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www.mckellar.com THE LAWYERS WEEKLY 1-800-265-8381 Vol. 29, No. 35 www.lawyersweekly.ca January 29, 2010 Top court’s 2009 INSITE VERSUS OTTAWA Highlights track record: Fish ‘The Great Dissenter’ DIRECTORS’ DILEMMA were the most solid majoritari- McLachlin, Binnie, ans in the sense that they did the How directorships expose least concurring and dissenting, lawyers to liability Charron, LeBel, both wrote a total of nine majority or unanimous opinions, and PAGE 9 Rothstein led majorities Justice Charron wrote more unanimous judgments than any- CRISTIN SCHMITZ OTTAWA one else — five. PROTECTING Justice Charron and Justice Chief Justice Beverley Morris Fish spoke most often for PRIVILEGE McLachlin led the Supreme the court on criminal law — Court in more ways than one last although Justice Fish could also How safe are year, reveals a Lawyers Weekly be dubbed “The Great Dissenter” your e-mails? analysis of the Supreme Court’s since he authored in addition jurisprudential output in 2009. nine dissents — more than twice Not only did the chief justice as many as any of his colleagues. write more majority opinions The judges who wrote the than anyone else last year — six bulk of the common law for the — but she also did much of the nation last year — i.e. authored court’s intellectual heavy lifting. the largest total number of ALISTAIR EAGLE FOR THE LAWYERS WEEKLY She penned two judgments unanimous and majority opin- Joseph Arvay was the lead counsel for Insite, a ‘safe injection’ site for addicts, which revolutionized the law of ions — were: Chief Justice which recently won a victory at the B.C. Court of Appeal. See story on page 3 defamation, and co-authored, McLachlin (9) and Justices Page 14 with Justice Louise Charron, a Louise Charron (9), Louis LeBel landmark overhaul of the (9) Marshall Rothstein (9), and framework for the exclusion of Ian Binnie (8). OSCAR WATCH evidence under s. 24(2) of the Justices Rosalie Abella and Letter to judge crossed the line, Charter. Fish also each authored a total Vancouver lawyer/ of seven unanimous or majority judgments — a substantial num- says Quebec Court of Appeal screenwriter nervously ber — but they both wrote in awaits nominations addition an equal or greater what constitutes criticism that is ‘‘ number of concurrences and LUIS MILLAN MONTREAL objective, moderate and dignified,” PAGE 4 One could argue dissents. remarked Pierre Trudel, a law pro- that Justice Marie One could argue that Justice Lawyers can put pen to paper fessor at the Université de Deschamps went her Marie Deschamps went her own to criticize the legal system so long Montréal. “By definition, a criti- LAWYER RATINGS own way most often. way most often. She wrote just as it done with objectivity, moder- cism is not objective. When criti- four unanimous or majority ation and dignity, ruled the Quebec cizing, one does it beginning with Websites rating lawyers: judgments, and penned a total of Court of Appeal in an eye-opening a point of view. So it will probably nine concurrences and dissents. judgment. This may prove to be incite lawyers to be even more a necessary evil? The court’s newest member, the last chapter in a sorry saga that prudent.” PAGE 21 Interesting patterns emerged Justice Thomas Cromwell, witnessed a judge being repri- The case harkens back to 2001 when The Lawyers Weekly exam- showed an individualistic streak manded by his peers and a defense when Quebec lawyer Gilles Doré ined the quantitative and sub- in his writings too. He dissented lawyer suspended for 21 days. filed a complaint before the stantive written output of the in four of the six opinions he But there are misgivings that Canadian Judicial Council (CJC) nine judges in 2009, although it wrote last year, but perhaps little the ruling may produce a chilling over the attitude, conduct and should be borne in mind this is can be deduced from this since effect, prompting lawyers to think behavior of Quebec Superior Court merely a 12-month snapshot (see he only began sitting at the twice before voicing their concerns Justice Jean-Guy Boilard during a table on p. 27). beginning of 2009. about the legal system for fear of bail hearing. Justice Boilard, a dis- Looking at the opinions the Below is a thumbnail sketch being reprimanded by their law tinguished criminal-law specialist, individual judges wrote last year of each judge’s written output in society. has been chastised for his tenden- (as distinct from judgments they 2009 (with apologies for the “The ruling may lead to unease cy to use the bench unjustly to simply signed on to without unavoidable significant omis- and possibly trigger a chilling disparage counsel who appear comment) Chief Justice sions): effect because of the difficulties before him. McLachlin and Justice Charron See Judges Page 27 surrounding the appreciation over See Doré Page 3

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Untitled-2 1 9/24/2009 11:20:52 AM 2 | January 29, 2010 THE LAWYERS WEEKLY www.lawyersweekly.ca NEWS NS Barristers’ Society forecasts future LEGAL BRIEFS Accused polygamist sues for Continuing legal education must address broader issues, says group unlawful prosecution A man once accused of practising Scotia Barristers’ Society, said in “This is the first time the Then there are the challen- polygamy — the charges were sub- DONALEE MOULTON HALIFAX an interview. society has undertaken this ges facing the profession — sequently stayed — is suing the pro- Those issues were explored as comprehensive a consultation,” challenges that “affect lawyers’ vincial government for “unlawful” The future will be signifi- part of the “Futures Project”, said Pink. ability to practise successfully prosecution. cantly different for lawyers in established in late 2008 to Lawyers across the province and to feel good about what According to the statement of Nova Scotia. The provincial address questions surrounding as well as the public were asked they do,” according to the claim filed on behalf of Winston barristers’ society has released a long-term competence for the for their input. The latter, inter- Futures Project — Discussion Kaye Blackmore by lawyer Joseph discussion paper exploring what profession and to consider how estingly, identified one key area Paper. Arvay, former B.C. Attorney General lies ahead for lawyers for con- the practice of law should adapt for improvement. “The public Causing angst for lawyers is a Wally Oppal is alleged to have tinuing professional develop- to reflect the changing times. The told us lawyers need more help diverse array of issues. This “acted in a manner that was high ment and how to competently initiative also in communicating with their cli- includes polarization of legal handed, arbitrary, reckless, abusive, meet the challenges of a brave generated ents,” said Pink. services; conflict between law as improper and inconsistent with the new legal world. Nova Scotia’s The futures team identified a profession and law as a busi- Honour of the Crown and the “The issues facing lawyers first substan- key trends that are shaping the ness; intergenerational conflict; administration of justice.” individually and in firms go far tial research work and work-life of practising and lack of personal satisfac- Special prosecutor Terrance beyond what has traditionally into public lawyers today. Those trends fall tion. Other challenges identified Robertson, appointed on Oppal’s been included in continuing perceptions into four distinct categories: by the Futures Project run the instructions, decided to charge legal education,” Darrel Pink, of the legal demographic, technology, jus- gamut from “flattening of the Blackmore but the charge was executive director of the Nova Pink profession. tice and market. See Futures Page 28 quashed by a B.C. Supreme Court judge who held that an earlier determination not to prosecute was final. CONTENTS The government elected not to Muslim man suffered discrimination appeal that ruling and instead NEWS breach of conduct needs asked the courts to determine re-examining ...... 10 CHIEF JUSTICE Beverley due to terrorism suspicion: B.C. court whether Canada’s polygamy law McLachlin led the SCC in more THE FEDS want the SCC’s opinion is constitutional. ways than one last year, reveals a on the constitutionality of a She said he continued working Lawyers Weekly analysis ...... 1 national securities regulator ...... 19 GARY OAKES VICTORIA for the firm for another 18 months Legal relief for Haiti but problems arose between him LAWYERS CAN criticize the legal HOW THE amended Competition A judicial review has upheld a and management. He believed he In the aftermath of Haiti’s devas- system in writing, so long as it Act will impact trade finding that a Muslim man was was entitled to overtime compen- tating earthquake this month, the done with objectivity, moderation associations ...... 11 the victim of workplace discrimi- sation and insisted that issue be Canadian Bar Association (CBA) and dignity, ruled the Quebec Court announced it would set up a website TAX TIPS on how to exit a nation as a result of an unfounded resolved before he would submit of Appeal...... 1 suspicion he was among those required timesheets. to link Canadians and permanent resi- business ...... 13 responsible for the Sept. 11, 2001 The Tribunal found that Asad dents who wish to sponsor the immi- THE NOVA Scotia Barristers’ Civil Litigation terrorist attacks. was fired for insubordination and gration of Haitian family members Society has released a discussion But Justice Catherine Wedge for no other reason, a finding the with Canadian immigration lawyers paper exploring what lies ahead for WHY COMMUNICATING with also found that the subsequent fir- judge held was reasonable. willing to review the necessary appli- lawyers for continuing professional clients via business e-mail ing of Ghassan Asad was for cause Justice Wedge ruled the cations and paperwork for free. development ...... 2 addresses can be risky ...... 14 and she upheld the award of Tribunal could conclude from the CBA president Kevin Carroll also A JUDICIAL review has upheld a USING COMPETITIVE intelligence $6,000 he received from the B.C. evidence that management was wrote Immigration Minister Jason finding that a Muslim man was the as a litigation strategy ...... 14 Human Rights Tribunal (BCHRT) aware of the discrimination in the Kenney Jan. 13, urging the Canadian government to “take immediate steps victim of workplace discrimination2 for injury to his dignity and costs work place but took no steps to PERSONAL SERVICE rules have of $5,000 for the discrimination eradicate it. to expedite the processing of immi- A DIVIDED B.C. Court of Appeal not kept pace with high security he suffered. President Steven Pelech, who gration applications for those affected has declared that a federal drug measures ...... 16 The B.C. Supreme Court judge helped represent the company in by the earthquake.” law does not apply to a safe noted that in the days before the court (without legal counsel), told Carroll asked the government as injection site for addicts in BUSINESS & CAREERS 9/11 attacks, Asad, who had been The Lawyers Weekly that “we are well to expand its humanitarian assis- Vancouver ...... 3 a citizen of Jordan and lived in very disappointed, but not sur- tance to Haiti by creating a program CANADIAN LAWYERS may not Saudi Arabia before coming to prised with” the decision. to bring here “on a priority basis” VANCOUVER LAWYER/ like it, but websites rating lawyers Canada, visited New York and “The time, energy and expens- Haitians with ties to Canada. SCREENWRITER David Scearce are here to stay ...... 21 Washington while on holidays. es of pursuing this in yet another The CBA noted the government on the success of his adapted A co-worker became suspi- appeal is too costly for me and previously expedited the immigration screenplay for A Single Man ...... 4 COLUMNIST JOHN Starzynski on cious and reported Asad to police; my associates,” he said. “We have applications of more than 400 victims practising mindfulness ...... 23 of Typhoon Ketsana in the Philippines. THE SUPREME Court of Canada's he was questioned by plainclothes decided that we will instead pro- RCMP officers at his Vancouver duce a book based on this whole output in 2009 has prompted some THE WISDOM of the classic job site on Sept. 17 but after some unfortunate affair in [an] New rules coming to Alberta lawyers to suggest that the court book The Terrible Truth About Lawyers ...... 24 further investigation they decided attempt to stimulate radical should take on more cases ...... 6 the report was baseless and closed improvements in the BCHRT The first major overhaul in three HOW TO destress your law the file. hearing process.” decades of the Alberta Rules of Court OPINION office ...... 25 Asad, however, “was trauma- is slated to come on stream Nov. 1. tized” by the experience, the judge Reasons: Kinexus Bioinformatics Corporation The Alberta Law Reform Institute has JEFFREY MILLER ...... 5 reported. v. Asad, 2010 BCSC 33. been working on the mammoth task DEAN JOBB ...... 5 since 2001. The new rules, which are the product of widespread consulta- RICHES, MCKENZIE & HERBERT LLP tion, have not yet been unveiled but FOCUS PATENTS, TRADE MARKS, COPYRIGHT, LITIGATION Alberta’s Justice Department is said to be nearly finished the final version, Business Law DEPARTMENTS BARRISTERS & SOLICITORS - PATENT & TRADE MARK AGENTS which will be posted on the website LAWYERS FACE potential PAUL HERBERT, R. PH, B.SC., PHM., LL.B., PH.D. BRANT LATHAM, B.A.SC. B.SC. (CHEM. ENG.), LL.B. of Alberta’s Queen’s Printer. The new DAN HITCHCOCK, B.ENG. (ELEC. ENG.), LL.B. GARY M. TRAVIS, B.SC. (GEOL.), LL.B. conflicts of interest when taking on Announcements...... 25 rules are designed to be clear and to Legal Briefs ...... 2 JEFF PERVANAS, B.A.SC. (ENG. SCI.), LL.B. JASON LEUNG, B.SC. (GENETICS), J.D. directorships ...... 9 MICHAEL ADAMS, B.ENG. (MECH. ENG.), B.SC., LL.B. BOBBY ATHWAL, B.A.SC. (MECH. ENG.), M.A.SC., LL.B., J.D. assist people access a speedy, cost- Names in the News...... 4 efficient and fair civil justice system. CLASS ACTION litigation has Lawddities...... 16 Alberta Justice is working with the promoted an increase in private TRADE MARK AGENTS LEONARD GROVE (1930-2006) Weekly Digest ...... 17 MARTA TANDORI CHENG Legal Education Society of Alberta to competition suits ...... 9 Classified Ads ...... 20 TELEPHONE: (416) 961-5000 2 BLOOR ST. EAST, SUITE 1800 FAX: (416) 961-5081 develop training materials, in consul- Careers ...... 21 WHY LIABILITY for inducing TORONTO, ONTARIO M4W 3J5 E-MAIL: [email protected] tation with court representatives. www.lawyersweekly.ca THE LAWYERS WEEKLY January 29, 2010 | 3 NEWS BCCA says criminal law does not apply to injection site Act (CDSA). deals with “the extent to which other. In this case, its application cation of the sections in question GARY OAKES VICTORIA Josee Bellemare, press secre- Parliament may use its criminal would prevent two provisions of “would engage the s. 7 [Charter] tary to Health Minister Leona law power to intrude on the gen- the CDSA from sterilizing essen- interests of life, liberty and secu- A divided B.C. Court of Appeal Aglukkaq, told the national legal eral jurisdiction of the provinces tial elements of a provincial rity of the person of the personal has declared that a federal drug newspaper that while the govern- in health matters...” undertaking, and would do so respondents in the PHS action... law does not apply to the safe ment of Canada “respects the And the exemption granted by without undermining the federal and... would not accord with the injection site for addicts in court’s decision, it is disappointed Parliament to the minister “left criminal law power to any signifi- principles of fundamental justice Vancouver’s notorious Downtown with the outcome. no room for a provincial govern- cant degree.” because of overbreadth.” Eastside because of the doctrine “The Government is reviewing ment’s view of the public inter- Ryan Dalziel, lead lawyer for And she doubted the accuracy of interjurisdictional immunity. the decision carefully,” she added. est....” the B.C. Civil Liberties Association, of Canada’s claim “that the opera- Joseph Arvay was the lead “Until this review is complete, The law as it stands essentially told The Lawyers Weekly that the tion of Insite is controversial in a counsel for the PHS Community it would be inappropriate to spec- “means Parliament has an effec- majority judg- policy sense. In this province, Services Society (PHS) which ulate on future action on the part tive veto over provincial health ment “shows there is no longer any serious operates the Vancouver Safe of the Government of Canada.” care services, to the extent its use that, in the right debate about the need for Insite Injection Site (Insite). After a trial in B.C. Supreme of the criminal power can be jus- circumstances, as a health care facility.” He told The Lawyers Weekly Court, the sections in question tified by the potential for harm to courts will be The government’s appeal was that the majority judgment “was a were declared constitutionally public health or safety.... prepared to dismissed as moot. triple whammy: the law violated invalid as being inconsistent with “The provision of health care accept the In dissenting reasons, Justice the doctrine of interjurisdictional s. 7 of the Charter. But the judge services is what makes a hospital Supreme Court Daphne Smith would have immunity, it violated s. 7 of the dismissed PHS’s application for a a hospital, what makes health Dalziel of Canada’s invi- allowed Canada’s appeal. Charter and the government has declaration that the sections don’t care a provincially-regulated tation to treat John Conroy, lead counsel for to pay not just costs, but special apply to Insite by reason of the activity. It is the indisputable interjurisdictional immunity as a the Vancouver Area Network of costs. I call that a good day for the interjurisdictional immunity doc- intrusion of the federal govern- reciprocal doctrine, rather than Drug Users (VANDU), told The ‘little guys’ especially for the trine. Canada appealed and PHS ment into the provision of medi- one exclusively for the benefit of Lawyers Weekly that “I think the downtrodden people we repre- cross appealed. cal services at the level of doctor the federal government. decision is very good as far as it sented who hardly ever have a Justice Huddart pointed out and patient that is happening at “By protecting certain provin- goes in finding that... Insite is a good day.” that the Insite workers supervise Insite. Could Parliament legislate cial decision-making from federal hospital and the Provincial Health Appellate Justice Carol addicts injecting themselves with to effectively prohibit a doctor interference, the decision brings jurisdiction covers it so that what Huddart explained that the fed- illegal drugs using clean needles. from using a scalpel? about an incremental but signifi- the staff do there is not against eral health minister temporarily They don’t provide the drugs or “This is precisely the restrained cant shift in favour of provincial the law and the site can continue exempted Insite workers from inject them but what they do is “a use of the interjurisdictional powers,” Dalziel added. to operate.” prosecution for possession and vital part of the facility’s health immunity doctrine the jurispru- In concurring reasons for trafficking of illegal narcotics services to that population.” dence supports: to prevent intru- allowing PHS’s cross-appeal, Reasons: PHS Community Services Society under ss. 4(1) and 5(1) of the The case is not about a lifestyle sive incidental effects by one leg- Justice Anne Rowles said the evi- v. Canada (Attorney General), [2010] B.C.J. Controlled Drugs and Substances choice, she insisted. Instead, it islature on the domain of the dence establishes that the appli- No. 57. The Code can violate a lawyer’s freedom of expression under certain circumstances

