Lerners LLP partner Brian Radnoff calls the ruling a “rare” one that highlights the significant discretion the courts have in managing class actions.

“The court has a significant amount of discretion, so it can basically do what it believes is fair and just and in the interest of the plaintiff class,” he says.

“Justice Perell crafts a very specific order to this situation and I think what is more novel is his determination that if there is an action [in Ontario], depending on what happens in Alberta, this should not proceed not as a class action but as a multiple-plaintiff action.” 

Maia Bent, a partner at Lerners LLP in London, Ont., and president of the Ontario Trial Lawyers Association, has a list of post-election hopes. “First on my wish list is a public apology to the Supreme Court of Canada and particularly Beverley McLachlin for publicly accusing her of professional misconduct.
This is important not only as to her role in the Supreme Court but as deputy governor general and to correct any erosion in public confidence that may have resulted from it,” she says.

As advisors, we need to ensure our clients understand potential consequences of their planning that could lead to situations they would never have wanted for their spouses, children, other beneficiaries or themselves.

The decision raises a number of important legal issues in the area of health policy, and labour and administrative law, says Gillian Hnatiw, of Lerners LLP.

The case decided questions about the appropriate standard of appellate review applied to the interpretation of contracts, whether in a commercial arbitration or in the courts.

As of 2014, Lerners LLP is one of the first major firms in Canada to reach a 50/50 split. “It happened organically,” says Lisa Munro, executive committee member and partner. “I attribute that to the leadership in our firm in the 1990s — it really set the tone,” Munroe recalls. “Janet Stewart was our managing partner. She had good soft management skills and also ran a profitable practice. She was what everyone wanted to be.”

Women have always aspired to leadership roles, but what’s improved about the situation today is that seeing women in leadership roles is not just an aspiration, says Munro. “It’s a law-firm and societal expectation.”

The debate emerges out of a package of amendments the country’s largest legal profession regulator, the Law Society of Upper Canada, has proposed to its rulebook.

Maia Bent, president of the Ontario Trial Lawyers Association (OTLA), says the proposed LSUC changes address some issues that had been flagged by her organization. For example, the OTLA is troubled when it sees ads that declare a particular lawyer to be better than a competitor. In other businesses, such hyperbole might be dismissed as mere puffery. But the OTLA thinks such ads should be out of bounds because there’s no way for the public to verify such assertions.

Lucas Lung, a partner at Lerners LLP, says unwritten retainer agreements aren’t uncommon in files where the work is relatively simple and very narrowly defined. But he suggests written retainers should be an essential part of any case that involves ongoing work.

“It seems to be the first clear decision with respect to a law partnership post-McCormick,” says Gillian Hnatiw, a partner at Lerners LLP whose practice areas include commercial litigation and professional regulation.
 

Lawyers might do lunch more than any other professionals today but back in the late 1960s and early 70s she was the only female lawyer at the London Ont office of her firm Lerners LLP.

"I used to think wouldn't it be nice to have somebody to have lunch with None of the guys ever asked me to have lunch with them", she says.

Cassels Brock held the position there was no retainer because the only retainer it would have had was for a Companies’ Creditors Arrangement Act proceeding that did not happen. However, the judge found the retainer extended to the negotiation and advice on the dealer wind-down agreements.

“That was critical because if he found the scope of the retainer was more narrow it is likely Cassels Brock would not have been found to be liable,” says Brian Radnoff, a partner at Lerners LLP. “That determination was informed by inferences the trial judge made. Another judge looking at the same evidence could have come to a different conclusion.”
 

The concerns arise as the Law Society of Upper Canada prepares to take another look at the issue. Last month, Convocation agreed to a call for input around a set of proposed changes to its existing regulations on advertising. Interested parties have until mid-October to comment on whether the law society should make the proposed changes, leave things as they are or consider other options.

Maia Bent, president of the Ontario Trial Lawyers Association, calls the proposed changes a good first step in addressing a lack of transparency in much of Ontario’s legal advertising. She hopes the law society will strictly enforce the changes if it approves them.

Stewart was honoured for her role as a respected mentor and an advocate for the advancement of women in law, as well as her dedicated community service and philanthropic activities. Called to the Bar in 1969, Stewart joined Lerners LLP in London and became a partner in 1972. She recently celebrated 45 years with the firm. 

Named after Toronto lawyer and Lerners LLP partner Elizabeth Grace, the award presentation took place at the Women's Law Association of Ontario (WLAO) Annual Award Gala on June 9.

And in the Duggar family home in Tontitown, Arkansas — a home into which Americans have been invited for seven years worth of 19 Kids and Counting reality TV episodes — the eldest son molested four of his younger sisters and a babysitter as a teenager.

Civil sexual assault lawyer Elizabeth Grace has worked cases involving inter-familial child sexual assault and run up against a lot of resistance.

“They’re not the strongest cases to bring forward from a civil lawyer’s point of view, and if you do bring them forward, you’re looking for the hook of an institution or a parent that failed in some way,” says the Lerners LLP lawyer, adding that in student-on-student abuse cases involving residential or Catholic schools, those institutions have sometimes been found liable.

“It’s always tough to come forward but to come forward against one’s own parents, or a sibling, usually the family divides and will also support the alleged abuser…. To come forward and expose the family secret, it’s all very complicated.”

Brian Radnoff, a partner at Lerners LLP, sees some clarification in the decision but says it leaves a lot of discretion to the motion judge. In a situation such as this that involves very qualified counsel on both sides, the outcome is likely to be uncertain, he suggests.

While it doesn’t have a pension plan, partners at Lerners LLP continue to receive some income during their transition into retirement, based on files they brought in while at the firm. “I think most firms say it’s the lawyer’s responsibility and not only should the partnership not want to interfere in your personal life but we don’t have any duty, obligation, or responsibility to do so,” says partner and executive committee member Lisa Munro. “Many people feel their firms already control too much of their lives.”

Maia Bent, a partner at Lerners LLP in London, Ont., has observed that many families are suffering from exhaustion and financial stress. “Consider the case of a mother who was working 10 hours a week when a child is critically injured,” she says.

“Before the accident, the remainder of her time is spent caring for her other children and her aged parents, cooking, cleaning, shopping, gardening, and running necessary errands for the family. Now she must provide 24-hour care seven days a week for her injured child but she is only paid for 10 hours. Every other priority in her life is neglected as there is no money to pay someone to assist her with these other tasks.”

It was a rare judgment issued from the bench that came after little more than two hours of oral argument. And it is the third time Ottawa lost in matters involving Omar Khadr at the Supreme Court of Canada. 

Jasmine Akbarali, lawyer for the Canadian Civil Liberties Association, which submitted written arguments in the matter, said, "It was a good win for Mr. Khadr."

"We thought it was not right for the government to take one unitary sentence of eight years, and convert it into five sentences of eight years . . . it was effectively taking an 8-year sentence and making it a 40-year sentence . . . changing the character of it, and this court said you can't do that." 

“This case is another illustration of the heavy-handed approach Canada has consistently taken towards him,” said Gillian Hnatiw, who represents the Canadian Civil Liberties Association, which is intervening in the case.

Jasmine Akbarali, a partner at Lerners LLP, recalls working with Borovoy in 2008 on the Afghan detainee case. At the time, Borovoy was in the process of winding down his formal work with the CCLA.

"His intelligence and his dedication to the fight for civil liberties were matched by his charm, his charisma, and his sense of humour, He had such presence — he was a giant, yet he did not make others feel small. It was my privilege and incredible good fortune to have had the opportunity to work with him," she says.

(This article originally appeared in the May 1st, 2015 issue of The Lawyers Weekly)

Maia Bent, incoming president of the Ontario Trial Lawyers Association — who works at Lerners LPP in London, Ont. — said the report which slams the province for its winter maintenance standards, isn’t surprising.

"Occasionally, there may be some uncertainty as to what was meant or intended by the language chosen by the judge in making his decision," said Cynthia Kuehl, a partner at Lerners LLP who is not involved in this case but has worked on various high-profile appeals related to health law. "The uncertainty may, for example, relate to whether he intended the decision to apply to certain situations or people (e.g. the scope of the order)." 

For Gillian Hnatiw, a lawyer at Lerners LLP in Toronto who specializes in sexual assault and abuse cases, lifting these limitations at least makes the justice system “more responsive” to victims of these crimes.

Grace, the winner of the WLAO 2014 President's Award and a partner with Lerners LLP, has been lauded for her outstanding service within the profession and her leadership role in advancing the position of women in law in Ontario.

"I don't think it's all that surprising," said Cynthia Kuehl, a partner at Lerners LLP who has worked on various high profile appeals related to health law. "There is a potentially complex constitutional issue at play in the context of an emotionally charged situation." 

The province may be considering whether that issue ought to be addressed by a higher-level court, one legal observer suggested Thursday.

“Here we have a statutory obligation to protect children. What do we do to enforce that obligation in the face of a constitutional right? That is a unique question,” said Cynthia Kuehl, a Toronto lawyer who specializes in appellate and health-care law.

Toronto lawyer Elizabeth Grace explains that the Nova Scotia changes “amount to a retroactive revival of abuse victims’ right to sue.” Grace adds, “These are bold changes in the law that reflect our society’s increasing awareness and intolerance of sexual assault and the pervasive damage it causes.”

“I suspect they actually thought I wouldn’t last,” she says nearly 46 years later.

Today, 55% of Lerners’ lawyers are women. Forty-five percent of them are partners — more than double the national average.

The Toronto litigation firm is among the first in Canada to announce it has achieved gender parity — an achievement that had nothing to do with affirmative action.

The Military Police Complaints Commission announced Thursday it will challenge a move by the Canadian Forces Provost Marshal, the head of the military police, to block the force’s response from being included in the final report of the inquiry into the death of Corporal Stuart Langridge. That report is scheduled to be released Tuesday.

Mark Freiman represents the Military Police Complaints Commission.

Joseph has been named a recipient of the Law Society Medal, an award given out annually to lawyers at the top of their profession.

Now, individuals don’t need a spouse for financial independence, home ownership, procreation or even just recreational sex. If women once married to reap the financial benefits of being tied to a breadwinner, a new economic pragmatism has emerged that might help ease couples into marriage-like commitment before they consider a long-term forecast. The rising costs of living can motivate a couple to become, in Seligson’s words, “a little bit married.” “You start dating, then move in together when you can’t afford a nicer apartment on your own,” says Joanne Stewart, a partner with Lerners LLP in Toronto who has seen a recent uptick in separating common-law clients. “People now think marriage is too complex.” Premarital cohabitation has become a new rite of passage, and the economic convenience argument rings true to anyone who’s ever heard a couple justify moving in together by claiming, “It just makes financial sense.” (Although I guess it’s unsurprising that you almost never hear, “I just really want to share a bathroom with someone.”)

In an interview with AdvocateDaily.com, Toronto lawyer Elizabeth Grace says sadly, this is not the first case of clergy sexual abuse of vulnerable children in a remote community.

“What we can expect to see now in Nunavut are civil claims for compensation by the victims of former Oblate missionary Dejaeger, and not just those victims in relation to whom Dejaeger has been criminally convicted,” says Grace, who represents victims of sexual assault in civil cases.

This January term course, coordinated by well-known London lawyer Michael Lerner and Western Law Associate Dean Valerie Oosterveld, analyzes critical barriers to equal justice inside and outside courts, and explores solutions to reduce or eliminate these barriers.

“It’s an improvement on a situation that became unworkable not only for lawyers facing dismissals but also for the courts, for master courts that have had to deal with the ramifications of those automatic dismissals,” says Andrew Murray, a partner at Lerners LLP.

