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Vol. 34, No. 19 september 26, 2014 lawyersweekly.ca
Judge slams Mandatory minimums branded counsel, then ineffective, overly constraining recuses himself Cristin Schmitz Upcoming Supreme Court cases could revisit Charter arguments OT TAWA
A cloud of uncertainty looms Cristin Schmitz over the appeal of an important OT TAWA Tax Court transfer-pricing deci- sion after the trial judge took The Supreme Court should stem the “absolutely unprecedented” the rising tide of mandatory min- step of publicly defending him- imum penalties by taking a “more self and his decision against robust” approach to the Charter’s what he called “deliberately protection of fundamental justice misleading” allegations in the and ban on cruel and unusual pun- appeal factum. ishment, according to a new report Tax Court Justice Patrick which says Canadians can’t afford Boyle’s Sept. 4 reasons for decid- the rising social, financial and legal ing to recuse himself from fur- costs of mandatory minimum pen- ther involvement in the multi- alties (MMPs). million-dollar case of McKesson As the high court prepares to Canada Corp. v. The Queen have hear pivotal Crown appeals in Nov- sparked debate about whether ember of the Ontario Court of the factum in question exceeded Appeal’s decisions in R. v. Nur and the bounds of acceptable appel- R. v. Charles — which last year late advocacy, and whether the struck down two mandatory min- judge moved from arbiter to imum penalties for firearms pos- advocate when he wrote 45 sin- session — a would-be intervener in gle-spaced pages contesting those test cases, the B.C. Civil Lib- and correcting what he argued erties Association, this month are demonstrable “untruths” in rolled out “More Than We Can the factum. Afford: The Costs of Mandatory British Columbia Civil Liberties Association counsel Raji Mangat’s report on mandatory minimum penalties says Justice Boyle wrote that he Minimum Sentencing.” they fail to deter crime and don’t promote fairness in the justice system. She is seen above in Vancouver. was “deeply troubled” by a The 86-page report aimed at Alistair Eagle for The Lawyers Weekly number of McKesson’s asser- lawyers and policymakers maps tions in the factum appealing the legal landscape and surveys their objectives of promoting cer- and reviewable, to prosecutors, the report notes. his 2013 ruling upholding the costs, policy considerations, tainty, transparency and fairness whose decisions are tactical and “The BCCLA is extremely con- transfer-pricing adjustments and court challenges associated in the justice system. largely beyond review. They also cerned about the unjust, dispropor- made by the Canada Revenue with MMPs. Its findings indicate On the contrary, MMPs shift dis- disproportionately affect marginal- tionate outcomes of mandatory Agency under s. 247 of the that besides failing to deter cretion in sentencing away from ized Canadians, including aborig- minimum sentencing,” said the Income Tax Act. crime, MMPs do not achieve judges, whose decisions are public inals and the poor and mentally ill, Change, Page 5 Divided, Page 27
FAMILY LAW ABORIGINAL LAW BUSINESS & CAREERS Trouble with Too much Douse fires of going it alone transparency office conflict Representing yourself First Nations finance Disagreements inevitable, not easy, survey finds act a step backwards so take charge of situation
PAGESTB_LW_basebar_03_12v2_STG 12 3/15/12 4:24 PM Page 1 PAGE 16 PAGE 23
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Contents Appeal courts may raise own News
Mandatory minimums branded ineffective in report 1 issues ‘rarely,’ rules top court Judge slams counsel, then recuses himself 1 ‘Injustice’ threshold established in Alberta drugs acquittal ‘Injustice’ threshold established in Alberta acquittal 2 Cristin Schmitz increase the offender’s sentence. Lawyer says ‘dumb idea’ won’t OT TAWA Justice Ruth Bader Ginsburg serve profession well 3 emphasized in that case that The Supreme Court of Canada the principle of party presenta- Appeal court adjusts bad faith claim award 3 has reined in the discretion of tion, under which courts “rely appellate courts to raise issues on on the parties to frame the Man’s grow operation convictions their own initiative. issues for decision and assign to set aside 4 Justice Marshall Rothstein’s courts the role of neutral arbi- ‘Prescriptive regime’ lays out 7-0 ruling Sept. 12 restored the ter of matters the parties energy framework 11 acquittals of Mohammad Mian present” is an important part of on charges of possessing cocaine the adversarial system. Focus for the purpose of trafficking and Reimer said the Supreme possessing currency obtained Court of Canada “has taken an Family Law through crime. approach which I think is fairly Troubling picture of litigants who In R. v. Mian [2014] S.C.J. No. similar to Greenlaw.” represent themselves 12 54, the top court held that the “I don’t know that they have Alberta Court of Appeal was changed the law to any great Crafting a marriage contract that wrong when it overturned Mian’s degree in this respect,” he said. sticks 13 acquittals and ordered a new [L]awyers can There’s a great deal of “What I think is perhaps new Courts have wide discretion for trial in 2012 on the basis that the reasonably expect that discretion [left with the coming out of it is some proced- noncompliance 14 trial judge relied on evidence ural rules in terms of what fair- from an improper cross-examin- when they advance court] and so on, but ness demands to ensure that this Start by picking the right ation of a police detective — an doesn’t put the parties in an resolution method 15 an appeal, that the ultimately ‘Let fairness issue that the appeal court raised appeal is going to be be your guide’ is kind unfair position. There’s a great ABORIGINAL LAW on its own motion. deal of discretion [left with the That issue (on which the Crown decided on the issues of the golden rule. court] and so on, but ultimately Issues mar First Nations finance and defence were asked to make ‘Let fairness be your guide’ is act 16 that they frame…I think submissions) could not have it will enhance the Ron Reimer kind of the golden rule.” Aboriginal title now based on affected the trial’s outcome and, Crown counsel Justice Rothstein noted that territorial occupation 17 as such, there was no “realistic predictability of the when a judge or appeal panel risk of an injustice occurring” if appeal process when departs from the principle of Business & Careers the appeal court had not raised it. party presentation to inject itself Therefore the appeal court did a party advances an into a case, it can be seen as inter- Cooling the flames of office not meet the threshold for raising vening on behalf of one of the conflict 23 appeal. a new ground of appeal at its own parties, thus impugning the Data disasters are waiting to behest, the Supreme Court held. Daniel Song court’s impartiality. On the other happen 24 “Of essence here is that courts Sprake Song & Konye hand, judges are obliged to cannot be seen to go in search of ensure that justice is done. Growth of data requires robust governance 26 a wrong to right,” Justice Roth- Restricting the court to raising stein observed. He cautioned that a new issue only when failing to appeal courts may raise new do so would risk an injustice is a issues “only in rare circum- sufficiently flexible test, “while stances” when “failing to do so also providing for an appropriate would risk an injustice. level of restraint” to maintain the ANNOUNCEMENTS 25 “Where there is good reason to impartiality of the court, Justice CAREERS 24 believe that the result would real- Rothstein wrote. “The court CLASSIFIED ADS 21 istically have differed had the cedures a court should follow in presented with evidence that should also consider whether DIGEST 19 error not been made, this risk of exercising that power. appeal courts across Canada fre- there is a sufficient record on LAWDITTIES 13 injustice warrants the court of In the wake of Mian, “lawyers quently inject themselves into which to raise the issue, and NAMES IN THE NEWS 4 appeal’s intervention.” can reasonably expect that appeals. But the intervener whether raising the issue would He went on to set out the pro- when they advance an appeal, Alberta Crown did highlight a result in procedural prejudice to that the appeal is going to be significant number of criminal any party.” decided on the issues that they appeals in which Alberta’s Court He stressed that this discretion frame, and it will only be in of Appeal has been raising issues is always limited by the require- RICHES, MCKENZIE & HERBERT LLP ‘rare circumstances,’ where the at its own behest. ment that raising the new issue PATENTS, TRADE MARKS, COPYRIGHT, LITIGATION court has said there is ‘a risk of Counsel for the respondent fed- cannot suggest bias or partiality injustice,’ that the Court of eral Crown, Ron Reimer of the on the part of the court. BARRISTERS & SOLICITORS - PATENT & TRADE MARK AGENTS Appeal will be permitted to Public Prosecution Service of When an appellate court raises
PAUL HERBERT, B.SC., PHM., R.PH, LL.B., J.D., PH.D. BRANT LATHAM, B.A.SC. B.SC. (CHEM. ENG.), LL.B. intervene,” said Mian’s counsel Canada in Edmonton, said the a new issue, there must be noti- DAN HITCHCOCK, B.ENG. (ELEC. ENG.), LL.B. GARY M. TRAVIS, B.SC. (GEOL.), LL.B. Daniel Song, of Vancouver’s judgment is Canada’s version of fication and opportunity to JEFF PERVANAS, B.A.SC. (ENG. SCI.), LL.B. MICHAEL ADAMS, B.ENG. (MECH. ENG.), B.SC., LL.B. Sprake Song & Konye. “I think Greenlaw v. United States, 554 respond. Counsel may wish to MICHAEL YUN, B.SC. (BIOCHEM), J.D. THOMAS MCCONNELL, B.SC. (BIOL.), J.D. it will enhance the predictabil- U.S. 237 (2008), in which the simply address the issue orally, TRADE MARK AGENT MARTA TANDORI CHENG ity of the appeal process when a U.S. Supreme Court held that an file further written argument, or party advances an appeal.” appeals court determining an both. The underlying concern 2 BLOOR ST. EAST, SUITE 1800 TELEPHONE: (416) 961-5000 Song suggested that similar prin- offender’s sentencing appeal should be ensuring that the TORONTO, ONTARIO M4W 3J5 FAX: (416) 961-5081 ciples will apply in the civil context. could not, of its own motion and court receives full submissions ESTABLISHED 1887 E-MAIL: [email protected] The Supreme Court was not absent a prosecution appeal, on the issue. THE LAWYERS WEEKLY September 26, 2014 • 3
News A dumb idea Bad faith claim award adjusted
threatens both Christopher Guly until five months later. In 2007, he commenced the action Following Supreme Court of Can- against Penncorp that pro- lawyers, clients ada guidance on bad-faith insur- ceeded to trial last year. ance claims, the Ontario Court of Justice Hambly concluded Appeal recently upheld punitive that based on medical evidence, MURRAY TEITEL Opinion damages and lowered mental-dis- Fernandes met the total-disabil- tress ones awarded against an ity definition in the policy he In August the Canadian Bar that of the shareholder, whereas insurance company already on the held and awarded him $236,773 Association recommended that the shareholder wants only to hook for damages in failing to pay in damages for breach of con- non-lawyers be allowed to own maximize earnings. disability benefits to a claimant. tract plus the return of pre- law firms. If this proposal is It is not difficult to imagine In Fernandes v. Penncorp Life miums paid. That amount accepted by the provincial law how this could play out. For Insurance Co. [2014] O.J. No. wasn’t challenged at appeal. societies, shares in law firms example, large firms all have 4039, the appeal court dis- The trial judge also granted Fer- could be traded on stock exchan- big estate and trusts depart- missed the insurer’s appeal of Fife nandes aggravated damages — but ges and controlling interests ments whose clients include $200,000 in punitive damages without providing any reason could end up in the hands of children of rich parents fight- awarded last year to Avelino unable to work at his own occupa- quadrupled the amount requested hedge-fund managers gambling ing over estates. When properly Fernandes by Superior Court tion as a result of injuries. to $100,000, citing in his reasons on derivatives, or, in the case of funded these suits can go on for Justice Peter Hambly. Fernandes only received pay- how Penncorp “humiliated” Fer- underperformers, in the grip of years and generate millions of After twice injuring his lower ment between February and July nandes, made him dependent on vulture funds. dollars in fees. back from two repeated falls in late of 2005 when Penncorp claims his common-law spouse and It is a dumb idea. The practice Lawyers have a duty to point 2004, Fernandes, now 49 years old, advisor Janet Mayo terminated caused him “great mental distress” of law is not just a business; it is out to these clients that what could no longer work and had to benefits, after saying that surveil- in failing “to pay him what it con- primarily a profession, the they are really fighting about is close his bricklaying business in lance video showed he was work- tracted to pay him.” essence of which is that the law- what this one did to that one Kitchener. Although he didn’t pay ing around his house, but she did In awarding $200,000 in puni- yer puts the client’s interest when they were six and four into employment insurance or a so without relying on any medical tive damages against above his or her own. years old respectively, and whom provincial workers’ compensation evidence that the respondent was Penncorp — which argued they While the CBA has 37,000 Dad liked more. They should be plan, he had purchased disability “other than totally disabled,” as the were unwarranted — Justice members, it’s like the Canadian encouraged to seek counselling insurance from Penncorp in 2002 appeal court noted. Hambly concluded that the Union of Postal Workers or the and reconcile. And lawyers rou- that would provide him with Although Mayo made the appellant “demonstrated bad United Church of Canada where tinely do that, foregoing enor- $3,000 in monthly total disability decision in August 2005, she faith” in handling Fernandes’s a tiny number of activists, who mous billings when clients listen benefits for two years if he were didn’t inform Fernandes of it Measured, Page 10 are the only ones driven enough to them. to put in the time, take over the The bottom line is that lawyers leadership. already experience enough pres- No one should assume that a sure putting the interests of scheme like the one described their clients above their own. above has or would gain traction Adding a further force working among individual lawyers, any to undermine legal ethics will more than it would be correct to turn a once honourable profes- assume that normal postal sion into a business no different workers or congregants support from peddling brassy makeup or boycotting Israel. shoddy appliances. The difference between the Beyond that, who in their right CBA leaders and the leaders of mind would want to invest in a the other two groups is that the law firm? As the Heenan Blaikie latter are ideologues who get saga demonstrates, a law firm is involved in order to promote no more than its lawyers. And their political agendas, while the any one of them is free at a former tend not to be ideologic- moment’s notice to pack up and ally driven but take on this public move elsewhere. Shares of a law service (which it is when it is not firm have little inherent value. making things worse) for other They own no patents, scant reasons. Some undoubtedly see it equipment, no real estate as a as a career-enhancing move. rule, no utilities, no licences to Some may do it because they are exploit natural resources. the types who just always have to It is difficult to find anyone be doing something useful. who will benefit from turning A corporation has only one law firms into publicly-traded duty and that is the maximiza- companies other than stock- tion of value to the shareholders. brokers and investment-fund To that end, corporations will go managers. They will see an to extraordinary lengths. Those opportunity to earn commis- in the resource extraction busi- sions trading the shares and ness have been known to destroy profit by correctly betting on habitats and poison people living their future upward or down- We see the lives behind our laws. in the vicinity of their activities. ward movement. The losers will Those pushing consumer goods be the clients of those practi- will often sell people garbage tioners who think of law not they don’t need and spend tens of only as a means to make a living millions on advertising to con- but as a way of doing something vince them they do. meaningful. And therein lies the irreconcil- With over 40 years of litigation experience, Oatley Vigmond knows personal injury law. We’ve argued hundreds of cases, secured Proud Member WYE LA R M able tension between the duties Murray Teitel practises matrimonial, N A IA G record settlements and have helped shape Canadian law. Yet for all D A 2013 -14 Z A I N N
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our success in the courtroom, we have never lost sight of the fact C duties of lawyers as employees of that people come first. We are dedicated to serving clients across a publicly-traded corporation. We want to hear from you! Ontario. Contact us at 1.888.662.2481 or oatleyvigmond.com. Ethically, the lawyer wants to put Send us your verdict: the interest of the client above [email protected] 4 • September 26, 2014 THE LAWYERS WEEKLY
News
Awards Man’s grow-op convictions set aside ■ Michal Fairburn of Stockwoods LLP has been presented with the 2014 Trial judge shifted burden of proof, appeal court rules Catzman Award for Professionalism and Civility. Fairburn, who joined Kim Arnott pill bottles and clothing, that Stockwoods after two decades someone else may have been in as general counsel with The Ontario Court of Appeal has the house and hidden the gun in Ontario’s Crown Law Office- set aside convictions in a mari- the bed without the knowledge Criminal, is a past director of juana grow-op case after deter- The concern is that the of the accused. the Advocates’ Society and a mining that the trial judge erred judge has suggested Despite Supreme Court of fellow of the American College in finding that “proven facts” must Canada rulings in Cooper, and of Trial Lawyers. The Catzman underlie scenarios suggesting the the need for there to be more recently in R. v. Griffin Award, created in 2008, innocence of the accused. proven facts underlying [2009] S.C.J. No. 28, indicating recognizes knowledge, In 2012, Justice Peter Hryn of other alternate that there is no special rule for integrity and dedication to the the Ontario Court of Justice con- the standard of proof in circum- legal profession. victed Thu Van Bui of charges explanations, and that stantial evidence cases, the con- related to producing and traf- reverses the burden of cept continues to be resur- ficking marijuana, as well as proof. rected, said Lisa Dufraimont, Moves firearm offences. an associate law professor at During the trial, police testified person other than the accused, Queen’s University. ■ Michael Burns has joined the that they had found a sizable controlled the marijuana grow Lisa Dufraimont “Really what we have is that Toronto office of Borden Ladner grow operation in a house owned operation in the accused’s house Queen’s University the rule in Hodge’s Case — a rule Gervais as part of the firm’s by Bui and his wife, and arrested without the accused’s knowledge. that the Supreme Court of Can- securities, capital markets and Bui when he arrived at the house Such a conclusion would be ada has repeatedly distanced public companies group, with a with a key in his pocket. speculative, and not a rational itself from and essentially said practice focusing on securities A search of the sparsely fur- conclusion. The Crown has doesn’t apply in Canada — keeps law, hedge funds and structured nished property turned up util- proven the accused’s guilt beyond reaching from beyond the grave products. Burns, called to the ity bills addressed to the couple, a reasonable doubt.” and affecting the reasoning of Ontario bar in 1992, is chair of items of men’s and women’s In a unanimous finding, judges, and that’s what hap- the Canadian chapter of the clothing, and seven prescrip- Ontario Court of Appeal Justices pened in this case.” Alternative Investment tion pill bottles in the names of Robert Sharpe, Janet Simmons Regardless of the type of evi- Management Association. six different individuals. One of and Gladys Pardu allowed Bui’s dence in a case, it needs to be ■ Personal injury mediator Peter the bottles had Bui’s name on it, appeal on grounds that the trial clear that the standard of proof Robinson of St. Catharines, for a prescription issued to him judge’s position regarding the beyond a reasonable doubt has Ont., has joined the mediation in 2006. proven facts was an error that led been applied, she added. panel at ADR Chambers, and is As well, police found a loaded him to shift the onus of proof to “It’s not that the court is saying available to conduct mediations semi-automatic handgun and the defence. that (guilt is) not an available throughout the London, ammunition hidden under the Noting that the Supreme conclusion in this case,” said Hamilton, Niagara and Toronto mattress in the only bed in the Court of Canada made it clear Dufraimont. “The concern is that regions. Robinson also house. that the rule in Hodge’s Case is the judge has suggested the need specializes in product liability Justice Hryn determined that not “an inexorable rule of law in for there to be proven facts and life and disability insurance. the key issue was whether Bui, Canada” in its decision in R. v. underlying other alternate ■ Clifford Hart has joined who had owned the property for Cooper [1978] 1 S.C.R. 860, explanations, and that reverses Borden Ladner Gervais as a five years, had knowledge and Justice Simmons added, “Fur- the burden of proof.” partner in the firm’s labour and control of the items in the house. ther, the rule’s reference to That reversal of the burden of employment group. Hart, Noting that the evidence in the requiring ‘proven facts’ to assessment of this issue.” proof clearly doomed the trial called to the bar in Alberta in case was circumstantial, the ground alternative explanations The court ordered a new trial judge’s finding, agreed Scott 1988 and Ontario in 1991, was judge cited the rule in Hodge’s is problematic because there is on the grow operation charges, Cowan, a criminal lawyer based previously at Miller Thomson. Case that “conclusions alterna- no obligation on an accused to but entered acquittals on the fire- in Goderich, Ont. ■ Sylvie Demers and Despina tive to the guilt of the accused prove any facts. arm charges related to the hand- “If he had said, ‘I find the Mandilaras have joined the must be rational conclusions “Although I acknowledge that gun after finding that the judge’s defence’s position to be fanciful Montreal office of Lavery, de based on inferences drawn from the Crown’s case that the appel- conviction on those counts was and speculative in the face of a Billy as associates in the firm’s proven facts.” lant was at least a participant in an unreasonable verdict. strong Crown case, and I’m satis- litigation group. Demers and In finding Bui guilty of all char- the grow operation was strong, Justice Simmons pointed to a fied beyond a reasonable doubt,’ I Mandilaras were called to the ges, Justice Hryn ruled, “There the trial judge’s erroneous lack of evidence linking the think his conviction would stand. Quebec bar earlier this year. are no proven facts upon which I approach to assessing the evi- accused to the weapon, as well “It’s a nice little case to remind can infer that some imagined dence could well have tainted his as the possibility, based on the us about the burden of proof.”