Doré tee, accusing Doré of writing a ments must be satisfied, including right to freedom of expression, (Disciplinary) Committee pro- Continued From Page 1 disrespectful letter, that lacked that the measures adopted must be does meet an “important objec- scribed was the biased conduct, objectivity, moderation and digni- rationally connected to the objective” that justifies overriding a the immoderate or indignant com- The CJC decided not to recom- ty, thereby contravening s. 2.03 of tive, the measures adopted should Charter right. ments” of a member of the legal mend any investigation pursuant the Quebec Code of ethics of advo- cause minimal impairment to the “The first conclusion that the profession, said Justice Rochon. to subs. 63(2) of the Judges Act cates (Code). The disciplinary right or freedom in question, and Quebec Court of Appeal reaches is “The lawyer can certainly draft (Act), but nevertheless expressed committee found Doré guilty of there must be proportionality that s. 2.03 of the Code can under criticism toward the legal system disapproval of the judge’s “lack of the infraction, and suspended him between the effects of the measures certain circumstances violate a and all those who are part of it, but patience and excessive remarks.” from practising for 21 days. Doré limiting the right or freedom and lawyer’s right to freedom of expres- he must do it with objectivity, Following the rebuke, Justice appealed the verdict before the the objective identified as being sion,” explained noted Montreal moderation and dignity. That does Boilard, who at the time was pre- Professions Tribunal and Quebec sufficiently important. criminal lawyer Jean-Claude not prevent criticism from being siding over the large, complex and Superior Court, both of whom Hébert. “It takes into consider- robust, even severe.” costly Hells Angels megatrial, rejected the appeal. ation the context and rules that While the court determined withdrew from the case because While upholding the rulings by apply to professionals such as law- that subs. 2.03 of the Code also he felt he no longer had the moral the lower courts, the Quebec Court yers and determines that the exer- passed the proportionality test, authority to be a courtroom arbi- of Appeal found that writing let- The‘‘ lawyer can cise of a profession is not a right in stating that the Charter breach trator. That decision prompted the ters is a constitutional right, and certainly draft itself. It is a privilege. When you under the circumstances was rea- Attorney General of Quebec to ask that the disciplinary decision vio- obtain a license to practise from sonable, Professor Trudel found it the CJC to launch an inquiry into lated the appellant’s freedom of criticism toward the Barreau, you accept the fact to be wanting. whether Justice Boilard’s decision expression. “It remains now to the legal system that you must respect the Barreau’s “While acknowledging that the to abandon the megatrial consti- determine whether this decision is and all those who regulations, including its Code of letter was offensive and that it tuted misconduct or grounds for a reasonable restriction that can Ethics which stipulates that law- deserved a reprimand, it remains removal under the Act. The CJC be justified in a free and demo- are part of it, yers must act with moderation that the scope of subs. 2.03 is very concluded that the decision was cratic society,” said Justice André but he must do it and dignity.” large,” said Trudel. “Demanding “improper but not grounds for Rochon in an 18-page ruling. The court also held that s. 2.03 that lawyers express themselves removal.” Informed by the two-step pro- with objectivity, of the Code passed the three-prong with objectivity, moderation and At around the same time that cess outlined by the Supreme moderation test. “Sanctioning the incongruous dignity is excessively vague, and defense lawyer Gilles Doré filed a Court of Canada in R. v. Oakes, and dignity. conduct of a lawyer whose mali- one can go even so far as to won- complaint before the CJC, he [1986] S.C.J. No. 7, the appeal cious comments, and in this case der whether it is really propor- wrote a personal letter to Justice court noted that the objective of that is a understatement, cannot tional to the objective sought by Boilard, criticizing him for being the legislation must be shown to be but have a rational connection the regulation, which is to ensure pedantic, cantankerous and petty. sufficiently “pressing and substan- with the importance of promoting that lawyers conduct themselves The letter, replete with insults and tial” to warrant overriding a Doré argued that the respon- justice and the judicial system,” in a respectful fashion toward the personal attacks according to the Charter right, and that the means dents failed to demonstrate the said Justice Rochon. legal system.” Quebec Court of Appeal, was adopted to attain that objective Charter breach was justified, but Noting that subs. 2.03 of the The Barreau declined to com- handed to Quebec Superior Court must be reasonable and demon- in a unanimous judgment the Code does not prohibit, in an ment, as did Doré’s lawyer. Chief Justice Lyse Lemieux, who strably justified. This step entails a Quebec Court of Appeal rejected absolute fashion, the appellant’s forwarded it to the investigating proportionality test in which the his argument. The court held that freedom of expression, the court Reasons: Doré c. Bernard, 2010 QCCA 24. officer of the Barreau du Québec. courts are required to balance the the objective behind s. 2.03 of the held the article in question causes The officer filed a complaint before interests of society with those of Code, which can under certain minimal impairment to the All quotes translated from French the Barreau’s disciplinary commit- individuals or groups. Three ele- circumstances violate a lawyer’s Charter right. “What the by the author. 4 | January 29, 2010 THE LAWYERS WEEKLY www.lawyersweekly.ca Names in the News NEWS

MOVES Lawyer by day, screenwriter by night Ogilvy Renault LLP has opened a new Calgary office, providing domestic and international clients Name: with specialized energy law ser- David Scearce vices. Scott “Rusty” Miller is the Law school: Calgary office’s managing partner. University of British Columbia Miller was previously vice-presi- Called to the Bar: dent and general counsel at Petro- 1993 Canada (now Suncor Energy Inc.) and a member of the company’s Career highlights: executive leadership team. The rest of the new team were lured 1992 Articled with Fraser from some of the top law firms in & Beatty the country. Nick Kangles, previously with Stikeman Elliott LLP, 1993 Joined Justice Canada, Miles Pittman previously with B.C. regional office Fraser Milner Casgrain LLP, Ben Rogers previously with Blake Cas- 2005 Screenplay for A Single sels & Graydon LLP and Michael Man accepted for filming Bennett previously with McCarthy Tétrault LLP round out the new Cowtown team. In Toronto, Don Jack has joined Heenan Blaikie LLP as a litigation. LAWYER OF THE WEEK Jack is a civil litigator who focuses his practice on commercial dis- David Scearce putes, professional liability, class actions, constitutional, competi- ten on spec. He casually knew training, a federal lawyer recruited ers and books about how to write tion and securities law and appel- MICHAEL BENEDICT TORONTO Isherwood’s long-time partner him to the justice department in screenplays. He even took a week- late advocacy. Deborah Salz- who held the book’s literary rights 1993. He soon moved to the end course on storytelling. berger has joined Blakes’ David Scearce is hoping for a and encouraged Scearce to tackle Aboriginal affairs unit where he It took him eight weeks to com- Competition, Antitrust & Foreign 5:30 a.m. wake-up call soon. On the story. has remained. plete the screenplay for A Single Investment Group as a partner. Tuesday, Feb. 2 the Oscar nomi- Scearce did not set out to “There’s tremendous variety,” Man. “I loved it,” he says of the Salzberger has extensive experi- nations will be announced pre- become a writer. In fact, he did Scearce says. writing process when it went well. ence advising clients on competi- dawn in Hollywood and in not take a single literature course “Estates, governance and land “It’s similar to the law where you tion/antitrust and foreign invest- Vancouver where Scearce, 44, is a as an undergraduate at Wilfrid development. I specialize in leas- are constantly trying to find cre- ment review issues in the context federal government lawyer by day, Laurier University. Instead, he ing of reserve lands that formally ative ways to achieve your goal.” of mergers and acquisitions. She screenplay writer by night. His studied business, intending to belong to the Crown.” In his limited spare time, also provides competition law adaptation of A Single Man, the enter politics, a childhood dream Politics is now a rejected dream. Scearce helps his same-sex part- compliance advice for criminal Christopher Isherwood novel since growing up in Burlington, “It’s become much more polarized, ner of 14 years, a university pro- cartel matters and reviewable about a gay college professor Ont. And to be successful in even vicious,” he says. “That’s not fessor, run an animal sanctuary practices, including marketing, mourning the death of his long- politics, Scearce fig- the life I want.” on Mayne Island where they advertising and distribution issues. time partner, is considered an ured he should also Got news? Another dream have a 2.5-acre property. “Orphan early favourite for an Oscar nod in be a lawyer. took its place. Says animals seem to find us,” he says. several categories, including But before he Contributions to Scearce: “I always “It’s lots of responsibility and AWARDS adapted screenplay and best actor. went to law school, Names in the News read a lot and keeps me anchored.” Colin Firth, who plays the lead, he spent a year on can be e-mailed to always tried to Scearce has been approached Cassels Brock LLP lawyer won best actor at the Venice Bay Street working write. I did some to do other film projects, but he’s Eunice Machado, a partner in the International Film Festival where for Lloyds Bank. A [email protected] short stories, but unsure whether he wants to make firm’s Commercial Litigation Group, the film had its world premiere in “spirit of adven- never sent any to the career shift that would likely has been selected as a recipient of September to a standing ovation. ture” drew him to publishers. I knew entail. He found the red carpet the 2010 Federation of Portuguese Nomination or not, Scearce is Vancouver and the University they were not good enough.” treatment “surreal” at A Single Canadian Business and Profes- feeling pretty special. “It’s like win- of British Columbia’s law A film buff since childhood, Man’s Hollywood opening in sionals’ Excellence Awards. ning the lottery,” he says of his school. “I wanted change, but Scearce realized that when read- November. Machado was recognized for her work appearing in cinemas around intended to return to Bay ing fiction he imagined what the “Cameras were flashing and several contributions over the the world. “There’s lots of screen- Street,” Scearce recalls. “Then, I story would look like on the screen. people were calling out my name,” years including: volunteering for plays around. Fewer get made, and fell in love with the place.” Knowing nothing of screenwrit- Scearce says. “Two days later, I was Downtown Legal Services, fewer have this success.” Upon graduation, Scearce arti- ing, he tackled the subject as law- back at work.” chairing the United Way campaign Even more remarkable is that cled with Fraser and Beatty in yer’s work — through diligent For now he’s dreaming about at Cassels and co-chairing the A Single Man is Scearce’s first fin- Vancouver, now Fraser Milner research. He read screenplays, that wake-up call and another Women’s Franchise Network. ished screenplay. And it was writ- Casgrain LLP. During his bar read books about screenplay writ- walk down the carpet.