After a first trial in 2013, a judge convicted a prominent Brampton businessman of sexually assaulting an 18-year-old female employee.

Kirk Boggs of Lerners LLP notes the decision stunned municipalities and those who work in the area. “It elevated the duty of care well beyond what was expected. It essentially made municipalities insurers for drivers on their roads,” he says.

The legal community is closely watching the latest round in Bre-X lawyer Joe Groia’s battle to defend himself against a controversial charge of “incivility,” which is raising fundamental questions of judicial independence and freedom of speech.

Brian Radnoff, a partner in the Toronto office of Lerners LLP, says the trend of experienced class action law firms teaming up on specific claims makes appellate guidance all the more urgent.

“Both sides really know what they are doing, which makes it very difficult to say that either one lacks expertise,” he says.

“These carriage battles are getting more common, so I’d say the more direction the courts can give, the better.” 

"This is not an appropriate case for a stay," lawyer Brian Radnoff said in his submissions to the court. "His only goal is to delay his house arrest so he can winter in Barbados."

Kirk Boggs, an insurance lawyer with Lerners LLP says the Fordham v. Dutton-Dunwich (Municipality) decision is a significant one on municipal road liability because it clarifies the law with respect to what is actionable in this area.

Mandip Sandhu was convicted and sentenced last year for forcing the woman to perform oral sex while she was working as a masseuse at a North York spa.

The woman is also suing Sandhu and Toronto Police Service Board. The civil lawsuit alleges the board is liable for Sandhu’s sexual misconduct while on the job and for not having a rigorous inspection policy in place to prevent abuse and exploitation by police officers accessing such establishments.

In the civil suit, the woman is represented by Toronto lawyer Elizabeth Grace, partner with Lerners LLP.

Starting Jan. 12, six judges are being brought into the London area to clear up a burgeoning trial list of divorce, child custody and property matters that has been in flux for a year.

Most cases have been waiting in the wings since last year’s decree that Children’s Aid cases — more than 70 that were lined up — would receive top priority.

At that time, that left another 200 cases unrelated to the CAS in limbo.

With the CAS blockade chipped away, word came down in the summer from the regional senior justice that family lawyers should prepare themselves for a trial blitz for the rest of the backlog.

“The message was ‘We’re serious, this is going to happen, be ready,’” said veteran London family lawyer William Clayton.

“If the blitz cleans up the backlog, it’s only a good thing.”

Known as strategic lawsuit against public participation, SLAPPs are used by developers or companies against individuals who protest projects, often in environmental and municipal planning disputes

It's the latest twist in a protracted legal fight with Robert Astley, the former chair of the Canada Pension Plan Investment Board whom Verdun accused of cheating taxpayers in Waterloo's RIM Park financing scandal.

Verdun already owes Astley more than $900,000 in damages and court costs after a relentless campaign to paint him as a white collar criminal — but has not paid any of it, according to Astley's lawyer Brian Radnoff.

Instead, she alleges it was actually the tour leader working for G Adventures Inc. who viciously raped her. And what made it even worse, she contends, is that the travel outfit practically abandoned her in a small Costa Rican town to seek police and medical treatment on her own.

S.M., who has asked that her name not be published, has filed a $650,000 lawsuit against the company formerly known as GAP Adventures.

S.M.’s lawyer, Elizabeth Grace, insists the company owed much more to a traumatized victim who was frightened and overwhelmed in a foreign country where she didn’t speak the language. “They didn’t seem to appreciate the time sensitivity in a sexual assault case to be assessed to preserve evidence and to receive treatment for sexually transmitted diseases. Their advice was wait until a new tour group leader arrived.”

Contrast that all to Canada, where there is no time limit on laying any serious criminal charge. As well, thanks to a 1992 Supreme Court decision and ensuing legislative changes in many provinces, the time limits for filing civil sex-assault claims are fairly flexible, tending to account for victims' individual circumstances.

"It's been very liberating for survivors. You don’t have that kind of clock ticking in your head, driving you to do something that maybe you’re not ready to do," said Elizabeth Grace, a partner at Lerners LLP in Toronto, who co-wrote the main legal text on civil liability in Canada for sexual violence.

TORONTO, NOVEMBER 21, 2014 – Domenico Magisano, a partner with Lerners LLP, was honoured last night with the Lexpert Rising Stars: Leading Lawyers Under 40 award.  A corporate bankruptcy and restructuring lawyer, Dom has expanded this practice area significantly for Lerners since joining the firm two years ago.  

“One of the keys to Dom’s success in his field is his ability to create an atmosphere with his colleagues that facilitates team work,” says Brian Grant, managing partner of Lerners in Toronto.

Frequently retained by mid-sized entrepreneurial companies, accounting firms, trustees and, secured and unsecured lenders, Dom is an experienced litigator who has appeared before all levels of court in Ontario, including the Ontario Court of Appeal.

“Most of his cases involve complex legal and statutory issues. At the same time Dom has to pay close attention to the commercial realities of the insolvent business,” adds Grant. “His ability to balance legal and business elements involved in bankruptcy and restructuring, while still demonstrating sensitivity to the human element, really showcases his leadership skills and technical know-how.”

The award honours lawyers in-house and from law firms and government agencies, who have an outstanding track record of success and are recognized leaders in their community.

Magisano has acted in several landmark cases including; Temagami First Nations ats. Borden & Elliott, a leading case on the ability of non-Indians or Bands (as defined in the Indian Act) to enforce judgments on land situated on a reserve, and in the receivership of North Park Veterinary Clinic – one of the rare instances where the court permitted a debtor to put itself into receivership so that it could control the liquidation process. Magisano has also appeared numerous times before the Ontario Court of Appeal, notable because this is extremely rare in insolvency circles.

Magisano is an active member of the Lerners partnership, serving as a mentor to many junior lawyers on his team. He was appointed Partner of Lerners United Way Leadership Campaign, and has been part of the OBA Insolvency executive since 2008, at various times sitting on the newsletter committed CLE programs committee within the executive. Magisano has worked with Canadian Corporate Counsel Association to help create a mini-MBA program for in-house counsel, in partnership with Rotman School of Management. He also maintains a commercial litigation practice focusing on corporate disputes and real estate matters.

Magisano holds a Masters in Business Administration from Schulich School of Business at York University as well as a Bachelor of Laws from University of Western Ontario and a Bachelor of Arts from Wilfred Laurier University.

Recently, Magisano was recognized as a Local Litigation Star (2014) Ontario, in the areas of General Commercial and Insolvency, in Benchmark Litigation’s 2014 issue of Benchmark Canada.

About Lerners

Lerners LLP, one of Canada’s largest litigation groups with over 100 lawyers, has offices in Toronto and London, Ontario. Lerners lawyers represent a wide range of individual and institutional clients, from victims of accidents to corporations embroiled in complex business disputes and appeals. Its lawyers, many of whom have been involved in landmark cases, practise in the following areas: Commercial Dispute Resolution, Class Actions, Medical Liability, Professional Defence, Insurance Law, Personal Injury Law, Public Law, Appeals, Tax and Business Law.

For more information or to arrange an interview, please contact:

Mary Ann Freedman
Freedman & Associates Inc. for Lerners LLP
Phone: (416) 868-1500
Email: mafreedman@freedmanandassociates.com

Canadian Lawyer Magazine article written by Jasmine Akbarali and Gillian Hnatiw.

But when it comes to sexual assault, most victims have no idea that they can sue their abusers, says Gillian Hnatiw, a partner at Lerners LLP, who specializes in sexual assault litigation. As proof, she points to how the media covered the recent allegations that former CBC radio host Jian Ghomeshi has a long history of sexual violence. 

Brian Radnoff, a commercial litigation and defamation lawyer at Toronto firm Lerners LLP, who is not involved in the proceedings, said he expected CBC’s motion to succeed. In particular, Radnoff pointed out a grievance filed on behalf of Ghomeshi contains the same claims made in the lawsuit.

Justice Deena Baltman said lawyer Robert Nobili’s claims against the new lawyer of his former clients and several others were “a complete waste of time and resources for both the court and numerous defence counsel involved.”

Nobili’s former clients in a personal injury matter fired him after their case was dismissed over administrative delays in filing documents. Later, they retained Lerners LLP lawyer Andrew Murray, who issued a solicitor’s negligence claim against Nobili on the clients’ behalf.

“Despite the claim against him, Nobili refused to report his exposure to his insurer, LawPRO. Instead he insisted that Murray should try to set aside the administrative dismissal,” Baltman said.

But lawyers say Harper's vow rings hollow since the Conservative government has done little to implement the 2010 report of the $32-million inquiry into the Air India bombing.

The former chief counsel for the Air India inquiry, Mark Freiman of Toronto's Lerners, says the report has been shelved.

Jian Ghomeshi’s lawsuit against the CBC won’t likely hold up in court, according to a legal expert.

Toronto civil and commercial litigator Brian Radnoff – a partner at Lerners LLP who represented William Kennedy at the penalty hearing pro bono – “pointed out instances in which his client didn’t charge LAO for work he did do,” the publication says.

On October 2, he won a 2014 Lexpert Zenith Award for outstanding practice achievement in the area of defamation.  Radnoff, partner at Lerners LLP, was also recognized by his peers for corporate and commercial litigation in the 2015 edition of Best Lawyers in Canada.

“Brian has made an outstanding contribution to the law of defamation,” says Brian Grant, managing partner of Lerners in Toronto.  “In today’s electronic world, this is particularly important because his work sets the stage for the protection of one’s reputation in all media, both offline and online.”

Grant adds, “Brian’s tireless volunteer work in the legal profession and beyond makes him a very worthy recipient of this award.”

In a landmark case, Radnoff successfully secured one of the broadest permanent injunctions ever granted in Canada to prevent a defendant from continuing to defame a plaintiff.  He represented Robert Astley, a director of BMO Financial Group and Chair of the CPPIB, in a defamation action against a shareholder activist.  Mr. Astley was awarded $650,000 in damages by a jury and the trial judge issued a permanent injunction protecting Mr. Astley from ongoing defamation.  This broad injunction was recently enforced after the defendant breached the injunction and was found in contempt.  The contempt finding and sentence were upheld by the Ontario Court of Appeal.

Radnoff is Practice Group Leader for the firm’s Appellate Advocacy group and is an active member of the Commercial Litigation and Class Actions groups.  Other noteworthy cases that he has been involved in are as counsel for the plaintiff in Air Canada v. WestJet, one of the largest corporate espionage cases in Canada and as counsel to one of the parties in Jazz v. Porter and Toronto Port Authority in a dispute regarding access to the Toronto Island Airport.

Radnoff holds a Master of Arts in Economics from The University of Toronto as well as a Bachelor of Laws from the University of Victoria and a Bachelor of Commerce from The University of Toronto.  He is Adjunct Faculty at The University of Toronto Law School. 

Recently Radnoff was named one of the Best Lawyers in Canada in the area of corporate and commercial litigation (2015).

About Lerners

Lerners LLP, one of Canada’s largest litigation groups with over 100 lawyers, has offices in Toronto and London, Ontario. Lerners lawyers represent a wide range of individual and institutional clients, from victims of accidents to corporations embroiled in complex business disputes and appeals. Its lawyers, many of whom have been involved in landmark cases, practise in the following areas: Commercial Dispute Resolution, Class Actions, Medical Liability, Professional Defence, Insurance Law, Personal Injury Law, Public Law, Appeals, Tax and Business Law.