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News Change: Group wants Supreme Court to push back
Continued from page 1 standard to meet, yet the Criminal tors into its analysis. tice — proportionality in senten- agree with this mandatory min- reports’ author, BCCLA counsel Code also tells us that proportion- Moreover, the court’s “limited cing. This principle would guaran- imum? Is it proportionate? And Raji Mangat. “Even as crime ality in sentencing is the funda- view” of how to take into account tee a proportionate sentence, rather that maybe misses the point of the rates are falling and are at their mental principle of sentencing. the actual effect of the punish- than barring only a grossly dispro- wider discussion which is that, in lowest point since the early And so what has happened, in ment on the offender should also portionate sentence. the context of the rule of law, do 1970s, the Canadian govern- terms of how the law is developing, be expanded “to consider the dis- Mangat pointed out that the top mandatory minimums as such help ment persists in enacting costly, is that judges are basically forced to proportionate impact incarcera- court opened the door to this pos- or hinder an accused’s, or the pub- punitive sentencing measures.” accept that unless a sentence can tion may have on certain offend- sibility in its unanimous ruling in lic’s, ability to look forward and Mangat called for evidence- be considered so grossly dispro- ers such as Aboriginal and R. v. Ipeelee [2012] S.C.J. No. 13, understand what the consequences based, effective policy reform, portionate that it shocks the con- racialized offenders, women and where Justice Louis LeBel observed of a certain crime would be?” including redirecting the hun- science of the community it’s OK offenders with mental health that “proportionality in sentencing Beaulne said that if MMPs are dreds of millions of dollars ear- for it to be disproportionate.” concerns,” she argued. could aptly be described as a prin- “properly used” (he describes him- marked for more prosecutions Mangat said that in determining Mangat said the court could also ciple of fundamental justice under self as “agnostic” about whether and incarceration to crime pre- whether a sentence is grossly dis- give the Charter’s s. 7 — which s. 7 of the Charter.” they are) they aid predictability. vention measures such as improv- proportionate to the individual guarantees the right to life, liberty Given the test cases and federal “The rule of law requires laws to ing education, health care and offender, the top court has moved and security of the person and the election next year, “there is an be ascertainable in advance, and other social supports. away from “a robust individualized right not to be deprived thereof opportunity for the legal commun- clear in every respect, and MMPs, The Supreme Court also has a consideration” of such factors as except in accordance with the prin- ity to really be pushing back on the by setting a stable sentencing floor, critical role to play by revising its the gravity of the offence, the per- ciples of fundamental justice — a fact that these types of measures allow for a very recognizable range approach to determining whether a sonal circumstances of the offender, role in protecting against unfit, are metastasizing,” Mangat said. of sentences for the commission of sentence violates the Charter’s s. 12 and the particular circumstances of excessive sentences that fall short But Gannon Beaulne of Toronto’s a given offence. It puts the accused protection against cruel and the case, “to an increasingly defer- of s. 12’s gross disproportionality Bennett Jones, co-author with Lin- and the public on notice of what unusual punishment, Mangat said. ential and generalized assessment standard. (The Ontario Court of coln Caylor of a recent Macdonald- the likely sentencing range is. Now It is “very difficult for a lawyer to of legislative intent.” Appeal held in Nur that constitu- Laurier Institute paper on MMPs, contrast that with a situation make the argument that an MMP She suggested that in the Nur tional challenges to MMPs must be argued that MMPs can be useful where the judge has complete dis- constitutes cruel and unusual pun- and Charles appeals, the court determined only under s. 12.) sentencing tools. cretion. It’s much difficult to look ishment,” she told The Lawyers could “reinvigorate” its approach by This could be done by the “This debate in general has at a crime and say: ‘This is what Weekly. “It has to be grossly dispro- integrating a range of offender Supreme Court recognizing a new become very politicized — it’s about I’m going to be sentenced to if I portionate [and] that’s such a high characteristics and mitigating fac- principle of fundamental jus- picking sides,” he said. “Do you break that law.’”
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News Rec hockey player to appeal conviction for on-ice hit
Geoff Kirbyson deliberately attempting to hurt Lahaie’s ruling. somebody, you’re outside of the “Some people who have been An Ottawa beer league hockey protection and you shouldn’t be injured (in the past) have not player has appealed an aggra- surprised if you find yourself proceeded with litigation and vated assault conviction that It seems so clear. If facing an assault charge.” there hasn’t been prosecution. arose from an on-ice collision you’re deliberately The primary difference between That has come to an end. Those that left his opponent unable to the two cases is NHL games have thugs and on-ice goons who think work two-and-a-half years later attempting to hurt multiple camera angles that for a moment that they’re going Last month, Ontario Court somebody, you’re document any offence, while to get away with this anymore Justice Diane Lahaie sentenced outside of the there’s unlikely to be anything better think twice. There (are) 31-year-old Gordon MacIsaac but camera-phone videos at any always a couple of nutbags on to 18 months’ probation for protection and you recreational league game. each team. I hope for their sake what she deemed a “deliberate shouldn’t be surprised Bates doesn’t think the Mac- and others that this (decision) blindside hit” on Drew Caster- Isaac case will have a chilling gets out to them,” he says. ton, during an Ottawa senior if you find yourself effect on behaviour in beer The fact that there has been a men’s hockey league game in with Casterton during the game. facing an assault leagues around the country. One conviction in the criminal case, March 2012. Pat Knoll, a professor of law charge. Calgary-based league has a note pending the appeal, of course, The impact of the collision left at the University of Calgary, on its standard registration form does not constitute any proof in Casterton with a concussion, said the rules of engagement that says, “By the way, we’ve all the civil case. However, Knoll facial scars and a number of for these beer league games are Michael Bates got to go to work in the morning.” believes it’s a significant factor broken teeth. The injuries also strictly no-contact. Ruttan Bates “The reality is the vast majority because the original decision in seriously impacted his ability to “None of the participants had of people who play in these the criminal case established earn a living, he alleges. In his consented to any kind of contact leagues don’t want that kind of proof beyond a reasonable statement of claim in his civil of that nature. The law on this is stuff happening. They’re out doubt of the intention to cause lawsuit seeking $600,000 in pretty clear. In sports such as there for recreation. They don’t bodily harm. damages, Casterton alleges his soccer, lacrosse and football, the care if they win or lose the game. “That’s very good leverage for personal training business earned participants consent to a certain I hope the effect will be people the plaintiff to acquire a settle- gross revenue of $82,000 in the level of contact that can result in realize you can’t lose your cool ment or advance the civil litiga- 22 months prior to the incident. bumps and bruises or even a and attack a guy,” he said. tion because (the civil) standard Since then, however, he claims he broken leg. What happened here Knoll disagreed, believing there of proof is on a balance of prob- has only a limited ability to work is that (MacIsaac) acted in such will be a chilling effect. He says abilities,” he said. and he has only earned $13,000. a way that he caused serious beer leaguers need to be careful While it’s possible to run a civil MacIsaac denies intentionally bodily harm to another individ- not to intentionally cause serious case and come to different find- injuring Casterton and filed a ual,” he said. bodily harm to other players. ings of fact than in a criminal statement of defence in the civil In the statement of claim, Cast- “If restraint isn’t imposed by case, Bates says that’s no guaran- case. He has appealed the crim- erton also alleges he suffered soft inflicting serious injuries that the law, we’re going to see people tee there will be the same out- inal conviction. tissue injuries to his neck, spine ended the rookie’s career. seriously injured or even killed in come. Different evidence could MacIsaac’s lawyer, Ottawa- and jaw from a hit to the head. “It’s exactly the same,” said some of these events,” he said. be admitted in the two cases, and based Pat McCann, says the He also claims that regular head- Michael Bates, a Calgary-based “It’s those people who think they different witnesses called to give grounds of appeal include Justice aches keep him from socializing criminal lawyer and partner at can get away with causing serious testimony. However, a conviction Lahaie erring on the issue of with friends. Ruttan Bates. “It’s a guy who took bodily harm in non-professional in a criminal offence can be intro- applied consent as well as mak- There are many similarities it too far. The courts have strug- sports events who better look out. duced as evidence in a civil case. ing her own findings of how the between this incident and the gled from time to time when they That’s simply not going to be tol- “It’s hard to overcome that if it play in question developed when much-publicized case in which have these cases before them erated by the law anymore.” was proven beyond a reasonable there wasn’t any such evidence. Todd Bertuzzi, then of the Van- because there’s a level of violence Knoll said he wouldn’t be sur- doubt that you committed assault Justice Lahaie found that Mac- couver Canucks, attacked Steve that is accepted in hockey that prised to see more cases like this that now you’re only having to Isaac left his feet and intention- Moore from the Colorado Ava- isn’t in other sports. come forward as the future vic- prove it on a balance of prob- ally applied force while colliding lanche from behind in 2004, “It seems so clear. If you’re tims are buoyed by Justice abilities,” he said.