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The Lawyers Weekly Pauline Braithwaite Gary Oakes, Victoria (416) 340–1981; Fax: (416) 340–8724 is a registered trademark of LexisNexis Canada Inc. www.lawyersweekly.ca THE LAWYERS WEEKLY January 29, 2010 | 5 NEWS Opinions Posner’s conversion on the road to regulation You might call it the conversion than his own hangnail;... or that on the road to Marshall Field’s. OFF THE RECORD the pain an impoverished buyer Judge Richard Posner, a founder might sustain when the law of the Chicago-based law-and- deprives him of the freedom to economics movement, has become JEFFREY contract to purchase a television a Keynesian. MILLER set on burdensome credit terms is Heretofore a curmudgeonly less than the pain that a buyer jurist in the Judge Judy vein — would sustain in the future when lippy, moody, and of the “Get a Thus grew up the legal fiction, he loses essentials such as food and job!” school of social work — he’s “economic man.” The reasonable clothing he would otherwise be lately testified in the religious man is “always thinking of others,” able to purchase.” sense, in The New Republic for last as A.P. Herbert put it in his memo- Gleefully, Judge Posner has September, with his “How I rable characterization. “Prudence pushed the envelope in pushing Became a Keynesian.” And though is his guide, and Safety First ... is back. Most infamously, perhaps, he Judge Posner is notorious for pro- his rule of life.” But the economic once suggested that mothers nouncements with intellectual man thinks of others only in rela- should sell their unwanted children shock-and-awe potential, this is his tion to what they can do for him. rather than putting them up for first turn to the leftish since he He is the character created on the adoption, as this was more efficient went hard right in the 1960s. original Saturday Night Live by Al in terms of cost-benefit analysis. A man of great learning and Franken, for whom everything on Then there was the time he wrote accomplishment — he was a pro- the planet, from global climate that black women were more often fessor at the University of Chicago change to the market for unpas- overweight than their white coun- School of Law when President teurized cheese in Uganda or terparts because the paucity of eli- Reagan appointed him as a judge Rhode Island, mattered only inso- gible black males dissuaded the to the Seventh Circuit Court of far as “How do they affect me, Al black women from the work of Appeals, and he is a leading figure Franken?” Where the reasonable keeping fit: the cost relative to the not just in the law-and-economics man “will inform himself of the potential pay-off was too high. tsunami that has swept over law history and habits of a dog before The judge was at pains, in other MICHAEL L. ABRAMSON / TIME & LIFE PICTURES / GETTY IMAGES schools in the last thirty years, but administering a caress,” economic words, to show how hard-bitten Judge Richard Posner of Chicago circuit court of appeals is also the principal right-wing, man will ask himself, “Is patting law and econ could be. (Kevin “where’s the payoff?” critic in law- this perhaps lost dog a waste of O’Leary, you are older than old enough and is too cozy with the and econ. Appearing to enjoy “his and-literature studies — Judge time I could otherwise use reading hat.) But now he’s telling us that bankers, and others say that it is new role as heretic,” Cassidy writes, Posner grew up in a socialist The Wall Street Journal, or should maybe he went a little too far. doing too much, heedless of long- Posner “paused, then said, ‘So milieu. His mother was a commu- I caress it on the off-chance that it Maybe the government really term consequences.... Baffled by probably the term “Chicago school” nist who supported the Rosenbergs. belongs to someone of wealth and should intervene, regulate, and the profession’s disarray, I decided should be retired.’ ” But apparently he felt dismayed by power who gratefully will offer me stimulate... and the rest of us I had better read [Keynes’s] Really? Regulation is now de the free-for-all ethos of the 1960s, really good investment advice?” should spend, spend, spend, all as General Theory [of Employment, rigueur, perhaps, but literary and his congenital grit took him In a famous essay from 1988, John Maynard Keynes suggested. Interest, and Money]. Having done woman has yet to see her bonus. the other way — to the contention the left-leaning law-lit professor Recently “we have learned,” Judge so, I have concluded that, despite that legislators should legislate, Robin West proposed an antidote, Posner admits in his New Republic its antiquity, it is the best guide we Jeffrey Miller is a writer, and judges should decide, always “literary woman,” capable of far- piece, “that the present generation have to the crisis.” adjunct professor of law and litera- with an eye to what is most eco- reaching empathy, partly because, of economists has not figured out Breathtakingly prolific as a ture in the law faculty of the Uni- nomically efficient. And mostly, contrary to Judge Posner’s law-lit how the economy works.” But “now writer, Posner is now writing a versity of Western Ontario, and a because we know what’s best for views, she is morally educated by a majority of economists are in book on this view. He recently told freelance French-English trans- ourselves, whether we are invest- good literature. “Economic man is general agreement with the Obama John Cassidy of The New Yorker lator. His latest book is the comic ing in asset-backed securities or peculiarly incapable of the empath- administration’s exceedingly that deregulating the U.S. financial novel Murder on the Rebound. blowing all the child support in Las ic knowledge quite common in the Keynesian strategy for digging the sector was a mistake, never mind Vegas, law makers and triers rest of us,” West writes, “that his economy out of its deep hole. Some that this approach was a basic We want to hear from you! should keep their noses out. neighbor’s broken leg hurts more say the government is not doing tenet of his “Chicago school” of law Email us at: [email protected] The Supreme Court of Canada finally catches up to journalists’ realities OPINION Cusson, which created the libel with “matters of public interest,” tice “gotcha” journalism. ernment obviously fall within the defence of responsible communica- and the court’s views on what con- More importantly, the subject definition, the court added, but this tion on matters of public interest. If stitutes the public interest have not need not be one of national impor- is only a starting point. “The public the media prints or broadcasts received the attention they deserve. tance or of interest to a wide audi- has a genuine stake in knowing DEAN JOBB erroneous information or unprov- First, the trial judge — this is ence. It is sufficient that “some about many matters, ranging from en allegations that damage some- matter for the judge, not the jury segment of the public” has “a genu- science and the arts to the environ- one’s reputation, a libel claim may — must consider whether the arti- ine interest in knowing about the ment, religion, and morality.” Journalists — the serious ones, be defeated if the journalists cle or broadcast as a whole deals matter published.” This broad definition is crucial at least — insist they cover the news involved acted ethically and with a subject of public interest, Stories about politics and gov- See Jobb Page 8 in the public interest. We don’t responsibly in reporting the news. rather than examining the defama- have to take their word for it — The defence, which shifts atten- tory statement in isolation. Canada’s courts have acknowl- tion from what was reported and The Supreme Court, finding no edged the media’s watchdog role focuses on how it was reported, is single test in Canadian or over government and public insti- being hailed as a significant boost Commonwealth jurisprudence for tutions, and stressed the impor- for freedom of the press, and right- assessing the public interest in a tance of a free press to our demo- ly so. As Chief Justice Beverley news story, devised its own. Public cratic system of government. McLachlin noted in Grant, the law interest “is not synonymous with So it’s surprising the Supreme should protect individuals against what interests the public,” the court Court of Canada has only now “baseless attacks on reputation” but noted. While the prominence of the hammered out a detailed definition defamation actions or threats to people involved is a factor, this does of the kinds of media reports that sue “should not be a weapon by not extend to “mere curiosity or should be recognized, in law, as which the wealthy and privileged prurient interest” in the private produced in the public interest. stifle the information and debate lives of public figures or celebrities. The definition is set out in the essential to a free society.” In other words, the court is not court’s Dec. 22, 2009, rulings in The defence is only triggered if giving the media a green light to Grant v. Torstar Corp. and Quan v. the news report under attack deals invade people’s privacy or to prac- 6 | January 29, 2010 THE LAWYERS WEEKLY www.lawyersweekly.ca www.lawyersweekly.ca THE LAWYERS WEEKLY January 29, 2010 | 7 NEWS NEWS Supreme Court judgments fell in 2009: Half of top court’s winter term not booked appeals (albeit one appeal was Brown, who has been writing on the Bar three years ago when the ed in 2009, [which is] a consid- By comparison, the average gested the court would optimally The SCRs show the Supreme because the court counts the same issue were heard together CRISTIN SCHMITZ OTTAWA quashed at the last-minute). the court’s leave-granting practic- court issued only 55 judgments. erable decline from the 15-year number of judgments in the previ- hear and decide, on average, Court rendered judgments as fol- number of appeal files resolved, over two days). Thirteen sitting days remain es for three decades. “Of course the court must find average of between 70 and 75 ous decade was 112, fluctuating between 75 and 80 cases annually. lows: 2009 (62); 2008 (72); 2007 not the judgments rendered. So if The court reserved judgment The Supreme Court of Canada empty. There is one appeal booked Brown, of Ottawa’s Gowlings a level at which it can hear and applications.” from a high of 144 judgments in “If you filled in all the blanks in (55); 2006 (59); 2005 (87); 2004 three appeals are argued together Jan. 18 in Vancouver v. Ward, an issued 62 judgments and heard for February. told The Lawyers decide cases in a timely way,” A Lawyers Weekly search of 1990 to a low of 80 judgments in their schedule that... would permit (83); 2003 (74); 2002 (86); 2001 and the court issues just one set of appeal which deals with whether 64 cases in 2009, prompting A leading Supreme Court agent Weekly the num- Brown concedes. “It does appear the Supreme Court Reports 1999 (the volume declined over 15 more appeals per year, and that (94), and 2000 (69). reasons for judgment, the court and when damages are available some lawyers to suggest that the argues the court is simply turning ber of cases the to have shortened the time (SCRs) confirms that the top both decades as successive catego- would mean 15 areas of law where (Official court statistics for statistics report this as three as a remedy under s. 24(1) of the top court should consider taking away too many meritorious cases. court hears and between the grant of leave and a court’s volume of judgments has ries of as-of-right appeals were there is greater certitude in terms 2009 indicate the judges rendered appeals heard and three judg- Charter when the person who on more cases. “I think lawyers across the country decides “is on a decision on appeal. But the price declined over the past 10 eliminated and the court gained of litigation practice, and a dimi- 70 judgments and heard 72 ments rendered.) breached the Charter right did so Meanwhile, in the current win- are concerned with the general- downward has been reduced access to the years — from a high of 94 in 2001 near-total control over its docket). nution of unnecessary litigation appeals. However the SCRs iden- The court’s winter session fea- without committing a tort, show- ter session from Jan. 11 to March ized reduced access to the Supreme trend.” This court. The 2009 results on leave to a low of 55 in 2007. The aver- Another prominent Supreme overall, which is itself a salutary tify 62 judgments for 2009. The tures 15 separate cases (techni- ing bad faith, or abusing his power. 26, the court has booked only 14 of Court of Canada in both civil and echoes a similar to appeal do not bode well since age annual number of judgments Court agent, Eugene Meehan of result,” said Meehan, a former number of appeals heard was cally there are 20 appeals, but The B.C. courts awarded the its 27 scheduled days for hearing criminal cases,” contends Henry Brown complaint from only 60 applications were grant- from 2000 to 2009 was 74. Ottawa’s Lang Michener LLP, sug- executive legal officer at the court. about 64. The discrepancies exist half-a-dozen cases that raised the See SCC Page 8

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6 | January 29, 2010 THE LAWYERS WEEKLY www.lawyersweekly.ca www.lawyersweekly.ca THE LAWYERS WEEKLY January 29, 2010 | 7 NEWS NEWS Supreme Court judgments fell in 2009: Half of top court’s winter term not booked appeals (albeit one appeal was Brown, who has been writing on the Bar three years ago when the ed in 2009, [which is] a consid- By comparison, the average gested the court would optimally The SCRs show the Supreme because the court counts the same issue were heard together CRISTIN SCHMITZ OTTAWA quashed at the last-minute). the court’s leave-granting practic- court issued only 55 judgments. erable decline from the 15-year number of judgments in the previ- hear and decide, on average, Court rendered judgments as fol- number of appeal files resolved, over two days). Thirteen sitting days remain es for three decades. “Of course the court must find average of between 70 and 75 ous decade was 112, fluctuating between 75 and 80 cases annually. lows: 2009 (62); 2008 (72); 2007 not the judgments rendered. So if The court reserved judgment The Supreme Court of Canada empty. There is one appeal booked Brown, of Ottawa’s Gowlings a level at which it can hear and applications.” from a high of 144 judgments in “If you filled in all the blanks in (55); 2006 (59); 2005 (87); 2004 three appeals are argued together Jan. 18 in Vancouver v. Ward, an issued 62 judgments and heard for February. told The Lawyers decide cases in a timely way,” A Lawyers Weekly search of 1990 to a low of 80 judgments in their schedule that... would permit (83); 2003 (74); 2002 (86); 2001 and the court issues just one set of appeal which deals with whether 64 cases in 2009, prompting A leading Supreme Court agent Weekly the num- Brown concedes. “It does appear the Supreme Court Reports 1999 (the volume declined over 15 more appeals per year, and that (94), and 2000 (69). reasons for judgment, the court and when damages are available some lawyers to suggest that the argues the court is simply turning ber of cases the to have shortened the time (SCRs) confirms that the top both decades as successive catego- would mean 15 areas of law where (Official court statistics for statistics report this as three as a remedy under s. 24(1) of the top court should consider taking away too many meritorious cases. court hears and between the grant of leave and a court’s volume of judgments has ries of as-of-right appeals were there is greater certitude in terms 2009 indicate the judges rendered appeals heard and three judg- Charter when the person who on more cases. “I think lawyers across the country decides “is on a decision on appeal. But the price declined over the past 10 eliminated and the court gained of litigation practice, and a dimi- 70 judgments and heard 72 ments rendered.) breached the Charter right did so Meanwhile, in the current win- are concerned with the general- downward has been reduced access to the years — from a high of 94 in 2001 near-total control over its docket). nution of unnecessary litigation appeals. However the SCRs iden- The court’s winter session fea- without committing a tort, show- ter session from Jan. 11 to March ized reduced access to the Supreme trend.” This court. The 2009 results on leave to a low of 55 in 2007. The aver- Another prominent Supreme overall, which is itself a salutary tify 62 judgments for 2009. The tures 15 separate cases (techni- ing bad faith, or abusing his power. 26, the court has booked only 14 of Court of Canada in both civil and echoes a similar to appeal do not bode well since age annual number of judgments Court agent, Eugene Meehan of result,” said Meehan, a former number of appeals heard was cally there are 20 appeals, but The B.C. courts awarded the its 27 scheduled days for hearing criminal cases,” contends Henry Brown complaint from only 60 applications were grant- from 2000 to 2009 was 74. Ottawa’s Lang Michener LLP, sug- executive legal officer at the court. about 64. The discrepancies exist half-a-dozen cases that raised the See SCC Page 8

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8 | January 29, 2010 THE LAWYERS WEEKLY www.lawyersweekly.ca NEWS Jury will assess the quality of each newspaper’s reporting Jobb gations were “certainly of public entrusted by the state with protect- unequivocal: “Care must be taken assess the quality of each newspa- Continued From Page 5 interest” but not “in the public ing public safety,” Chief Justice by the judge... to characterize the per’s reporting. interest to the extent that they McLachlin noted. subject matter accurately. Overly And in future, journalists, law- to expanding press freedom, needed to be heard.” While that In Grant, the Toronto Star was narrow characterization may inap- yers and judges alike will have a because the judges who heard the conclusion was reached in assess- sued over a story that accused a propriately defeat the defence at better sense of whether a news libel cases under appeal took a nar- ing whether the traditional libel businessman of using political con- the outset,” it cautioned. In this report is of sufficient public interest row view of what constitutes the defence of qualified privilege nections to win the right to develop case, the story probed a develop- to be defensible in court. public interest. In Quan, for applied, the Supreme Court made a golf course on Crown land in er’s ties to the political party in instance, the Ottawa Citizen was it clear this is too narrow an inter- Northern Ontario. The trial judge power, raising issues of govern- Dean Jobb, author of the text- sued for accusing an Ontario police pretation for the new responsible in that case found the story was of ment conduct that were “clearly in book Media Law for Canadian officer of hindering the search for communication defence. interest to only a limited audience the public interest.” Journalists (Emond Montgomery survivors of the 9-11 terror attacks “The Canadian public has a vital of local residents and not to the With new trials ordered in both Publications), is an associate pro- on the World Trade Center. interest in knowing about the pro- wider public. cases and the “public interest” test fessor of journalism at the Univer- At trial the judge ruled the alle- fessional misdeeds of those who are Again, the Supreme Court was satisfied, it will be up to a jury to sity of King’s College in Halifax.

Litigation Services Pickton appeal to be heard in March SCC Continued From Page 7

respondent Vancouver lawyer, $10,100 for his strip search, Win More. wrongful imprisonment for four hours, and the unreasonable seizure of his car by police. Police Get control of the facts. Take command in the courtroom. picked up Cameron Ward because they thought he somewhat matched the description of a per- • Efﬁciently organize and evaluate relationships among son who was reportedly planning to throw a pie at then-Prime the facts, research, and critical case documents Minister Jean Chretien at the opening of the Millennium Gate in to create an air-tight theory of your case with Vancouver in 2002. award-winning CaseMap® case analysis software. On Jan. 19, in a one-sentence 9-0 oral judgment from the Bench, • Expertly manage and control any volume of Chief Justice Beverley McLachlin upheld the constitutionality of electronically stored information and paper documents new Criminal Code and Canada Evidence Act procedures which from collection, to review, to production, with integrated allow child complainants in sexual end-to-end discovery solutions LAW PreDiscovery™ assault cases to testify on a prom- ise to tell the truth, and to testify and Concordance®. behind screens so they can’t see the accused. The Supreme Court • Effortlessly create timeline visuals that help you tell endorsed the reasons of the B.C. Court of Appeal below which held your story clearly and succinctly with TimeMap® that neither procedure violates an accused’s fair trial rights. timeline software for case analysis. On Jan. 21, the Supreme Court reserved judgment on six far- • Streamline your litigation workﬂow with LexisNexis® reaching appeals, heard over two days, which ask: Must plaintiffs Litigation Services, providing you with what you seeking damages in provincial need to win more. superior court from the federal Crown in relation to an administrative decision first apply for judicial review in the Federal Court? For a free demonstration, call 1-800-668-6481 Put differently, does the Federal or visit: www.lexisnexis.ca/litigationservices Court’s exclusive jurisdiction over judicial review, contained in s. 18 of the Federal Courts Act, oust the jurisdiction of the provincial superior courts over civil actions against the federal Crown? On March 25, the court will hear Robert Pickton’s appeal of his six second-degree murder convictions. He contends he suffered a LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under licence. CaseMap and TimeMap are registered trademarks of LexisNexis CourtLink Inc. Concordance is a registered trademark and PreDiscovery is a trademark of Applied Discovery Inc. miscarriage of justice because the © 2010 LexisNexis Canada Inc. All rights reserved. trial judge erred in his charge to the jury. www.lawyersweekly.ca THE LAWYERS WEEKLY January 29, 2010 | 9 FOCUS ON Business Law Private competition suits gain momentum

MARK KATZ

One of the historical distinc- tions between competition law enforcement in Canada and the U.S. has been the much smaller role played in Canada by private litigation, as opposed to government-instituted enforcement. Canadian law has for decades permitted plaintiffs to sue for damages caused by conduct vio- lating the Competition Act’s criminal offences. However, it is only recently, with the advent of class action litigation, that private competition suits in Canada have been anything more than sporadic. Two recent decisions — one by the Ontario Superior Court of Justice and the other by the British Columbia Court of Appeal — may signal the advent of an even more receptive climate for private competition actions in Canada. First, on Sept. 28, 2009, the Directorships expose Ontario Superior Court of Justice certified a class action on behalf of all persons in Canada (excluding the defendants) who had purchased either hydrogen peroxide, products containing lawyers to liability risks hydrogen peroxide or products using hydrogen peroxide in noted Wendy Berman, a partner in of its lawyers. A partner in Canada between Jan. 1, 1994 LUIS MILLAN Heenan Blaikie’s Toronto office who WeirFoulds, Egan acted as legal and Jan. 5, 2005 (Irving Paper practises commercial litigation with an counsel for Aspen from February Limited v. Atofina Chemicals A securities class action recently emphasis on securities-related litiga- 1995, has been a member of Aspen’s Inc. et al., [2009] O.J. No. 4021). certified by the Ontario Superior tion. “It’s a difficult role, and law firms Board of Directors since 1996 and A month and a half later, on Nov. Court of Justice highlights the perils are starting to recognize that.” has served on the board’s compensa- 12, 2009, the British Columbia of lawyers taking on directorships, In Allen v. Aspen Group Resources tion committee. Court of Appeal certified a class draws attention to potential conflicts Corporation, [2009] O.J. No. 5213, In a 43-page ruling that has cap- action on behalf of a class of of interests and indirectly raises Justice George Strathy certified a tured the interest of the Canadian direct and indirect purchasers of questions of privilege. class action against Yukon oil-and- legal community, Justice Strathy semiconductor memory chips While a growing number of law gas firm Aspen Group Resources found the plaintiff properly pleaded (known as dynamic random firms across the country have, over Corporation that is seeking damages a cause of action pursuant to s. 131 of access memory (DRAM)), over- the past five years, discouraged part- on behalf of shareholders as a result the Ontario Securities Act against ruling a lower court decision ners from becoming directors due to of alleged misrepresentations in a Egan in his capacity as a director of denying certification (Pro-Sys conflicts of interest and increased takeover bid circular. Among the Aspen. Judge Strathy also considered Consultants Ltd. v. Infineon exposure to suits, the class action defendants are WeirFoulds LLP, a the “more difficult question” of Technologies AG, [2009] B.C.J. certification will likely lead to even prominent Toronto law firm that whether Egan’s statutory liability as a No. 2239). more wariness. acted on behalf of Aspen and advised director could engage the liability of Both decisions dealt with an “There certainly has been a chill it in connection with the takeover bid the law firm. issue that has been at the fore- over the last five years, and this certifi- of Calgary-based Endeavour “It seems to me that it is arguable front of class action litigation cation may result in a further chill,” Resources Inc., and Wayne Egan, one See Directors Page 11 under the Competition Act — whether “indirect purchasers”

