri, 03 May 2013 16:38:54 +0000

The $30 million over three years allocated for Legal Aid Ontario in this year’s Ontario budget doesn’t do much to address a system that is “strained to a breaking point,” according to Criminal Lawyers’ Association president Norman Boxall.

“Any increase for legal aid is welcome. However, given the extent to which it is underfunded, this allocation is not adequate,” says Boxall. The financial eligibility threshold for legal aid filters out too many people who are in need, says Boxall, who calls the criteria “frankly embarrassing.”

Yesterday’s budget notes the $30 million for Legal Aid Ontario is on top of the $150 million over four years allocated to it in 2009.

“This funding will improve access to justice and enhance outcomes for low-income families, victims of domestic violence, and other vulnerable groups by strengthening the capacity of family law service centres and other community and legal clinics across Ontario to respond to evolving needs and ensure services are sustainable,” the budget states.

Legal Aid Ontario spokesman Kristian Justesen only had praise for the funding.

“From LAO’s perspective, this is a good day for access to justice in Ontario,” he said. “This new investment will enhance outcomes for low-income families, victims of domestic violence, and other vulnerable groups.”
Overall, justice spending will decease by $57 million this year, according to the budget. The decline is primarily a result of “lower-than-expected costs related to municipal policing, lower overtime costs, and other internal efficiencies.”

Delays in buying courthouse furniture and equipment will also bring down capital expenses in the justice sector, according to the budget.

The Ontario government also said it’s implementing what it referred to as “transformative initiatives” in the justice system. They include “alternative financing to meet the capital infrastructure needs of Ontario’s justice system,” but the budget doesn’t elaborate on what they entail.

News roundup — May 3, 2013

mallory.hendry@thomsonreuters.com (Mallory Hendry) — Fri, 03 May 2013 13:56:33 +0000

Canada

Former citizenship judge charged with theft, fraud after allegations he handed out copies of citizenship exams, Vancouver Sun

Rapper accused of robbery held in cell with alleged serial killer, considers legal action, Toronto Star

Alberta Canadian Forces major charged with sexual assault, drunkenness a decade after sex tape scandal in Ontario, The National Post

United States

Lawyer experiments with walk-in law firm, bookstore combination, Reuters

Facebook persuades judge to move patent case to California, Reuters

International

Prosecutor investigating 2007 assassination of Pakistani prime minister shot dead, Reuters

North Korea sentences American to 15 years in jail, U.S. to seek amnesty, Reuters

First-ever charges laid under Lobbying Act

charlotte.santry@thomsonreuters.com (Charlotte Santry ) — Thu, 02 May 2013 18:18:00 +0000

The first-ever charge under the federal Lobbying Act has been laid in what is being called a “wake-up call” to those working with, or in, the government.

Andrew Skaling of New Brunswick has been charged with failure to register as a consultant lobbyist as required by s. 5(1) of the Lobbying Act.

He is alleged to have undertaken to communicate with a public office holder, for payment, on behalf of the Canadian Network of Respiratory Care. The charge relates to alleged activity between June 2010 and January 2011.

It has not been confirmed whether Skaling is the same Andrew Skaling who served as the City of Ottawa’s director of media relations for three years, was a Conservative Party media spokesperson during the 2004 federal election, and acted as director of media relations during Belinda Stronach’s bid for Conservative Party leadership.

The political communications specialist had previously worked in New Brunswick and was most recently a partner at Ottawa-based public affairs firm McKenney & Skaling, the web site for which appears to have been taken offline today.

Fasken Martineau DuMoulin LLP partner Guy Giorno says the charge is the first one since the law took effect in 1989.

“It’s a wake-up call to everyone who’s involved in the government to pay attention to these laws, to ensure that you’re taking steps to comply,” says Giorno, former chief of staff to Prime Minster Stephen Harper and chairman of the law of lobbying and ethics committee of the Canadian Bar Association.

The act requires anyone paid to communicate or arrange meetings with federal public office holders, concerning a list of subjects set out in the statute, to register their activities in the Registry of Lobbyists.

The definition of “public office holder” includes most people working in the government of Canada, including members of the Senate and the House of Commons and their staff, employees of federal departments and agencies, members of the Canadian Armed Forces, and members of the Royal Canadian Mounted Police.

Complaints are investigated by the lobbying commissioner, who can refer cases to the RCMP. Between 2005 and 2010, 11 cases were referred to the RCMP but no charges were brought, according to a parliamentary background paper on the Lobbying Act. The RCMP is not required to explain why cases do not result in charges.

“The thinking has always been that the RCMP in connection with the PPSC [Public Prosecution Service of Canada] believe that the charges wouldn’t stick,” says Giorno.

Last year, a former staffer in the Prime Minister’s Office, Keith Beardsley, was criticized in a report by lobbying commissioner Karen Shepherd for trying to arrange a meeting between then-chief of staff Giorno and a wireless telecoms firm.

The Lobbying Act bans public office holders from lobbying for five years after they have left office, and Giorno alerted the commissioner that he had been contacted by Beardsley. Shepherd sent the file to the RCMP, but they declined to press charges.