Measured: Damages are not to be punitive, judge stresses in ruling
Continued from page 3 nandes could never return to his beyond Penncorp’s conduct con- In Fernandes v. Penncorp “Plaintiff lawyers will also need claim, and that Mayo’s “adversar- bricklaying occupation. tributed to the respondent’s [2013] ONSC 1637, Justice Ham- to have a case well documented as ial approach [was]…highhanded, Writing for the majority, Court psychological distress. bly noted that a vocational assess- far as mental distress or the con- malicious, arbitrary or highly of Appeal Justice Sarah Pepall “Mental distress damages are to ment of Fernandes, a Portuguese duct of an insurer is concerned to reprehensible misconduct.” referenced two landmark deci- be compensatory, not punitive,” immigrant with the equivalent of establish that an insurer acted The appeal court agreed, cit- sions regarding punitive dam- wrote Justice Pepall in the ruling, an eighth-grade education, found without due regard to the facts of ing that: ages — Whiten v. Pilot Insurance agreed to by Justices Russell him to have limited English liter- a claim and resisted it unfairly if n Mayo terminated benefits con- Co. [2002] S.C.J. No. 19, and Juriansz and Katherine van Rens- ary and computer skills and poor they’re going to be found to be in trary to the medical evidence and Fidler v. Sun Life Assurance Co. of burg, which lowered that damages math ability. bad faith. Here the appeal court without support from surveil- Canada [2006] S.C.J. No. 30 — in award to $25,000, an amount Penncorp’s counsel was unavail- reiterated what the Supreme lance evidence; which the Supreme Court of Can- Fernandes had sought. able for comment. Court set in terms of the type and n Penncorp failed to formally ada said that a breach by an insur- Kitchener trial lawyer Daniel Western University insurance amount of damages,” said Brown, advise Fernandes about the ter- er’s contractual duty to act in good Fife, who served as Fernandes’ co- law professor Craig Brown said who also serves as counsel to mination of his benefits until five faith will constitute an independ- counsel, said the decision high- the ruling is another reminder Toronto insurance litigation firm months after the fact; ent actionable wrong. lights the duty good faith insurers that “insurers have to be careful Thomas Gold Pettingill. n Mayo “attempted to shut However, on the mental-distress owe to their insured and serves as and lawyers have to advise them “The other lesson from this down” Fernandes’s claim with a damages in Fernandes, the an important ruling on long-term accordingly in giving fair con- case is that if a plaintiff’s lawyer four-month payment of partial Ontario Court of Appeal held that disability claims. sideration to all facts surrounding is going to make a claim for disability benefits that never the $100,000 award — five times “In looking for opportunities to a claim, and not to be unduly mental distress, it has to dem- materialized; higher than what the appellant settle a claim, an insurance com- hasty in rejecting it or delaying it onstrate that it happened and n And after terminating his suggested — was “inordinately pany can’t be unfair to their insured, unnecessarily,” and risk facing a that it’s really out of the ordin- benefits, Penncorp only paid him high and entirely disproportion- particularly if they’re very vulner- bad-faith judgment and punitive ary if they want damages the remainder more than six ate” in light of evidence that able and in need of benefits,” said damages as previously outlined by beyond the $20,000 range set years later, despite knowing Fer- showed other circumstances Fife, a specialist in civil litigation. the Supreme Court of Canada. out in Fidler.” THE LAWYERS WEEKLY September 26, 2014 • 11
News ‘Prescriptive regime’ lays out energy framework
Luis Millan industry and not to protect the environment, which is governed Quebec’s Minister of Energy by the Quebec Environmental and Natural Resources has dis- Quality Act, pointed out Hugo creetly issued an order that The government is saying we have resources and Tremblay, a law professor at the establishes a prescriptive are open for business but we have to do it in a Université de Montréal. The regime for oil and gas explora- laws have different aims and tion on the province’s biggest respectful and thoughtful way, and that explains approach issues differently, island, sending a clear signal the prescriptive nature of the regime. added Tremblay. that the province is open for “I can’t say that the ministerial business in the energy sector. order responds to the environ- The regime, adopted in late Daniel Bénay mental concerns that might be June under the Quebec Mining McCarthy Tétrault present,” said Tremblay, a legal Act, spells out rules and condi- environmental expert. tions for exploration work on The ministerial order represents the remote and sparsely popu- and 60 per cent of any commer- in some ways the ad hoc approach lated Anticosti Island, owned cial profit — it signalled a shift taken by jurisdictions across the almost entirely by the provincial in its energy strategy and high- country, added Tremblay. government except for a small lighted its contradictory stance: “Environmental law and nat- village of 240 people. Core fracking for oil on Anticosti is ural resources law in general analysis taken from the Macasty allowed, but is banned for nat- and at the moment, and in shale formation on Anticosti ural gas in the St. Lawrence Quebec particularly, is a regula- revealed that it potentially holds lowlands. tory law that changes very between 30 billion and 50 bil- While the Liberal government also be required to prove that said Bénay. “Some of the play- quickly depending on the big lion barrels of oil, making it the recently announced it would the work takes into account the ers are not happy but most of projects that are at the table. largest oil resource in Quebec. honour the separate explora- region’s geology, and must pro- them are.” It’s law but when you think However, the reserves can be tion deals struck between its vide a performance guarantee Not everyone is convinced that about it, if you change a rule to released only through hydraulic Parti Québécois predecessors equal to 10 per cent of the esti- the prescriptive regime is a step fit your purpose every time fracturing, which blasts chem- and oil juniors Pétrolia Inc., mated cost of the work. in the right direction. The Min- something new comes up, then ically-laced water to break rock Junex Inc., and Corridor “The conditions are not more ing Act was designed to provide does it really provide some rule containing oil or gas. Resources, it is expected to onerous than other conditions the minister with administrative of conduct that you have to The prescriptive regime, wade through its incongruous regarding exploration work,” control over the extractive abide by?” unveiled several weeks after energy position by adopting a Quebec’s new Liberal govern- cautious approach to oil and ment pledged a measured and gas development that hinges on responsible development of the new studies and legislation hydrocarbon industry, came as a before any production takes surprise to industry legal place. The provincial govern- experts. It will likely lead to a ment said it will conduct a stra- wider framework applicable to tegic environmental assessment any province-wide oil and gas on Anticosti and across the rest exploration activities in the of the province that will lay the ROBSON HALL, FACULTY OF LAW future, according to Jean Piette, groundwork for an industry- a senior partner and chair of the wide framework expected to be environmental law group at sanctioned by a new law specif-
Norton Rose Fulbright Canada. ically tailored to the hydrocar- CENTENNIAL Winnipeg Courtesy of City of “The prescriptive regime came bon industry. The prescriptive out of nowhere,” noted Piette, regime is a positive first step, widely described as the father of says Daniel Bénay, a partner in environmental law in Quebec. business law group with “The government clearly intends McCarthy Tétrault in Montreal. to enforce tight controls on “When the Quebec govern- these activities, and not the give ment published the order in the industry a free pass. The council, they wanted to say that Gala Celebration regime seeks to assure the pub- this is a new game,” said Bénay. Celebrate 100 Years of Legal Education in Manitoba on Saturday, October 18, 2014, lic concerned about this new “The government is saying we at the historic Met theatre in downtown Winnipeg. industrial activity, and ensure have resources and are open for that its environment and its business but we have to do it in resources will be protected a respectful and thoughtful way, Walk the red carpet, and join us for the Date: October 18, 2014 through the measures included and that explains the prescript- premiere of “Robson Hall: The Movie.” in the regime.” ive nature of the regime. That’s Time: 7pm to midnight (doors open Quebec has been wary about what this is all about.” Enjoy a splendid evening of dinner, dancing at 6:00pm) exploiting its unproven oil and Under the prescriptive and entertainment with the Danny Kramer natural gas resources. Public regime, ostensibly based on Dance Band, Canada’s Royal Winnipeg Ballet, Location: The Metropolitan fears about hydraulic fracturing industry best practices, only and the University Singers. Entertainment Centre (281 Donald Street, Winnipeg) led to a moratorium on shale stratigraphic surveys may be The Honourable Justice Marshall Rothstein, gas drilling and fracturing in conducted on Anticosti Island. of the Supreme Court of Canada, will give Theme: Elegance through 2011 in the lowlands of the St. A holder of an exploration a special address. the ages Lawrence River. But when for- licence will be required to pro- mer Parti Quebecois Premier vide to the ministry a detailed Pauline Marois announced in outline of the work planned, February that the provincial certified by an engineer, at least For complete details and tickets please visit government would move ahead 15 days before beginning work. www.robsonhall.ca/law100/ with oil exploration on Anti- The program must include a costi Island — the province cost estimate and a site rehabili- pledged $115 million to finance tation plan, a mitigation plan, drilling for two separate joint an emergency measures plan, ventures in exchange for rights and one to protect forests to 50 per cent of the licences against fire. The licensee will 12 • September 26, 2014 THE LAWYERS WEEKLY
Focus Family law
kencor04 / iStockphoto.com
Going it alone Survey paints troubled picture of litigants who represent themselves
Nicholas Bala John-Paul Boyd
here is growing concern about the increasing numbers of family law litigants without representation, regarding the negative effects for these vulnerable individuals and their Tchildren, and about the costs for the justice system. Our recent survey of Canadian lawyers and judges confirms this is a serious and growing problem, but also reveals that the issues related to self-representation are complex and defy simple solution. While judges are striving to be fair to these who are self-represented, these litigants face significant challenges but also impose costs on those who have lawyers. With the support of the Canadian Research Institute for Law and the Family and the collab- oration of Rachel Birnbaum, we surveyed the lawyers and judges attending July’s National Family Law Program at Whistler about a number of issues, including self-represented litigants. About a third of those attending participated in the survey. The 176 respondents, 13 per cent of whom were judges, were from across Canada. Though the West was somewhat better represented — not surprising given the locale of the confer- ence — there were no significant differences in the responses by region. Respondents were quite senior, with an average of 18 years’ experience in their current profession. In the past year, 15 per cent of lawyers’ cases and 46 per cent of judges’ cases involved a self- represented party for all of the litigation process. Further, 78 per cent of respondents reported that in their experience the number of self-represented family litigants increased over the past three years; only one lawyer reported a decrease. The vast majority of respondents said the primary reason litigants represent themselves is because they can’t afford to retain, or continue to retain counsel. However, half also said that some litigants choose to proceed unrepresented because they believe that they know enough to manage their case themselves. Further, 41 per cent said that some litigants think that counsel will increase the time and cost necessary to resolve their case, and 24 per cent thought that some believe that hiring counsel will exacerbate the adversarial nature of their case. Almost half of respondents think that men tend to be self-represented for somewhat different reasons than women, with women having primarily financial reasons for not having a lawyer, and men being more likely to proceed without a lawyer in the belief that this would not negatively affect the outcome for them. Unrealistic, Page 14 THE LAWYERS WEEKLY September 26, 2014 • 13
Focus FAMILY LAW Crafting a marriage contract that sticks
Define protected assets Chattels, gifts and inheritances
Far-reaching protections in pre- Whether it be gifts from one nups that leave the entire wealth another, the engagement ring, of a family to one spouse (how- wedding gifts or any home fur- ever originally obtained) increase nishings purchased or received Steven Benmor the likelihood that the contract before or during marriage, make will be set aside. If the motivation sure the pre-nup includes guide- is to protect shares of a privately lines for the sharing of chattels. It arriage contracts, or “pre- held company, ownership of is also important to set out a Mnups,” are meant to be relied family real estate, a matrimonial method to determine what was upon when a couple separ- home purchased before marriage received individually, versus what ates. But how likely are they to be or an interest in a trust, limit the is a joint asset. upheld? Here are some tips to protection to these defined assets increase the chances that the pre- and allow all other rights and Create a parallel estate plan nup will survive scrutiny. obligations to be determined by current law. It is critical that the wills and Confidentiality Powers of Attorney parallel the Joint assets terms of the pre-nup and that Pre-nup negotiations should not those documents be re-done, if be multi-party. Even though the Allowing spouses to build joint and when the contract expires wealthier family may be the assets achieves fairness, bal- and/or is re-negotiated. Discuss underlying reason for the con- ance and a greater likelihood with estates counsel the suitabil- tract, only the soon-to-be-mar- KyKyPy3HuK / iStockphoto.com that the contract will be upheld. ity of the spouses naming one ried’s and their counsel should be But ensure that the spouses’ another as attorney in the Powers involved. This will avoid claims of actions and financial dealings of Attorney, or trustee or bene- undue influence or duress. cost in advance, than risk an Moreover, there are many parallel the terms of the con- ficiary of wills. unpredictable and more costly unknown eventualities such as tract. Avoid any spillover of Financial disclosure result in the future (eg. order set- changes in employment or protected assets to joint assets, Ink on the wedding dress ting aside, costly retrospective career, relocation, failed preg- and vice-versa. Next to the discomfort of asking a valuation, sizeable equalization nancies, late or multiple child- A pre-nup is a process that is fiancée to sign a pre-nup is the payment and large legal bill). births, medical or psychological Spousal support laden with emotion, as it typically discomfort of providing full impediments, religious decisions occurs simultaneously with the financial disclosure of each Sunset clause and other future events that sim- If the contract addresses planning of the wedding. It is not spouse’s assets and debts. This is ply cannot be anticipated. With spousal support sums and dur- uncommon for a spouse to chal- especially challenging if the Pre-nups are often signed before so many opportunities for ation, they should be scaled to lenge the validity of a pre-nup wealth that is to be protected a myriad of known and unknown unpredictable future events, a the number of years of mar- many years or even decades after consists of shares of a privately future events. Newlyweds typ- sunset clause allows the couple riage and reflect the family’s it was signed. Claims by the held company. Forcing a valua- ically are about to start their to secure protection for smaller accustomed standard of living. weaker spouse may include a lack tion of a business can be cumber- lives together, have children, buy durations of time and, by doing Avoid a closed release of spousal of (or inadequate) financial dis- some and costly. Nonetheless, it a home, build assets and grow as so, increases the likelihood that support for no or little payment closure, lack of (or poor) legal is preferable to incur a defined individuals and as a family unit. a pre-nup will be upheld. in cases where it is likely that a advice and representation, undue court would grant support, as it influence, duress, non est factum, places the clause and the entire misrepresentation and fraud. agreement at risk. Pressure to sign a pre-nup within hours or days of the wedding, Matrimonial home also known as “ink on the wed- ding dress” is most regularly used It is advisable that a matrimon- to void a pre-nup. Accordingly, ial home purchased after mar- the discussion of the pre-nup riage be held and shared jointly, should be a far distance from the irrespective of equal or unequal wedding date, should be man- contributions to its purchase. aged carefully, slowly, fairly and Ensure that monies protected with special consideration given by the pre-nup are not deposited to the weaker spouse. into the matrimonial home in any way. If one spouse pur- Steven Benmor is a fellow of the
blamb / iStockphoto.com chased the matrimonial home International Academy of
before marriage, the pre-nup Matrimonial Lawyers, a certified
If you do the crime, don’t post online may protect such interest so specialist in family law and chair of long as such provision does not the Ontario Bar Association’s family As a convicted felon recently found out, there is a lot of truth to the limit the other spouse’s posses- law section. He can be reached at sory rights. [email protected]. proverb that no good deed goes unpunished. Jesean Morris, 20, wanted for an outstanding warrant by Omaha police, was caught on a tip from someone who saw a video of him taking the ALS Ice Bucket Challenge, PETER SUTTON, B.M., B.Ch., F.R.C.P.(c) reports www.omaha.com. Morris, who had been on parole for a 2010 felony conviction for assault and use of a firearm during a crime, failed to keep his Consultation and Assessment: 164 Monarch Park Avenue parole officer informed of his whereabouts and a warrant was issued for Toronto, Ontario Parental Separation and Divorce M4J 4R6 “absconding.” In a fit of civic mindedness, Morris took the ice bucket Custody and Access Telephone: 416-960-8996 challenge and posted a video of it to Facebook. To make matters worse, Child Welfare Facsimile: 416-960-9673 Parenting Capacity Morris allegedly gave the arresting officers a false name and birth date, spat e-mail: Civil Litigation [email protected] on one of them and damaged the patrol car. He was booked on the original warrant plus suspicion of criminal impersonation, resisting arrest and Medicolegal consultation in psychiatry Children, families, adults assaulting an officer. Bail was set at a chilling US$40,000. — STAFF 14 • September 26, 2014 THE LAWYERS WEEKLY
Focus FAMILY LAW Courts have wide discretion for noncompliance
and to consent to any preparation names such as “donkey.” The necessary to take part in the cere- mother was also ordered to pay monies. The father planned the $1,261.76 to the father for the costs First Communion and scheduled incurred as a result of her cancel- plans for the Communion week- ling the festivities of the First Com- end. He provided the mother with munion weekend. Michael Stangarone five months’ notice of the import- In Myers v. Myers [2014] O.J. ant milestone. Despite the mother No. 1350, Justice Helen MacLeod- Ryan Kniznik being made aware of the plans and Beliveau resorted to subrule 1(8) to never expressing any issues with craft creative remedies in response litigant who fails to obey an the date, she removed the children to the father’s “deliberate, willful A order or follow the Ontario from school on the day before the and blatant” non-compliance with Family Law Rules may find them- First Communion and cancelled numerous court orders pertaining selves subject to the wide discretion the event via an e-mail sent the to support and costs. Justice Mac- of the court to “deal with the failure night before at the very last minute. Leod-Beliveau struck the father’s by making any order that it consid- Justice Harvison Young found motion to change and precluded ers necessary for a just determina- the mother’s “abrupt cancellation him from bringing any further tion of the matter.” [Emphasis of the First Communion” to be motions to change until all his sup- added.] The foregoing discretion, “shocking conduct,” and found that port arrears and cost orders were embedded in amended subrule 1(8) the mother’s conduct in general paid in full. Justice MacLeod- and new subrules 1(8.1)-(8.3) “reflects a systematic attempt to Beliveau also relied upon subrule which came into force on Jan. 1, minimize and marginalize the fath- 1(8) to prevent future motions to provides the court with the ability junak / iStockphoto.com er’s role in his children’s lives.” The change brought by the father from to craft creative remedies to address court further stated that “given the proceeding unless the ongoing sup- noncompliance. As stated by Jus- fact that…the Mother’s conduct port orders were in good standing. tice Joseph Quinn in Hughes v. was a serious and unjustifiable Subrule 1(8) was also used to Hughes [2007] O.J. No. 1282, the breach of the Minutes, and reflects require the father to post security word “including” contained within [A] judge should be as creative as necessary an unfortunate pattern of conduct for costs in the sum of $25,000 if subrule 1(8) illustrates that the in crafting remedies so as to ensure that the on her part, it is important that it he brings any future motions to listed sanctions “are not the only be sanctioned and that she under- change. Lastly, Justice MacLeod- arrows in the court’s quiver.” noncompliance identified and the resulting stands that such actions will have Beliveau ordered costs of the The availability of creative rem- damage to the other party are addressed as fully, consequences.” The court accord- motion pursuant to subrule 1(8)(a). edies for noncompliance was justly and quickly as possible. ingly ordered the rescheduling of The foregoing decisions illustrate stressed by Justice Deborah Chap- the Communion, a police enforce- that subrule 1(8) of the rules is a pel in Levely v. Levely [2013] O.J. ment clause if access was denied discretionary judicial tool for creat- No. 753, wherein she stated that a Justice Deborah Chappel again, a non-disparagement order ing effective remedies to address “judge should be as creative as Ontario Superior Court of Justice prohibiting the mother from noncompliance. The subrule can be necessary in crafting remedies so as involving the children in adult invoked in order to ensure that to ensure that the noncompliance that the “civil contempt remedy is O.J. No. 3415, Justice Alison Harvi- issues, and child-appropriate cell- cases are adjudicated justly, the identified and the resulting dam- one of last resort” and it “should not son Young crafted a creative rem- phones programmed so that the integrity of the justice system is age to the other party are addressed be sought or granted in family law edy to address the mother’s failure father could reach his children upheld, and to inform litigants that as fully, justly and quickly as pos- cases where…other adequate rem- to comply. In Ignjatov, the parties while in her care. The mother had noncompliance has consequences. sible.” The emphasis on utilizing edies are available.” Consequently, entered into minutes of settlement prevented telephone access and creative remedies to address non- while contempt is a remedy under which required the mother to con- had even changed her phone num- Michael Stangarone, a partner with compliance is important in light of subrule 1(8), other adequate rem- sent to the children’s participation ber without giving the father the MacDonald & Partners, and Ryan the pronouncement from the edies to address noncompliance in First Communion and Confirm- new number. The children had Kniznik, an associate lawyer with Ontario Court of Appeal in Hefkey should be sought prior to contempt. ation religious sacraments which reported that the mother and her MacDonald & Partners, practice v. Hefkey [2013] O.J. No. 1697, In Ignjatov v. Di Lauro [2014] were to be organized by the father, husband had called the father family law exclusively.