JURE PORENTA / ISTOCKPHOTO.COM JURE PORENTA See Competition Page 13 10 | January 29, 2010 THE LAWYERS WEEKLY www.lawyersweekly.ca Business Law FOCUS Why liability for inducing breach of contract needs reassessing Dismissed employees fre- penalizing the inducer’s condu ct, tracts. Simply causing an inter- unlawful means; and (4) damage quently attempt to bolster their rather than compensating the ference with the employee’s con- in any form, for example, frustra- wrongful dismissal claims by complainant for the breached tractual relation with his employ- tion of economic expectations. pleading economic torts. One of NIKOLAY contractual rights. This conduct- er is insufficient to trigger liabil- Both torts have strict these increasingly pleaded eco- centred theory of liability is rein- ity under the inducement tort. requirements of intention, but nomic torts is the tort of induc- CHSHERBININ forced by the fact that dismissed There must be procurement and what the defendant intends is ing breach of contract (the employees seeking to increase the actual breach of the employ- different in these two torts. In “inducement tort”), which Merrill Lynch Canada Inc., their damages typically plead ee’s contract. the tort of causing loss by imposes liability on an employer [2008] S.C.J. No. 56, Merrill reliance on the inducing employ- More specifically, the induce- unlawful means the defendant who intentionally procures a Lynch’s regional manager er’s pre-contractual inducements ment tort demands: (1) the intends to cause loss, while in breach of its rival’s employee’s induced virtually all of RBC’s (i.e. conduct), rather tha n that knowledge of contract; (2) inten- the inducement tort, to procure valid employment contract. investment advisors to join his their contractual relations with tion to procure the breach of a breach of contract. Given the The nub of liability underly- firm. Likewise, in Drouillard v. the initial employers were inter- contract; (3) actual breach of distinction between rationales ing the inducement tort must be Cogeco Cable Inc., [2007] O.J. fered with. contract; and (4) damages. The of these torts, the courts should re-assessed: treating liability as No. 1664, Cogeco’s manager RBC’s rival, Merrill Lynch, inducement tort, however, is carefully distinguish between turning on the breach of a com- instructed its co-contractor was found liable for $250,000 peculiarly apt to be confused “inducement” of the breach and plainant’s contractual rights, Mastec not to hire Drouillard, for having induced breaches of with the tort of causing loss by mere “interference” with con- rather than on an inducer’s resulting in termination of his RBC’s employees’ contracts. RBC unlawful means. tract cases. wrongdoing, leads to unneces- employment on the day it was appears to validate the conduct- Unlike the inducement tort, The conduct-centred theory sary and unfortunate blurring to begin. centred theory of liability, as the the tort of causing loss by unlaw- of liability clarifies the real nub between “interference” and The nub of liability, in these courts are beginning to recognize ful means doesn’t require the for liability in the inducement “inducement” cases. leading inducement cases, is not and attempting to remedy the existence of a contract or its tort. In concentrating on the Arguably, the very classifica- that a complainant’s contractual commercial loss deliberately breach. Designed only to enforce complainant’s contractual rights, tion “tort” suggests that the right is being interfered with, but caused to the initial corporate basic standards of civilized the courts i gnore the inducer’s inducement tort ought to be rather that a stranger to a con- employer through its corporate behaviour in economic rivalry, it wrongdoing. But for the induc- concerned with the inducer’s tract intentionally procured the rival’s instrumentality, a subset is concerned with the defendant’s er’s wrongdoing, there could be harmful conduct. However, co-contractor to breach its valid of the remedy that Canadian own wrongful interference caus- no viable claim in the induce- many operate under the popular employment contract with the employment law has yet to fully ing economic loss by “unlawful ment tort. but mistaken belief that the complainant. develop. means.” No intermediate party In the absence of employers’ inducement tort gave us a tort At the very core of induce- Obviously, it is not automati- — as in the inducement to rt — is deliberate procurement causing focused on a complainant’s con- ment lies a rival’s conduct aimed cally improper to poach rivals’ necessary. breach of their rivals’ employees’ tractual rights. at procuring a desired action on employees, but legitimate com- The tort of causing loss by valid contracts, the liability For example, in RBC a part of an inducee. The induce- petition does not justify interfer- unlawful means requires: (1) the should be discussed within the Dominion Securities Inc. v. ment tort should be viewed as ence with existing valid con- defendant’s wrongful interfer- context of the tort of causing loss ence with the actions of a third by unlawful means. party in which the plaintiff has an economic interest; (2) inten- Nikolay Chsherbinin is an Practice Management tion to cause loss to the plaintiff; employment lawyer at Grosman, (3) use by the defendant of Grosman & Gale LLP in Toronto. YOUR KEY SOURCE FOR LEGAL JOBS IN CANADA Battle begins brewing over

Looking for a cost-effective national securities regulator way to recruit legal staff … to state the reference questions GARY OAKES to start the reference under s. s Easily post, track, and edit jobs 53 of the Supreme Court Act,” with our simple online Recruitment Manager The federal government wants she stated. “This has not been system. the Supreme Court of Canada’s done yet.” opinion on whether Parliament Last month, Iris Evans, s Search our candidate database — has the constitutional authority Alberta’s minister of finance and Quick and easy to use, our candidate search to enact a national securities reg- enterprise, announced that her tool gives you a constantly refreshed database ulatory regime, but so far no date government will launch its own of qualiﬁ ed legal professionals to shortlist. has been set for the hearing of challenge of the federal proposal the matter. in the province’s Court of Appeal. s online. Track job applications Justice Minister Rob It will also support a similar s Flexible pricing options to ﬁ t Nicholson announced last challenge by the Quebec govern- your budget. October that his government ment in that province. would submit to the court draft “We believe this intrusion s Build your brand among job seekers — legislation expected to be ready into this important area of pro- Add your company logo, or advertise in the this coming spring. vincial jurisdiction will set a Featured Employer or Featured Jobs section. Jill Copeland, the top court’s precedent for the federal govern- Advertise all of your legal jobs on totallegaljobs.ca executive legal officer, told The ment to intrude in other critical Lawyers Weekly on Jan. 12 that areas of provincial jurisdiction, the process “has not yet been and we must take bold action officially commenced. now to defend against that,” FOR MORE INFORMATION, 905-415-5804 or 1-800-668-6481, Ext. 804 “The federal government has Evans said. please contact Lynda Mills or at [email protected] FOCUS NEXT WEEK

LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under licence. Other products or services may be trademarks or registered trademarks of their respective companies. © 2009 LexisNexis Canada Inc. All rights reserved. •Personal Injury • Immigration www.lawyersweekly.ca THE LAWYERS WEEKLY January 29, 2010 | 11 FOCUS Business Law Trade associations face tough new competition rules

Recent landmark amendments representations made to promote can be relevant to members of application of Canadian competi- to the federal Competition Act will the supply or use of a product or a trade associations involved in tion law to the activities of trade have a significant impact on trade business interest. competitive bids or tenders (for associations and their members. associations in Canada. STEVE As a result of the recent amend- example, the construction indus- The landscape of Canadian While there are no specific pro- ments, contravention of these pro- try). It is also now a criminal competition law has drastically visions of the Act dealing specifi- SZENTESI visions will now potentially be offence to agree to withdraw a changed. The recent amend- cally with trade associations, some subject to civil fines of up to bid that has already been made. ments are the most significant in of the general provisions are par- $750,000 (for individuals) and 25 years — or even since Canada ticularly relevant to trade associa- $10 million (for corporations). Trade association introduced competition law in tion activities, including those on enforcement guidelines 1889. The impacts on Canadian criminal conspiracy, bid rigging, Under‘‘ the new rules, Abuse of dominance The Bureau has recently issued firms and trade associations will misleading advertising and abuse it will be possible to As a result of the recent land- a new draft information bulletin be significant. of dominance provisions — all of mark amendments, civil fines have specifically dealing with the which have recently changed. establish price fixing, been introduced for abuse of dom- enforcement of the Act in relation Steve Szentesi is a Canadian market allocation and inance — for the first time in to trade associations. Together competition lawyer and consul- Criminal conspiracy rules output restriction Canada — of up to $10 million with its proposed new enforce- tant based in Vancouver. He works Significant new criminal con- ($15 million for repeat contraven- ment guidelines for competitor in association with Norton spiracy provisions will come into agreements...without tions). Under the Act, abuse of collaborations, the new trade asso- Stewart, Business Lawyers and is force in March. Under the new establishing any dominance occurs where a domi- ciation guidelines are expected to an owner of Competition Law rules, it will be possible to estab- nant firm (or firms) has engaged further alter the analysis of the Canada. lish price fixing, market allocation adverse market in a practice of anti-competitive and output restriction agreements effects. acts that has an intended negative (three types of “hard core” cartel effect on a competitor that is agreements) without establishing exclusionary, predatory or disci- CROSS-BORDER EXPERTS. any adverse market effects. plinary, with the result that com- The primary impact of these petition has been, is being or is changes will be that, whereas for- and/or imprisonment for up to 14 likely to be prevented or lessened merly market power was a prereq- years (increased from $10 million substantially. Roddy Allan Farley Cohen Ross Hamilton Guylaine Leclerc uisite to establish a criminal con- and 5 years). The enforcement of Some of the types of trade Paul Levine Bob Macdonald Peter Steger Alan Stewart spiracy (i.e., that a cartel agree- the criminal conspiracy provisions association activities that can ment prevented or lessened com- remains an enforcement priority raise abuse of dominance issues petition unduly in one or more for the Competition Bureau, which include restricting access to Navigant Consulting congratulates our colleagues relevant markets), under the new has indicated in recent public essential services or markets and for being recognized as leading cross-border expert law, parties to an agreement with statements that it is increasingly standard setting that may pre- witnesses in the 2009 Lexpert Guide to the top modest market shares may also be interested in detecting domestic vent or impede entry. cross-border litigation lawyers in Canada. caught. As such, trade association (Canadian) cartels. members that engage in price fix- Bid rigging Navigant Consulting. ing, market allocation or boycott Misleading advertising Canada has a stand-alone bid Turn to us for direction[s]. agreements (and potentially where The false or misleading repre- rigging provision that applies associations facilitate such agree- sentation provisions of the Act are where, in response to a call for ments) will face potentially highly relevant to trade associa- tenders or bids, one or more bid- increased criminal liability. tions and their members. The Act ders agrees not to submit a bid The penalties for criminal car- contains both criminal and civil (or where two or more bidders tels will also more than double — misleading advertising provisions, agree to submit bids that have with fines of up to $25 million which apply to false or misleading been prearranged). These rules Lawyers’ business and legal roles often overlap

Directors something they prepare for their and when is he wearing his hat Continued From Page 9 client. So it is a warning for any as a director, when occupying lawyer who sits on boards of both roles?” said Berman. “That’s that a lawyer who, through his or directors, and does their legal what this case brings to a head. her law firm, acts as external cor- work,” added Ruby. It’s really artificial to say at one porate counsel to a corporation The decision, however, also moment you are taking off one and who also sits on the corpora- underlines the challenge of hat and putting on the other. So tion’s board, may well be acting determining when a lawyer, who if you have a liability as a lawyer in the ordinary course of the law through his law firm acts as and you’re a partner in a law firm’s business when he or she external corporate counsel and firm, your law firm is on the takes a seat at the boardroom who sits on the corporation’s hook. That’s a change. Whether table,” said Judge Strathy in a board, provides business as the claim will ultimately succeed passage that will likely be scruti- opposed to legal advice. While because the test on certification nized by law firms across the Ruby maintains that it is a fac- is very low, who knows. But the country. tual determination, hinging on door has been opened.” www.navigantconsulting.com According to Malcolm Ruby, context and the kind of advice The hazy lines between the the head of the national class provided by the lawyer, Berman two roles can potentially lead to action practice group at Gowling believes that Judge Strathy does the loss of lawyer-client privi- Lafleur Henderson LLP, the not seem to make a huge distinc- lege, warns Berman. She won- To r o n t o » 416.777.2440 decision itself is not surprising, tion between the two. Indeed, ders how privilege can be pro- Ottawa » 613.230.4500 as failing to disclose material Berman asserts that the decision tected if there is a blurring of the facts in circulars attracts statu- seems to suggest that it is an distinction between providing Montréal » 514.798.5874 tory liability for anyone involved. “artificial distinction,” not unlike business and legal advice, or if Québec City » 418.780.5874 It nevertheless is a “sobering” the dual roles played by in-house such a distinction exists. OfÀces in over 40 cities worldwide. ruling for lawyers involved in counsel who act as both business “This case does not open a

“these kinds of transactions and legal advisors. Pandora’s box, but it will lead to ©2009 Navigant Consulting, Inc. All rights reserved. because it appears that the law- “The difficulty is — and this some difficult determinations, “NAVIGANT” is a service marN of Navigant International, Inc. Navigant Consulting, Inc. NCI is not af¿liated, associated, or in any way connected with Navigant International, Inc., and NCI’s use of “NAVIGANT” is made under yer and the law firm appear to you see all the time — when does and depending on how the law license from Navigant International, Inc. have legal responsibility for what a lawyer take off his hat as the develops, this may lead to future is in the circular, which is really external legal advisor to the firm problems,” said Berman. 12 | January 29, 2010 THE LAWYERS WEEKLY www.lawyersweekly.ca

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All rights reserved. www.lawyersweekly.ca THE LAWYERS WEEKLY January 29, 2010 | 13 FOCUS Business Law Tips on tax-efficient exit strategies for businesses Over the coming years, The net tax saving from sion plan prior to the sale, many of your business owner using the capital gains exemp- which results in tax deductions clients will face important deci- tion in Ontario is $174,000 for for the corporation, tax-free sions about how long to work, MURRAY each person. ‘‘ growth for the assets in the how much they need to retire Another strategy that can be With an estate freeze plan and a lower capital gain on and what will happen to their SHAPIRO employed without pre-planning in place, a significant a sale. business. is to make a charitable gift If the business owner dies One in four owners over the investment is nil, he will end up either to a registered charity or part of an otherwise unexpectedly, the ability to plan age of 50 of small and medium- with $3,840,000 after tax. to one’s own charitable founda- deemed disposition of ahead to reduce and fund the sized businesses plans to exit What strategies might this tion in the year of the sale. The tax payable upon a deemed dis- their business within the next owner employ to reduce his tax business owner’s tax burden the full value of the position of his interest in the five years, according to an study hit? First, if the buyer is willing will be reduced by the amount business can likely be business is seriously minimized, by the Royal Bank of Canada. to buy shares rather than assets, of the donation tax credits, and his family may even be However, 77 percent of owners then the business owner, and effectively 46 percent of the deferred until a forced to sell the business. have made little or no progress any other owners of shares of amount donated. suitable time... With an estate freeze in putting a plan in place. The the business, can make use of If the business owner invests place, a significant part of an opportunity is clear — those their one-time $750,000 capi- in another Canadian business otherwise deemed disposition who plan ahead have more tal gains exemption. in the year of the sale or within of the full value of the business options, better tax efficiencies However, with no pre-plan- 120 days after the year of sale, can likely be deferred until a and more positive outcomes. ning, it is entirely possible that then some or possibly all of the qualify for the capital gains suitable time, such as a planned Let’s start with those who do the shares of the company will capital gain may be deferred exemption. sale. This avoids forcing the not plan ahead. An owner may not qualify, as they would have until the sale of the new busi- Perhaps the best tax savings business owner’s family to receive an unsolicited offer to to be held for at least two years ness. strategy for a business that is address his tax liability on the buy the business, and be forced and pass both the “active Finally, a strategy called a expected to grow in value over full appreciation of the busi- to make a quick decision if the Canadian business assets” tests. “safe income strip” can poten- time is an estate freeze. An ness at the time of his death. price is right. He may not have These tests are met if at least tially convert part of the capital estate freeze allows the busi- Business owners who plan been thinking of selling, now or 90 percent of the assets are gain on a sale into a dividend ness owner to share the growth ahead with a team that includes ever, but might also never see used in an active business in that will be taxed only on distri- of his business with others, legal and tax professionals and this number again. Canada at the time of sale, and bution to the business owner. usually family members. This an investment advisor can If he sells, how much of the at least 50 percent have been so This distribution can be allows for multiple use of the employ numerous sophisticated funds received will he be able to used during the past 24 months. deferred — potentially until the capital gains exemption and tax strategies to achieve their keep? Without any planning, in If the business is not already death of the business owner, splitting income generated by personal objectives and maxi- Ontario, with capital gains tax incorporated, this can be done and life insurance can be used the business with family mem- mize their wealth. rates at effectively 23 percent, just before the sale to take to reduce or fund taxes at death. bers, within the framework of he will keep 77 percent of the advantage of the capital gains For those who do plan ahead, the income tax attribution Murray Shapiro is Vice Pres- proceeds beyond his invest- exemption, which means the there are a number of benefits. rules. ident, High Net Worth Planning ment. So if the business sells for two-year holding period is not For example, they can ensure The business owner could Services with RBC Wealth Man- $5 million and the owner’s applicable. that the shares of the business also set up an individual pen- agement Services. Decisions lower the bar for certification of price-fixing class actions