For more information or to arrange an interview, please contact:

Mary Ann Freedman
Freedman & Associates Inc. for Lerners LLP
Phone: (416) 868-1500
Email: mafreedman@freedmanandassociates.com

Victims of sexual abuse should be given a choice as to whether they want to be identified publicly, or remain anonymous, during criminal proceedings, Toronto lawyer Elizabeth Grace tells CBC Radio’s Ontario Today. 

Companies should now take a second look at their overtime policies, says Gillian Hnatiw.

Listen to the audio program - Does annonymity protect victims?

For many students, working a Supreme Court case is the ultimate experience. Lidiya Yermakova was an articling student at Lerners LLP in Toronto this past spring when she was asked to work on R. v. Summers, in which the SCC was called on to interpret the Truth in Sentencing Act and determine factors a sentencing judge is entitled to look at when considering the amount of credit available to an offender for time spent in pre-sentence custody. Lerners was acting for the intervener, the Canadian Civil Liberties Association, and argued “circumstances” ought to be interpreted broadly, and in a way that accorded with the Canadian Charter of Rights and Freedoms — particularly the right to be presumed innocent and the fundamental principles of parity and proportionality in sentencing.

As the file progressed, Yermakova took on more tasks and found herself preparing the first draft of all submissions such as the application for leave and the actual factum that went to the Supreme Court. The partners she worked with at Lerners would go over her work and they reviewed it together.

In doing her research Yermakova brought forward a case called R. v. Harrison, a companion to R. v. Grant, which dealt with the test for exclusion of evidence obtained in violation of the Charter. It became a key part of the submission. “When she first brought it to me I said, ‘Well, I’m not really sure where this is going,’” says Jasmine Akbarali, the partner who led the case. “Lidiya convinced me to put it in the factum and the more we talked about it, the more I came to the view she had really come to something good, and in fact Harrison formed the basis for the oral submissions that we did.”
 

In Security National Insurance Co. v. Hodges, the insurance company argued Goderich, Ont., resident Manos Hodges’ score on the Glasgow coma scale, a tool used to measure unconsciousness, was inaccurate as it occurred after he had received drugs that affected his awareness.

The insurance company also claimed test scores obtained more than 24 hours after the accident were outside the rule requiring them within a reasonable time period.

But on the judicial review application, the Divisional Court made it clear it has no intention to set restrictions based on those factors.

The insurer in this case was trying to “rewrite the legislation,” says Tammy Ring, the practice group leader of the plaintiff personal injury group at Lerners LLP who represented Hodges in the case.

“This is a legal test set out in the statutory acts and benefits schedule. What the insurer was suggesting was to change it basically into a medical test to impose other conditions, to look at CT scans or to find some other test that they thought was better suited rather than applying what the test was in the legislation.”

Jasmine Akbarali, a partner at Lerners, is skeptical that the legal issue of the clauses can be deemed unnecessary now that it has been addressed by the court.

Generally judges will only give house arrest to an offender who poses little threat to the community.

And lawyer Fred Tranquilli says judges hand down conditional sentences where there is no minimum sentence.

"Jail is not a good place to be, it's a very dangerous place...The reality is that person is sitting at home always knowing that they could end up in jail if they leave their house without good reason, if they're found violating those conditions without a good reason. So the threat of jail is still there until the end of that conditional sentence arrives."

Securities class action lawyers on both sides of the border are anxiously awaiting the United States Supreme Court’s ruling in a case called Erica P. John Fund Inc. v. Halliburton Co.

The U.S. Supreme Court has been making things more difficult for plaintiff-side class action lawyers in recent years. Class action lawyers are therefore curious to see if a plaintiff-unfriendly Haliburton ruling inspires U.S. lawyers to look north to potentially greener pastures in Canada.

Things are different in Canada.  Ontario courts will accept cases that have foreign components, so long as the litigation has at least some rational connection to Ontario, explains Jason Squire of Lerners LLP in Toronto.

“I guess one could point to Harkat as proof that there isn’t an anti-Harper bias that’s systemic,” says Jasmine Akbarali, a partner at Lerners LLP in Toronto.

But on Thursday, the Supreme Court of Canada put an end to his legal battle, ruling that law firms and other partnerships are allowed to force their partners to retire because they are not covered by provincial human rights codes.

Gillian Hnatiw, a Toronto lawyer with Lerners LLP who works on employment cases, said there is still a question as to whether different kinds of partners with fewer rights, such as the growing number of non-equity partners at law firms, could launch human-rights complaints. But any future case would likely be difficult.

“There’s a crack in the door, there’s not a window open,” Ms. Hnatiw said.

Justice’s Abella’s test is an important development for human rights and employment lawyers, says Gillian Hnatiw, a partner with Lerners LLP in Toronto. “The Court doesn’t want the Tribunal getting lost in the trees by focusing on the functional aspects of the relationship and just ticking a bunch of boxes. They want them to step back and see the forest.”

The senior Manitoba judge at the centre of a stalled professional conduct inquiry contends that the Canadian Judicial Council (CJC) appeared to show bias against her when it pressed former CJC independent counsel Guy Pratte not to file - and then drop - his court challenge to the inquiry.

Pratte, a respected Borden Ladner Gervais litigator appointed independent counsel to the inquiry in August 2011, abruptly quit less than a week after going to Federal Court to request a judicial review of the inquiry committee's decision to use its own lawyer, rather than Pratte, to cross-examine witnesses at the hearing.

Earl Cherniak, a former CJC independent counsel, told  The Lawyers Weekly he "fully agreed" with Pratte's position. 

Recent amendments that tie attendant-care benefits to economic loss have prompted personal injury lawyers to change their advice on whether families and friends should take on the car of their loved ones.

Maia Bent of Lerners LLP’s London, Ont., office questions the rationale.  “If cost saving for the insurance industry was the goal, there were other ways to achieve that without harming the injured. It is a very unfortunate change that hurts the most vulnerable people who are so badly injured that they need attendant care.

“This is the only way I can make them take responsibility for their actions. It’s not vengeance, this is just my way of saying, ‘You should have listened to me when I asked you to and now you’re going to be penalized for it.’”

“Were it not for the positive DNA match, my client’s story about being raped by her foster father would probably never have been believed, and he would never have faced any sanction by the criminal courts,” says her lawyer Elizabeth Grace.

One of the many perceived advantages of commercial arbitration is that the hearings are in private and the pleadings, evidence, names of the parties and even the fact that there is an arbitration, are all confidential. But there are exceptions, writes Earl Cherniak in an article for AdvocateDaily.com.

The Supreme Court has sent the federal government back to the legislative drawing board if Ottawa wants to eliminate the extra credit offenders have historically received for the so-called “dead time” they spend in pretrial custody. 

In a trilogy of 7-0 judgments released April 11 (R. v. Summers [2014] S.C.J. No. 26; R. v. Clarke[2014] S.C.J. No. 28; and R. v. Carvery [2014] S.C.J. No. 27), the top court told sentencing judges how they are to determine what credit to give offenders for pre-trial custody, in the wake of a cap imposed by the Truth in Sentencing Act, a key plank of the Harper government’s tough-on-crime legislative agenda.

Jasmine Akbarali of Toronto’s Lerners, co-counsel with Josh Koziebrocki for the intervener Canadian Civil Liberties Association, welcomed the court’s preservation of sentencing judges’ discretion. “What they said is the principles that we are looking at are enshrined in the Criminal Code. They’re longstanding principles of criminal law. And if the government was actually intending to step back from those principles they would have done it expressly.”

Last week, the law society filed a cross-appeal at the Divisional Court seeking to reinstate the Law Society of Upper Canada (LSUC) hearing panel’s earlier decisions that imposed a two-month suspension and a $250,000 costs order on Groia. It was in response to Groia’s appeal filed with the Divisional Court earlier this month.

“The appeal panel’s decision endorses the LSUC’s unprecedented and dangerous disciplinary proceedings against the lawyer,” states the Divisional Court notice of appeal filed by Groia’s counsel, Earl Cherniak and Jasmine Akbarali of Lerners LLP.
 

A prominent securities lawyer and the society that regulates the legal profession in Ontario are bound for court in the latest round of an epic battle started in the aftermath of the billion-dollar Bre-X mining fiasco in the late 1990s.

Closely watched by the legal profession, the contest pits Joe Groia, who successfully defended the only person charged in the history-making securities scandal, against the Law Society of Upper Canada.

“Joe looks forward to having the serious and important issues raised by this appeal, involving the independence of the judiciary, freedom of speech and the public interest in a vigorous and unfettered defence bar, aired and decided in a court of law,” said Groia’s lawyer, Earl Cherniak.

The Supreme Court of Canada today effectively put an end to the Conservative government’s goal of reforming the Senate, pouring cold water over any idea that Ottawa can unilaterally impose term limits or consultative elections on members of the Upper House.

Jasmine Akbarali at Lerners LLP says the ruling was widely expected, given the overreaching nature of the reference questions. The attorney general here, says Akbarali, was trying to find a way to impose significant Constitutional change without consulting the provinces or any of the stakeholders.

The council probing a complaint against a senior Manitoba judge photographed in the nude has drawn scathing criticism, particularly in light of its recently failed attempt to place itself beyond judicial scrutiny.

The glaring spotlight now focused on the Canadian Judicial Council is one result of the tortuous hearing into Justice Lori Douglas, which collapsed in acrimony amid accusations of bias.

“What occurred on this judicial review has shown that the system is highly flawed and needs to be seriously reviewed,” said veteran lawyer Earl Cherniak, who has previously acted as independent counsel for a CJC inquiry panel.

More than half of lawyers believe the profession has a duty to provide pro bonoservices, according to a survey of readers across the country conducted by Canadian Lawyer.

Lucas Lung, a partner with Lerners LLP, was permitted to devote up to 40 per cent of his practice to pro bono files in his first year at the firm. It helps when firms have speedy processes for approving pro bono requests, he says.
 

Ontario Premier Kathleen Wynne said Monday she had no choice but to threaten Progressive Conservative Leader Tim Hudak with a lawsuit after he refused to retract claims she may have overseen the wiping of hard drives in the premier's office.

In the libel notice, Wynne's lawyer, Mark Freiman, complained about statements made by Hudak during a March 27 news conference when he said that Wynne had a role in the "criminal destruction of emails and documents related to the gas plants scandal."

In a notice of libel made public on Monday, Ms. Wynne accuses Mr. Hudak and his Progressive Conservatives of defaming her “with malice” at a press conference and on a party website. One Tory MPP is named in the notice for a Twitter comment comparing the Premier to Richard Nixon, the U.S. president who resigned in disgrace over the Watergate scandal.

The libel notice also cites a comment Ms. MacLeod made on Twitter on March 27, after Ms. Wynne’s news conference, at which the Premier sought to distance herself from the alleged purging of records in her predecessor’s office.

Ms. Wynne’s lawyer, Mark Freiman of Lerners LLP and a former deputy attorney-general, said the tweet alleges Ms. Wynne is a “crook,” is engaged in a “cover-up” and is “as deserving of hatred and contempt as Richard Nixon.”

Premier Kathleen Wynne is following through with a threat to sue Progressive Conservative Leader Tim Hudak ‎for saying she “oversaw and possibly ordered the criminal destruction of documents.”

Despite the notice of libel, the premier’s office was unable to disclose what damages are being sought, if any, in the legal action being quarterbacked by Mark Freiman — a former deputy attorney general — now with the law firm Lerners LLP.

The victim of a brutal attack and sex assault that occurred during a visit to her mother’s grave site is relieved to know the man responsible has been declared a dangerous offender, says her lawyer Elizabeth Grace. 