Unrealistic: Mandatory information programs and paralegal involvement urged
Continued from page 12 always or usually arise because of parenting issues, but only six per they would have with counsel. Not received the least support included When litigants proceed without self-represented litigants’ cent of respondents said that self- surprisingly given these results, 84 actually simplifying court pro- counsel, 83 per cent of respondents unfamiliarity with the law of evi- represented litigants achieve bet- per cent reported that the fact that cesses, the rules of evidence and said that settlement before trial is dence, the legislation applicable to ter results on parenting arrange- one party is self-represented legislation, or the appointment of less or much less likely when one their case, the rules of court, and ments, and only two per cent said increases the cost of dispute resolu- counsel as amicus curiae. When party is self-represented, and 47 hearing and trial processes. Less they achieve better results on tion for a represented party. all parties are unrepresented, per cent said that settlement is less than six per cent of respondents support issues. Respondents were also asked about a quarter of judges and law- or much less likely when both par- said that these problems arise only Litigants without counsel are their views on how to improve self- yers support the adoption of an ties are self-represented. This low sometimes or rarely. often caught in a downward spiral. represented litigants’ use of the inquisitorial approach, and 23 per rate of settlement may be attribut- When cases involving self- They generally have unrealistically court system. Almost half the cent of judges and 36 per cent of able to unrepresented parties’ represented litigants are resolved, high expectations for the outcome judges and more than a third of the lawyers supported the use of a assumptions about how their cases their unrealistic expectations of of their cases, which reduces the lawyers said that it would help to mediation-litigation hybrid pro- will turn out. Almost half of the outcome pair with results that are likelihood that their cases will be have plain-language guides to court cess, in which judicial mediation is judges and two-thirds of lawyers worse than what would have been resolved without trial. When they processes, the rules of evidence and attempted and trial ensues if said that self-represented parties achieved with counsel. However, do proceed to trial, their lack of the legislation. More than a third of settlement is not achieved. always or usually have unrealistic- two-thirds of respondents believe knowledge of the governing legisla- judges and almost half of the law- ally high expectations for the out- that judges treat self-represented tion, the rules of evidence, the rules yers support requiring parties to Nicholas Bala is a professor of law at come of their cases. parties “very fairly,” and only one of court and court processes fre- attend a mandatory information Queen’s University, and John-Paul Making matters worse, cases thought that judges treat these quently causes additional problems program following the commence- Boyd is the executive director of the involving unrepresented litigants litigants unfairly. The perception and doubtless increases the length ment of proceedings. About half of Canadian Research Institute for Law tend to take longer to resolve than is that self-represented litigants of trials and the number of adjourn- the judges and lawyers supported and the Family. They gratefully cases in which all parties are repre- do worse than represented liti- ments, and when their trials do giving paralegals a limited role in acknowledge the collaboration of Dr. sented. More than 90 per cent of gants on economic issues. They complete, self-represented parties family law disputes. Rachel Birnbaum of Western respondents said that challenges may do a slightly better job with usually achieve worse results than Interestingly, the measures that University in this study. THE LAWYERS WEEKLY September 26, 2014 • 15
Focus FAMILY LAW Start by picking the right resolution method
kept confidential. It is very diffi- pressure of the adversarial pro- cult to obtain a court order seal- cess, emotional maturity, ability ing a court file. As a result, many to compromise, and any power parties favour mediation or arbi- imbalances. As well, the lawyer tration in order to obtain a must consider each of the law- greater degree of confidentiality, yers’ personalities, dispute reso- Lorne Wolfson although even in these forums lution preferences, ability to work there are limits to the privacy co-operatively, ability to control that can be guaranteed. her or his client, and willingness amily lawyers have available to consider dispute resolution F a broad array of dispute reso- Maintaining relationships alternatives and to give up con- lution options, including collab- trol of the process. A related fac- orative negotiations, mediation, Unlike the parties to most other tor is the relationship between arbitration, mediation/arbitra- legal disputes, family law clients the lawyers, their history of tion, arbitration/mediation, or usually have to deal with each resolving previous cases, the level litigation. Determining the best other for many years after the of respect and trust between option to recommend to one’s case is over. Adversarial options them, and the need for a third- client is often the most important (litigation and arbitration) will party control of either or both decision that the family law law- usually destroy whatever oppor- counsel. yer must make. Some of the fac- tunity for an ongoing relation- tors to consider are set out below. ship that might otherwise have Timing remained. Negotiation and medi- Timeliness adventtr / iStockphoto.com ation often provide a forum for The final factor is tim- finding a common resolution and ing — whether the parties are Many family law clients complain iveness of each dispute resolution an opportunity to rebuild dam- ready to settle, have the disclo- of the slow progress of negotia- option varies from case to case. aged relationships. sure they require to make an tions. Since there is no timetable While a successful mediation will informed decision, have invested or externally imposed deadlines, Most arbitration usually be less costly than litiga- The personalities so much money and energy in the negotiations can drag on indefin- agreements provide tion, an unsuccessful mediation litigation process that they can- itely. Often a party can exploit followed by litigation will likely A family lawyer needs to assess not see abandoning that course, this to his advantage (for example, for very limited rights be more costly than litigation what dispute resolution alterna- or whether they have tried cer- by delaying negotiations to estab- of appeal. Courts have alone. Similarly, a mediation/ tive best suits the parties and the tain processes without success or lish a financial or custody/access shown considerable arbitration that settles in the lawyers in the particular case. are simply financially, physically, status quo). Mediation is often an mediation phase will be signifi- The lawyer should consider each and emotionally exhausted. improvement, since the mediator deference to the cantly less costly than a case that party’s expectations, financial can try to get the parties to con- decisions of family law requires both a mediation and an resources, need for an early reso- Lorne Wolfson is a Toronto family sent to deadlines and can encour- arbitration. lution, desire to salvage the rela- lawyer, mediator and arbitrator with age compliance. While litigation arbitrators and have tionship, ability to withstand the Torkin Manes. offers a more formal structure rarely interfered with Selection of the neutral that imposes deadlines and pro- their decisions. vides consequences for delay, that Unlike litigation (where the par- same formality is often slow and ties have no say in the selection of cumbersome, particularly where Lorne Wolfson their judge), in mediation and the courts are backlogged. Arbi- Torkin Manes arbitration the parties have the tration and med-arb are often the opportunity to choose their neu- best compromises, in which the tral. By doing so, they can choose arbitrator can ensure that the a person with expertise in the Essential Tools for Family Law Professionals case proceeds on a timely basis. area of the dispute (for example, a mental health professional to Availability from court decisions can drag on determine custody/access issues, for months. Most arbitration or a financial expert to deal with Unlike the court system (where agreements provide for very lim- money issues). This usually dates for motions, conferences ited rights of appeal. Courts have results in a more efficient process and trials can be weeks if not shown considerable deference to in which the parties have greater months down the road), media- the decisions of family law arbi- confidence in the integrity of the tion, arbitration, and med-arb trators and have rarely interfered process and the quality of the NOW can provide hearing dates within with their decisions. result. AVAILABLE! four to six weeks and quick access (often within 24 hours) to the Cost effectiveness Privacy neutral to resolve urgent issues. Where both parties and their For many family law clients, ADD FREEDOM & FLEXIBILITY Finality counsel are reasonable and the maintaining privacy outweighs TO YOUR PRACTICE. issues are not complex, a negoti- all other considerations. 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NEXT WEEK IN FOCUS: Information Technology Bankruptcy & Insolvency For more information, visit www.divorcemate.com 1.800.653.0925 | [email protected] 16 • September 26, 2014 THE LAWYERS WEEKLY
Focus ABORIGINAL LAW
Unwelcome disclosure Capacity funding, competition questions mar First Nations finance act
Sean Jones
ecently, the First Nations Financial Transparency Act (FNFTA) attracted media attention for requiring First RNations to post on the Internet their audited consolidated financial statements and all remuneration paid to Chiefs and coun- cillors. The requirements will do little to improve the financial accountability of First Nations to their members or the federal govern- ment — the putative objective of the FNFTA. However, the FNFTA’s public disclosure requirements may affect the negotiation of impact benefit agreements (IBAs) and capacity funding for consultation. First Nations function as both governments and as commercial enterprises. As owners of business enter- prises, First Nations may generate their own revenue, often in property development, resource extraction or support services for resource development. Through IBAs, First Nations businesses may receive direct pay- ments for access to resources on their traditional territory and may receive favourable procurement opportun- ities. Chiefs and councillors already owe enforceable fiduciary duties to their communities in respect of those assets and revenues. As governments, First Nations may receive monies collected from the use of on-reserve real property, treaty payments, on-reserve taxes and federal contribution agreements funding services like health care, education and roads. Except for treaty payments, reporting regimes exist for these revenue streams. A 2002 Auditor General’s report found that each First Nation submits, on average, 168 reports per year to account for federal funding. A 2006 follow-up report concluded this reporting burden had not been streamlined. Under the fund- ing agreements with the federal government, First Nations must submit, among other reports, audited consoli- dated financial statements and a schedule of all remuneration received by Chiefs and councillors (either in their capacity as an elected official or any other capacity, including as an employee of a First Nations business) to Aboriginal Affairs and Northern Development Canada (AANDC). They must also provide their members access to those documents. As recently as 2009, the Federal Court of Appeal, in Sawbridge v. Canada, con- firmed AANDC may release those documents to a band member if the First Nation does not. AANDC can also withhold funding if reporting is not timely or adequate and impose other measures, such as third-party man- agement, if the funding provided is not used according to stipulated conditions. The FNFTA adds little to this existing regime: the audited consolidated financial statements and schedule of remuneration must now be posted on the Internet. AANDC can require the First Nation to develop a plan to comply with the FNFTA’s requirements, withhold funding or terminate funding agreements if the documents are not posted. Any member of a First Nations, or “any person” including the minister, may apply for a court order compelling a First Nation to post those documents. The FNFTA does not streamline the burdensome number of reports that First Nations produce and the government must review each year, as the Auditor Gen- eral recommended in 2002 and 2006. Nor does it appoint a First Nations Auditor General, as recommended by the 1996 Royal Commission on Aboriginal Peoples. Transparency, Page 17
eeewah / iStockphoto.com THE LAWYERS WEEKLY September 26, 2014 • 17
Focus ABORIGINAL LAW Aboriginal title now based on territorial occupation
ing that the court will take into farms. Regular use of territories account the group’s size, way of for hunting, fishing, trapping life, available resources, and the and foraging is sufficient use to character of the lands. ground aboriginal title, provided To ground title, the court held that such use, in a particular in Delgamuukw that aboriginal case’s facts, supports an inten- Pierre-Christian Labeau occupation must possess three tion on the part of the aboriginal characteristics: it must be suf- group to hold or possess the land ficient, continuous and exclu- in a manner comparable to ast June, the Supreme Court sive. In Tsilhqot’in, the trial what would be required to L of Canada in the Tsilhqot’in judge decided that occupation establish title at common law. case made a declaration of is established by showing regu- This means that the analysis aboriginal title, a first in Canada. lar use of sites or territory. The must take into account the At the heart of the appeal in Court of Appeal opted for a common law perspective and Tsilhqot’in, the court had to narrower definition. Title will the aboriginal perspective. Unwelcome disclosure determine whether a semi- be recognized if the aboriginal Sufficiency of occupation is a nomadic people could have title group demonstrates that its context-specific inquiry, and the to their traditional lands. ancestors intensively used a characteristics of the aboriginal Capacity funding, competition questions mar First Nations finance act The people of Tsilhqot’in definite tract of land with rea- group asserting title as well as the Nation live in villages in central sonably defined boundaries. character of the land will have an British Columbia, where they For semi-nomadic aboriginal impact on the intensity and fre- have managed lands for foraging groups like the Tsilhqot’in, the quency of the use. roots and herbs, hunted and grimgram / iStockphoto.com Supreme Court explained that The aboriginal group must trapped, repelled invaders and the Court of Appeal’s approach show it has historically acted in a set terms for the European area will translate to a hunting or will result in small islands of way that would communicate to traders who came on to their fishing right,” and not an aborig- title surrounded by larger ter- third parties that it held the land land. There are no adverse claims inal title, some thought it was ritories where the group pos- for its own purposes. There must from other aboriginal groups. In Tsilhqot’in, the conceivable that subsequent court sesses only aboriginal rights be evidence of a strong presence Was this sufficient to establish Supreme Court decisions may determine that title such as hunting and trapping. on or over the land claimed, aboriginal title to approximately is limited to lands approximating By contrast, following the trial manifesting itself in acts of occu- five per cent of what the explained that a the existing reserves. judge’s approach, the group pation that could reasonably be Tsilhqot’in people regard as their culturally sensitive On this issue Chief Justice would enjoy title to all the ter- interpreted as demonstrating traditional territory? approach is required Antonio Lamer, in Delgamuukw ritories that its ancestors regu- that the land in question belongs The declaration of aboriginal v. British Columbia [1997] S.C.J. larly and exclusively used at the to, was controlled by, or was title in this case comes after the in order to decide No. 108, sent ambiguous messa- time of assertion of European under the exclusive stewardship Marshall and Bernard decision if occupation is ges regarding the possibility that sovereignty. of the claimant group. (R. v. Marshall; R. v. Bernard nomadic or semi-nomadic groups In Tsilhqot’in, the Supreme The Tsilhqot’in case means a [2005] S.C.J. No. 44), which sufficient. could establish aboriginal title. Court explained that a culturally return to an equal role for aborig- many commentators had seen as He had reiterated his remarks sensitive approach is required in inal perspectives that includes significantly curtailing the pos- Pierre-Christian Labeau held in the Adams ruling, saying order to decide if occupation is aboriginal laws, instead of the sible application of the doctrine Norton Rose Fulbright it was not certain that these sufficient. The analysis must be exclusive focus on aboriginal of aboriginal title. In Marshall groups could claim a title when based on the perspectives of the practices that was a feature of and Bernard, the court dismissed they “varied the location of their aboriginal group in question — its Marshall and Bernard. Concern- Mi’kmaq claims of aboriginal title settlements with the season and laws, practices, size, techno- ing aboriginal title, Tsilhqot’in which were based on their having changing circumstances,” while logical abilities and the character clarifies that occupation is terri- hunted and fished in the area for including in the examples of of the land claimed — and the torial and not site-specific. many generations before the occupations likely to be con- common law notion of possession arrival of the Europeans. As a be found to exist only in relatively sidered sufficient “regular use of as a basis for title. Pierre-Christian Labeau is a partner result of this decision, it was small areas. By stating that, “Typ- definite tracts of land for hunt- The Supreme Court clearly at the Québec office of Norton Rose believed aboriginal title would be ically, seasonal hunting and fish- ing, fishing or otherwise rejected the proposal that title is Fulbright in Canada and chair of the much harder to prove, and may ing rights exercised in a particular exploiting its resources” and add- confined to specific villages or aboriginal law team.