Competition iron oxide pigment — used as Appeal held that only a “mini- Continued From Page 9 an additive to colour bricks and mum evidentiary basis” is nec- paving stones — resulted in essary and that plaintiffs need of cartelized products be part of overcharges not only to the only show that they have “a the class of plaintiffs seeking manufacturers of these prod- credible or plausible methodol- damages from defendants. The ucts, but also to the purchasers ogy” that, in theory, might be sticking point is typically of buildings constructed using able to address class-wide whether the “indirect purchas- materials containing the iron issues. ers” (i.e., purchasers that did oxide pigment. The class action If left undisturbed on appeal, not buy the cartelized product was certified at first instance Irving Paper and Pro-Sys will directly from the supplier but as but the Ontario Court of Appeal lower the bar in at least two key a component of further pro- reversed that decision. The Canadian jurisdictions, and cessed goods) can demonstrate Court of Appeal held that the potentially across the country, on a class-wide basis that the indirect plaintiffs had not estab- for the certification of indirect overcharge paid by direct pur- lished a methodology that could purchaser, price-fixing class chasers on the product was be used at trial to prove that all actions. The impact of this passed through to them. of the indirect purchasers had change in the law could be mag- Without a credible methodolo- overpaid for their houses nified even further by the com- gy for demonstrating class-wide because of the conspiracy. ing into force in March of a new harm, damages to indirect pur- In both Irving Paper and per se conspiracy offence, which chasers would have to be estab- Pro-Sys, the courts took a more will eliminate the requirement lished on an individual basis, relaxed approach to the proof to prove market impact (“undue thereby negating the justifica- needed at the certification stage lessening of competition”) in tion for proceeding by class to support the indirect plain- establishing criminal liability. action. tiffs’ proposed methodologies. The combination of these By allowing the class actions For example, Justice Rady of two developments could signifi- to proceed, both decisions also the Ontario Superior Court of cantly expand the scope in marked a significant departure Justice held that a judge at the Canada for civil liability arising from previous case law, in which certification hearing need only from competition law viola- courts had denied certification be satisfied that a credible tions. to indirect purchaser class SIRGUNHIK / DREAMSTIME.COM methodology for calculating actions because of the failure to point was the Ontario Court of rect purchasers of concrete indirect purchaser damages Mark Katz is a partner in the establish a satisfactory method- Appeal’s decision in Chadha v. bricks and paving stones used in may exist and that even Competition & Foreign Invest- ology for calculating harm on a Bayer, [2003] O.J. No. 27. home construction. The allega- “attempts to postulate such a ment Review Group of Davies class-wide basis. Chadha involved a proposed tion was that the defendants’ methodology” are sufficient. Ward Phillips & Vineberg LLP The leading decision on class action on behalf of indi- conspiracy to fix the price of Similarly, the B.C. Court of in Toronto. 14 | January 29, 2010 THE LAWYERS WEEKLY www.lawyersweekly.ca FOCUS ON Civil Litigation How to use competitive intelligence in litigation

JOSEPH GRIFFITHS

Competitive intelligence can be broadly characterized as the act of “defining, gathering, ana- lyzing and distributing intelligence about products, customers, competitors and any aspect of the environment needed to support executives and managers in making strategic decisions for an organization.” For many lawyers, competitive intelligence, to the extent any thought has been given to the SPECTRAL-DESIGN / DREAMSTIME.COM subject at all, is often viewed as nothing more than a marketing tool, one in which the lawyer attempts to discern key information about prospective or existing clients with the goal of using that Protecting privilege: intelligence to obtain new work. Like the proverbial articling interview, it is presumed that the firm that has an intimate understanding of a prospective client’s how safe are your e-mails? business stands a better chance of attracting a new or more comprehensive retainer from that cli- If your client gives you his busi- larly accessed and saved e-mails ent. In the marketing context, ness e-mail address to communicate sent from his account. Subsequently, competitive intelligence is entire- with him about his personal legal when the action between Convertino ly directed at improving the firm’s matters, how sure are you that those JASMINE and the DOJ went into the discov- bottom line by securing new e-mails are privileged and immune AKBARALI ery phase, these e-mails became one work from the client. from disclosure? The answer, it of a number of production issues While there can be no doubt seems, is “it depends.” between the parties. that the use of competitive intel- The United States District Court Attorney of the Eastern District of Tukel sought, and was granted, ligence in this manner is entirely for the District of Columbia recently Michigan, Jonathan Tukel. leave to intervene in the case for the appropriate to the business of weighed in on this issue in Convertino Tukel had met with Convertino to purpose of asserting his attorney-cli- law, it is surprising that few, if v. United States Department of discuss Convertino’s handling of ent privilege. Tukel had to prove that any firms, appear to have seri- Justice, et al., 2009 U.S. Dist. Lexis cases, and had been involved in draft- he had taken reasonable steps to pre- ously taken on the challenge of 115050. Convertino, an Assistant ing allegations to the DOJ’s Office of vent disclosure of his privileged mate- deploying competitive intelli- United States Attorney, brought a Professional Responsibility. It must rial. The court accepted that he had, gence as a means of bettering the claim against the U.S. Department of have been a messy affair, because noting that he had deleted his e-mails outcomes for their clients. That is Justice (DOJ), alleging it had wilfully Tukel retained private counsel, and sought leave to intervene in the particularly surprising consider- and intentionally disclosed informa- Cadwalader, Wickersham & Taft LLP, production motion in a timely way. ing that, in litigation at least, the tion about him to a reporter in viola- in anticipation of litigation. Tukel also had to establish that object of every retainer is to tion of the Privacy Act. From his DOJ-provided e-mail disclosure of these e-mails to the DOJ resolve a client’s problem in the The information related to an address, Tukel communicated with was inadvertent. He argued he had most cost effective and timely investigation into allegations of pros- Cadwalader. No one else was copied no intention to allow his employer to manner possible. ecutorial misconduct made against on the e-mails, and Tukel took steps read the e-mails he was sending to his Even more surprising is the Convertino, by, among others, the to delete them. However, apparent- personal attorney through his DOJ- realization that, unlike other former First Assistant United States ly unknown to Tukel, the DOJ regu- See Privilege Page 15 endeavours such as medicine, clients do not seem to have any See Intelligence Page 15 www.lawyersweekly.ca THE LAWYERS WEEKLY January 29, 2010 | 15 FOCUS Civil Litigation Clients need to know how intangibles will impact litigation Intelligence side of an argument over another. statistically. For instance, while interpreted and applied? Continued From Page 14 Outcomes are assessed solely on it may be the official view that The key is to move past the fic- the basis of the nature of the dis- ‘‘ judges are neutral and decide tion that such factors do not expectation that their lawyers pute between the parties, with no Who among us has every case on its merits, who impact on how cases are prose- should employ modern technol- allowance for statistical anoma- not canvassed a among us has not canvassed a cuted and decided, in favour of a ogy to achieve better results and, lies like geography or type of cli- colleague about a particular system that not only accepts that with rare exception most lawyers ent being represented. colleague about a judge, his or her personality, such intangibles bear on the out- seem content to rely on more tra- Effectively, competitive intel- particular judge...? judicial history and inter-rela- come, but that by warehousing ditional methods of resolving cli- ligence for the average litigator is tionships with other lawyers? the information, a more mean- ent problems. limited almost exclusively to a Clearly, those kinds of ques- ingful assessment and evaluation By way of example, is there search of various online databas- tions are asked because there is can be provided to our clients. any doubt that the average es to see if the kind of case being some tacit acceptance that the Ignoring that reality would be patient admitted to a hospital in proposed has been decided before much worse would the client be answers provide some insight on akin to believing that the falling Canada expects their physician to and if so, how. Clients are rou- by going it alone? how to approach an argument or tree only makes a sound if some- not only employ cutting edge tinely apprised that it is impossi- Not only should clients be able a case. Similarly, is there much one is there to hear it. technology, but also insists on ble to predict the costs of litiga- to expect more of their litigators, dispute that the location of litiga- The information is there — being provided with statistical tion, its duration or even its but we should expect more of tion has an impact on whether a isn’t it time it was leveraged? information sufficient to under- expected outcome. ourselves. Perhaps the tide of dis- jury notice is appropriate, how stand both the likely outcome Such assertions are offered as enfranchised clients could be much monetary compensation a Joseph Griffiths practises with and relative risks of any proposed articles of faith, passed on from stemmed by using competitive client might expect to receive or Nelligan O’Brien Payne LLP in procedure or method? In con- one generation of litigator to intelligence to assist them to even how the rules of practice are Ottawa. trast, the typical litigator would another and yet, such assertions achieve more predictable, timely be hard pressed to provide any seem more and more dubious as and cost effective results. meaningful statistical informa- the availability of information So how does a firm take a Research Solutions tion on our court system, its judg- becomes more easily assembled more robust approach to comes or juries or even about the rel- and analyzed. Likewise, clients petitive intelligence, one that ative costs of pursuing one strat- will likely become increasingly moves beyond a basic Facebook egy over another. sceptical when told by their law- and LinkedIn search of prospec- ® Litigation budgets remain yers that neither the costs nor tive clients? Butterworths more art than science and judges the outcome of litigation can be While there are likely a range Legal and Legislative Drafting New! and masters are perceived as sta- predicted. of solutions to this problem, it J. Paul Salembier, B.Sc., LL.B., LL.M. tistically neutral. Clients are pro- Either the discerning client must begin with a willingness to vided with assessments of risk will insist on their lawyer obtain- accept that the information to based on the collective weight of ing better answers or, and per- be leveraged already exists, and decisions in specific areas of law haps more likely, the client may that a better and more efficient — precedents — rather than on elect to become self-represented. litigation strategy can be the basis that the individual After all, if their lawyer can’t pre- employed if the information is $155 + GST judge statistically favours one dict the cost or the outcome, how carefully stored and evaluated 575 Pages • Hardcover December 2009 • ISBN: 9780433453611 Caution needed when communicating Your Guide to Drafting Practical and Precise Legal and via business e-mail addresses Legislative Documents Drafting complex legal and legislative documents can be a challenging process. From the organization of complex ideas to Privilege vacy was reasonable. The DOJ’s policy that does not ban personal troublesome provisions to problems of logic, legal and legislative Continued From Page 14 e-mail policy did not ban personal communications leads to an drafting is an onerous task. use of company e-mail, and while expectation of privacy, as opposed This timely resource helps legislative drafters and private sector provided e-mail account. the DOJ had access to personal to one that permits such commu- lawyers write concise and more precise documents by arming them The court, relying on an earlier e-mails, Tukel was unaware that it nications and affords them a with: New York case, In re Asia Global would regularly access and save clearly defined zone of privacy? Crossing, Ltd., 322 B.R. 247 e-mails from his DOJ account. The In any event, haven’t the e-mail • Practical advice — the book’s step-by-step approach leaves (S.D.N.Y. 2005), held that for doc- court held that Tukel’s e-mails experts been telling us for years theory-driven publications far behind uments sent by e-mail to be pro- were to remain privileged. to watch what we say on e-mail, • A wealth of examples — over 750 examples are employed to help tected by attorney-client privilege, A happy result for Tukel, no lest we find it on the front page of illustrate how provisions evolve through the application of various there had to be a subjective expec- doubt, but one has to wonder at the national newspaper? drafting techniques tation of confidentiality that is the reasoning. For example, in There are lessons in objectively reasonable. Four fac- 2003, when the events at issue Convertino for prudent counsel. • Invaluable tools — allow drafters to choose the right words in the tors determine reasonableness: (i) here began occurring, wouldn’t Before communicating via a busi- appropriate context to convey the document’s intended meaning whether the corporation maintains Tukel have known, or easily learned ness e-mail address with a client This book goes far beyond simply discussing the principles; it a policy banning personal or other through an enquiry to the DOJ’s IT about personal matters, read the provides readers with a step-by-step guide that helps them put those objectionable use of e-mail; (ii) department, that e-mails reside on employer’s e-mail policy — espe- principles into action. whether the company monitors a server, and that back- ups are cially where either the employer the use of the employee’s computer regularly made? or the client (or both) may or e-mail; (iii) whether third par- While it is possible that some become involved in litigation. A ties have a right of access to the companies still don’t have Internet reliable personal e-mail account computer or e-mail; and (iv) policies to deal with accessing and may be preferable. whether the corporation notified archiving electronic information, If clients insist on communi- Order Today! the employee, or whether the most do. It is reasonable that one’s cating via a business account, Take advantage of the 30-Day Risk-Free Examination! employee was aware, of the use expectation of privacy could be counsel should advise them on www.lexisnexis.ca/bookstore 1-800-668-6481 and monitoring policies. affected by the content of that pol- the potential loss of privilege. (Price & other details are subject to change without notice. Please quote Reservation Code 3306 when ordering. The court found each case icy. But if an employee chooses to Counsel should also document We pay shipping & handling if payment accompanies order.) needs to be looked at on its own remain ignorant of the policy and that advice — but preferably not Pre-payment required for ﬁ rst-time purchasers. facts to determine if the party then forms an expectation of pri- in an e-mail. requesting protection of the priv- vacy that is not in accordance with ilege was reasonable in its actions. it, can the expectation be said to be Jasmine Akbarali co-chairs LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under licence. Butterworths is a registered trademark of In Convertino, the court con- reasonable? the Appellate Advocacy Group at Reed Elsevier (U.K.) Limited and its afﬁ liated companies. Other products or services may be trademarks or registered trademarks of their respective companies. cluded Tukel’s expectation of pri- Equally, is it reasonable that a Lerners LLP in Toronto. © 2010 LexisNexis Canada Inc. All rights reserved. 16 | January 29, 2010 THE LAWYERS WEEKLY www.lawyersweekly.ca Civil Litigation FOCUS Hiding under the concierge’s desk: why service rules need reform A deficiency in Ontario’s Rules step is to serve the defendant served resides in a condominium trols access to the apartment of of Civil Procedure risks turning with a notice of examination in complex. If the person is not a the person to be served. The for- otherwise routine litigation into a aid of execution. The task, how- registered owner, occupant or ten- mulation “any adult who appears protracted and expensive battle of RAY ever, is far from routine. ant in the condominium complex, to be in charge of controlling wills, involving private investiga- THAPAR The defendant, having lost his or if the person has instructed the access to the place of residence” tors and ingenious process servers. business to debts, “disappears” concierge or security guard not to would achieve this result. The rules have not kept pace from the community. His business permit visitors to reach his or her Second, service via social net- with the emergence of high secu- phone lines are disconnected. He residential unit, the process server works needs to be seriously con- rity apartment buildings, condo- no longer maintains a valid driv- will be turned away and personal sidered. Defendants seeking to miniums and gated communities RON& er’s license or owns a car. Most service will become impossible. avoid service often neglect, or fail that use security guards or con- PODOLNY importantly, his home is seized by to, remove themselves from social cierges to restrict access to non- the bank so there is no residential networks such as Facebook or residents, including process serv- address. In fact, the defendant’s LinkedIn. Although they are “in ers. This has the effect of frustrat- only link with the outside world is hiding,” they continue to interact ing legitimate attempts to effect plaintiff obtains a judgment through social networking sites If ‘‘the person has with the world on social network- personal service or alternative ser- against an Ontario defendant. such as Facebook or LinkedIn. instructed the ing sites. In such situations, service of documents, allowing liti- The plaintiff retains you to In this scenario, you retain a vice via Facebook has been gants to evade the administration enforce the judgment in Ontario. private investigator, who traces the concierge or security approved by courts in Australia of justice. Having obtained an Ontario defendant to his mother’s home in guard not to permit and New Zealand as a valid alter- Imagine the following routine judgment recognizing the out- a condominium complex. A pro- visitors to reach his or native to personal service. In a scenario. An out-of-province of-province decision, your next cess server is sent to the apartment recent U.K. case, service via to attempt to serve the defendant her residential unit... Twitter was permitted. with the notice. The server, how- personal service will Canadian courts have admitted Research Solutions ever, fails to gain entry into the Facebook postings as substantive building, turned away by a con- become impossible. evidence. In light of the similarity cierge who tells him the defendant in the objectives of service between is not a registered resident. Canada and other Commonwealth ® At this point, the litigator does countries, and given Canadian Butterworths New! not have many attractive options. The provision relating to alter- courts’ willingness to admit Ontario Heritage Act & Commentary The client faces considerable natives to personal service will Facebook evidence, there is no Eileen P.K. Costello expense and delay before the not apply. Leaving the documents principled reason why Facebook defendant can be located outside with a concierge is not acceptable service cannot become one of the the building and served. under the rules because the con- alternatives to personal service The problem lies in the provi- cierge is not an “adult member of available to a solicitor faced with sions of the rules relating to per- the same household.” A situation an evasive litigant. sonal service. Currently, R. is thus created whereby the per- Avoidance of service is avoid- 16.03(5), which relates to alterna- son to be served can “hide under ance of justice. The rules need to tives to personal service on indi- the concierge’s desk” to avoid per- evolve to respond to the changing viduals, permits a person to be sonal service of documents until forms of housing arrangements served by “leav[ing] a copy, in a such time as the limitation period in contemporary society. Reform $65 + GST Approx. 210 Pages • Softcover sealed envelope addressed to the has expired or the plaintiff has is urgently needed to stop the February 2010 • ISBN: 9780433457992 person, at the place of residence given up. abuse and enable the justice sys- with anyone who appears to be an Two amendments are urgent- tem to function in a timely and adult member of the same house- ly needed. First, the “adult mem- efficient manner. hold,” provided a second copy is ber of the same household” mailed to the person to be served clause of R. 16.03(5)(a) must be Ray Thapar and Ron Podolny Ontario Heritage Act & Commentary is the only dedicated research source on these amendments. Municipal lawyer Eileen on the same day. expanded to encompass a con- practise commercial litigation at P.K. Costello, of Aird & Berlis LLP, gives you: However, R. 16.03(5) is inef- cierge, security guard, superin- ThorntonGroutFinnigan LLP in fectual where the person to be tendent or anyone else who con- Toronto. • Section-by-section analysis of the Act — Discover exactly how the Act has changed to provide enhanced powers to municipal councils and the Minister of Culture