She hopes no one will ever suffer at his hands again.

She is Russell Kirkpatrick’s final victim, the 61-year-old woman brutally beaten and sexually assaulted in Pine Hills Cemetery four years ago as she lay flowers on her mother’s grave, choked unconscious only to wake hours later and left to crawl naked for five kilometres for help.

Her attacker deserves to be locked away — and now he will be.

“She’s very relieved to know her attacker, who we now know assaulted another woman before her, has now been declared a dangerous offender,” said her lawyer, Elizabeth Grace. “She doesn’t wish anyone else to go through what she did.

At the Supreme Court, the judges agreed, albeit for differing reasons, that Hutchinson’s “condom sabotage” amounted to sexual assault — a holding that opens the door to civil claims for damages by women who unwittingly and unwillingly become pregnant as a consequence of their intimate partners’ deceptions, said Gillian Hnatiw of Toronto’s Lerners.

A man whose one-punch assault left his victim permanently brain damaged must pay a $1-million civil damages award despite declaring bankruptcy after the Court of Appeal overturned a lower court judgment that released him from the debt.

Andrew Murray, a partner at Lerners LLP in London, says the decision may not have much practical impact because without insurance coverage, the cost of most court actions against a potential bankrupt will exceed the value of the assets they hold. Still, he says it was important for the appeal court to make bankruptcy a less attractive route for discharge of civil damages resulting from a criminal assault.

A recent Court of Appeal for Ontario decision that clarifies the limitation periods involved in claims for unjust enrichment is likely to have implications in a number of areas of law, according to legal observers.

It may affect a lot of people because people often don't move that quickly after they separate. They're dealing with their emotional issues, they're dealing with their children, said Bryan Smith.

The decision will also have implications beyond family law, said William Pepall, head of commercial litigation at Lerners, as it offers the extended limitation period for any unjust enrichment claim involving land.

The allegations in her claim have not been proven in court and no statement of defence has yet been filed. A spokesman for the Toronto Police board would not comment about an ongoing matter. Lawyer Elizabeth Grace said she has been unable to find and serve Sandhu.

"It’s a tragic case of a police officer exploiting the authority of his badge for his own sexual gratification — and he was given that badge by the Toronto Police Services Board,” argues Grace. “We’re concerned that this isn’t an isolated case and there may be more victims out there and if so, I encourage them to come forward.”

The Ontario Court of Appeal clarified the issue of limitation periods in two recent rulings affecting both class action and family law matters.

Family lawyer Bill Rogers, who represented the respondent in the McConnell appeal, says he would have been happier if the appeal court had rejected the two-year limitation period for all constructive trust claims in family law but notes it’s good the court has clarified when the clock starts ticking.

The Superior Court’s ruling suggested it was difficult to know when a claim is “discovered” in family law cases.

Lerners LLP’s Bryan Smith and Lindsey Love-Forester, who represented the appellant, say the case is a significant one that will have an impact on several areas of law.

The lawyer representing Dew's family, Andrew Murray, told the coroner's jury Friday that more than an inquest-by-inquest approach was needed to fix the province's corrections system and suggested a review of the "body of recommendations" from previous inquests.

Andrew Murray, lawyer for the Dew family, praised the jury’s recommendations, and said it sends the message that medical measures need to be bolstered at Windsor Jail and its replacement, the South West Detention Centre — due to open in Windsor this spring.

But on the subject of closure for Dew’s family, Murray was less definite. “Knowing my clients, they will be on this until the end of their days,” he said.

A jury at the Superior Court of Justice in Windsor is making a number of recommendations after an inquest into the death of Jonathan Dew.

Lawyer Andrew Murray represented the family of the deceased in this case, and is impressed with the 19 recommendations.

Health facilities at the new South West Detention Centre will be a vast improvement over conditions at the Windsor Jail, where inmate Jonathan Dew collapsed and later died in hospital, an inquest was told Thursday.

Andrew Murray is representing Mr. Dew's family in the inquest.

Andrew Murray, the lawyer representing Dew’s family, asked Ryan why the fact Dews was experiencing severe diarrhea, to the point where he could no longer make it to the toilet and on a few occasions had to be sent for a shower, was known among the corrections officers guarding him but never made it to his medical chart.

"Does the fact it never made it to the chart make it difficult to know what was going on?” he asked. “Would your hands be tied not having that information?"

A much more dire picture of Jonathan Dew’s last hours at the Windsor jail than had been previously described began to emerge on the second day of the inquest into the 26-year-old inmate’s death.

Andrew Murray is representing Mr. Dew's family in the inquest.

Andrew Murray, the London lawyer representing the family, who made the trip to Windsor from their home in St. Thomas for the inquest, asked how Dew appeared to him during the examination compared to pictures taken of Dew on the day he collapsed.

A lawsuit alleging “bad faith” on the part of the Ontario Securities Commission (OSC) will be an uphill battle for the plaintiffs, given the regulator’s statutory immunity and duty of care to the broader public rather than individual investors, says Toronto commercial litigation lawyer Bill Pepall. 

Jonathan Dew was healthy enough to be riding a bicycle when he was picked up by police in September 2012.

A few days days later, he was found in a jail cell, dehydrated and “a very, very sick man.”

Starting Monday, Dew’s London-area family hopes to learn how and why the 26-year-old man fell so sick inside the Windsor jail where he died.

“It all centres on the quality of care and the timeliness of care,” London lawyer Andrew Murray, who represents Dew’s family, said. “I don’t think . . . that they are satisfied at all that everything was done that could have been done or should have been done for Jonathan, leading up to his moment of great distress.”

In their book Breaking Through: Tales from the Top Canadian Women General Counsel, Kirby Chown and Carrie Mandel interviewed 32 women general counsel, but one interview really illustrated the view of the current generation of female lawyers.  One young woman questioned if there is still a need for groups that specifically champion the cause of women.

Similar to WeirFoulds, Lerners LLP also holds a women-focused event every year and every year attendance has grown. “It’s just another subset of people with whom you have some commonality and it’s nice to have a collegial connection with,” says Gillian Hnatiw, a partner with Lerners in Toronto.

Criminal restitution laws in the United States are far more advanced than they are in Canada, says Toronto personal injury lawyer Anna Matas.

This deficiency, Matas adds, is something the government needs to address when it comes to improving legislation for victims of child pornography.

In a 7-0 decision, the Supreme Court ruled on Thursday that a class-action suit can proceed against mutual fund firms AIC Ltd. and CI Mutual Funds Inc.

"There is not much question about what the mutual fund companies had done,  The questions was should the investors also be permitted to begin a class action, when they’ve already obtained some compensation," said Brian Radnoff, a commercial litigation partner at Lerners LLP in Toronto.

In AIC Ltd. v. Fischer, the court agreed that a class action can be brought against defendants who have already agreed to pay restitution to settle a regulatory proceeding.

The Fischer decision is plaintiff-friendly because it will likely make it harder for defendants to argue that certification should be denied because regulatory proceedings are a preferred procedure, observes Brian Radnoff, a partner with Lerners LLP in Toronto. 

At issue is whether the aggrieved investors had the right to launch a class action against the mutual fund companies, even though the defendants had already settled allegations over the issue with the Ontario Securities Commission and agreed to pay back $205.6-million.

Lawyer Brian Radnoff of Lerners LLP said that securities cases weren’t the only type of class actions that could be affected by the ruling.

In our view, the hearing panel erred in law in reaching this conclusion,” Rothstein said, adding the jurisprudence “does not suggest that a non-party participant in a prior judicial decision is a party as a matter of substance to that decision.

Groia’s counsel Earl Cherniak said his client is happy with that conclusion

The judge’s decision in the case didn’t surprise Lerners LLP partner Brian Radnoff, who says the duty to include all terms in a partnership agreement falls onto law firms.

These were hotly anticipated - the class actions bar has been waiting, said Jason Squire of Toronto's Lerners, predicting more work for lawyers.  There are going to be more price-fixing class actions brought on behalf of consumers.

At issue were three class-action lawsuits alleging that manufacturers were involved in conspiracies to hike the prices of their products.

“This is a huge, huge benefit to consumers,” says Brian Radnoff, a partner with Lerners LLP of Toronto.

Jason Squire, a Toronto lawyer with Lerners LLP, said the rulings reflect “the obvious reality that our complex economic system shouldn’t be relied on to hide from consumers that they are at times paying increased prices where someone has fixed prices way up the stream of commerce. I think it’s fair.”

The Lang & O'Leary Exchange interview

At issue were three class-action lawsuits alleging that manufacturers were involved in conspiracies to hike the prices of their products.

"This is a huge, huge benefit to consumers," says Brian Radnoff, a partner with Lerners LLP of Toronto.

"It makes it easier to bring these type of class actions."

Pro Bono Law Ontario’s (PBLO) recent focus on expanding its amicus curiae services in civil lawsuits is a positive move that benefits both lawyers and the community, says Toronto personal injury lawyer Elizabeth Grace. 

Instead, the former publisher of the Elmira Independent newspaper must spend the next 90 days under house arrest, followed by 18 months of probation. He has to hand in his passport, perform 200 hours of community service and report to a parole officer.

Astley's lawyer, Brian Radnoff, asked the judge to impose a sentence of 21 days. He said his client hopes Verdun's long campaign against him is finally over.

"Mr. Astley is pleased that the court has enforced the injunction he obtained, despite Mr. Verdun's attempts to evade and avoid it," he said in a written statement.

Pro Bono Law Ontario says it's looking to expand its amicus curiae services in civil lawsuits.

In fact, Superior Court Justice Eva Frank reached out to PBLO about perhaps getting amicus counsel recently when faced with an unrepresented defendant in a complex civil sexual assault case.

Sure enough, PBLO was able to find lawyers at Lerners LLP who agreed to take up the role of amicus curiae. 

The case before Frank involves a historic sexual assault allegation where the plaintiff is claiming abuse as a teenager, says Anna Matas, one of the lawyers at Lerners who took on the role of amicus curiae.

The Ontario Court of Appeal ruled Friday that Dr. Sherri Wise, a Vancouver dentist injured by Palestinian suicide bombers, can make arguments in the case of Marla Bennett, a U.S. terror victim whose family is seeking Iran’s Canadian assets.

Mark Freiman, Dr. Wise’s lawyer, wants to argue that the U.S. cases were not filed within the two-year limitation period and should therefore be struck. The appeals court agreed that Dr. Wise had an interest in the outcome of the U.S. case and could make a useful contribution to it.

In a first-of-its-kind lawsuit brought under Canada's Justice for Victims of Terrorism Act, Sherri Wise sued the Islamic Republic of Iran and the country's Ministry of Information and Security in B.C. Supreme Court.

Ms. Wise is represented by Mark Freiman of Lerners LLP in Toronto.

Lawyers who represent victims of sexual abuse, such as Toronto personal injury lawyer Elizabeth Grace, have questioned this apparent inequity for some time, says the article. 

With a career focused on national security, intellectual property and tax law — not constitutional matters — Canada’s newest Supreme Court Judge Marc Nadon remains poised to do an excellent job, says Toronto litigator Brian Radnoff.

Only a jail sentence will show the right amount of deterrence for a former newspaper editor who violated an injunction arising out of a defamation action against him, Toronto lawyer Brian Radnoff recently told an Ontario Superior Court of Justice sentencing hearing. 

Lerners has been a leader in providing top-level family law services in southwestern Ontario through our London office for many years, so it was a natural evolution for the firm to provide the same services in Toronto, said Brian Grant, managing partner of the Toronto office.