Transparency: Sensitive information available to third parties
Continued from page 16 competitive disadvantage if this their commercial advantage, the it meaningfully, the courts have not leading up to the government’s Some First Nations have objected information is disclosed. In a 1988 policy reasons for keeping the been definitive about who is enactment of the FNFTA. to the FNFTA due to lack of con- case, Montana Band of Indians v. financial information of First responsible for providing capacity Overall, the FNFTA is a feeble sultation and the absence of any Canada, the federal court agreed, Nations’ businesses has changed. funding. First Nations often cite attempt to address the important reciprocal requirement for the at least partially. A journalist had Regrettably, this important issue the lack of capacity funding as an issue of First Nations’ financial AANDC to be transparent about its requested the release of a First does not appear to have been impediment to meaningful consul- accountability. It does little to criteria for determining the fund- Nation’s financial information. The debated prior to enacting the tation. Regulators and proponents improve First Nations’ accountabil- ing First Nations receive for servi- court found the information was FNFTA. Undoubtedly, proponents routinely provide First Nations ity to their members or the federal ces. Most importantly, First Nations confidential and should not be negotiating IBAs with First Nations with capacity funding to help government. Instead, its main have objected to reporting on busi- released, even though the court will use publicly available financial ensure that consultation will be effect is to put information that nesses they hold: although other also found its release would not information to whatever advantage meaningful. Proponents, regula- many First Nations consider sensi- governments report on govern- result in a material financial loss or they can, but given the consoli- tors and the courts are all starved tive and confidential into hands of ment-owned entities, those entities competitive prejudice. dated nature of the public informa- for better information about First third parties with little thought to are usually created to deliver gov- Much has changed since 1988. tion, it remains to be seen how Nations’ capacity for consultation. the implications of that disclosure. ernment services and do not com- Since the 2004 Haida decision, much advantage will be gained. They will likely use the newly dis- pete in the commercial main- First Nations have been leveraging The FNFTA’s disclosure require- closed information to test First Sean Jones is an associate in the stream, whereas First Nations’ the Crown’s obligation to consult ments may have the greatest effect Nations’ requests for capacity fund- environmental, municipal, businesses often compete against on asserted Aboriginal rights to on capacity funding. Although the ing. Despite the need for greater expropriation and regulatory group in mainstream commercial enter- reach IBAs with industry. Given courts have been clear that consul- clarity on First Nations’ financial the Vancouver office of Borden Ladner prises for contracts. Many First that First Nations are now using tation is not adequate if First capacity for consultation, this issue Gervais. His practice focuses on Nations believe they will face a constitutionally-protected rights to Nations lack the capacity to engage was not canvassed in the debate Aboriginal law and environmental law. This is being asked to draft the terms of the Privacy-Policy agreement by tomorrow morning.
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Appeals and judicial review - properly identified a question of duct alleged and the proposed HELD: Application dismissed. Aboriginal Law Jurisdiction of the court to review law, leave to appeal should have subclasses of different demon- The motion for leave to re-hear been denied. The requirement strators had the commonality of a the appeal was effectively moot. Aboriginal lands Appeal by Sattva Capital Corp. that there be arguable merit that single command order being Jane Doe received a preliminary Types - Reserve lands - Title and (Sattva) from two judgments of the arbitrator’s decision was made ordering their detention. denial of a personal exemption. ownership - Nature of interest - the British Columbia Court of unreasonable was not met and Good provided sufficient evi- Disclosure of her salary informa- Certificates of possession - Transfer Appeal, one setting aside a deci- the miscarriage of justice thresh- dence to support the proposition tion was held in abeyance pend- and disposition - Ministerial approval sion denying Creston Moly Cor- old was not satisfied. Further, that demonstrators at the differ- ing the outcome of her judicial poration’s (Creston) leave to even if the Court of Appeal had ent locations were arbitrarily review proceedings. The legal Appeal by Miracle from an order appeal an arbitrator’s decision identified a question of law and detained and denied access to issues which were the foundation enforcing the transfer of certain and another overturning the the miscarriage of justice test had counsel. These were common of the parties’ dispute were now Certificates of Possession against arbitrator’s decision. The issues been met, it should have upheld issues, along with the aggregate safely in the hands of the Court of four parcels of land allotted to in the case arose out of the obli- the Superior Court’s denial of and punitive damages to which Queen’s Bench inside the frame- Miracle, a Band member, and gation of Creston to pay a finder’s leave to appeal in deference to the plaintiffs were entitled. A work of a motion for judicial located on reserve lands to satisfy fee to Sattva. The parties agreed that court’s exercise of judicial class action was the preferable review. There was therefore no the Mohawk Band’s damages and that Sattva was entitled to a find- discretion. In the context of com- procedure to deal with the vari- need to revive the appeal, even costs judgment against Miracle. er’s fee of US$1.5 million and was mercial arbitration, where ous claims, as it was unlikely assuming the criteria for doing so Miracle purchased from Brant a entitled to be paid this fee in appeals were restricted to ques- individual plaintiffs would seek were met. building and land within the shares of Creston, cash or a com- tions of law, the standard of individual relief through the legal reserve that Brant, another band bination thereof. They disagreed review was reasonableness, unless system, and because of the Doe v. Alberta, [2014] A.J. No. 787, member, had never actually paid on which date should be used to the question was one that would importance of the goal of behav- Alberta Court of Appeal, J. Watson, for or occupied lawfully. Ultim- price the Creston shares and attract the correctness standard, iour modification. Good and Tay- B.K. O’Ferrall and T.W. Wakeling ately, Miracle was enjoined from therefore the number of shares to such as constitutional questions lor were appropriate representa- JJ.A., July 31, 2014. Digest No. occupying the land and buildings which Sattva was entitled. The or questions of law of central tive plaintiffs as demonstrators 3419-004 and damages were awarded to the parties entered into arbitration importance to the legal system as who had been detained. Mohawks of the Bay of Quinte pursuant to the Arbitration Act a whole and outside the adjudica- First Nation (“MBQ”) for years of (AA). The arbitrator found in tor’s expertise, which was not the Good v. Toronto (City) Police Servi- unauthorized use. The MBQ favour of Sattva. Creston sought case here. Here, the arbitrator’s ces Board, [2014] O.J. No. 3643, obtained writs of seizure and sale leave to appeal the arbitrator’s reasoning met the reasonableness Ontario Superior Court of Justice, Criminal Law against certain Certificates of Pos- decision pursuant to s. 31(2) of threshold of justifiability, trans- D.R. Aston, I.V.B. Nordheimer and session held by Miracle to secure the AA. Leave was denied by the parency and intelligibility. M.T. Linhares de Sousa JJ., August Appeals its judgment. The parcels of land British Columbia Supreme Court. 6, 2014. Digest No. 3419-003 Grounds - Miscarriage of justice that were the subject of the Certifi- Creston successfully appealed Sattva Capital Corp. v. Creston cates were not the lands at issue in this decision and was granted Moly Corp., [2014] S.C.J. No. 53, Appeal by Al-Enzi from his first the trial. After some years of hav- leave to appeal the arbitrator’s Supreme Court of Canada, Civil procedure degree murder conviction. Al- ing no success in enforcing the decision by the British Columbia McLachlin C.J. and LeBel, Abella, Appeals - Moot issues - Powers of Enzi was charged jointly with judgment, the MBQ sought Court of Appeal. The British Col- Rothstein, Moldaver, Karakatsanis appellate court - Orders necessary to Kazem for the murder of Zalal. A authorization to sell the Certifi- umbia Supreme Court judge who and Wagner JJ., August 1, 2014. safeguard rights of parties third accused was sentenced as cates of Possession. Miracle was heard the merits of the appeal Digest No. 3419-002 an accessory after the fact to the ordered to complete any docu- upheld the arbitrator’s award. Application by Jane Doe to murder and gave evidence impli- ments required to transfer the The British Columbia Court of reopen an appeal. Crown pros- cating Al-Enzi as the planner and Certificates and submit them to Appeal overturned this decision ecutors commenced a proposed shooter and Kazem as the driver the Indian land registrar. The sale and found in favour of Creston. class action against the Crown in of the car in which the murder of the Certificates was ordered to Civil Litigation Right of Alberta. They sought a took place. Al-Enzi implicated proceed subject to the approval of HELD: Appeal allowed. Appeals declaration that publication of Kazem and claimed he was at the the Minister. from commercial arbitration Civil procedure their names and salaries as part Exhibition with his wife, then at a decisions were narrowly circum- Parties - Class or representative of a government disclosure nightclub, when the murder took HELD: Appeal dismissed. The scribed under the AA. In order for actions - Certification - Common initiative breached their employ- place. Like the Crown, Kazem Superior Court had jurisdiction leave to be granted from a com- interests and issues - Representative ment agreement, the Charter sought to convince the jury that over the transfer of Certificates mercial arbitral award, a thresh- plaintiff and privacy legislation. The the third accused was telling the of Possession. As holder of the old requirement had to be met: prosecutors were also concerned truth. Al-Enzi’s counsel was Certificates of Possession, Mir- leave had to be sought on a ques- Appeal by Good from a judge’s that the proposed publication forced to withdraw during the acle had only a possessory inter- tion of law. Historically, deter- decision refusing to certify her raised personal safety issues. course of the trial. He made it est in lands owned in fee simple mining the legal rights and obli- proceeding against the Crown They sought interim and perma- clear this was not Al-Enzi’s fault, by the Crown. The Certificates gations of the parties under a and Toronto Police as a class nent injunctive relief. Jane Doe, although the judge inferred Al- were items of personal or real written contract was considered a action. The basis of the action on behalf of the prosecutors, Enzi was directly or indirectly property not considered reserve question of law. However, the his- was the detention of various obtained an interim injunction responsible. An extensive search lands themselves, and as such, torical approach should be aban- groups of demonstrators in dif- pending trial enjoining Alberta throughout Ontario for a new was subject to seizure, on the doned. Contractual interpreta- ferent locations in Toronto dur- from publishing general personal lawyer for Al-Enzi was unsuccess- condition that the Crown con- tion involved issues of mixed fact ing the 2010 G20 summit. It was information of any prosecutor. ful, as no experienced counsel sented to such seizure. and law, as it was an exercise in alleged these detentions were The Court of Appeal lifted the was willing to continue the trial. which the principles of contrac- arbitrary and unlawful because injunction in light of assurances Al-Enzi’s application to sever his Mohawks of the Bay of Quinte v. tual interpretation were applied they were based on a single com- received from Alberta that an trial from Kazem’s was unsuccess- Brant, [2014] O.J. No. 3605, to the words of the written con- mand order and did not take into alternative legal process was ful. Amicus was appointed for Ontario Court of Appeal, R.J. tract, considered in light of the account the individual situations available to resolve the issues Al-Enzi. Al-Enzi continued to Sharpe, H.S. LaForme and M.H. Tul- factual matrix. Whether some- of each person detained to deter- between the parties. Individual assert his right to counsel, but the loch JJ.A., July 30, 2014. Digest thing was or reasonably ought to mine whether such individuals prosecutors had 30 days to seek a judge found this was trumped by No. 3419-001 have been within the common had committed an offence. Sub- personal exemption from publi- the right of his co-accused and knowledge of the parties at the sequent to the dismissal of the cation of their job and salary the Crown to have the trial con- time of execution of the contract certification motion, the plead- information, failing which publi- tinue before the same judge. was a question of fact. The Court ings had been amended, repre- cation would occur. Those who Kazem was ultimately acquitted of Appeal erred in finding that the sentative plaintiffs other than were denied an exemption were and Al-Enzi convicted. Alternative construction of the agreement Good had been dropped, and a granted a right of judicial review. Dispute constituted a question of law. The second representative plaintiff, Jane Doe sought to reopen the HELD: Appeal allowed and new conclusion that Creston’s applica- Taylor, had been added. Crown’s appeal on the basis that trial ordered. This was an excep- Resolution tion for leave to appeal raised no she had already been denied an tional case in which the interests question of law was sufficient to HELD: Appeal allowed. The exemption at the time Alberta of justice demanded that Al-Enzi Binding arbitration dispose of the appeal. However, claim was adequately pleaded. argued the appeal from the be given a new trial so he could Commercial arbitration awards - even had the Court of Appeal There was a single course of con- interim injunction. be defended throughout by his 20 • September 26, 2014 THE LAWYERS WEEKLY Digest own counsel. Al-Enzi had not observations post-arrest were minated the plaintiff’s employ- fighting with the mother. Super- tionment of the family home. insisted that a particular lawyer admissible pursuant to s. 24(2), ment, or merely given advance vised custody was reinstated, After living together for 13 be permitted to represent him at and were sufficient to sustain a notice of non-renewal of the again with prohibitions on the years, the parties married in a severed or new trial. The judge conviction for refusal. The sum- employment agreement. The trial father having any contact with 2003, had two children, and based his decision not to order mary conviction appeal court judge found that the plaintiff was the family and the mother using separated in 2010. The husband severance on the erroneous infer- judge set aside the conviction on terminated without cause by way alcohol, drugs or any form of worked in the field of mineral ence that Al-Enzi was unreason- the basis that the breath sample of constructive dismissal. The physical discipline on the chil- exploration during the mar- ably seeking to enforce his right demand was invalid due to the plaintiff was thus entitled to the dren. In the summer of 2012, the riage, while the wife took on a to counsel of choice. There was unlawfulness of the arrest. The contractual severance payment of oldest son beat the mother more traditional role caring for no evidence to support the judge’s Crown appealed. 12 months’ salary. The defend- severely as she held the youngest the children. The husband position that Al-Enzi was to ants appealed. child in her arms and called for earned close to $1 million per blame for his counsel’s with- HELD: Appeal allowed. The sum- help. The children were placed in year by the time of separation. drawal. The judge also erred in mary conviction appeal judge HELD: Appeal dismissed. The the temporary care and custody He moved out at the wife’s relying on Al-Enzi’s substantial erred in law by temporally con- defendants’ letter and actions, of the Minister, with supervised request and purchased a new criminal record in assuming he flating the lawfulness of the arrest viewed objectively, constituted a access to the parents. During the residence. He paid $18,000 per was familiar enough with the and the lawfulness of the breath termination. The plaintiff was mother’s supervised access, the month to the wife to cover criminal justice system to handle sample demand. Neither the trial not permitted to continue his mother and children were spousal and child support, com- his own defence. This was too judge nor the summary convic- employment or attend the office. observed swearing at and using mencing in July 2011. This fig- complex a case and too serious a tion appeal judge directed their There was an immediate and violence on each other. Although ure was based on an income of charge. Al-Enzi was facing off minds to the lawfulness of the substantial change in the plain- she claimed she had severed her $660,000 as stated in a July against experienced lawyers demand as a component of a dis- tiff’s status and his employment- relationship with the father for 2011 financial statement. The representing the Crown and tinct offence from impaired driv- related powers. The defendants’ good, the mother helped to hide parties’ home was reappor- Kazem. He was not clearly trying ing. It was clear that all of the letter went beyond notice of non- him when the authorities came to tioned 65 per cent in favour of to frustrate the proceedings by observations both prior to and renewal by instructing immedi- her home. Psychologists and the wife. The husband’s income orchestrating a severance. He after the arrest made by the ate return of keys and computer therapists who had worked with for support purposes was set at made genuine attempts to find a arresting officer would fully sup- items, and informing the plaintiff the family indicated the mother $1 million, resulting in an order new lawyer. Even with an port a demand for a breath sam- that his functions would immedi- had insight into the negative requiring him to pay $24,124 for expanded role, amicus was not an ple. No Charter breach was estab- ately be assumed by the com- impact her relationship with the spousal support and $12,814 for adequate substitute for counsel. lished. The refusal conviction pany’s president. The plaintiff did father was having on the chil- child support each month. The trial judge’s ruling deprived was restored. not agree to an early termination dren, but was unable to resist Al-Enzi of the reality and appear- or to a change in the terms of his continuing her relationship with HELD: Appeal dismissed. The ance of a fair trial and produced a R. v. Rezansoff, [2014] S.J. No. 418, employment. The trial judge’s him. The psychologist acting as husband failed to discharge the miscarriage of justice. Saskatchewan Court of Appeal, finding of a termination without guardian ad litem for the younger burden on him to prove that J.G. Lane, M.J. Herauf and P.A. cause did not disclose any error. two children indicated they had guideline level child support was R. v. Al-Enzi, [2014] O.J. No. 3608, Whitmore JJ.A., June 23, 2014. The plaintiff was accordingly behavioural and emotional prob- inappropriate because his income Ontario Court of Appeal, J.I. Las- Digest No. 3419-006 entitled to the severance payment lems from their exposure to con- was so high. The award of sup- kin, S.T. Goudge and D. Watt JJ.A., contemplated by the parties’ flict and violence in the home port was appropriate given the July 31, 2014. Digest No. 3419-005 agreement. that had improved since they had children’s expenses as agreed been in the Minister’s care. In upon by the parties, the lifestyle Thompson v. Cardel Homes Lim- ordering permanent care and they enjoyed prior to separation Criminal Code offences Employment ited