• Overview of recent signiﬁ cant changes — Learn how the Act affects your role, whether you advise municipalities or act for owners of heritage properties

• Commentary on case law — Examine how the Ontario Municipal Board, the Conservation Review Board and courts have interpreted and applied the Act in respect of heritage properties from Ontario municipalities of all sizes

• Complete text of the Act — Quickly ﬁ nd sections, plus the rules of practice and procedure for hearings under the Act An oddity in Civil Litigation • Table of concordance — Easily track legislative changes • Appeal charts — Plan an effective appeal strategy Patron locks horns with restaurant owner over falling moose head A restaurant patron has launched a lawsuit against an eatery and its owner claiming that a 150-pound stuffed moose head dislodged from the wall and fell onto her head. Raina Kumra charged the Manhattan restaurant, White Slab Palace, and its owner with negligence. A wit- Order Today! ness says Kumra was partying in the back room with a group of friends when the moose head, which was Take advantage of the 30-Day Risk-Free Examination! mounted on the wall, came loose and hit her on the noggin. Exactly how the moose head became dislodged is www.lexisnexis.ca/bookstore 1-800-668-6481 in issue, as the witness claims he saw one of the partygoers tugging on a balloon tied to the moose head’s ant- lers shortly before it fell, according to the NY Daily News. (Price & other details are subject to change without notice. Please quote Reservation Code 3306 when ordering. We pay shipping & handling if payment accompanies order.) Kumra claims to have suffered a concussion, chronic neck pain, fatigue, dizzy spells and anxiety from † Pre-payment required for ﬁ rst-time purchasers. mounting medical bills. Her lawsuit states that the restaurant “had a duty to provide… an environment free from falling objects.” Talk about a striking décor. — Natalie Fraser

LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under licence. Butterworths is a registered trademark of Reed Elsevier (U.K.) Limited and its afﬁ liated companies. Other products or services may be trademarks or registered trademarks of their respective companies. ISTOCKPHOTO.COM © 2010 LexisNexis Canada Inc. All rights reserved. www.lawyersweekly.ca THE LAWYERS WEEKLY January 29, 2010 | 17 DIGEST OF RECENT DECISIONS FROM CANADA’S COURTS Michael Hamilton, LL.B. E-mail: [email protected]

arrest, including the initial stop of his vehi- ring), Dec. 23/09. Digest No. 2935-003 sor, which was not an academic matter, so BARRISTERS & SOLICITORS cle and the subsequent search of his person (Approx. 9 pp.) the court had jurisdiction. Plaintiff’s claims and seizure of his keys. He also argued that of negligence, interference in contractual NEGLIGENCE – While a lawyer erred his right to counsel was infringed by a relations, and intentional infliction of eco- by failing to send appellant for indepen- police-ordered hold on telephone calls to CIVIL PROCEDURE nomic and emotional harm, harassment dent legal advice, that failure did not counsel following his arrest pending secur- and verbal assault had basis in law. cause appellant’s loss. ing of the targeted residences by police. The DISCOVERY – A defendant who had Defendants had not demonstrated that the Appeal from the dismissal of appellant’s trial judge found no breach of accused’s suffered a brain injury was not incompe- action had no reasonable chance of success claims for breach of contract and negli- rights and ordered convictions. tent to testify at his examination for dis- or that the pleadings were an abuse of pro- gence. Appellant portrayed herself as a HELD: Appeal dismissed. There were covery under oath or solemn affirmation. cess. However, plaintiff had failed to plead sophisticated businesswoman with several reasonable grounds to stop the van and Motion for an order directing defendant material facts with respect to the interfer- years of corporate management and finance order accused’s arrest based on informa- P to submit to a new examination for dis- ence, harassment and verbal assault claims. experience, a network of contacts in the tion from the hydro provider, reliable con- covery under oath or solemn affirmation. In Those claims were not struck, but plaintiff financial and investment community, and fidential information linking accused to 2003 P had suffered a brain injury caused was ordered to amend her pleadings to pro- substantial assets at her disposal. The per- targeted residences and other marijuana by ingesting alcohol and prescription medi- vide material facts. sona she adopted was taken at face value by grow operations, surveillance of the tar- cations. In July 2006 he was the driver of a Vatamanu v. Baird, [2009] O.J. D, the solicitor whom she instructed in con- geted residences, and the proximity of the motor vehicle which was involved in a colli- No. 5481, Ont. S.C.J., Kershman J., nection with the incorporation of A Inc., a stop to the targeted residences. The arrest- sion which killed plaintiff and her unborn Dec. 22/09. Digest No. 2935-005 company of which she became a 49 percent ing officer was party to the surveillance child. After the action was commenced P (Approx. 10 pp.) shareholder and a director. D also drafted and was aware of the suspected grow obtained an order appointing his sister to be the shareholders agreement and an employ- operation at the van’s destination. His his litigation guardian. He commenced a ment agreement for M, appellant’s partner observations provided objectively-reason- third party action against the hospital, alleg- CONSTRUCTION LIENS in the company. Using funds provided by able grounds for the arrest. The police ing that its driving assessment and training appellant, A Inc. made a substantial invest- hold on telephone calls was improper. centre had contributed to the collision by BREACH OF TRUST – The director ment in a film production project. Appellant However, in light of the judge’s finding finding him fit to operate a motor vehicle. of a company was liable to plaintiffs for lost her entire investment, including her that accused did not opt to contact counsel P’s solicitor took the position that P was the breach of trust by a company to two home in West Vancouver, which she had until the hold was lifted, no violation of his incapable of taking an oath at his examina- building material suppliers. mortgaged contrary to the advice of her right to counsel occurred. The judge’s tion for discovery. Counsel proceeded with Action against defendant M for decla- estranged husband to raise money for the assessment of accused’s evidence was enti- the examination without prejudice to the rations that he was liable for the breach of project. She sued D and his firm for dam- tled to a high degree of deference. other parties’ right to apply for an order trust of I Co. Plaintiff B Ltd. was a supplier ages for breach of contract and negligence, R. v. Budd, [2009] B.C.J. No. 2598, requiring P to attend in the future. of concrete and plaintiff G Ltd. a supplier and sought an accounting for her $1,250,000 B.C.C.A., per Levine J.A. (Frankel and HELD: Motion granted. Where a party of metal work to several building projects loss. Appellant also sued M for similar relief. Tysoe JJ.A. concurring), Dec. 29/09. submitted that he was not competent to give on which the general contractor was I Co. The trial judge dismissed appellant’s claims Digest No. 2935-002 (approx. 9 pp.) evidence at an examination for discovery, he I Co. owed both plaintiffs substantial sums in their entirety. bore the onus of establishing the requisite for unpaid invoices. Plaintiffs claimed that HELD: Appeal dismissed. The evidence degree of unsoundness of mind. The court other creditors of I Co., including M, who supported the trial judge’s finding that A EXCLUSION OF EVIDENCE – The must determine whether P understood the was an officer and director of I Co., were Inc. was D’s sole client and that he was not requirement that police take an nature of an oath or solemn affirmation and paid out of money impressed with a trust in a position of conflict of interest as alleged. accused’s breath sample as soon as prac- whether he was able to communicate his under the Construction Lien Act (Ont.) D should have recommended that appellant ticable was not a pre-condition to the evidence. P failed to satisfy the onus upon and that the individual defendants assent- obtain independent legal advice no later admissibility of the test results. him. While P may not understand the ed to or acquiesced in the payments. The than when she announced her intention to Appeal by the Crown from a summary nature of an oath, he understood the duty to trial proceeded only against M. mortgage her residence. A referral to anoth- conviction appeal court decision allowing tell the truth. At his previous examination, HELD: Action allowed, B Ltd. was er lawyer in D’s own firm could not fulfil this accused’s appeal from conviction for driv- he gave answers that were responsive to the awarded damages of $111,306 and G Ltd. duty. However, the failure to recommend ing over the legal limit. The judge had held questions he was asked on a wide range of was awarded $143,105. For an individual that appellant obtain independent legal that the requirement that police take an issues. P was not incompetent to testify to be liable for a corporation’s breach of advice in connection with the shareholders’ accused’s breath samples as soon as practi- under oath or solemn affirmation. trust under s. 13 of the Act, three elements agreement and employment agreement or cable was a pre-condition to the admissi- Vokes Estate v. Palmer, [2009] O.J. had to be established: there must have in connection with her investment in A Inc. bility of the test results. Accused was No. 5369, Ont. S.C.J., Price J., Dec. been a breach of trust by the corporation; generally had not caused her loss. pulled over at a road checkpoint at 1:15 14/09. Digest No. 2935-004 (Approx. the individual must be a director, officer or De Cotiis v. McLellan, [2009] B.C.J. a.m. He failed the roadside screening test 12 pp.) person in effective control of the corpora- No. 2566, B.C.C.A., per Newbury J.A. and a breathalyzer demand was made at tion; and the individual must have assent- (Kirkpatrick and Tysoe JJ.A. concur- 1:30 a.m. Because officers had to wait for a ed to, or acquiesced in, conduct that they ring), Dec. 23/09. Digest No. 2935-001 tow truck to impound accused’s vehicle STRIKING OUT PLEADINGS – knew or reasonably ought to have known (Approx. 16 pp.) before taking accused to the police station, Defendants motion to dismiss plaintiff ’s amounted to breach of trust by the corpo- the breath samples were not obtained claims was dismissed but plaintiff was ration. The first element was established from accused until 2:24 a.m. and 2:48 required to provide material facts of cer- by a judgment in 2007 which declared and CHARTER OF RIGHTS a.m. Accused was convicted at trial. The tain allegations. quantified the corporation’s breach of appeal judge excluded the breath samples Motion by defendants to strike plaintiff’s trust. M had been a director, officer or per- & FREEDOMS because they were not obtained as soon as numerous tort claims. Plaintiff had been a son in effective control of the corporation practicable, as required by subs. 254(3) of Ph.D. student and defendants were the uni- since 1999. From May 2002, M was ARBITRARY DETENTION – A stop the Criminal Code. versity and her thesis supervisor. Plaintiff involved in the monitoring of receipts and of a van driven by accused, his arrest and HELD: Appeal allowed. The conviction claimed that her supervisor failed to provide disbursements to the extent that he knew the subsequent search of his house did was restored. The appeal judge erred by adequate guidance, demanded she give him or should reasonably have known that pay- not infringe his Charter rights. concluding that the requirement that the her research results, threatened her and ments were being made by I Co. in breach Appeal from conviction related to mari- police take an accused’s breath sample as removed the computer and laboratory of its trust obligations to plaintiffs and not juana production and trafficking. After con- soon as practicable was a pre-condition to equipment she had been using. Plaintiff had only acquiesced but also assented to those ducting surveillance on three properties, the admissibility of the test results. Evidence used the university’s internal appeals pro- payments. M personally benefited from police stopped a moving van occupied by gathered in contravention of subs. 254(3) of cess to make a formal complaint. Defendants payments from I Co. to himself and his accused and two others. Another vehicle fol- the Code was not automatically excluded. argued that the court lacked jurisdiction to corporation from May 2002 to December lowed. The van was en route to a home The admissibility of evidence obtained in hear the academic complaint and that the 2004 of in excess of $300,000, when he controlled by accused. The van contained contravention of the requirements of subs. pleadings showed no cause of action and knew I Co. had received and wrongfully 316 marijuana plants. Police executed a 254(3) should be challenged by way of an constituted an abuse of process. paid out trust funds owed to plaintiffs. warrant at the home and found a large application for exclusion under the Charter. HELD: Motion allowed in part. Plaintiff Belmont Concrete Finishing Co. quantity of drying marijuana. There was The evidence was admissible. had made use of the university’s internal Limited v. Marshall, [2009] O.J. No. also evidence of a reasonably-sophisticated R. v. Forsythe, [2009] M.J. No. 438, appeals process in order to finish her thesis. 5565, Ont. S.C.J., Perkins J., Dec. ongoing marijuana cultivation operation. At Man. C.A., per Beard J. (ad hoc) This action dealt specifically with the alleg- 23/09. Digest No. 2935-006 (Approx. trial, accused challenged the grounds for his (Monnin and Chartier JJ.A. concur- edly tortuous conduct of the thesis supervi- 9 pp.) 18 | January 29, 2010 THE LAWYERS WEEKLY www.lawyersweekly.ca DIGEST