The former editor of the Elmira Independent newspaper gave only a qualified apology for violating a gag order arising out of a landmark defamation case, a Toronto court was told Thursday.

Bob Verdun still hasn't shown an appropriate amount of remorse for violating an injunction ordering him not to criticize Robert Astley over his alleged involvement in the RIM Park financing scandal, Astley's lawyer Brian Radnoff told a sentencing hearing in the Ontario Superior Court of Justice.

Joanne Stewart and Bryan Smith, who join the Toronto office as partners in the firm, bring stellar reputations and a proven track-record in complex family law litigation, mediation and negotiation. Lawyers Sarah Conlin and Lindsay Love-Forester have also joined Lerners as associates, and Upasana Sharma, a new lawyer, will join the team shortly.

Jennifer Howard, a family law lawyer in Lerners’ London office, has also joined the Toronto group bringing significant experience to the newly formed practice area. 

“Lerners has been a leader in providing top-level family law services in southwestern Ontario through our London office for many years, so it was a natural evolution for the firm to provide the same services in Toronto,” says Brian Grant, Managing Partner of the Toronto office. “Bryan, Joanne, and their team represent an opportunity to add unmatched excellence in the field and we are pleased to welcome them as well as Jennifer, who joins us from London.”

With more than 30 years of experience, Joanne Stewart, formerly a partner at Bastedo Stewart Smith, is often called on by clients for confidential negotiations and mediations in family law. She is known as a ‘deal maker’ who is discreet, strategic and thorough, and has long standing relationships with her clients.

Joanne has a law degree from Osgoode Hall at York University and is certified by the Law Society of Upper Canada as a specialist in Family Law. She is a member of Collaborative Practice Toronto and a Fellow of the International Academy of Matrimonial Lawyers.

“Lerners is a well-respected firm with integrity, good business ethics, and excellent lawyers,” says Joanne. “We are delighted to join the firm and are confident we will be able to serve our clients more efficiently.”

Bryan Smith, who was also a partner at Bastedo Stewart Smith, has garnered significant experience in his 23 years of practicing family law exclusively – from negotiations to trials – and with complicated financial transactions relating to corporations and business structures, as well as income tax and pension issues, and valuation issues. He is also well-versed in preparing complex financial agreements and settlements.

Bryan completed the Ministry of the Attorney General’s training for Arbitrators and is often retained by other family law lawyers to mediate cases for their clients. He is certified by the Law Society of Upper Canada as a Specialist in Family Law.

“We enjoy challenging work and enjoy doing that work well. The complexity of family law cases is often undersold. Issues often intersect different areas of law. To meet our clients’ needs and goals, strategies and a course of action has to be thought out clearly, and early on in a matter. The opportunity to bring our practices to Lerners, where we will have access to additional resources, including the skill set of some of the most respected litigators in Ontario, will add to the level of advocacy and reasoned advice that we can provide to our clients.”

Joanne and Bryan take a unique approach to each client’s case, tactically planning their legal strategy, determining the benefits to the client and associated costs, before advising the client on how to proceed. This ‘front-end work load’ method is not used by many family lawyers.

Both lawyers have been recognized as distinguished lawyers by Martindale Hubbell Canada, a directory of reliable business and legal resources, and are highly recommended on BestLawyers.com and in the Canadian Legal Lexpert Directory.

Joanne Stewart can be reached at 416-601-2361. To contact Bryan Smith, call 416-601-2677.

Lerners LLP, one of Canada’s largest litigation groups with over 100 lawyers, has offices in Toronto and London, Ontario. Lerners lawyers represent a wide range of individual and institutional clients, from victims of accidents to corporations embroiled in complex business disputes and appeals. Its lawyers, many of whom have been involved in landmark cases, practise in the following areas: Commercial Dispute Resolution, Medical Liability, Professional Defence, Insurance Law, Corporate Bankruptcy and Insolvency, Personal Injury Law, Public Law, Family Law, Appeals, and Business Law.

For more information or to arrange an interview, please contact:

Mary Ann Freedman
Freedman & Associates Inc. for Lerners LLP
Tel: 416-868-1500

E-mail: mafreedman@freedmanandassociates.com

Gillian Hnatiw, a personal injury lawyer at Lerners LLP, says this kind of information can be key in proving that the Crown has failed in its duty of care.

“You’re putting a vulnerable person in a cage with someone who’s known to be extremely violent. It’s a perfect recipe for an assault of this nature,” she says.
 

"Any restriction on that definition is arguably going to affect those people most in need of benefits", says Neil Wheeler.

In a 2006 paper, Lerners LLP partner Elizabeth Grace noted punitive awards for victims of abuse are rarely more than $50,000 even though “one can scarcely imagine an area better suited for large punitive damage awards than sexual abuse.”

In this interview with CHCH, sexual abuse lawyer, Elizabeth Grace, comments on the recent Superior Court ruling in the case of two sisters from Ancaster who came forward as adults to accuse an uncle of abusing them when they were little girls.

What happens when basic assumptions underlying a class action settlement turn out to be incorrect following settlement approval?  The court approved the settlement.  But soon after, it became evident that the actuarial value of the surplus had declined.

There was a real possibility that there would be no surplus to distribute to the affected subclass members, says Brian Radnoff of Lerners LLP.

It's very rare for a person who is alleging sexual assault that stems from a childhood experience to be slapped with defamation charges, says Elizabeth Grace, a lawyer who specializes in sexual abuse cases.

It’s “very rare” to see victims of alleged sexual assault found liable for defamation, said Elizabeth Grace, a lawyer who specializes in sexual abuse, but was not involved in this case.

A cap on cash entitlements for successful plaintiffs who receive benefits under the Ontario Works program or the Ontario Disability Support Program (ODSP) leaves the poor and disabled with an unfairly small portion of their total cost awards, Toronto personal injury lawyer Elizabeth Grace says in Law Times.

Poor Ontarians who receive benefits under the Ontario Works program are allowed to keep only $25,000 of their cash entitlements when they win a lawsuit or arrive at a settlement. They must hand over any extra cash to the government if they want to continue to receive benefits.

Either they [plaintiffs] have to pay back anything over $100,000 or they’ll be cut off from any future entitlements to ODSP benefits,” says Elizabeth Grace, a personal injury lawyer at Lerners LLP who often represents victims of sexual abuse.

The verdict was the end result of two separate legal actions concerning a scuffle over a $60 building permit. 

“It’s a bit of a complicated case because it began many years ago,” says Nada Nicola-Howorth, of Lerners LLP, who represented the City of Oshawa.

An appellant’s factum recently filed by Lerners LLP criticizes a Law Society of Upper Canada disciplinary panel decision convicting Joe Groia of professional misconduct, alleging some of the ruling’s conclusions amount to an abuse of process.

The appeal factum, filed by Earl Cherniak and Jasmine Akbarali, calls the decision a “remarkable” one that amounts to an “abuse of process.”

The appeal factum filed on behalf of Toronto lawyer Joe Groia, convicted of professional misconduct and accused of “abuse of process” for defending himself by a Law Society of Upper Canada disciplinary panel, alleges that some of the ruling’s conclusions themselves amount to such an abuse.

However that may be, there’s some irony in the strong language used by Groia’s lawyers, Earl Cherniak and Jasmine Akbarali of Lerners LLP’s Toronto office, in describing the actions of the quasi-judicial panel given that his conviction turned on his allegedly uncivil conduct in court.

A Divisional Court ruling that delayed the costs award in an appeal until the outcome of a class action certification motion was highly unusual, and raised an access to justice issue for the appellants, says Toronto lawyer and arbitrator Earl Cherniak. 

"I’m tired, but I’m also elated seeing all these people here,” he said. “There are a few more people now than there was at 5 a.m.”

By the time he finished, he estimated that about $8,000 had been raised for Youth Opportunities Unlimited, which will use the money to make meals for its Youth Action Centre. By the time everything is tallied, and last-minute donations trickle in, it’s expected the total will surpass that.

Kudos Marinus!

Forget the cake, gifts and party — this year London lawyer Marinus Lamers will spend his 59th birthday running through the streets of London.

Lamers will set out at 5 a.m. July 2 on a 59-kilometre route to raise money for Youth Opportunities Unlimited, a group that assists youth with everything from basic needs to housing, education and employment opportunities.

[T]he ‘enterprise’ of education carries with it a risk of harm.  However, whether sexual assault of a student by a teacher constitutes materialization of that risk has proven contentious...

Elizabeth Grace & Anna Matas, Lerners LLP

This case is a reminder that a mistake can demonstrate the absence of consensus or agreement and result in a void contract – parties may lose their bargain if they attempt to take unfair advantage of a known or detectable error.

There is now established precedent for holding religious bodies vicariously liable for abuse committed by their clergy and for making those who operate residential youth facilities vicariously liable for their staff’s sexual misconduct.

I can't comment on the specifics of the case because it's before the criminal and civil courts,  noted the woman's lawyer, Elizabaeth Grace.  But this case does raise many important issues, not the least of which is whether mourners visiting graves of their loved ones should be entitled to be safe at cemetaries.

Although a recent Ontario Court of Appeal decision reaffirms the existence of absolute privilege, it also holds that the privilege does not necessarily prevent an aggrieved party from suing their lawyer for conduct while representing another client, says Toronto litigator Brian Radnoff.

Justice Robert Goldstein of the Ontario Superior Court has found Robert Verdun, a corporate governance activist, in contempt of a permanent injunction prohibiting him from publishing statements or comments about Robert Astley, a prominent businessman.

Sentencing in the case has been adjourned so Verdun can retain counsel. Brian Radnoff of Lerners LLP represented Astley.

Brian Radnoff, a partner with Lerners LLP, brought a motion on behalf of Astley for contempt of court, arguing that Verdun’s communication with Woodworth was an obvious violation of the court order.

The International Chamber of Commerce has entered into an agreement with Arbitration Place in Toronto to bolster its presence in North America – a positive development for those in the practice area, says Toronto lawyer and arbitrator Earl Cherniak.

Financial and professional sanctions imposed by the Ontario Securities Commission in a recent illegal insider trading case demonstrate how seriously regulators take these violations, even when relatively small amounts of money are involved, says Toronto commercial litigation lawyer Bill Pepall.

While cottages might be idyllic getaways for many Canadians, an owner should keep in mind that they owe a duty of care by law to take the precautions necessary to ensure that anyone visiting their summer residence is reasonably safe while there, says Toronto lawyer Nada Nicola-Howorth.

Lawyer Kirk Boggs, who acted for the Ottawa police, said allowing the suit to proceed could have unfairly damaged the reputations of those involved in the prosecution.

"Sometimes the court system has to say enough: If we attempt to go further, we may do more harm than good," Boggs said in a statement Wednesday.

Sometimes the court system has to say enough - if we attempt to go further, we may do more harm than good," says Kirk Boggs, a lawyer with Lerners LLP, who along with Jasmine Akbarali of Lerners, argued the case on behalf of the Ottawa Police Services Board and the retired police officers.

It is not surprising that there were fewer securities class actions filed in Canada in 2012, says Toronto litigator Brian Radnoff.

“The greatest cause of the decrease is the fact that markets were generally stable, if not good, in Canada in 2012,” says Radnoff. “The greatest driver of securities class actions are poor markets, particularly after market bubbles, when equities can fall considerably.

The long-awaited civil trial in Livent Inc. (Special Receiver) v. Deloitte & Touche could be precedent-setting if the powerful “equal fault” defence ends up being material to the outcome, says Toronto commercial litigation lawyer Bill Pepall.