Partnership, [2014] A.J. No. custody without access, the judge and the values and aspirations Impaired driving or driving over the Law 785, Alberta Court of Appeal, P.W.L. found that it was their best inter- the parties had for the children. legal limit - Breathalyzer or blood Martin, B.K. O’Ferrall and B.L. Veld- ests not to be exposed to any fur- The spousal support award was sample demand - Reasonable and huis JJ.A., July 31, 2014. Digest No. ther family violence, which was an appropriate exercise of the probable grounds Contract of employment 3419-007 inevitable if they were returned judge’s discretion in light of the Express terms - Duration - Fixed to the mother’s care. traditional role the wife played in Appeal by the Crown from a sum- term contract - Renewals - the marriage, the special needs of mary conviction appeal judgment Remuneration - Severance pay HELD: Appeal dismissed. The one of the children, the unlikeli- acquitting the accused, Rezan- judge’s finding that a permanent hood of the wife being able to re- soff, of failure to comply with a Appeal by the defendants, Cardel Family Law care and custody order without enter the workforce anytime breath sample demand. The Homes and Cardel Construction, access was in the children’s best soon, and the opportunity to accused’s vehicle was stopped from a judgment entitling the Child protection interest was supported by cogent build his career and earning after two 911 reports of a vehicle plaintiff, Thompson, to contrac- Protective agencies and institutions - evidence and bore no palpable or potential the wife’s efforts pro- swerving on the highway and a tual severance pay. The parties Supervision or guardianship – overriding error. There was vided. The reapportionment of near collision. A third witness entered into two fixed-term con- Considerations - Best interests of ample evidence establishing that the family home, despite the sub- described being forced into the tracts. The 2008 agreement had child - Permanent appointment or the violent relationship between stantial spousal support award, ditch by the accused’s driving. a two-year term and provided for Crown wardship the mother and father would did not constitute double recov- Police located the accused’s a 12-month severance payment continue. The oldest child ery in the circumstances of the vehicle and pulled him over. The in the event of non-renewal. The Appeal by the mother from an remained a risk to expose the case. The reapportionment was officer observed slow and deliber- second agreement was for a one- October 2013 order placing her younger children and mother to appropriate because the wife ate movements and glassy eyes, year term and did not provide for three children in the permanent more violence. The mother was would not be able to work in the and detected an odour of alcohol a severance payment in the event care and custody of the Minister unable to control her behaviour. foreseeable future and because from the accused’s breath. A case of non-renewal. The employer without access. The children Less intrusive alternatives to the husband’s income was prone of beer was between the front had absolute discretion to ter- were 15, eight and two years old, permanent care and custody had to fluctuation. seats. The accused was arrested minate the second agreement at respectively, at the time of the already been implemented with- for impaired driving. Thereafter, any time with four weeks’ written order. The two older children out success. J.E.H. v. P.L.H., [2014] B.C.J. No. he exhibited unsteady balance. notice, in which case the were first taken into care in 2006 1996, British Columbia Court of The accused was charged with employee was entitled to a following the father’s violent S.A.D. v. Nova Scotia (Minister of Appeal, I.T. Donald, K.E. Neilson refusal after failing repeatedly to 12-month severance payment for assault on the mother. They were Community Services), [2014] and D.C. Harris JJ.A, July 31, 2014. properly blow into the breath- early termination. One month returned to the mother’s super- N.S.J. No. 419, Nova Scotia Court Digest No. 3419-009 alyzer. At trial, the accused before the second agreement’s vised care within two months, on of Appeal, J.E. Fichaud, D.R. Bever- claimed he was unlawfully term expired, the defendants conditions prohibiting the father idge and J.E. Scanlan JJ.A., August detained and arrested, and sub- advised the plaintiff that his con- from having any contact and the 1, 2014. Digest No. 3419-008 mitted that there were insuffi- tract would not be renewed and mother from using alcohol or cient grounds for a breath sample that he was not required to work drugs. Supervision of the moth- Government demand. The accused sought for the remainder of the term. er’s custody ended. The mother Marital property Law exclusion of the evidence based The letter advised that the plain- and father reconciled and had the Equalization or division - on breaches of his ss. 8, 9 and tiff would be paid until the end of third child, in 2011. In early 2012, Considerations - Needs of parties - 10(b) Charter rights. The trial the term and requested the authorities learned the oldest Unequal division of property - Access to information judge acquitted the accused of return of certain workplace child and the mother had been Matrimonial home. and privacy impaired driving on the basis items. The plaintiff was sent engaging in physical altercations, Access to information - Inspection of that there were insufficient home and his work email was and that the father, while not Appeal by the husband from an public documents - Protection of grounds to stop the accused. The terminated. At issue at trial was apparently living in the home, order dealing with child and privacy - Retention of information – trial judge found that the officer’s whether the defendants had ter- was frequently at the home and spousal support and the appor- Destruction THE LAWYERS WEEKLY September 26, 2014 • 21
Digest
Determination of the fate of docu- found that the company’s practi- concrete walkway. The concrete purpose of identifying and priori- for the estate. The judge found ments produced during the ces breached the collective agree- in the area was also cracked. She tizing the need for capital Colleen waived her entitlement independent assessment process ment. Despite the parties’ agree- tripped, fell down the steps and expenditures and not for identi- to the survivorship benefits in by way of which former students ment to address remedies in a sustained personal injuries. The fying potential risks. The land- the separation agreement. of Indian Residential Schools separate hearing, the arbitrator tenant commenced an action lord should have adopted an could receive compensation from ordered a remedy requiring the against the landlord alleging that inspection program that included HELD: Appeal allowed. The B.C. the government of Canada for contracted workers to vacate the the trip and fall accident was due an inspection of the common legislature intended that spousal injuries sustained while in attend- mine site. The arbitrator stated to the landlord’s negligence in the areas during the spring months. interests in post-retirement sur- ance. Canada had agreed to pay that she retained jurisdiction to maintenance of the property. The The fact that the tenants were vivor pension benefits be pre- certain compensation to all resi- address issues regarding other landlord denied liability for the obligated to report the need for served, absent the consent of the dential school attendees, but relief. The company applied for accident on the basis that it had repairs was not a substitute for a beneficiary spouse. The separation attendees also had the option of judicial review. The reviewing in place an adequate inspection standard of care which was for agreement was not a clear and participating in an independent judge found that the arbitrator and maintenance system. Each the benefit of all entering the unequivocal waiver of Colleen’s assessment to determine the offended the audi alteram partem unit was inspected annually and premises. Landlords should not right. The agreement actually pre- extent to which their specific principle by ordering a remedy in deficiencies which were reported be able to avoid liability by trans- served her right to the pension injuries should be compensated. the absence of submissions from by tenants were corrected ferring their obligations to the benefits to which she became The agreement also included pro- the parties. The remedies portion throughout the year. The trial tenant. Liability was apportioned entitled as soon as pension pay- visions requiring Canada to create of the arbitrator’s decision was judge dismissed the tenant’s 25 per cent to the tenant for fail- ments to Michael commenced. an historical record of the residen- quashed and remitted for recon- action. She found that the cracked ing to exercise due care. tial school system, accessible to sideration. The company submit- walkway was a persistent prob- Tarr Estate v. Tarr, [2014] B.C.J. the public for future study. The ted that the reviewing judge lem that was addressed each Hickey v. New Brunswick Housing No. 2025, British Columbia Court numerous parties involved with should have quashed the arbitra- spring and that the tenant, who Corp., [2014] N.B.J. No. 210, New of Appeal, M.V. Newbury, P.A. the implementation of the agree- tor’s decision in its entirety and was aware of the gap, never Brunswick Court of Appeal, J.T. Kirkpatrick and H. Groberman ment sought the court’s direction referred the grievance to a new reported it to the landlord. She Robertson, B.R. Bell and B.V. Green JJ.A., August 6, 2014. Digest No. as to whether records produced as arbitrator to be dealt with afresh. further found that the landlord JJ.A., July 31, 2014. Digest No. 3419-013 part of the individual assessment had a reasonable maintenance 3419-012 process should be destroyed, HELD: Appeal dismissed. The and inspection system in place. maintained and/or archived. reviewing judge did not err in She held that the tenant had a referring the remedies issue back positive duty to report this prob- Real Property HELD: The Chief Adjudicator of to the arbitrator. It was open to lem to the landlord as well as a Pensions & the process was directed to draft the chambers judge to quash the positive duty to take care for her Law an order providing for the reten- portion of the arbitrator’s deci- own safety but failed to do so. Benefits Law tion of the documents for 15 years sion related to remedies and Finally, she held that the landlord after which they would be leave the balance of the decision could not be expected to rectify a Proceedings destroyed. The information con- standing, as the reasons dealing problem which had not been spe- PRIVATE PENSION PLANS Appeals and judicial review - Practice tained in documents produced in with the issue of remedy were cifically reported to it. Pension benefits - Payment on and procedure - Contempt - What the individual assessment pro- clearly excisable from the balance marriage breakdown - Survivor constitutes – Punishment cess was very sensitive and per- of the ruling. There was no HELD: Appeal allowed. The trial benefits sonal to claimants. Disclosure of authority to support the com- judge erred in finding that the Appeal by a condominium cor- names of victims and perpetra- pany’s contention that the arbi- landlord was not liable because Appeal by Colleen Tarr from a poration and its directors from a tors of abuse, even years later, trator lost jurisdiction of the the tenant was aware of the gap. declaration that she held past finding of contempt and the had the potential to harm the whole of the grievance by breach- Whether or not the tenant was and future pension survivorship sanction imposed. As a result of families of residential school ing the audi alteram partem rule. aware of the gap was a question benefits in trust for her former having to perform extensive gar- attendees. The parties to the pro- The company did not establish a that went to the issue of con- husband’s estate. Colleen and age repairs, the landscaping out- cess understood the documents reasonable apprehension that the tributory negligence, not the lia- Michael, both school teachers, side a condominium complex would be treated as highly confi- arbitrator would be biased in bility of the landlord. Further- married in 1964 and separated required restoration. The board dential, subject to a limited pros- considering remedial matters. In more, the trial judge erred in in 2002. Michael retired from of directors proposed a new land- pect of disclosure during a reten- addition, the reviewing judge did transforming the tenant’s con- teaching in 2002, executing a scaping design with different fea- tion period, after which they not err in citing Rule 1-3 without tractual obligation to report pension plan declaration tures than those in place before would be destroyed. A retention the parties having referred to the needed repairs into an exemption irrevocably designating Colleen the repairs. Several owners period was appropriate to permit Rule in their submissions. No clause which relieved the land- his 100 per cent joint life bene- opposed the design and wanted claimants to decide whether they prejudice resulted, as the com- lord of its obligation to provide ficiary. In 2007, the couple the area restored to its prior con- wanted their individual stories pany had full opportunity to reasonably safe common areas. entered into a separation agree- dition. The dispute led to litiga- redacted and archived as part of address whether it was appropri- The landlord had an obligation to ment providing that each would tion and a court order that the the record of the residential ate to refer the remedies issue keep the common areas of the retain, free of any claim by the landscaping be restored to its ori- school system. back to the arbitrator. premises in a reasonably safe other, his or her pension and ginal design. However, a formal condition and to ensure defects pension rights. They were order was never taken out. In Fontaine v. Canada (Attorney Gen- Agrium Vanscoy Potash Oper- that posed a risk of harm were divorced in 2007. Michael defiance of the order, the direc- eral), [2014] O.J. No. 3638, Ontario ations v. United Steel Workers identified and remedied, and it remarried in 2008 and died in tors authorized the installation of Superior Court of Justice, P.M. Per- Local 7552, [2014] S.J. No. 417, failed to do so. Finally, the trial 2010. Colleen received the pen- landscaping containing some ele- ell J., August 6, 2014. Digest No. Saskatchewan Court of Appeal, judge erred in finding that the sion benefits payable pursuant ments of the previous design and 3419-010 R.G. Richards C.J.S., P.A. Whitmore landlord had adopted an to Michael’s teacher’s pension. some elements from the new and J.A. Ryan-Froslie JJ.A., July 24, adequate program for identifying The executrix of Michael’s design. The owners brought a 2014. Digest No. 3419-011 and remedying defects in com- estate, his widow, obtained a contempt motion. The motion mon areas. The annual inspec- declaration that Colleen held judge held that an order existed Labour tions were carried out for the these pension payments in trust from the time the decision was Arbitration Landlord & Tenant Law Process and procedure Classifieds Arbitration - The hearing – Bifurcation Residential tenancies Landlord’s obligations – Repair. INVESTIGATIONS POSITION AVAILABLE SERVICES Appeal by the company, Agrium Vanscoy Potash Operations, from Appeal by a tenant from the dis- MISSING HEIRS STUDENT AT LAW COMMERCIAL, MARINE, a judicial review remedy. The missal of her action for damages Cogan & Associates Inc. Family/Commercial law firm INSURANCE AND company owned and operated a as a result of a trip and fall which International probate research, in Markham, Ont. is seeking a REINSURANCE ARBITRATORS potash mine. Its workers were occurred on the landlord’s prem- locators of missing heirs. Toll Free: student at law. Email resume to & MEDIATORS 1-888-779-2208. www.heirtrace.com [email protected] with reasonable fees, represented by the union, United ises owned by the defendant. The from $350/hour Steel Workers Local 7552. The tenant caught her sandal in a gap www.Arbitrators-Mediators.com union filed a grievance regarding between the metal piece attached the company’s use of independ- to the metal landing of the stair- ent contractors. The arbitrator case leading to her unit and the To advertise, please contact: Jacqueline D’Souza· 905-415-5801· 1-800-668-6481 ext. 801· [email protected] 22 • September 26, 2014 THE LAWYERS WEEKLY Digest pronounced, without the tax pursuant to the General Appeal by the plaintiff, Phillion, the plaintiff’s action as an abuse requirement of having been Taxation Anti-Avoidance Rule (“GAAR”) from the dismissal of his action of process was set aside. In addi- issued. He found that the and that it was liable for the cor- against the Crown and Ottawa tion, it would further bring the endorsement was clear and Provincial and porate minimum tax (“CMT”) Police. In 1972, the plaintiff con- administration of justice into dis- unequivocal and the appellants territorial taxation on the income from property. fessed to a 1967 murder. He repute to grant a stay and deprive had not sought clarification. He Ontario - Income tax - Corporate retracted the confession shortly the plaintiff of any opportunity to found that the appellants’ failure income tax - Administration and HELD: Appeal allowed. Inter- thereafter. The plaintiff was seek financial redress for his con- to restore the landscaping was enforcement - Tax appeals Leasing’s interest income was not nonetheless convicted of murder viction when he did not have the not inadvertent or accidental, income from business but rather and sentenced to life imprison- opportunity to present a full but rather a conscious choice Appeal by Inter-Leasing from a income from property. Inter- ment. He maintained his inno- defence at his trial. and therefore they breached the decision dismissing its appeal Leasing’s objects specifically pro- cence for the ensuing 31 years. order willfully and deliberately. from provincial tax assessments. hibited it from carrying on a busi- The plaintiff sought to reopen his Phillion v. Ontario (Attorney Gen- As a result of the violation of the Inter-Leasing was a subsidiary ness in Canada, except through a case following the Supreme eral), [2014] O.J. No. 3607, Ontario court order, the condominium established to assist its parent limited partnership, and the level Court of Canada decision in Court of Appeal, S.T. Goudge, K.N. corporation and its directors corporations reduce after-tax of activity associated with the Stinchcombe. He received Feldman and J.L. MacFarland JJ.A., were found in contempt of court. capital costs by acting as an once annual interest payment on redacted disclosure of the Crown July 31, 2014. Digest No. 3419-016 As a sanction, the motion judge investment holding company. each of the four specialty debt file. In 1998, a parole officer ordered that the area be restored Interest payments on refinan- instruments did not make the passed on previously undisclosed to its original design and that cing transactions were deter- interest income from business. materials that included poten- Negligence the directors personally bear the mined by the Minister to be The appeal judge erred in finding tially exculpatory evidence. In a Liability of alcohol provider - costs of restoration. The condo- taxable as business income in that Inter-Leasing was in the 1968 report authored by Detec- Causation - Foreseeability and minium corporation and the dir- Ontario. Inter-Leasing appealed business of reducing its parent tive McCombie, the Detective remoteness ectors appealed the finding of the reassessments and argued corporations’ after-tax capital cost opined that the plaintiff could contempt and from the penalty that it passively earned interest and the reasoning that since the not have committed the murder Appeal by the plaintiff, Wandy, imposed. They argued that the income on the debt instruments specialty debt instruments were based on confirmation of his from the dismissal of her action motion judge erred by conclud- it owned and was therefore not essential to, and employed in, alibi. The report failed to state against the defendant, River Val- ing that the terms of the order carrying on business in relation achieving that goal, interest on the Detective’s claim that he sub- ley Ventures (RVV). RVV oper- were sufficiently clear and to the interest. The appeal was that income was income from sequently discredited the alibi. ated a licensed bar. The plaintiff unequivocal, that the contempt dismissed. The appeal judge