assistance to her 15-year-old daughter, who Motion for an order authorizing assign- message as to the wife’s intentions. The rel- CORPORATIONS was near death, accused crawled out of his ment of a contract. The debtor was a evance of the words was doubtful. The hus- flipped truck and walked away. The other Canadian company that provided corporate band would be at liberty to bring to the DIRECTORS – The trial judge did driver was forced to leave her daughter to training and consulting. Certain of its cur- attention of the court any non-compliance not err in dismissing appellants’ action warn oncoming traffic and when she riculum and course materials were licensed by the wife with the order or any attempts to for monies improperly diverted from a returned, her daughter was dead. When to the debtor by respondent, E Inc. Two change the Chinese school arrangements taxi business. subsequently apprehended by police and licensing agreements granted the debtor an from what was contemplated by the order. Appeal from the dismissal of appellants’ advised he was under arrest for impaired exclusive right to offer the course materials The prejudice in admitting the communica- action against respondents for damages for driving causing death, accused told the offi- in Canada in exchange for certain royalty tion clearly outweighed its probative value. improperly diverting income from respon- cer his vehicle had been stolen. Accused and one-time payments. E Inc. regarded its Lo v. Mang, [2009] O.J. No. 5581, dent taxi businesses and failing to account was single with no dependents and no prior contracts with the debtor as part of an Ont. S.C.J., Allen J., Dec. 23/09. Digest for it between 1994 and 2004. In July 1993, criminal record. The sentencing judge fol- umbrella agreement including both written No. 2935-011 (Approx. 5 pp.) appellant JR purchased 20 percent of the lowed the Crown’s submissions on sentence. agreements, oral understandings and a shares of respondent numbered company HELD: Appeal dismissed. The reason- course of dealings in the context of a strate- (420), which owned the other corporate able inference was that accused fled to avoid gic partnership. The insolvency of the debt- EVIDENCE (CRIMINAL) parties, one of which was C Ltd., the taxi charges of impaired driving causing injury or gave rise to a right to terminate the company. JR was not involved directly in or death. He was driving on the wrong side licensing agreements. G Inc. was one of E HEARSAY – The trial judge did not the operation of the business. Her husband, of a dry, clearly marked, paved highway Inc.’s largest competitors and was the suc- err in admitting the victim’s ante-mor- AR, participated in the affairs of the parent after consuming alcohol. His vehicle con- cessful bidder for the purchase of the debt- tem statements or in the instructions to company on her behalf. In 1994 the indi- tained empty alcoholic beverage containers or’s assets as a going concern. The debtor the jury. vidual defendants, other than SS, each and the police officer’s observations strongly sought assignment of one of its agreements Appeal from conviction for first degree acquired 20 percent of the shares of 420. In suggested he was still impaired two hours with E Inc. to G Inc. on terms that would murder. The victim was the wife of 2003 JR filed a petition alleging oppression after the collision. The appalling facts of the permanently stay the right of E Inc. to exer- accused. For several years she had sought and asserting that between 1994 and 2004 case where accused left an injured mother cise rights of termination arising from the to leave their marriage due to accused’s respondents improperly and secretly divert- and her dying child to fend for themselves debtor’s insolvency. abusive nature and household clutter he ed to themselves income from the taxi busi- on an isolated highway after causing this HELD: Motion dismissed. It was not amassed as a collection hobbyist. In ness. AR was added as a third party to the accident and then doing all he could to appropriate to exercise discretion to autho- December 2004, the wife abandoned the proceeding. Respondents admitted they deflect liability from himself called for a rize the proposed assignment. The request- home while accused visited Turkey. She took cash from the taxi business between sentence of the kind imposed. The sentence ed relief would not further the protection moved into a secure apartment and took 1994 and 2002, but asserted appellants was upheld. proceedings or reorganization process, and precautions to ensure she could not be acted in concert with them and shared R. v. Doucet, [2009] A.J. No. 1401, had no impact on the debtor or its stake- found by accused, due to fear of reprisal. equally in the money. The trial judge found Alta. C.A., per Hunt, Paperny and Martin holders given that the sale transaction with Accused returned and found the wife’s let- that from 1994 until at least 2000 AR initi- JJ.A., Dec. 18/09. Digest No. 2935-008 G Inc. had already completed. The only ter indicating her reasons for leaving the ated and actively participated in the distri- (Approx. 5 pp.) impact of the proposed relief was to adverse- marriage. Four days later the wife was shot bution of unrecorded cash from the C Ltd. ly affect E Inc.’s right to terminate the agree- to death in her vehicle. Police arrested taxi drivers. She concluded there was a fall- ment. The court’s discretion was not avail- accused within hours of the shooting. The ing-out among the parties and the most CROWN able to competitively disadvantage E Inc., as Crown based its case on eyewitnesses that likely scenario was that appellants ceased to licensor to the debtor, in favour of G Inc., as saw a man leave the scene, evidence of participate in the scheme. The judge held MINISTERS – An action by crab fish- purchaser of the debtor’s assets. opportunity based on accused’s presence that respondents continued to take money ermen alleging a breach of contract by Nexient Learning Inc. (Re), [2009] near the scene, evidence of motive, evi- from C Ltd. without appellants’ knowledge the minister of fisheries and oceans O.J. No. 5507, Ont. S.C.J., Wilton-Siegel dence of stalking or surveillance by or participation but, applying the doctrine could not succeed. J., Dec. 23/09. Digest No. 2935-010 accused, gunshot residue found on of ex turpi causa non oritur actio, the judge Appeal by several crab fishermen from (Approx. 15 pp.) accused’s gloves and in his rented vehicle, refused to award damages to appellants. an order striking their action against the and admissions made by accused upon HELD: Appeal dismissed. The trial Attorney General of Canada. The fishermen arrest. Accused was convicted by judge judge was entitled to reach a determination alleged that the minister of fisheries and EVIDENCE (CIVIL) and jury. Accused sought a new trial based of the likely conduct of the parties that did oceans breached a contract pursuant to on alleged errors made by the trial judge in not accord with their direct evidence or which their crab quotas were not to be PRIVILEGE – The husband was not the course of evidentiary and procedural positions advanced by them at trial. Her reduced below 1993 levels unless conserva- entitled to introduce into evidence an rulings, and in instructions to the jury. conclusion that appellants initiated and tion required an overall quota reduction. e-mail that had been inadvertently HELD: Appeal dismissed. The trial participated in the scheme was based on her The judge found that no contract existed, forwarded to his counsel by the wife’s judge did not err in assessing the admis- disbelief of appellants and on her accep- and found that the minister’s decision to counsel. sibility of the wife’s contemporaneous tance of direct and indirect evidence that reduce the quotas in 2000 was within his Motion by the husband to permit an ante-mortem statements, or in the supported that conclusion. She made it very exclusive jurisdiction. He noted that the e-mail communication he received contain- instructions given to the jury regarding clear her task was to endeavour to ascertain fishermen had not challenged the minister’s ing correspondence from the wife’s solicitor use of those statements. The statements the truth despite the unreliability of the evi- decision by way of a judicial review applica- to wife to be admitted into evidence. The were offered to prove the wife’s state of dence of the parties. To do so she looked at tion, and found that their claim was an issue came about during counsel’s discus- mind about her relationship with accused all the evidence, accepting some parts and attempt to fetter the minister’s discretion. sions around taking out an order following and were material to the issue of motive. rejecting others. The judge did not err in HELD: Appeal dismissed. It was plain a motion in September 2009. On the The moral prejudice associated with the applying the doctrine of ex turpi causa. and obvious that the crab fishermen’s claim motion, the court had been asked to deter- statements was not high. Given that iden- Randhawa v. 420413 B.C. Ltd., could not have succeeded. The minister had mine residence arrangements for the two tity and the legal character of the unlawful [2009] B.C.J. No. 2601, B.C.C.A., per absolute discretion in setting crab quotas. children of the marriage. There had been killing were contested issues at trial, evi- Chiasson J.A. (Finch C.J.B.C. concur- Any commitment the minister made in an considerable contention between the par- dence of accused’s motive to kill his wife ring), reasons concurring by Ryan J.A., earlier year to maintain quotas could not ties about the children’s attendance at was relevant. The jury was properly Dec. 29/09. Digest No. 2935-007 ground a claim in damages, as such a com- Chinese school. The court order provided instructed as to the use and frailties of (Approx. 18 pp.) mitment would constitute an impermissi- for husband to pick up the children on hearsay evidence. The judge made no ble fettering of the minister’s discretion. Fridays at 8.30 p.m. on his access weekend error in instructing the jury on the use of There were no allegations of bad faith or since they attended Chinese school that eve- the identification evidence and the gener- CRIMINAL LAW arbitrary decision-making on the minister’s ning, and to pick them up every Thursday al and specific frailties associated with part. from 5 p.m. The e-mail was from wife’s that evidence. Accused’s claim of an inad- VERDICT – A sentence of 28 months’ Andrews v. Canada (Attorney counsel to the husband’s counsel and inad- equate investigation permitted the Crown imprisonment and a three-year driving General), [2009] N.J. No. 361, Nfld. & vertently attached e-mail correspondence to adduce evidence demonstrating the prohibition was reasonable for accused’s Lab. C.A., Welsh J.A., reasons concur- from wife’s counsel to wife. The husband thoroughness of the investigation. conviction for leaving the scene of an ring by Barry J.A., reasons dissenting by was concerned that the words indicated the R. v. Candir, [2009] O.J. No. 5485, accident. Wells J.A., Dec. 30/09. Digest No. 2935- wife might have secret intentions of chang- Ont. C.A., per Watt J.A. (Lang and Appeal from a sentence of 28 months’ 009 (Approx. 28 pp.) ing the arrangements regarding the Chinese Juriansz JJ.A. concurring), Dec. 22/09. imprisonment and a three-year driving school once the order was taken out. Digest No. 2935-012 (Approx., 25 pp.) prohibition. Accused, a 41-year-old profes- HELD: Motion dismissed. The husband sional truck driver, had pleaded guilty to DEBTOR AND CREDITOR failed to show evidence of consent by the leaving the scene of an accident and refus- wife or of an intention by her to waive privi- HEALTH LAW ing a breathalyzer demand. Accused had ARRANGEMENTS – A proposed lege over the communication. It was the been driving on the wrong side of the road assignment of a contract was not permit- inadvertence of counsel that put the com- MENTAL HEALTH – Appellant’s when he collided with a vehicle going the ted because it would not further the pro- munication in the hands of husband and motion to stay a finding of incapacity was opposite direction. The other driver was tection proceedings or reorganization not a waiver or consent by wife. The dis- dismissed but the Public Guardian and injured and as she was trying to render process. puted words did not convey any particular Trustee was to assist the court in deter- www.lawyersweekly.ca THE LAWYERS WEEKLY January 29, 2010 | 19 DIGEST mining how appellate could pursue his HELD: Action allowed. Both defendants ing, pay costs and indemnify both appel- statutory right of appeal. were negligent and the fault should be INSURANCE (LIABILITY) lants. The trial judge found that the certifi- Motion to stay the finding of incapacity apportioned 75 percent to the Crown and 25 cate of insurance issued by respondent made by an assessor and its confirmation by percent to the doctor as the doctor bore a DUTY TO DEFEND – Respondent provided coverage only for liability claims the Consent and Capacity Board. Appellant lesser degree of responsibility. The labora- insurer did not have duty to defend appel- where the MOT was liable for some act or was 27 years of age and had suffered a trau- tory erred in reporting the third test of lant Ministry for claims concerning its omission of the contractor, rather than for matic brain injury in a motor vehicle acci- infant plaintiff’s blood specimen and its own conduct. liability arising independently from the dent. In 2006, he was declared to be inca- negligence in doing so caused or contribut- Appeal from the dismissal of appellants’ contractor’s actions. As there was no cover- pable of managing his financial and legal ed to the failure to diagnose PKU and action against respondent insurer. Ontario age, there was no duty to defend. affairs and the Public Guardian and Trustee deprived the infant plaintiff of the opportu- had entered an agreement with a contractor HELD: Appeal dismissed. The contrac- for British Columbia became the committee nity for intervention and treatment. The for the repair and paving of a highway. The tor was not obliged under the construction of his estate. When appellant moved to doctor was negligent in ordering a third test agreement required the contractor to obtain contract to obtain insurance coverage for Ontario, the Public Guardian requested that after the two positive results, instead of insurance coverage of $1 million to protect claims concerning the MOT’s own conduct. a capacity assessment of appellant be com- ordering a different quantitative testing that the province as represented by the Ministry The combined effect of the insurance poli- pleted. The assessor concluded that appel- would have disclosed a result that led to of Transportation (MOT) for claims arising cies issued afforded the MOT coverage lant was incapable of managing property, follow-up, diagnosis and treatment. from any act or omission by the contractor. against vicarious liability for actionable con- which was confirmed by the Consent and Cleveland (Litigation Guardian of) A certificate of insurance was issued on duct by the contractor. The liability findings Capacity Board on review, and the Ontario v. Hamilton Health Sciences Cor p. behalf of respondent in respect of the con- against the MOT in the accident litigation Public Guardian and Trustee became his (Henderson General Division), [2009] struction contract. Appellant K Co. pro- did not engage vicarious liability, as they statutory guardian of property. An appeal of O.J. No. 5361, Ont. S.C.J., Lax J., Dec. vided comprehensive general liability cov- related to acts or omissions of the MOT’s the decision was dismissed. He then brought 15/09. Digest No. 2935-014 (Approx. erage to the MOT. Subsequently, an indi- own personnel. Had respondent’s policy a motion seeking to stay the finding of inca- 15 pp.) vidual was awarded damages against the been intended or expected by the parties to pacity. Appellant’s brain injury resulted in a contractor for injuries suffered when his provide the coverage claimed by the MOT, change in personality that included the vehicle left the pavement on the highway. separate coverage from K Co. would have manifestation of violent outbursts. He had HIGHWAYS In third party proceedings, the MOT was been unnecessary. been charged with threatening death and ordered to indemnify the contractor for 50 Ontario (Minister of Transportation) had also sent a threatening email to the LIABILITY OF MUNICIPALITIES percent of the damages award due to its v. Canadian Surety Company, [2009] judge who dismissed his appeal, made FOR INJURIES – Plaintiffs failed to negligence in failing to act on information O.J. No. 5487, Ont. C.A., per Cronk, Blair threatening gestures to courtroom staff and prove a causal relationship between a obtained in an inspection undertaken just and LaForme JJ.A., Dec. 22/09. Digest engaged in conduct toward another judge township’s failure to put a “No Exit” sign prior to the accident. K Co. took the posi- No. 2935-016 (Approx. 5 pp.) that was tantamount to stalking. or a checkerboard sign in a lane to inju- tion that respondent’s policy obtained in HELD: Motion dismissed. Appellant ries suffered when their car got stuck at relation to the construction project respond- sought the same relief he had sought on his the end of the lane. ed to the loss. Respondent took the position INSURANCE (PROPERTY) dismissed appeal and his proper remedy Action for damages for injuries suffered that the K Co. policy did not cover indepen- was to appeal or seek leave to appeal to the by plaintiffs. Plaintiff J was driving her dent negligent acts of the MOT. Appellants EXCLUSIONS – Appellant insurer proper appellate court. Appellant lacked the mother’s vehicle. Her friend R was a pas- sought declarations that respondent was could rely on an exclusion clause in an all- financial resources to retain counsel. senger in the vehicle. They drove south obliged to defend the MOT in both the acci- risks policy for losses associated with Consequently, the Public Guardian and the onto a county road with no particular des- dent litigation and the third party proceed- faulty workmanship or design. assistant deputy attorney general were to tination in mind, making a left hand turn arrange for counsel to appear before the onto a lane, continuing until they eventu- court to assist the court in determining how ally hit a rock and got stuck. They were appellant could pursue his statutory right of unable to restart the car and tried to appeal while safeguarding the integrity of retrace the path taken but ended up in the the court process and the security of the bush. Plaintiff broke thorough some ice judiciary and court staff. and lost her boots and socks. R also broke Hillier v. Milojevic, [2009] O.J. No. through but retained her boots. Plaintiff 5378, Ont. S.C.J., Brown J., Dec. 16/09. and R were eventually noticed by a pass- Digest No. 2935-013 (Approx. 6 pp.) erby who took them to the hospital. Both suffered from severe frostbite. J lost both legs and eight fingers and R lost several NEGLIGENCE – The court appor- fingers and toes. Plaintiffs alleged that tioned liability between the Crown and a defendant township was negligent because doctor for failing to timely diagnose an it failed to erect “No Exit” signs at the Subscribe infant plaintiff with phenylketonuria. intersection of the lane and the county Action for damages for negligence for road or a checkerboard sign signalling the failing to timely diagnose the infant plain- end of the lane. Today tiff. At birth, in September 1996, the infant HELD: Action dismissed. There were plaintiff was screened for congenital disor- no conditions upon or adjacent to the Yes! I would like to subscribe to The Lawyers Weekly. ders including phenylketonuria (PKU). His highway that were potentially dangerous T 1 year (48 issues) for $265, plus tax T 2 years (96 issues) for $449, plus tax first test was reported positive for PKU. A to the road user at the end of or immedi- ______second blood specimen taken at one week of ately beyond the end of the lane that Name age also tested positive. Defendant doctor required an advanced warning. The ______Firm/Organization ordered a third test, which was taken at 33 Manual of Uniform Traffic Control Devices ______days of age, which was normal. No further standards, which required both “No Exit” Address ______T Home T Business clinical or laboratory follow-up was signs and a checkerboard sign on the lane, Address arranged. In 1999, at the age of three, the were accepted as no more than guidelines. ______infant plaintiff was diagnosed with classical Evidence demonstrated conclusively that City Province Postal Code ______PKU. At trial, two medical experts expressed municipalities in Ontario did not comply Phone Number Fax Number ______the opinion that there were errors that with the standards. There was evidence Email occurred in the testing of the infant plain- from the witnesses who found the car that tiff’s blood and that those errors breached there were two empty alcohol cooler bot- Method of Payment the standard of care reasonably expected of tles on top of the car, empty beer bottles T Visa T MasterCard T AMEX T Cheque enclosed a laboratory conducting newborn screening. inside and a partly filled wine bottle. There ______Two medical experts also expressed the were also obvious places where the car Credit Card Number Expiry Date ______opinion that after two consecutive abnor- could have been turned around. The town- Card Holder Name Signature mal results, the standard of care required a ship’s decision not to put signs in the lane third testing using a different method. The was not a breach of the standard of care. For faster service, order online at: www.thelawyersweekly.ca action against all defendants expect the Plaintiffs failed to prove causal relation- defendant doctor was dismissed. Damages ship between the absence of the signs on Mail your subscription order to: LexisNexis Canada Inc. 700–123 Commerce Valley Drive East, Markham, ON L3T 7W8 were agreed. The action against the Crown, the land and the injuries suffered. The Fax to: 905-479-4082 or use our toll-free fax at 1-800-461-3275 Please allow 2-3 weeks for delivery of ﬁ rst issue. Make cheque payable to LexisNexis Canada. who was responsible for the testing of new- township was not liable. Offer expires October 31, 2010. Reservation Code: 4358 born blood specimens, was settled on the Greenhalgh v. Douro-Dummer basis that the Crown would be severally lia- (Township), [2009] O.J. No. 5438, Ont. ble for its apportioned share of liability S.C.J., Lauwers J., Dec. 17/09. Digest No. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under licence. © 2009 LexisNexis Canada Inc. All rights reserved. which was to be determined by the court. 2935-015 (Approx. 79 pp.) 20 | January 29, 2010 THE LAWYERS WEEKLY www.lawyersweekly.ca DIGEST