Arbitration legislation is on its way to being streamlined in Canada – an onerous but necessary task to develop much-needed uniformity, says Toronto lawyer and arbitrator Earl Cherniak.

This decision means that issuers can settle with class counsel in different jurisdictions separately if they feel they need to, reducing the risk that class members in one country might 'hold out'.

“Year over year, our guests tell us how much they appreciate the atmosphere of our Extraordinary Women’s Extravaganza, so we work hard to keep it primarily social and informal,” says Lisa Munro, co-managing partner of Lerners’ Toronto office.

There are two recent trends that impact the appointment and independence of arbitrators.

The first involves attacks on awards by unsuccessful parties.

Two recent trends emerging in the world of alternative dispute resolution impact both the appointment and independence of arbitrators, Toronto lawyer Earl Cherniak, who specializes in ADR, writes in Lawyers Weekly.

There is a sales pitch for arbitration. Earl Cherniak, a lawyer with Lerners LLP who now spends about 80% of his time serving as an arbitrator, says they aren’t always cheaper than standard courtroom litigation.

Lucas Lung, a lawyer with Lerners LLP in Toronto who acted for the Canadian Jewish Congress, an intevenor in the case, said he was still studying the ruling but praised it for upholding the existing definition of hate. He said the discussion of free speech around the case threatened to overshadow the effect of Mr. Whatcott’s speech on equality rights: “We can’t lose sight of the fact that there are victims here whose equality rights have been infringed.”

At least two groups that intervened in the case expressed hope that the decision will help to clarify the hate speech laws.

"It reaffirms the case law as we have understood it for the last 25 years," said Mark Freiman of the Canadian Jewish Congress.

Lucas Lung, a partner at Lerners LLP, says an important point of the ruling is even though freedom of expression was the focal point, we shouldn’t lose sight of the fact that there is an important equality right being protected here.

He references a paragraph from the ruling, which states: “In my view, the criticisms point to two conceptual challenges to achieving a consistent application of a prohibition against hate speech. One is how to deal with the inherent subjectivity of the concept of ‘hatred.’ Another is a mistaken propensity to focus on the ideas being expressed, rather than on the effect of the expression.”

At least two groups that intervened in the case expressed hope that the decision will help to clarify the hate speech laws.

“It reaffirms the case law as we have understood it for the last 25 years,” said Mark Freiman of the Canadian Jewish Congress.

“It reaffirms that there is a very high standard in order for communication to qualify as hatred.”

Mark Freiman, a former deputy Attorney-General of Ontario who argued at the Supreme Court on behalf of the Canadian Jewish Congress, said the ruling was a “reaffirmation” of principles first articulated by the Supreme Court 20 years ago, in the case of hate hotline operator John Ross Taylor.

Those principles — that it is constitutionally valid to limit a fundamental right, in this case limiting speech that exposes people to hatred based on their membership in a group — were often lost in the rancorous debate over hate speech law, he said.

At least two groups that intervened in the case expressed hope that the decision will help to clarify Canada's hate speech laws.

"It reaffirms the case law as we have understood it for the last 25 years," said Mark Freiman of the Canadian Jewish Congress.

"It reaffirms that there is a very high standard in order for communication to qualify as hatred."

“I think Bay St. will be happy with this decision. Main St. may have some issues with this,” said Domenico Magisano, a partner at Lerners who specializes in corporate restructuring and insolvency.

“It will certainly be good for companies that are seeking to restructure and continue as going-concerns, but I can certainly see why Indalex pensioners will not see this this as a good decision,” Magisano said.

"Bay Street will be happy. Main Street may not be," said Domenico Magisano, a partner in the Toronto office of Lerners LLP. "While there's short-term pain for these pensioners, the ability to restructure companies will continue as it was before."

“Bay Street will be happy. Main Street may not be,” said Domenico Magisano, a partner in the Toronto office of Lerners LLP. “While there’s short-term pain for these pensioners, the ability to restructure companies will continue as it was before.”

But a year later, the Ontario Divisional Court completed a judicial review and overturned the tribunal’s decision, concluding the tribunal did not consider all evidence available.

The debate was on again in late December after Nobles and Pieters took their case against Firth and the Peel Law Association to the appeal court. Their case is largely based on circumstantial evidence, including the way the men were approached.

She could have also headed towards them because she was told people had been inappropriately moving the furniture around in the lounge earlier where the three men were sitting, said Mark Freiman, the respondents’ counsel.

“The fact that people in society are discriminatory cannot be used as evidence that a particular [person] was discriminatory,” argued Freiman.

In the past, litigating a class action has been much more of an academic enterprise that has involved highly technical arguments before motions judges and appellate courts. The shift to trial will bring a change in tactics, observes Jason Squire, a partner in the Toronto office of Lerners LLP. “Because we act on both sides of these types of cases, our advice is that you pick your trial counsel early. Certification is a set of issues you’re going to have to work through, to be sure. But determinations on their merits are a reality. You have to pick the lawyers that you want to act for you at trial.”

A Windsor woman whose father died from choking on his food just days after moving into a long-term care home has launched a $6-million lawsuit alleging wrongful death and a cover-up by the home’s staff.

“The ministry order doesn’t go far enough,” Joseph’s lawyer Maia Bent told The Star. “In our opinion, this is not adequate. It minimizes it, which is offensive, really, when you’re dealing with a wrongful death.”

Defence lawyer Earl Cherniak told the disciplinary panel a suspension is unnecessary, given Groia has been “living with this cloud over his head for the last 11.5 years,” spending weeks away from his practice to mount his defence and incurring legal bills.

“Mr. Groia’s positions are irrelevant to the penalty at all,” Mr. Cherniak told the panel. “... He’s entitled to his views like any citizen.”

In addition, the proposed focus on mental-health treatment would tread on other provinces’ jurisdiction and the scope of the inquest, she said, would go beyond the purpose of Ontario’s Coroner’s Act.

Mark Freiman on behalf of three Ontario doctors who treated Smith raised similar constitutional concerns.

Dogged by increasingly negative media coverage over the handling of investigations into the suicide of Afghanistan war veteran Stuart Langridge the Department of National Defence edited an internal police force report before releasing it publicly and to the soldier’s family, a federal inquiry heard Friday.

The revelation at the Military Police Complaints Commission inquiry was one of several indications that the independence of the National Investigation Service (NIS), the military’s detective agency, was compromised after Langridge’s parents went public with their grievances.

The military interfered with the report “while preparing it for publication” in a pre-emptive effort to avoid a “sensational fact” getting to the media, said Commission lawyer Mark Freiman.

The Military Police Complaints Commission probe into the suicide of Afghanistan veteran Stuart Langridge also heard that the stunning revelation that his last wishes had been hidden from his family resulted in hastily prepared media lines that contained misleading and erroneous information.

“Is it fair to say there was a fair amount of confusion at this point about who said what to whom?” commission lawyer Mark Freiman asked Maj. Daniel Dandurand, a key witness at the inquiry.

Jason Squire, a partner at Lerners LLP, says he has seen Brown take a similar hands-on approach with one of his matters on the commercial list and is interested to see how many judges will follow his lead.

The SWIM fundraiser is SMART, which in this case means Strong Mothers Achieving Remarkable Triumph. SMART is a scholarship, four in fact, which will see $2,000 distributed among four recipients. The fundraiser takes place Sept. 28 at the London Hilton.

Sandra Drozd, a lawyer from Lerners Law Firm, and a single mother, will be speaking on education and career.

“One presumes the Supreme Court is going to determine the question once and for all whether indirect purchasers can sue,” says Brian Radnoff, a litigation and competition lawyer at Lerners LLP.

“It’s a very important issue. These class actions often arise from conspiracies or cartels where a bunch of suppliers get together and restrict output or price competition. It’s very detrimental to consumers and bad for the economy.”

Superiors of the lead military investigator in the Stuart Langridge suicide case slashed and censored their subordinate’s final summary of the case, a shocked federal inquiry heard Thursday.

Military Police Complaints Commission lawyer Mark Freiman dropped the bombshell towards the end of a day of dramatic testimony by Sgt. Matthew Ritco, the investigator chosen to handle the Langridge case the day the Afghanistan war veteran hanged himself in March 2008.

Uniqueness of claims and different histories likely mean it will be an uphill battle for more than 200 potential plaintiffs to have their gender discrimination lawsuit against the RCMP certified as a class action, says Toronto litigation and class action lawyer Brian Radnoff.

What’s often left out of that discussion is how law firms and in-house counsel work, over time, to iron out bumps in the road and change up what works for them and their respective business units as the relationship evolves. When it works well, the law firm and in-house counsel develop critical points of contact.

Case in point is the Telus Communications Co. litigation department and its outside firm in Ontario, Lerners LLP. Associate general counsel Alan Dabb has been working with the Lerners team since he joined Telus in 2007. Since then he has come to know many of the lawyers at the firm. While it is one of about half a dozen firms Dabb deals with across the country, Lerners manages files in Ontario ranging from small claims items up to the most significant currently active litigation files.

...

“It’s great that the relationship can evolve — you’re not stuck in a static relationship,” says Dabb. “There are going to be challenges and it’s how you deal with those challenges and strengthen the relationship that matters.”

Toronto appellate lawyer Brian Radnoff says it is “somewhat surprising” that the SCC has decided to hear two civil fraud appeals which were part of an omnibus ruling that put forward a new approach on summary judgment only pertaining to Ontario.

Landowners should be aware that there is a new cost associated with billboard signs.

"I would have to sell my house. I would have no quality of life," Phillips said of not having benefits won from the insurer by his London lawyer Andrew Murray, a partner at Lerners.

If the changes are adopted, those needing long-term rehabilitation will have a tough time making insurers pay — and taxpayers may have to foot the bill, said lawyer Andrew Murray, a partner at Lerners in London and the new president of the Ontario Trial Lawyers Association, which is leading the fight against the proposed changes

His lawyer, Earl Cherniak, said Mr. Groia was “very disappointed” and is considering an appeal of the decision.

Groia is “very disappointed” with the decision, his lawyer, Earl Cherniak, said in an emailed statement.

Asked by Military Police Complaints Commission lawyer Mark Freiman whether he agreed with Shaun Fynes’s characterization that withholding the note was “cruel, callous and disrespectful”, Hammond said most people in the Canadian Forces would agree.

Commission lead lawyer Mark Freiman says the documents are vital to the commission’s work.

“They are right at the centre of the issues this commission has to grapple with,” he said.

Commission lawyer Mark Freiman said it was “heartening” to hear MacKay promise full co-operation to the Commission when he spoke in the Commons last week.

“I must say, I’m not amused — I completely reject the criticisms of independent counsel” in the ruling, Earl Cherniak of Toronto’s Lerners told The Lawyers Weekly.

Military Police Complaints Commission lawyer Mark Freiman echoed Stannard’s comment as the thorny issue of solicitor-client privilege and redacted documents sparked another round of testy sniping between inquiry lawyers.

Mark Lerner, president of The Advocates’ Society and a partner at Lerners LLP, was instrumental in making this partnership happen.

Richards’ announcement of MacKay’s decision resulted in little progress and several hours of acrimonious exchanges between Richards and Military Police Complaints Commission lawyer Mark Freiman.

“The sky is falling,” responded Commission lawyer Mark Freiman who accused Richards of playing “Chicken Little" and exaggerating the issue.

"Building a practice is multifaceted and there is no magic pill,” says Brian Grant, managing partner of Lerners LLP in Toronto.

But Jason Squire of Lerners LLP, who with senior counsel and colleague Earl Cherniak represents Black, notes there’s a fundamental difference between the ABCP and Hollinger matters.