business. To characterize Inter- On reference to the Court of was socializing with friends order was overbroad because it held that Inter-Leasing’s inter- Leasing’s efforts to structure its Appeal, the Court could not when she was seriously injured required them to undertake est income was income from a affairs to take advantage of the determine on the evidence by a chair thrown by another repairs that went beyond the business carried on in Canada difference in treatment of corpor- whether the alibi had been dis- patron, Danyluk. The tavern was scope of repairs required in the and that the Minister’s reassess- ate property income and corpor- credited by police. The Court busy at the time of the incident. order and the terms of the con- ment of corporate income was ate business income was to under- found that defence counsel was Its proprietors were bartending. tempt order were incapable of correct. He concluded that the cut the well-established unaware of the McCombie report Nobody was specifically assigned performance. The directors also factors in favour of concluding jurisprudence that taxpayers or any steps taken in relation to to monitor patrons’ sobriety or argued that the judge erred in the interest payments were busi- could arrange their dealings and the alibi. Although there was no conduct. Danyluk was a frequent ordering them to pay the costs of ness income outweighed those structures to reduce taxes. In trial unfairness based on 1972 patron of the tavern who often restoration personally. suggesting it was not. He found addition, many of the factors cited prosecutorial standards, the became intoxicated and loud. He that the factors which suggested by the appeal judge in support of admission of the McCombie was not known for violence. He HELD: Appeal allowed in part. the interest income was not his conclusion that the interest report as fresh evidence justified had no recollection of the inci- The endorsement was clear and business income included the income was income from business quashing the conviction. The dent. The plaintiff successfully unequivocal. Given the history terms of Inter-Leasing’s memo- were irrelevant to that conclusion. Crown did not proceed with a sued Danyluk for negligence. of the dispute, the only reason- randum of association, its lack Inter-Leasing was not liable for new trial and the murder charge Her action against RVV was dis- able interpretation of the of employees, that it undertook corporate income tax pursuant to was withdrawn in 2010. In 2012, missed, as her injury was not endorsement was that the appel- no regular administrative activ- the GAAR or liable for paying the the plaintiff commenced a civil attributable to any negligence on lants were required to restore ity or oversight to earn the inter- CMT on its interest income. action against the Crown and the part of RVV. The trial judge the landscaping to its state prior est income and did not have to Assuming the parent corpora- police. The action was dismissed concluded that the plaintiff to the garage repairs. While the manage any risk, its single dir- tions’ transactions created a bene- as an abuse of process and failed to establish a reasonably board’s authority to manage the ector, that the interest income fit or were an avoidance trans- permanently stayed. The plain- foreseeable risk of harm by vir- common elements in accordance was earned from only four debt action, they were not abusive. tiff appealed. tue of RVV failing to address with the Condominium Act was instruments held throughout There was no evidence that the Danyluk becoming unruly and otherwise unfettered, the board the taxation years in issue and documents evidencing the trans- HELD: Appeal allowed. The intoxicated. The plaintiff had to comply with the endorse- that it received one yearly inter- actions were a sham, nor was motion judge erred in two appealed. ment. The contempt order was est payment for each debt there any evidence of a failure to respects in finding an abuse of not overbroad. It did not require instrument. The appeal judge pay interest on the terms in the process. The judge failed to ana- HELD: Appeal dismissed. In the appellants to undertake found that the factors sup- documents. The CMT was not lyze the nature and purpose of finding that RVV did not breach repairs beyond what the endorse- porting the conclusion the inter- applicable as the interest income the Court of Appeal reference in the standard of care a commer- ment required. The appeal from est income was income from a was property, not business income comparison to the issues raised cial host owed to the plaintiff as the sanction was allowed. The business were the fact that and the property (the specialty by the civil claim. In that context, a patron, the trial judge con- portion of the sanction in which Inter-Leasing was a corporation debt instruments) were physically the judge erred in concluding sidered Danyluk’s reputation as the motion judge ordered the with a permanent establishment stored outside Canada. The loca- that the issue of whether the alibi a heavy drinker who became directors to pay the costs of res- in Ontario, its director was an tion of the property outside of had been discredited was a road- aggressive but not violent when toration was set aside and Ontario resident, its manage- Canada was not abusive consid- block to the civil claim and in intoxicated. No palpable and replaced with a fine of $7,500 to ment and control was situated ering Inter-Leasing’s minimal taking an overly broad view of the overriding error was estab- be paid by each director to the in Canada and it did not carry activity in Ontario and that they Court’s findings. Secondly, the lished. There was no prior mis- condominium corporation. on business activity, maintain a were located at its place of incor- judge failed to consider the effect conduct or potential misconduct While contempt was serious, the bank account, enter into con- poration. of the remedy of a new criminal giving rise to a foreseeable risk appellant’s were not motivated tracts or undertake any admin- trial, which would have opened of harm. No wilful blindness by by any personal gain or ven- istrative activities outside Can- Inter-Leasing Inc. v. Ontario (Minis- all issues for decision by a jury, RVV was established. Having geance, but instead their belief ada. Moreover, its sole purpose ter of Revenue), [2014] O.J. No. including whether the alibi had found no breach of the applic- that they knew what was best. was to hold debts and earn 3671, Ontario Court of Appeal, been discredited. The plaintiff’s able standard of care by River The individual appellants were income from property such as K.M. Weiler, C.W. Hourigan and G.I. civil claim did not depend on set- Valley, the trial judge was not volunteers. The penalty imposed interest and the interest income Pardu JJ.A., August 7, 2014. Digest ting aside any conclusion reached required to address whether a was so onerous that it would was therefore within its corpor- No. 3419-015 by the Court of Appeal on the causal link existed between the deter others from serving on ate objectives. Inter-Leasing reference. The reference’s finding breach of a hypothetical stan- condominium boards. appealed the decision of the of no wrongdoing by the author- dard of care and the injury suf- appeal judge claiming that he ities was made for the purpose of fered by the plaintiff. Boily v. Carleton Condominium erred in finding that the interest determining whether the fresh Corp. No. 145, [2014] O.J. No. income was business income. Tort Law evidence was admissible based Wandy v. River Valley Ventures Inc., 3625, Ontario Court of Appeal, G.J. The province argued that even if on trial unfairness. No considera- [2014] S.J. No. 419, Saskatchewan Epstein, P.D. Lauwers and G.I. the income was income from Abuse of legal procedure tion was undertaken of whether Court of Appeal, J. Klebuc, N.W. Pardu JJ.A., August 6, 2014. Digest property, Inter-Leasing was or process any common law duty of care was Caldwell and P.A. Whitmore JJ.A., No. 3419-014 liable to pay corporate income Practice and procedure breached. The order dismissing July 29, 2014. Digest No. 3419-017 THE LAWYERS WEEKLY September 26, 2014 • 23 Business & Careers
Cooling the flames of office conflict
Disagreements are inevitable, and leaders need to take charge to address problems
GRANT CAMERON see eye to eye with their counterparts or staff, or they might question or disagree with a firm’s approach. n the courtroom, lawyers must be adept at dealing with conflict. They Prentice says workplace conflicts can involve seemingly trivial matters earn their living by playing the adversary, challenging witnesses and such as who gets the biggest office or the best chair, but can have deeper I poking holes in the opposition’s case. roots, such as compensation or the choice of office assistant. Back at the office, though, it can be a different situation. When a con- The best way to resolve matters, whether it’s an individual or a firm- flict arises with another lawyer or co-worker, or with the employing law wide issue, is to arrange a meeting and allow everybody an opportunity firm, some lawyers prefer to play Mr. Nice Guy. They want to be a peace- to vent their frustrations, he says. “Basically, it should be face-to-face maker rather than somebody who’s disagreeable. communication and understanding more about what’s going on.” However, legal recruiting and workplace productivity experts say fail- It’s also helpful, Prentice says, for those at the meeting to write down ing to deal with internal workplace conflicts, can — if left unchecked — cause their frustrations on a whiteboard or pad for everyone to see. problems to grow into a toxic situation. “The activity of writing things down allows people to let go of what “Conflict is an inevitable part of people working together in any office,” they’re holding in their minds,” he says. “The solutions can only start to explains Steve Prentice, a partner in the Bristall Group in Toronto. “But appear once you’ve let go of the issues.” avoiding conflict can just lead to problems. It’s like having a pot on the Anita Larek, president of Advocate Placement, which provides strategic stove with the heat on. It’s just going to boil over.” advice to lawyers, says it’s important for lawyers and partners to nip con- Unresolved issues can fester, he says, possibly leading to a verbal or flicts in the bud. She advocates laying the groundwork by building up physically hostile confrontation in the workplace, or people quitting. rapport with co-workers before speaking up. “It’s like a burr under your saddle or a pebble in your shoe. It never gets “There’s nothing wrong with being confrontational but do it as a strat- better. If something irks you about somebody, it’s going to continue to egy…rather than just falling into a morass of conflict. It’s not a good idea grow into something larger so, one to demand things and say: ‘You want this, I want that. Let’s duke it out.’ day down the road, a simple You’ve got to earn the right to make demands.” thing could upset you Larek says lawyers also have to build up to their argument and make and you reach the sure they’re not just venting against a co-worker because they don’t like boiling point.” him or her, so “the communication has to be skilled and the intention Workplace con- lying behind it must be thought through.” flicts can arise Lawyers, meanwhile, should be wary of falling into the trap of a win- from myriad lose mentality, she says, because it’s a disincentive to fixing problems. situations. “We’ve got to step back and take a pause from the direct aggressive Lawyers onslaught for profit or for billings to see how the team is doing.” might not Communicate, Page 25 akindo / iStockphoto.com 24 • September 26, 2014 THE LAWYERS WEEKLY
Business & Careers Data disasters are waiting to happen
Having a recovery plan is indispensable for your system’s inevitable crash
decades of existence. Magnetic tape may still be the least expensive way to store massive amounts of data, but users must maintain working tape As soon as people assign monetary value to data, drives (a technology travelling the same they treat it as though it’s worth something. downward path as the fax machine) if they want to continue storing backups to tape. Luigi Benetton Rothman won’t use CDs as backups. “I Alex Moffat have CDs that I burned 10 years ago, and Hi-Tech Canadian Cloud Backup I can’t read them now,” he says. Online backup can be an attractive en Sapiro well knows the meaning alternative to in-house systems. Three of B behind the metaphor “like closing the the most common questions Moffat fields barn door after the horse escapes.” When from lawyers about online backup con- lawyers call him about disaster recovery, cern whether data is stored in Canada, it’s usually because something has already Chuck Rothman and his colleagues at firm, draft a disaster recovery plan to whether it travels outside of Canada en happened. information governance and e-discovery ensure you can mitigate the consequences. route to the data centre, and how encryp- “Very often, questions come after a busi- services firm Wortzmans know the poten- When drafting the plan, Sapiro suggests tion works. ness continuity issue occurred,” says the tial issues. When interviewed, the firm firms map their systems. This map pro- Rothman explains his concerns over online KPMG risk consulting senior manager. was reviewing disaster recovery setup. vides an understanding of critical busi- backup by recounting a U.S. event. “The FBI This saddens Sapiro, but it doesn’t sur- “The ability of our firm to function is ness processes that rely on those systems. had raided a cloud service provider because prise him: Many businesses are a corrupted based on access to our data,” says Wortz- For instance, few law firms could function one of its clients was laundering money,” he hard drive or disabled router away from mans’ director of e-discovery services. without e-mail, so they easily grasp the says. “They took hard drives out of the serv- losing hours, even days, of billable time. If Rothman’s statement describes your importance of their laptops, mail servers ers and made forensic copies. and Internet connections in keeping that “They seized data from all the clients, not mundane process available. just the one. One of the other subscribers When drafting a disaster recovery to this cloud service provider sued the FBI plan, national account manager for Can- to get their data back, and they lost. Academic Positions adian Cloud Backup Alex Moffat sug- “I don’t know if the RCMP would have Faculty of Law, Thunder Bay Campus gests creating three scenarios: “Minor the same power here,” Rothman adds, incident, major incident, and a full- “but if the RCMP knocked on our door Lakehead University, Faculty of Law invites applicants for three tenure track fledged disaster and the response. and imaged the hard drives on our server, positions. The appointments will commence on July 1, 2015. Rank of Determine the time frame to recovery the law firm upstairs from us doesn’t have appointment is dependent on qualifications, teaching, and research experience. on each. Then write the disaster plan to worry about their data being taken as The Faculty of Law at Lakehead University is new and it is different. Through its based on the three scenarios.” well. It’s a matter of control.” unique Integrated Practice Curriculum (IPC) students not only learn the law, but Once the plan is in place, practice it. Sapiro recommends accounting for are prepared for the practice of law. The Law Society of Upper Canada has “This is by far the most important part of “near misses” in the disaster recovery approved the Lakehead J.D. and IPC as an alternative pathway into the the plan,” Moffat says. “You will find areas plan. For instance, lawyers may lose USB profession. This means that Lakehead Law graduates do not need to undertake a where you have overlooked the import- memory keys or have hard disks crash. A period of articles. The Faculty of Law is located in Thunder Bay and its mission is ance of something you considered to be kind soul might return the key, and data to prepare students to serve their communities. To that end, Lakehead Law is minor or non-critical.” recovery specialists might salvage a dam- committed to preparing students for the practice of law in smaller centers and in rural Canada, especially Northern Ontario. The school’s program reflects this Disaster recovery plans must include aged hard drive. Such near misses hap- commitment. There is special emphasis on Aboriginal legal issues, environmental two highly similar measures. The recov- pen, but don’t take them lightly. Near law, natural resources law, and small firm practice. ery point objective (RPO) is the most misses “indicate situations from which time a firm will tolerate being without its you one day might not be able to recover,” The school is small; only 60 students are admitted each year. Similarly, classes data as a result of a business continuity Sapiro warns. are small and we place a premium on quality teaching. We seek individuals who enjoy being in the classroom, who will engage and challenge students, and who disruption. The recovery time objective Moffat suggests assigning dollar val- have a passion for teaching. (RTO) is the amount of time a business ues to files and programs that will repre- can last without access to data before it sent what it would cost if the firm lost Candidates must have a strong academic background and a commitment to suffers unacceptable consequences. Both access to them or had to recreate them. scholarly research. We do recognize expertise in all its forms, whether through measures help define the systems to use, “As soon as people assign monetary advanced graduate work or extensive legal experience and we do encourage “practitioner-scholars” to apply. required response times and other value to data, they treat it as though it’s important points in the plan. worth something,” he observes. Data backups, the most widely known Just as importantly, he suggests testing Applicants should submit a curriculum vitae, copies of university transcripts (it is not necessary at this stage to provide original transcripts), and a brief component of disaster recovery plans, the restoration of backed-up files to statement of teaching and research interests, to: often do double duty as archives — some- ensure that data is being backed up. thing Rothman thinks is a bad idea. Sapiro agrees: “I’ve seen the docu- Professor Lee Stuesser, Dean, Faculty of Law “The whole idea behind retention is that mented restore procedure not be correct. Lakehead University, 955 Oliver Road, Thunder Bay, ON P7B 5E1 you only keep files as long as you need I’ve seen backup media not be readable. e-mail: [email protected] them, and no longer,” he explains. He rec- By practicing, you learn what breaks and If you have questions about this position, please feel free to contact Lee Stuesser, ommends firms use information govern- you put correct measures in place.” Founding Dean of Law, at [email protected]. Review of the applications ance systems that automate the execution Periodic repeat practice sessions (experts will begin on October 15, 2014 and continue until the positions are filled. of their retention policies “so you don’t recommend at least once a year) can alert keep every last e-mail, document and so lawyers to changes required in the plan A completed Confirmation of Immigration/Citizenship Status should accompany forth” on a live system “which means you caused by such issues as changes in hard- your package. This form is available on our website at: don’t need to back them up.” ware, software and information govern- http://hr.lakeheadu.ca/pdf/immig.pdf Since backups are iterative copies of ance policies. what’s on a live system, “you create lots Firms that don’t have the expertise to Lakehead University is committed to creating a diverse and inclusive environment and of duplicates,” Rothman says. “Where it independently prepare for disaster recov- welcomes applications from all qualified individuals including women, members of visible becomes an issue is if you’re faced with ery must consult professionals. “Spend the minorities, Aboriginal persons, and persons with disabilities. We appreciate your interest; however, only those selected for an litigation or regulatory production. You money,” Moffat says. “Don’t be penny-wise interview will be notified. have tons of duplicates you need to sift and pound-foolish.” through.” He steers clients toward hard disk We want to hear from you! lakeheadu.ca drives as backup media, saying that the Send us your verdict: technology has been proven over its four [email protected] THE LAWYERS WEEKLY September 26, 2014 • 25