Giorno says there seems to be a high threshold for charges, but the lobbying commissioner is determined to “crack down” on alleged flouting of the rules. “I don’t think there’s anybody who practises in this area who thinks that Parliament intended that lobbyists were exempt from the law,” he says.

The case demonstrates that clients employing lobbyists must ensure contracts contain explicit assurances that the rules will be followed, he adds.

Although the charge was laid on Jan. 29, at Ottawa Provincial Court, it only come to light when Shepherd mentioned it to a parliamentary committee on April 29, without providing the name of the accused.

Skaling is due to appear again on May 15. Giorno says it looks like he will have a summary hearing, which could carry a prison sentence of up to six months, or a $50,000 fine. If he is indicted, the sentence could be up to two years.

There is no suggestion of any misdemeanors on the part of Skaling’s client, the Canadian Network of Respiratory Care.

News roundup — May 2, 2013

mallory.hendry@thomsonreuters.com (Mallory Hendry) — Thu, 02 May 2013 14:14:41 +0000

Canada

SCC criticized by Quebec over Laskin review, The Globe and Mail

No charges will be laid for anti-gay brochure handed out by real estate agent, Toronto Star

SCC ruling in baby-concealment case leaves room for comment on when a fetus becomes a human under law, Calgary Herald

United States

Judge asked to triple $1.7B jury verdict in patent case, Reuters

Mobster's immunity deal with now-deceased prosecutor will offer no protection on murder charges, Reuters

International

ICC to decide if Gaddafi's son can be tried in Libya: lawyer, Reuters

Cuban intelligence service helped by U.S. government lawyer, prosecutors allege, Reuters

Brodeur new battonier of the Barreau du Québec

Wed, 01 May 2013 17:24:29 +0000

Johanne Brodeur is the next president of the Barreau du Québec. Brodeur won the position by acclamation and will assume the role June 1, the barreau announced today.

Also assuming a senior role at the barreau is Bernard Synnott, who becomes vice president after taking almost 56 per cent of the vote in a race against Julie Latour. Almost 37 per cent of barreau members cast a vote.

Federal Court dismisses several motions relating to Douglas inquiry

heather.gardiner@thomsonreuters.com (Heather Gardiner) — Wed, 01 May 2013 16:23:40 +0000

In ongoing legal wrangling in the Canadian Judicial Council’s inquiry committee into a sexual harassment and discrimination complaint against Manitoba Court of Queen’s Bench Associate Chief Justice Lori Douglas, two Federal Court orders [1 and 2] were released yesterday, which dismissed several motions brought forward by parties in the inquiry.

Since the release of these court orders, CJC communications director Johanna Laporte says they are expecting the Federal Court to set a hearing date for the judicial review application.

Laporte also tells Legal Feeds the inquiry committee planned to resume hearings in late July but Douglas has filed a motion for a stay of the proceedings until the Federal Court motions are heard. Now the inquiry committee has to decide if it will proceed with the hearings despite the judge’s motion for a stay.

“It’s regrettable that there have been delays,” she says.

The inquiry has been plagued by multiple delays, including the resignation of independent counsel Guy Pratte in August and most recently the motions dismissed by the Federal Court.

The first motion, submitted by Canada’s Attorney General Rob Nicholson, sought to have him removed as a party respondent due to the fact that he holds the position of AG and minister of Justice. The minister argued his separation from the inquiry is “necessary to preserve the independence of the judiciary and to avoid the perception that the minister may have pre-judged the outcome of the process when he receives and acts upon the CJC’s recommendation with respect to the removal of a judge.”

In dismissing Nicholson’s request for removal, Federal Court Prothonotary Mireille Tabib wrote: “Parliament has indeed empowered the CJC to investigate complaints and allegations made against judges, including those sufficiently serious to warrant their removal. However, as s. 71 of the Judges Act makes abundantly clear, neither the creation of the CJC’s inquiry process nor the CJC’s exercise of its investigative powers in any way detract, remove or constrain the constitutional rights, powers or duties of the Minister of Justice, or of the Houses of Parliament, in the removal of judges.”

Another motion was submitted by Alex Chapman — the client of Douglas’ husband, Winnipeg lawyer Jack King, who launched the complaint claiming King showed him nude web photos of Douglas performing sexual acts and pressured him to have sex with her.

Chapman wanted to be named a necessary respondent to the application from Douglas seeking a review of the inquiry committee’s decision not to step down after Douglas’ counsel tried to disqualify the committee over alleged apprehension of bias. Chapman claimed he was a party to the hearings before the inquiry committee, which makes him a necessary party to the judicial review.

But Tabib wasn’t convinced. “[T]he general understanding that parties to the original proceedings are automatically to be named as respondents when these proceedings are subject to judicial review was developed in the context of adversarial proceedings, in which the competing rights of two or more parties are adjudicated, and not necessarily where the proceedings, as here, are in the nature of an inquiry,” she wrote.

In addition, she noted Chapman was not granted standing as a party in the proceedings before the inquiry committee and therefore he is not directly affected by any order sought in the application.

Chapman also sought an order staying and/or quashing the judicial review, which was also dismissed.