One of his Toronto lawyers, Lisa Munro of Lerners LLP, noted that the court’s decision sidesteps the difficult question of whether the mere posting of a defamatory statement on a foreign website is actionable here.

"Conrad Black is delighted about the decision of the Supreme Court today," said Lisa Munro, of Lerners LLP, co-counsel for Mr. Black along with Earl A. Cherniak, Q.C.

Lisa Munro, of Lerners LLP, who with Earl Cherniak represented Lord Black, said:

“Conrad Black is delighted about the decision of the Supreme Court today...

Brian Radnoff, a partner at Lerners LLP, says prior to this ruling, the courts recognized non-objective factors like fairness and justice but now the Supreme Court has made it clear that courts should not consider non-objective factors in determining jurisdiction.

Canada's top court ruled Wednesday that Conrad Black could proceed with libel lawsuits against former business associates in the Canadian province of Ontario, but shortly afterward a lawyer for the onetime newspaper tycoon said her client has reached a tentative settlement that would bring the legal dispute to a close.

"We hope to resolve this without any muss or fuss," Commission lawyer Mark Freiman told the inquiry.

“We hope to resolve this without any muss or fuss,” Commission lawyer Mark Freiman told the inquiry.

The public inquiry in Langridge's suicide took a legal diversion Tuesday afternoon with Military Police Complaints Commission lawyer Mark Freiman joining Drapeau in criticizing DND and the federal Justice Department for withholding information.

"It's ludicrous to assume that the commission can do its job without seeing the basis upon which the military made its decisions," said Freiman, who, along with Drapeau, has also complained about delays in getting documents.

Jason Squire, one of the lawyers for the company, said his client is considering taking the case to the Supreme Court.

Jason Squire, a lawyer acting for one of two applicants, said they are considering whether to appeal.

Huron East CAO Brad Knight says Council had sought an opinion from lawyer Fred Tranquilli of Lerners LLP in London.

The city referred the issue to Lerners LLP, a municipal law firm, to oversee the investigation into the claim.

But, the press release said that a second opinion from London, Ont. lawyer Fred Tranquilli of Lerners LLP is “very similar” to that of Huron East solicitor Greg Stewart who said the provincial government has taken away any control municipalities have over renewable energy projects with the Green Energy Act.

But Mark Freiman, who represented the association and Firth in the case, says the court’s decision shows that a nexus between Firth asking the group for identification and racial discrimination occurring can’t simply be assumed.

This is an important case because it lays down principles for when there’s an allegation of racial profiling,” Mr. Freiman said.

Mark Freiman, a lawyer who represented the Peel Law Association in the appeal, said the court’s decision is important because it lays out principles to be followed in cases of alleged racial profiling.

Mark Freiman, a former deputy attorney-general of Ontario and an expert in discrimination law, who argued the appeal on behalf of the respondents, said the ruling strikes an important note of caution, which is especially important in a legal system that views discrimination as subtle, hard to prove, and even sometimes unconscious and unintentional. He said the court rightly followed the advice, written by Supreme Court Justice Rosalie Abella, that “not every distinction is discriminatory.”

Compassion and understanding are key to protecting sexual abuse claimants from revictimization in court, according to a new guide for lawyers released by the Law Society of Upper Canada.

Elizabeth Grace, a contributing author of the guide and a partner at Lerners LLP, says other issues such as cultivating compassion in the legal community in order to help lawyers avoid those pitfalls are also key suggestions outlined in the guide and were important factors in its development.

Rule 48 first surfaced in October 2009 after a series of amendments to the Rules that allowed for quicker dismissals of dormant actions due to delay. Lawyers became worried late last year following warnings that several actions faced dismissal on Jan. 1, 2012, as a result of the change.

At least one prominent lawyer is worried about the changes. According to Andrew Murray of Lerners LLP’s London, Ont., office, the rule has caught many lawyers by surprise and its wording isn’t clear when it comes to the steps they must take to ensure the court doesn’t dismiss their actions.

“I think you will see the bulk effect of this rule in personal injury actions,” says Murray. “None of us knew that our actions would be subject to an automatic dismissal at the first of the month.”

The Supreme Court of Canada’s rejection of Ottawa’s bid for a national securities regulator is a “bad ruling,” Brian Radnoff, a partner at Lerners LLP tells Business News Network in a recent interview.

Under Ontario’s motor vehicle legislation, an accident victim who meets the definition of catastrophic impairment is entitled to claim greater accident benefits, and for life or until the maximum benefits have been paid out. In tort lawsuits arising from car accidents occurring between Nov. 1, 1996 and Sept. 30, 2003, the accident victim must prove he or she sustained a catastrophic impairment to recover health care expenses. A determination of catastrophic impairment often makes a crucial difference to an accident victim’s recovery and quality of life.

In allowing Kusnierz’s appeal it was the first time an appellate court weighed in on the issue of combining psychological and physical impairment.

“On the issue of whether someone has the right to have psychological impairment combined with physical it is clear cut just as it was prior to the Kusnierz trial decision,” says Neil Wheeler, a partner with Lerners LLP in Toronto who acted for plaintiffs Phillipe and Cecille Desbiens in 2004’s Desbiens v. Mordini, which first established the definition for catastrophic impairment combining psychological and physical impairment, which had been adopted by the courts and Financial Services Commission (which regulates accident benefits) up until the Kusnierz case in late 2010.

Jason Squire, a litigator with Lerners LLP in Toronto who didn't represent anyone in the reference case, said the Supreme Court judges were asked only to address whether the federal government's proposed legislation was constitutional, not whether the country would be better off with a single national regulator.

"They're not going to comment on whether it really is a good idea, politically or economically. Effectively, what they're saying is that the problem isn't so much with the act. The problem is that the structure of the Constitution is such that without an amendment, the federal government can't give effect to that good idea unless the provinces come to a series of agreements."

The most ridiculous aspect to all of this is that the court is not even saying a single regulator is a bad idea — in fact, it made some sympathetic noises about the concept. “The courts do not have the power to declare legislation constitutional simply because they conclude it may be the best option in terms of public policy,” the justices said in their judgment.

Short of a constitutional amendment — and that’s not happening — there’s not much to be done. Canada will retain a patchwork of market regulators. “Is there any other country in the world, or at least the West, that tries to regulate securities on a provincial or a state basis?” asked Jason Squire, a partner at Lerners law firm in Toronto.

Lerners LLP partner Brian Radnoff, for example, says the guidance is vague and discretionary. “I think the first question we have to ask ourselves is, has this new test really expanded the availability of summary judgments as it was intended to do?” he says. “I have serious doubts that it has.”

Brad Bain, a partner at Lerners LLP in London, Ont., has many condominium corporation clients and says it’s important to ensure they collect the fees. “There are many condominium corporations that do have owners who don’t pay their fees and it’s critical that they collect,” he says.

Representing Groia is Earl Cherniak, a partner with Lerners LLP. Unlike the law society, which relied exclusively on court documents to present its evidence, Groia’s counsel elected to examine witnesses last week.

“The evidence that we will call will be very critical of the [Ontario Securities Commission] and its approach in the case,” Cherniak told the panel Monday morning.

Groia’s lawyer, Lerners LLP partner Earl Cherniak, fired back. He argued the law society’s prosecution of Groia posed a threat to the independence of the bar, the judiciary, and the public interest, particularly in cases where a defendant lines up against a powerful public body.

Well before he was called to the bar, Seaton Village resident Lucas Lung was devoted to social justice. Now working as a lawyer, he has used his position to help advance causes about which he is passionate.

Lung, who works for Lerners LLP and has also spent time with Legal Aid Ontario, devotes much of his time to pro bono matters, aiming to improve the lives of new Canadians, the financially disadvantaged and others.

“I think that the Court of Appeal’s decision is going to stand for the proposition that the definition of ‘unlawful’ means, in both the tort of civil conspiracy and the tort of interference with economic relations, cannot be stretched as far as what Lord Denning said in Torquay Hotel v. Cousins [1969] 2 Ch. 106 (Eng. C.A.)...that an unlawful act was anything which the defendant ‘is not at liberty to commit,’” commented Purina’s counsel Kirk Stevens of Toronto’s Lerners.

On June 12, Mark J. Freiman, President of the Canadian Jewish Congress was awarded the Samuel Bronfman Medal by the CJC National Board of Directors. The board had met secretly, without Freiman’s knowledge and decided to present him with the award. The Bronfman Medal is known as the highest honour that the Jewish community can bestow. It recognizes those who display “integrity, modesty and a person who has given selflessly to the Jewish community of Canada” according to Bernie Farber, the CJC’s Chief Executive Officer who is currently on leave.

Lerners LLP associate Lucas Lung has won The Advocates’ Society’s 2011 Arleen Goss Young Advocates’ Award for his outstanding record of advocacy and advancement of social justice.

Lung has experience in cases involving immigrants and working with the disadvantaged, including one matter that went to the Supreme Court of Canada this year.

Lucas Lung of Toronto’s Lerners, who with Lisa Loader represented Pritpal Singh Mavi and four other respondents, said the court’s decision not to impose a duty on the Crown to give reasons is a blow to sponsors.

“It is a minimal duty of fairness,” Lung told The Lawyers Weekly. “The practical effect is that sponsors will have the opportunity to make submissions on whether enforcement of debt should be deferred...[but] in terms of whether [the Crown] substantively considered all the submissions properly, it’s going to be very difficult [to challenge].

Future Canadian governments need to consider submissions by those having extraordinary conditions. Representing five out of eight sponsors, Lucas Lung of Lerners LLP, said that sponsors will be allowed to make submissions with regard to federal government obligations for considering their special conditions.

“The jury’s decision, like the judge’s decision on the permanent injunction, shows you can’t say anything you want about someone because they happen to be a director of a publicly traded corporation,” said Brian Radnoff, a partner at Lerners LLP and one of Mr. Astley’s lawyers.

“One of the interesting aspects of this case was the defendant used the shareholder proposal process to make some of the publications that the jury found were defamatory,” says Brian Radnoff, a partner at Lerners LLP and Astley’s other co-counsel.

Under the Bank Act, banks are required to republish shareholder proposals in their own proxy circulars that go to all of their shareholders.

“In this case, that gave them very wide publication,” Radnoff says.

Astley, 65, currently chair of the Canada Pension Plan Investment Board, “is very pleased the litigation has come to a successful conclusion,” said Brian Radnoff, one of his lawyers.

In the fall of 2006, the municipality charged Ducharme with constructing the house at 369 Pryde Blvd. without a building permit. Charges under the Building Code Act included failure to comply with an order to get a building permit, failure to cease construction after the order was issued and removal of a posted order.

Those charges were upheld after Ducharme appealed them.

The matter has been discussed at council meetings several times since then, most recently the May 2 meeting, during which the municipality's lawyer, Andrew Murray of Lerners, appeared before council informing councillors of criteria they can use to decide whether or not to order the house demolished or repaired.

As a result, unique statutory limitations schemes now apply in virtually every province and territory, most of which render basic and ultimate limitation periods inapplicable to sexual assault claims.

Evidence given by an individual in Canada could be used against that individual in the U.S.

The inquiry’s chief counsel, Mark Freiman of Toronto’s Lerners, led the team of about a dozen lawyers who helped Commissioner Major put together his report over a three-year-period.

Freiman told The Lawyers Weekly the commission has proposed many “cutting edge solutions.” They range from narrowing the ever-expanding, and often unwieldy, amount of material that the Crown has been automatically delivering to the defence in terrorism prosecutions to creating a specialized team of terrorism prosecutors led by a new director of terrorism prosecutions.