Business & Careers Communicate: Passive approach will not help mmw_OR_PRINT_mmw_OR_DS_1ANNOUNCEMENTS 9/11/14 10:35 AM Page 1
Continued from page 23 Lawyers, she says, also have to be mind- ful that they’re leaders and should strive to build collaborative teams. WE ARE BUILDING A GREAT LAW FIRM. “They are laying the foundations for an The question is not so much environment so the conversations have to as to whether conflict is good be collaborative. When I make a pitch at a meeting I have to look at it like: ‘Does this or bad. I think it’s good. The advance the team or am I just pushing my question is more around: own next big project or big win?’ ” How does that conflict get In dealing with conflict, Larek says, law- yers must also ensure they respect their resolved? I think that’s where co-workers because “how can a lawyer be a lot of law firms get stuck. respected if he or she is yelling, or mean to MOODIE MAIR WALKER Moodie Mair Walker LLP is pleased to announce their underlings?” LAWYERS that Sandeep Samra B.A. (York University, 2010), J.D. Warren Smith, managing partner at The Warren Smith 416 340 0500 (University of Ottawa, 2013), has joined the firm. Ms. Counsel Network in Vancouver, says it’s The Counsel Network MOODIEMAIR.COM Samra was called to the Ontario Bar in 2014 after dressed up many different ways but the completing articles at MMW. “rub” that causes most conflicts at law firms is when there’s a clash over what an MMW is a Toronto litigation boutique focusing on complex insurance individual lawyer might want and what’s disputes, professional liability and personal injury cases. Visit us at really good for the firm. www.moodiemair.com. For example, he says, a lawyer or partner firms often take a pre-dispositional and at a large national firm might want more perhaps unintentionally passive approach autonomy over marketing and billing and to dealing with internal conflicts, “so, push for a compensation system that rather than actually getting them out in rewards individuals, but the firm might the open and having a frank conversation not budge, preferring a system that bene- around a dispute or challenge between dif- fits everyone in the firm. This could cause ferent practice groups in a firm, it can a lawyer to get annoyed at the firm or revert into a bit of a sniping match.” resent one of the partners. If a conflict arises, Smith says a lawyer, “You may have partners that will say, ‘No, paralegal or law clerk should first seek to we are a partnership, we have to work understand before they try to propose a together, we have to shore up each other’s solution. One way to do that is to speak weaknesses, and we can’t just only look at with veterans at the firm to get some individual performance because we’re not insight. a collection of individuals, we are a part- “Often times, it may be you don’t like it nership.’” but it’s because you don’t understand all The mark of a good managing partner or the variables.” leadership team at a law firm, he says, is When dealing with a conflict, Smith sug- one that creates an environment that gests talking about the problem and not allows lawyers and partners to deal with the person. such conflicts openly. “Make sure that people understand “The question is not so much as to what you’re trying to do is address the whether conflict is good or bad. I think it’s issue and not an individual. As soon as good. The question is more around: How you put it into the personal then it can get does that conflict get resolved? I think very heated. If you have that in mind that’s where a lot of law firms get stuck.” when you start down a path you’re more The problem, says Smith, is that law likely to get somewhere.” GOOD THINGS COME IN THREES
They come from different places but now they’re LITIGATION ASSOCIATE all at Hicks Morley. Meet our new associates – Gilbert Kirby Stringer LLP is a twelve lawyer personal injury/insurance litigation fi rm. Edward O’Dwyer, Tatyana Luneyko and Sean Porter. Find them at hicksmorley.com Our practice is restricted to Civil Litigation with an emphasis on insurance/ personal injury work. We have an immediate opening for a Litigation Associate with two to three years of relevant experience. A solid academic record and With over 115 lawyers in five cities previous involvement in insurance defence work is required. across Ontario, Hicks Morley is Canada’s leading human resources law Please submit resume in confi dence to: firm, representing public and private Indi Wootler sector employers on human resources Gilbert Kirby Stringer LLP law and advocacy issues. 145 King Street West, Suite 1920 Toronto, Ontario M5H 1J8 TORONTO | WATERLOO | LONDON | KINGSTON | OTTAWA Fax: 416-363-1379 | Email: [email protected] 26 • September 26, 2014 THE LAWYERS WEEKLY
Business & Careers Growth of data requires robust governance
CHRIS GROSSMAN in a release of confidential Information Protection and Requirements information, a malpractice Electronic Documents Act echnology has increased claim, a complaint to the law (PIPEDA) and the provincial It is essential that a data gov- T the volume of electronic society, or the theft of some- legislation that supersedes ernance policy outline goals for data that flows through law one’s personal identity. Balan- it — in British Columbia, A failure to take fulfilling the legal requirements practices. Lawyers and support cing the needs for information Alberta, Ontario, Quebec, New appropriate steps of managing data. Different staff often work using comput- accessibility, client confidenti- Brunswick, and Newfoundland types of data have different ers, laptops, tablets and smart- ality and organizational privacy and Labrador — apply to the to protect the requirements; it is important to phones, all of which generate takes skill and planning. collection and storage of this electronic data define these and implement and potentially expose a con- E-mail, draft versions of docu- information. in your office could solutions to meet them. siderable amount of sensitive ments, scanned documents, In some cases, rules and legal First, lawyers should always information. As a result, the voicemail, metadata, and any requirements simply reflect law- result in a release consider whether they need to failure to proficiently store, other information saved and yers’ existing business practices. of confidential collect and retain personal secure and retrieve this elec- stored on servers, hard drives, In other instances, the require- information at all — this is not tronic data is an important risk or disks constitutes data that ments can add further complex- information, a only a requirement of PIPEDA, to mitigate. must be stored securely and ity to how data is managed. malpractice claim, but also good practice that can A failure to take appropriate kept confidential. The Rules of If your storage solutions do a complaint to the law minimize the chance of a data steps to protect the electronic Professional Conduct and pri- not meet professional or legal breach. Secondly, personal data in your office could result vacy laws such as the Personal requirements, you may need to society, or the theft information should only be find a different storage method. of someone’s kept as long as necessary for the Law practices store records that personal identity. fulfilment of the purposes for must be kept for set periods of which it was collected, used or time, depending on the nature disclosed. of the information and the Chris Grossman Following the expiration of needs of the client or firm. If Rand Worldwide any limitation period applic- Announce you don’t know that you are able to such claims, lawyers meeting professional, legal and should destroy or de-identify your own firm’s data standards, the information. In most cir- Your Moves consider either revisiting your cumstances, based on The Lim- data governance policy, or cre- itations Act of 2002, it is con- with Us ating one as soon as possible. backup, archiving and eDiscov- sidered appropriate to destroy At Rand Secure Data, we per- ery systems, you might consider this data 15 years after the formed a survey of more than creating data governance poli- client file was closed. 400 Canadian and U.S. organ- cies that define the use, storage, izations to understand their protection, and retrieval times Solutions data governance current practi- for different categories of com- ces. The 2013 Data Governance pany information. Evaluate the technology solu- Survey found that among par- You can improve data govern- tions you have in place today. ticipants, 44 per cent do not ance and alleviate associated risks Do they support your new gov- have a defined data governance by following these four steps: ernance policies or are they policy. Of these, 78 per cent simply backup systems that plan to produce one, and 82 per Evaluate existing practices may not meet all of your needs? cent of respondents indicated While you obviously need that external regulations dic- The first step to improving data backup and disaster recovery tated parameters related to governance is to understand systems, they are rarely suffi- data storage. what processes you have in cient to meet requirements for In addition to regulatory place today. Most law firms legal compliance or eDiscovery pressures, the sheer growth in have backup and retention poli- requests in a timely, cost-effect- The legal community is in the middle of some the volume of data necessitates cies, but many have not created ive manner. How long, for major changes with lawyers and their teams intelligent information govern- full-fledged governance policies example would it take you to on the move. Many are finding new homes at ance. All study participants including archival procedures pull together all the e-mails, forecast data growth over the and retrieval processes for transactions and documents if established firms. Some have moved with entire next year. The median volume eDiscovery requests. Re-evalu- you are involved in a malprac- practice groups. Still others have decided to of storage was between 20 TB ate them to make sure they tice suit? The success of data open new doors at a new firm. to 50 TB. Companies expect truly meet your needs. governance rests with technolo- data growth of between 26 per No system is perfect, but con- gies that are efficient, reliable Let your community know about your changes. cent and 50 per cent in 2014, tinuously working to improve and capable of implementing Announce your moves in The Lawyers Weekly, with several participants indi- governance increases the value your policies and legal require- cating they expect more than a a firm derives from its data and ments. published every week. 200 per cent increase. reduces the risk from poorly A data governance policy Although most organizations stored data as well. improves your ability to respond view data governance as to legal duties, reduce risk, and important, 40 per cent indi- Create a team to make rules increase data quality. By creat- cated they had no budget allo- ing governance policies and Call us at (905) 415-5807 or (905) 415-5804 cated to technologies that The data governance — defining selecting the right technologies would support governance poli- data categories, security rules to maintain and retain data, to book your space today, or let us put a unique feature cies. The average reported and technology require- you will not only to comply with package together for you. budget for data governance ments — decisions you make the Rules of Professional Con- solutions was between will affect almost everyone you duct and privacy legislation, $200,000 and $500,000. work with. As a result, partners, but also ensure the viability and Faced with legal require- associates, IT managers and integrity of your practice. ments, professional responsibil- administrative managers should ities, privacy concerns, and all be part of the decision-mak- As a senior vice-president, Chris rapidly growing data volumes, it ing process. Once your organiz- Grossman manages the enterprise is imperative that law practices ation has developed a data gov- applications division of Rand have data governance policies ernance policy, communicate it Worldwide, including the Rand LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under licence. © 2014 LexisNexis Canada Inc. All rights reserved. and technologies in place to to all and educate people on Secure Data division. Contact him support them. If you are looking how they can benefit from, and at [email protected] or visit for an alternate to your existing contribute to the policy. www.randsecuredata.com. THE LAWYERS WEEKLY September 26, 2014 • 27
News Divided: Experts split on course taken by judge
Continued from page 1 that one sort of pulls one’s such that McKesson had no “It is my view that the appel- punches, in a sense, but…you opportunity to respond to them.” lant has wrongly accused me of can still make your point stick Justice Boyle pointedly states being untruthful, dishonest and without having to quite go as in his recusal reasons that coun- deceitful,” Justice Boyle far as in this case.” sel are “free to make whatever explained in recusing himself, Devlin noted there is much less arguments they wish, including on his own initiative ex parte, ethical guidance on what law- claiming or denying support in from deciding costs and confi- yers can say in factums versus in the record, the use of emphasis dentiality issues in the McKes- court or on the courthouse steps. and spin, or even trying to argue son case. He suggested McKesson “repre- a case it thinks it can win instead He held that the appellant’s sents a useful opportunity to of the case it has.” factum filed with the Federal reflect upon the limits of the However under “the guise of Court of Appeal last June would adversarial advocacy.” fearlessly advancing and repre- leave a reasonable, fair-minded However, Krishna argued that, senting the interests of McKesson and informed person “with a as a rule, trial judges who feel Canada,” he said the appellant reasoned suspicion or apprehen- they or their decisions are being crossed the line of what is appro- sion of bias, actual or perceived.” unjustly criticized “have to suck priate by wrongly and intention- McKesson contends the judge it up in the sense that there is an ally challenging his “truthfulness, decided unfairly, and acted I have never seen — and appellate procedure, and [the It seems to me that honesty and integrity.” unfairly during the 32-day trial, our system doesn’t trial judge] is protected from on rarely would a factum Bolstering his assertion with including unfairly displaying high by the Court of Appeal.” quotes from the trial transcript, “palpable antipathy” to the com- work on the basis Krishna suggested Justice Boyle ever go this far in Justice Boyle said that “while the pany’s witnesses and counsel of — a trial judge, would better have explained his trashing a judge. appellant may have every right to because he found their evidence in effect, writing reasons for recusal by succinctly seek to challenge the evidentiary to be disingenuous. highlighting the contents of the foundation of my conclusions The judge’s reasons for recusal a supplementary factum he considered impugned Richard Devlin and findings they have simply challenge a number of the appel- judgment defending his impartiality — without Dalhousie University Schulich told clear untruths about me and lant’s assertions, including by defending himself by plunging School of Law what I did or did not say when quoting statements made during his original judgment. into the appeal’s merits. they state that McKesson’s tax the trial by the judge and coun- Devlin wasn’t so sure that the motivation was not ever put to sel, and parts of his transfer- Vern Krishna judge went too far in his reasons. them during the trial and that pricing judgment. University of Ottawa law “It is unprecedented, but I they were therefore deprived of “I believe the appellant was guess I’m not convinced that any opportunity to address it.” telling untruths about me that this is absolutely inappropri- McKesson contends that Jus- go beyond the appellate advo- his 105-page trial decision mud- ate,” he said. “Are judges meant that were not raised in the plead- tice Boyle’s negative view towards cacy craft of colour, spin and dies the legal waters, commented to ‘suffer in silence’ in these ings or argued at trial, but made its whole case is illustrated by his innuendo,” Justice Boyle said of University of Ottawa tax law situations?…If a judge feels their first appearance in the trial “sharp conclusion” in his trans- the appeal factum prepared by professor Vern Krishna. that their own personal integ- judge’s reasons well after the fer-pricing decision that “never Toronto’s Al Meghji and Amanda “I have never seen — and our rity has been called into ques- trial was over.” have I seen so much time and Heale of Osler, and Blakes’ Paul system doesn’t work on the basis tion, again that raises questions McKesson’s counsel declined to effort by an appellant to put for- Schabas and Kaley Pulfer (who of — a trial judge, in effect, writ- within the bar: ‘Is this factum say whether the company will file ward such an untenable position were also trial counsel). ing a supplementary judgment poisoning the well for this judge a motion seeking a new trial based so strongly and seriously.” But the “Canadians should rightly defending his original judgment.” in other cases?’” on the judge’s latest reasons. judge calls it “deliberately mis- expect their trial judges to have He argued the ruling casts “a Krishna focused on the impact “I am not prepared at this time, leading” to “suggest in their fac- broad shoulders and thick skins pall of unfairness” over the on the litigation. “This entire because the matter is before the tum that I wrote this about the when a losing party appeals their impending appeal. judgment of Boyle places [the Court of Appeal, to comment on taxpayer’s whole case as opposed decision,” the judge said. “But I However, Richard Devlin, a appellant] in an extremely what, if any, specific steps we to [one of its expert’s] opinion.” do not believe Canadians think legal ethics professor with the unfair and untenable position in plan to take,” said Meghji, one of Last December, Justice Boyle that should extend to accusations Schulich School of Law at Dal- that, if [it] is not allowed to file the appellate counsel. upheld the CRA’s reduction to of dishonesty by the judge, nor to housie University in Halifax, a supplementary factum [with He said he “respectfully dis- 1.013 per cent the rate that untruths about the judge. Trial said that the factum’s “unusually the Federal Court of Appeal it] is agrees” that the factum went McKesson Canada and its parent judges should not have to defend aggressive” tone, and some of its basically precluded from rebut- beyond the bounds of appropri- company, MIH, used to discount their honour and integrity from wording, target the judge in a ting Boyle’s public allegations in ate appellate advocacy. the face value of McKesson Can- such inappropriate attacks. Eng- “close-to-ad hominem way.” his judgment,” he said. McKesson said in a statement ada’s receivables when MIH pur- lish is a very rich language; the “It seems to me that rarely He argued the judgment is that it stands by its factum “which chased them in 2002. This appellant and its counsel could would a factum ever go this far “more advocacy than it is judi- firmly and properly advances increased McKesson Canada’s tax have forcefully advanced their in trashing a judge,” Devlin cial” and “almost speaks to the compelling arguments grounded payable in 2003 by boosting its chosen grounds for appeal with- said. “In Canada I think there need for a new trial.” in the law and the facts” to over- income by $26.6 million. The out the use of unqualified extreme has always been a sense that we McKesson’s appeal requests a turn the trial decision. judge did not accept that the par- statements which attack the per- do not treat law as a blood new trial before a different McKesson complains the trial ties’ agreed-on discount rate of sonal or professional integrity of sport. One’s got to be a resolute judge, arguing Justice Boyle judgment “is highly critical of 2.206 per cent was within the the trial judge.” advocate for one’s client. One’s “discarded the case pleaded and almost every aspect of McKes- range of what they would have Justice Boyle’s decision to got to put forward the best argued by the parties and son’s case” but “these complaints agreed if they’d been dealing at revisit, and arguably augment arguments possible, so it’s not decided the appeal on grounds were never articulated at trial, arm’s length.
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