Everyone in London, Ont., knows Janet Stewart. It is here that she is the heart and soul of many community endeavours as well as being one of the most respected lawyers in her field. You can see from her curriculum vitae on the web site of Lerners LLP the extent of her interests and the many expressions of gratitude she has received, because she won’t tell you about them. You would need a degree in dentistry to extract any embellishment of her achievements from Stewart herself.

Values are of the utmost importance to Mark Freiman. He has devoted much of his life to public service and has allowed his values to guide his illustrious path.

After taking significant time off from practising law to take a number of public service positions, Freiman recently accepted a post with Lerners LLP’s commercial litigation group.

“I always believe in finding a place that is compatible with my values,” said Freiman in a recent interview with The Lawyers Weekly.

A party....must put forward evidence that there is a 'real and subsisting group of persons' interested in having their action tired as a class proceeding.

A recent Ontario Divisional Court decision highlights the importance of setting out what the role is of U.S. counsel looking to be involved in class proceedings with Canadian firms in actions launched in this country, says a lawyer involved with the case.

Conversely, Poulin v. Ford Motor Co. of Canada also applies the other way — if an Ontario or Canadian law firm is planning to assist U.S. counsel south of the border, they need a few things “to be clear in their relationship at the outset,” says Jason Squire, a partner at Lerners LLP.

The decision leaves Mr. Drabinsky and Mr. Gottlieb required to pay a $36.6-million (U.S.) judgment stemming from a suit launched by U.S. investors after Livent's collapse in 1998. The court also ordered the two to pay the legal costs of the shareholders for the appeal challenge.

Lawyer Jasmine Akbarali of Toronto law firm Lerners LLP, who represented the U.S. shareholder group, said the amount owed, including interest and legal costs, will likely exceed $40-million.

Jasmine Akbarali, a lawyer from the investor's law firm Lerners, said the SCC ruling "means it's the end of the road for them [Mr. Drabinsky and Mr. Gottlieb] in contesting whether the New York judgment is enforceable in Ontario. We are now in the process of enforcing that judgment."

Jasmine Akbarali, a lawyer from the investor’s law firm Lerners, said the SCC ruling "means it’s the end of the road for them [Mr. Drabinsky and Mr. Gottlieb] in contesting whether the New York judgment is enforceable in Ontario. We are now in the process of enforcing that judgment."

Ms. Akbarali said the Supreme Court's decision brings an end to the legal odyssey because there is no further recourse in either country for the two men. "These guys have not been shy about exercising their appeal rights - they've appealed everything all the way along the line, and have lost at every stage," she said.

The Superior Court of Justice has given the red light to a legal argument that could have kept lawyers from acting against any client loosely affiliated with a company they work for.

Jasmine Akbarali says there wasn’t much case law that ‘talked about what sorts of obligations you might owe to a subsidiary of your client.’

Lerners LLP lawyer Jasmine Akbarali, who represented the plaintiff in McKenna v. Gammon Gold Inc. with colleague Earl Cherniak, says the key issue in the case was “Who is your client?"

The conflict ruling will likely be cheered by Bay Street and national law firms. Many large law firms have tripped up on conflict issues and been called to task by judges when they have tried to act against former or current clients. That has lead to a number of legal decisions that attempt to establish a "bright line test" covering the duty of loyalty and when it applies.

Earl Cherniak, a lawyer at Lerners in Toronto, who argued on behalf of Siskinds against the banks' motion, said "the case will have significant interest in the legal community.

This clarifies something that was really unclear ... the extent to which the conflict rules extend to near-clients or in this case subsidiaries of a parent. This is the first case on that point.

The lawsuits are believed to be the first ever filed in Ontario, said lawyer Peter Kryworuk.

If these lawsuits succeed, he said, others could follow.

Earl Cherniak of Lerners in Toronto, who represented Honda along with Jasmine Akbarali and Roslynn Kogan, told The Lawyers Weekly the decision is salutary for employers because the court “went out of their way to reiterate that punitive damages are reserved for truly egregious cases, and just because there is an element of bad faith or misconduct or the like it does not follow that punitive damages are appropriate.”

Employers across the country are breathing a little easier when it comes to handling issues of accommodation and absenteeism after the Supreme Court threw out an unprecedented wrongful dismissal award.

Honda’s lawyer, Earl Cherniak of Lerners LLP, says employers are “wholly relieved at the decision.”

In a brief to the Supreme Court on behalf of Honda, lawyers Earl Cherniak and Jasmine Akbarali argued that the Court of Appeal took the ground out from under Judge McIsaac's harsh judgment by finding that Honda did not run amok or engage in "corporate malfeasance.

The import of these findings is that there was no bad faith on the part of Honda and no conduct justifying an award of punitive damages."

The Avriths and a handful of other wealthy individuals have fallen through the cracks during the tortuous process to restructure the ABCP market, which has been frozen since last August.

Lisa Munro, a lawyer acting for the family, will argue for a broader test of what constitutes hardship, saying the family should qualify. "We think there are fairness and hardship issues that are not reflected in the criteria [that] have put forward," she said. The family argues it should be considered a retail, not corporate, client and believes the bank "has not followed through with what it stated was its intention to do and pay out retail investors," she said.

Don’t be afraid to take a risk and sign up for cases with contingency fees on behalf of disabled plaintiffs, says Toronto lawyer Kirk Stevens.

“The focus is going to be on access to justice for more people, as opposed to just maximizing the recovery for a particular injured plaintiff,” says Kirk Stevens.

“That’s because if they are successful and achieve excellent results, then there can be rewards,” Stevens tells Law Times, referring to a recent decision tackling the issue of contingency fees charged to persons under a legal disability.

Class-action law firms Sutts, Strosberg and Lerners won a major legal squirmish when Ontario Superior Court Justice Maurice Cullity gave the green light to their suit against medical device-maker Guidant Corp., now part of Boston Scientific.

Earl Cherniak and Kirk Stevens of Lerners LLP, who with trial lawyer Nancy Ralph represented the plaintiffs at the appeal, told The Lawyers Weekly this is the largest personal injury award affirmed at the appellate level in Canada.

In a press release, Lerners said Ralph was thrilled with the result. “At last,” she was quoted as saying, “this case confirms that survivors of severe brain injury can receive the cap in general damages.”

Ms. Akbarali was a member of the Lerners team representing the investors in the Danier case. This prospectus misrepresentation case was the first trial of a class action relating to the civil liability of corporate issuers and their directors for misrepresentation in a prospectus.

Ms. Akbarali has summarized the case issues for ReportonBusiness.com.

The personal injury bar is “deeply split” over the value of videotaping defence medical examinations, says one lawyer involved in the debate.

The plaintiff side of the equation has been increasingly asking for, and receiving, court orders to videotape the independent examinations, says Kelly Tranquilli, a member of the insurance defence and health law practice groups in the London, Ont., office of Lerners LLP. But the defence bar has “very valid” concerns about the prejudicial effect of these recordings, she tells Law Times.

Kirk Boggs, a Toronto lawyer who frequently represents police, predicted that police will find themselves targeted in costly, nuisance lawsuits that harm their reputations and tie them up in court for years. These cases will inevitably feature a great deal of conflicting expert testimony about what investigative steps were or were not sound, he said.

Another civil case to seek compensation for the victims of Ralph Rowe is a possibility.

Civil lawyer Elizabeth Grace from Toronto firm Lerners LLP, who was one of the lawyers handling civil cases involving victims of Rowe in 2005, said there may be another one pending.

Although she couldn't go into details as to how the previous case was resolved, Grace noted civil court is an option.

"I would encourage other victims of Ralph Rowe to consider it an option," she said from her office in Toronto.

It was heartfelt thanks all around at Wednesday's partner appreciation night at the Hilton Hotel.

Shmuel Farhi is wearing his heart on his sleeve with this initiative that has led to $3.6 million for the Ivey Heart Centre.

Some who were invited to the reception in honour of their contribution to the cause were Vito Frijia, Southside Construction; Jamie Crich, Auburn Homes; Leonard Drimmer, Transglobe Property Management Services; Jack Sousa, Brown Beattie O'Donovan LLP; Joel McLean, Info-Tech Research Group; Janet Stewart and David Woodward from Lerners; Jeff Lowe, Citi Financial; Mike Johnston, Mycon Construction; Damir and Renata Slogar from Big Blue Bubble as well as Dianne Decaluwe and Piper Badgley, both from JJ Barnike.

[The Global Talent Initiative] is also critical to new Canadians, who arrive here overwhelmed by language and culture, often not knowing where to turn for help, said Edgar Marquez, a law clerk at Lerners law firm who came to London three years ago from Colombia. He received assistance from the Cross Cultural Learner Centre, the Latin Centre and WIL Employment Connections. Marquez volunteered at social agencies, a seniors' home and restaurant before landing a job.

Kirk Boggs and Kirk Stevens of Lerners LLP in Toronto and Laird Scrimshaw of Martin Scrimshaw Scott in Thunder Bay acted for Wawanesa. Boggs told The Lawyers Weekly they were “very pleased with the end result, because it clarifies the law in a number of areas for insurers and insureds: It confirms that the wording of the intentional OR criminal acts exclusion is not ambiguous. It confirms that the wording of the exclusion is disjunctive – excluding damage from an intentional act OR a criminal act. It confirms that the application of the criminal acts exclusion is not limited to criminal acts where the insured intends to cause injury or damage. Otherwise the same result would be achieved merely by excluding intentional acts."

Toronto lawyer Kirk Stevens, who sought the appeal on behalf of the lion safari, said yesterday's ruling puts an end to more than a decade of litigation. All that remains is for the insurers to pay the costs and damages to the plaintiffs and their families.

"But that doesn't mean the court will necessarily agree with the Court of Appeal should a similar issue arise in the future."

On May 1, 2006, Prime Minister Stephen Harper called the Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, which exploded in mid-air on June 23, 1985.

The lead counsel in the inquiry is Mark Freiman, a Toronto attorney and former deputy attorney general of Ontario. Michel Dorval, a former Crown prosecutor for the attorney general of Quebec, will be co-counsel.

Ontario's insurance companies can exclude coverage for liability on the basis of criminal acts, regardless of whether or not the criminal act was intentional, the Ontario Court of Appeal has ruled.

Kirk Boggs, a lawyer with Lerners — along with Kirk Stevens of Lerners and Laird Scrimshaw of Thunder Bay — represented The Wawanesa Mutual Insurance Company before the appeal court.

"The insurance industry will benefit from the decision because it clearly defines when they can exclude coverage for criminal behaviour," Boggs said in a press release, "Policies containing criminal acts exclusions are written every day throughout this country and the Court of Appeal has now clarified that intent has no place in interpreting the exclusion."

Elizabeth Grace's downtown Toronto office is what I expected. Large and spacious. It has a quietly muscular feel. Grace, on the other hand, is not what I expected. It's casual day at the office, so instead of a power suit I find the 33 year-old lawyer in black jeans and jacket. When we sit down to talk, she echoes what heard from other civil litigators involved in these types of suits.

"The law is incredibly powerful. If you have that knowledge and you work in a bigger firm, it really helps. There was some resistance at first [to her firm taking on abuse cases]. They wondered, was it financially feasible? But they've been supportive."

Kathryn recalls how impressed she was when she met Elizabeth Grace. She remembers how Grace fought for her, refusing to lower the amount of the claim and backing it up in a way her legal-aid lawyer hadn't. There was emotional support too. Grace made a point of calling, just to touch base and see how her client was holding up. She also stayed in close contact with Kathryn's doctors.