Appeal from a decision concluding that cause of the loss was the water hammer, not curring), Dec. 21/09. Digest No. 2935- that appellant hit a sandbar to conclude that an all-risk policy under which respondent faulty workmanship, although the corpora- 017 (Approx. 9 pp.) his insufficient awareness of sandbars condominium corporation was insured tion had never mentioned the water ham- caused his injuries. That was inconsistent entitled it to the entire replacement cost for mer in its pleadings. with the judge’s express finding that appel- a standpipe system. The uncontroverted HELD: Appeal allowed. The judgment LABOUR RELATIONS lant did not prove that he hit his head on a evidence established the standpipe system was set aside. The water hammer was not sandbar rather than the bottom of the lake. was either improperly designed or improp- a fortuitous event, but was a regular RIGHT OF ACTION – Plaintiffs action To make inconsistent findings on the central erly installed. A flood, caused by a water occurrence that the standpipe system was stayed because it fell within the issue of factual causation was an error of law hammer, resulted, causing an estimated $2 failed to withstand because it was improp- labour dispute arrangements in the col- requiring appellate intervention. The judge’s million in damages for which appellant erly designed or installed. The exclusion lective agreement. finding that appellant had failed to prove insurer indemnified the corporation. After clause in the policy applied. Further, Motion by defendants for an order dis- that he hit his head on a sandbar rather than the flood, the corporation replaced the there was no evidence to support the missing the statement of claim on the the bottom of the lake constituted a palpa- entire standpipe system at a cost of position that the entire system needed to basis that the court had no jurisdiction ble and overriding error. The judge’s conclu- $600,000. Appellant denied coverage for be replaced. over the subject matter. Plaintiffs sought sion that the sandbars were not a hazard to that cost, citing an exclusion clause in the Ottawa-Carlton Standard damages and injunctive relief for alleged swimmers was based on his finding that policy for losses associated with faulty work- Condominium Corp. No. 687 v. ING failures by defendants to prevent harass- these sandbars had never previously caused manship or design. The corporation sued Novex Insurance Co. of Canada, [2009] ment of plaintiffs in their workplace and to injury to anyone at the park. There was no for coverage of the system replacement cost. O.J. No. 5467, Ont. C.A., per MacFarland properly administer policies and proce- evidence to support that finding. The judge allowed the action, noting the J.A. (Weiler and MacPherson JJ.A. con- dures with respect to working conditions Trajkovich v. Ontario (Minister of and discipline. One plaintiff was a police Natural Resources), [2009] O.J. No. offer and one a civilian employee of defen- 5466, Ont. C.A., per Goudge J.A. dant police services board. The individual (O’Connor A.C.J.O and LaForme J.A. defendants were employed by the board. concurring), Dec. 18/09. Digest No. Classifieds Plaintiffs had made allegations of harass- 2935-019 (Approx. 6 pp.) ment against another police officer in 2005. While those allegations resulted in a INVESTIGATIONS OFFICE SPACE POSITIONS disciplinary hearing, the notice of hearing CONTRIBUTORY NEGLIGENCE – AVAILABLE AVAILABLE was quashed on the basis of the expiration The appellate court upheld a finding MISSING HEIRS of a limitation period. that appellant was one-third contribu- Cogan & Assoc. International LIBERTY VILLAGE FAMILY LAW LAWYER HELD: Motion granted. The relief sought torily negligent for a failed investment. probate research, locators King St. W. — 2 large offices — (1-3 years experience in Family arose out of the same allegations of harass- Appeal from the finding that appellant of missing heirs. Telephone: wonderful loft space with Willson Law) wanted in Wasaga Beach ment in the workplace that were the subject was contributorily negligent with respect to 519-770-0500, Fax: 519-770-0059. Lewis LLP, experienced counsel to start immediately. If you’re of the previous disciplinary hearing and the investment losses it suffered as a result of a www.heirtrace.com practising commercial and civil interested in adding increase to subject matter of the grievance and human failed investment. M, the owner of appellant, litigation — great opportunity for your clients’ lives and you are rights complaints. The real basis of the claim with the help of respondent investment advi- OFFICE SPACE referral work — parking — facilities, looking for a growth opportunity, was that the employer and two of its employ- sors F and H, employed by respondent U AVAILABLE kitchen, and reception included — which could include other areas ees, for whom it is vicariously liable, permit- Ltd., had invested $200,000 through appel- beautiful board rooms and of law please fax your application ted working conditions to exist which lant in C Inc. S, the head of corporate finance secretarial station — $1000 to and resume to: Pellar Family Law required alterations, and which caused them for U Ltd., recognized that the transaction 15 ELM STREET $1200 — Contact Catherine Professional Corporation, Wasaga damages for which they sought compensa- was in violation of a previously-issued cease (Bay & Dundas Toronto) Willson at 416-534-9504 (x21) or Beach, Ontario. Fax: 705-429-2780. tion. Those were matters which related to trade order. He told H to reverse the com- Nice newly renovated double [email protected] Thanks to all applicants. However, working conditions and fell within the provi- missions and refund the money. H faxed over office, near courts, suitable for response will be sent only to those sions of the labour dispute arrangements a copy of the refund cheque from C Inc. with- sole practioner, 625 mo., contact NEAR NEW DURHAM eligible for an interview. effected in the collective agreement and out stating he had given the money back to Ed at 647-8314975. REGIONAL COURTHOUSE under the Police Services Act (Ont.). An M. Upon becoming aware of the effect of the (OSHAWA) ZUBER & CO LLP arbitrator had exclusive jurisdiction over the cease trade order, M suggested to the CEO of 172 KING STREET EAST All brick, professional building with a Are currently seeking two claims brought by plaintiffs in the action. C Inc. that her investment be converted into & 35/45 DIVISION ST, OSHAWA built-in tenant (Thoracic Surgeon). 4 associates; one position requires a The court retained residual jurisdiction over a loan. That was done. She was never told Beautiful office space in downtown levels, including basement. All up to minimum of 6-8 years experience matters where the arbitrator did not have that S had ordered the return of the funds. M Oshawa sandblasted brick, date mechanicals, gas heat, central and the second position for a new the power to give a required remedy or was granted common shares in C Inc. for elegant hardwood, sparkling new air, 10 car parking. Offered at call or 1st year lawyer. Defence where there was a lack of an effective remedy having made the loan. C Inc. eventually failed kitchens, starting at 350 sf and up. $435,000. Call Rick Dimock, articling experience would be within the collective agreement or the legis- and appellant lost its investment. The trial Please call Matthew Stone at Sales Representative, Remax Jazz an asset. Email resume to lation. The action was stayed. judge found respondents had all made mis- 416-723-0847. Inc. 1-888-732-1600 or e-mail; [email protected] with salary Jane Doe Eleven v. Hamilton Police representations to M, without which appel- [email protected] for more expectations. Services Board, [2009] O.J. No. 5370, lant would not have made the investment. 172 KING STREET EAST information. Ont. S.C.J., Turnbull J., Dec. 14/09. However, M was herself negligent in the way & 35/45 DIVISION ST, OSHAWA Digest No. 2935-018 (Approx. 10 pp.) she conducted her due diligence and made Newly renovated office building in SERVICES the investment, and she was found to be one- downtown Oshawa. Ideal location POSITIONS AVAILABLE third contributorily negligent. for legal services, situated directly LEGAL NURSE CONSULTANT NEGLIGENCE HELD: Appeal dismissed. The appellate across from the Durham Regional 11 years experience, with specialty in court upheld the findings that F and H were Courthouse. Office space ranges ECOJUSTICE medical, surgical, gastroenterology CAUSATION – The trial judge made liable to appellant and the finding that U Ltd. from 500 sf to 1000+. Please call Formerly Sierra Legal Defence and urology nursing. Please email inconsistent findings on causation that was vicariously liable for their conduct were Matthew Stone at 416-723-0847. Fund, is seeking lawyers for our [email protected] or call justified a new trial. sustainable on the record. The court set aside Vancouver and Toronto offices. 905-569-0085. Appeal from a judgment dismissing the finding that the CEO of C Inc. was liable Applicants must be committed to appellant’s action for injuries sustained to appellant. The appeal of the finding of public interest environmental law, RES JUDICATA CONSULTANT while swimming in a provincial park owned contributory negligence was dismissed. The have litigation experience and Opinions, co-counsel, expert by respondents. Appellant dove in shallow contributory negligence was found to arise in an interest in litigating to protect evidence. Contact the author of water into a lake. His head hit either an a failure on appellant’s part to conduct prop- CLASSIFIED AD the environment, have excellent The Doctrine of Res Judicata in underwater sandbar or the flat bottom of er due diligence with respect to matters out- communication, research and Canada: www.donaldlange.com the lake. He broke his neck and was ren- side the representations. They related to writing skills, and have knowledge of dered a tetraplegic. The trial judge con- inquiries of the staff and directors at C Inc., relevant law and policy. Applicants TRANSPORTATION cluded that the injuries were caused by review of financial statements, and failing to must also have the capacity to SOLUTIONS appellant’s own negligence in that he was require disclosure of further documentation. thrive in a non-profit environment Affordable and reliable insufficiently aware of the presence of sand- Thus, the finding of contributory negligence where legal responsibilities will be transportation for injured bars and by choosing to dive from a stand- was not inconsistent with the finding that supplemented by communications insurance clients. Reservation at ing position in water that was too shallow appellant’s reliance on the representations of and fundraising roles. Please www.world-limousine.com or when he could not see the bottom of the F and H was reasonable. There was no find- submit a letter of intent and call: 905-467-5102. lake. The judge found that, even if appellant ing of fraud that would have precluded the resume in confidence by February hit his head on a sandbar, the sandbars did operation of the principles of contributory 6, 2010 to Marjorie McGowan at not constitute a hazard to swimmers for negligence. Maclise Enterprises Inc. v. [email protected]. Please which respondents could be held liable Union Securities Ltd., [2009] A.J. No. specify which location you are under the Occupiers’ Liability Act (Ont.). 1405, Alta. C.A., per Fraser C.J.A. and applying for. HELD: Appeal allowed. A new trial was Martin and Slatter JJ.A., Dec. 18/09. ordered. The trial judge must have found Digest No. 2935-020 (Approx. 11 pp.) www.lawyersweekly.ca THE LAWYERS WEEKLY January 29, 2010 | 21 BUSINESS CAREERS

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Practice Management

Canada’s legal online job board. 22 | January 29, 2010 THE LAWYERS WEEKLY www.lawyersweekly.ca BUSINESS CAREERS

Defence Construction Canada (DCC) is a rapidly expanding Crown Corporation that INSURANCE DEFENCE LAWYER delivers contracting, contract management and other infrastructure services to the LITIGATION: PERSONAL INJURY/INSURANCE Department of National Defence. Our Ottawa, ON Site Of¿ ce is currently seeking: We are seeking an insurance defence lawyer with 5 to 10 years of litigation experience. CONTRACT SERVICES OFFICER - $57,621 to $69,422 Personal Injury and AB experience is essential. Based in Markham, you will work as a defence lawyer for Allstate, Pembridge and Pafco Insurance Companies. Excellent The successful candidate will be responsible for carrying out procurement processes technical, drafting, reporting, research, and computer skills are required. Trial for architectural/engineering and other professional consulting services using existing experience is preferred. templates, and is responsible for providing high-quality, timely, ef¿ cient and effective procurement services to support the Department of National Defence (DND) and the We offer a congenial atmosphere with work/life balance, complete benefits, excellent Canadian Forces (CF) in the long-term development and management of its facilities staff support and free parking. infrastructure.

We appreciate the interest of all applicants; however only those selected for interviews This position typically requires a bachelor level university degree in Business Law, will be contacted. Qualified applicants are invited to submit their resume to: Architecture, Engineering or equivalent and three years of experience. Bilingualism in English and French is a de¿ nite asset. Martha Binks Allstate Legal Services To apply and for further details about this position and others, please visit our website at: www.dcc-cdc.gc.ca. Closing date: February 12, 2010. 11 Allstate Parkway Markham, Ontario L3R 5P8 Defence Construction Canada offers a very competitive bene¿ t package including special Or by fax to: (905) 475-4306 leave, pension plan, health, dental and vision care. DCC is an equal-opportunity employer Email: [email protected] committed to diversity.

®Trademark used under licence by Allstate Insurance Company

Segment Marketing Manager – Legal Markets Segment Marketing Manager – Corporate and Public Markets Job ID: LC514-2010-SMM-LM • Location: Markham • Type of Employment: Full-Time Job ID: LC514-2010-SMM-CPM • Location: Markham • Type of Employment: Full-Time We have an immediate opening for a Segment Marketing Manager – Legal Markets with our We have an immediate opening for a Segment Marketing Manager – Corporate and Public Marketing & Segment Management team. Reporting to the Director, Marketing and Segment Markets with our Marketing & Segment Management team. Reporting to the Director, Management, you will gain a deep understanding of customer needs within the small law, Marketing and Segment Management, you will gain a deep understanding of customer medium law and large law segments. You will create segment value propositions and this needs within the corporate, corporate counsel, government and academic segments. You exciting position involves close coordination with sales teams as well as direct contact with will create segment value propositions and this exciting position involves close coordination customers. with sales teams as well as direct contact with customers. Responsibilities: Responsibilities: • Work closely with customers and colleagues to gain deep insight into customer needs • Work closely with customers and colleagues to gain deep insight into customer needs and trends, and develop relevant value propositions that support business strategy and trends, and develop relevant value propositions that support business strategy • Develop and implement segment marketing strategy and programs, and track program • Develop and implement segment marketing strategy and programs, and track program performance performance • Lead creation of promotional and sales support materials (advertising, e-marketing, • Lead creation of promotional and sales support materials (advertising, e-marketing, direct mail, brochures, etc.) direct mail, brochures, etc.) • Implement programs and processes to improve customer feedback (advisory board, • Implement programs and processes to improve customer feedback (advisory board, focus groups, user groups, etc.) focus groups, user groups, etc.) • Collect business intelligence, develop go-to-market strategies, help defi ne segment- • Collect business intelligence, develop go-to-market strategies, help defi ne segment- specifi c product offerings, and help form pricing strategy specifi c product offerings, and help form pricing strategy • Manage analysis of market surveys to identify concerns and opportunities • Manage analysis of market surveys to identify concerns and opportunities • Meet with customers and prospects and attend industry events • Meet with customers and prospects and attend industry events • Form close working relationships with segment sales teams, product development staff • Form close working relationships with segment sales teams, product development staff and other internal stakeholders and other internal stakeholders • Manage a marketing budget • Manage a marketing budget Qualifi cations: Qualifi cations: • A university degree in marketing or a related fi eld • A university degree in marketing or a related fi eld • A minimum of 5 years experience in marketing or segment management in a legal or • A minimum of 5 years experience in marketing or segment management in a professional services environment professional services environment • Successful history of developing compelling value propositions and working with sales • Successful history of developing compelling value propositions and working with sales staff to communicate solutions to the market staff to communicate solutions to the market • Ability to think strategically and act tactically to achieve desired results • Ability to think strategically and act tactically to achieve desired results • Excellent time management, project management, planning and organizational skills • Excellent time management, project management, planning and organizational skills • Ability to solve problems and think both analytically and creatively • Ability to solve problems and think both analytically and creatively • Exceptional communication, interpersonal, presentation and leadership skills, with the • Exceptional communication, interpersonal, presentation and leadership skills, with the ability to form strong working relationships and infl uence others ability to form strong working relationships and infl uence others • Bilingualism (English and French) is an asset • Bilingualism (English and French) is an asset

Closing Date: February 12, 2010 Closing Date: February 12, 2010 Contact Information: Contact Information: Athina Iliadis, Human Resources Consultant Athina Iliadis, Human Resources Consultant 123 Commerce Valley Drive East, Suite 700, Markham, Ontario L3T 7W8 123 Commerce Valley Drive East, Suite 700, Markham, Ontario L3T 7W8 Fax: 905-479-9241 • Email: [email protected] Fax: 905-479-9241 • Email: [email protected]

LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under licence. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under licence. © 2010 LexisNexis Canada Inc. All rights reserved. © 2010 LexisNexis Canada Inc. All rights reserved. www.lawyersweekly.ca THE LAWYERS WEEKLY January 29, 2010 | 23 BUSINESS CAREERS Teaching lawyers to be in the now incidence of depression among number of strategies but focuses clients want more than just a legal A lawyer who inquires about the members of 105 different occupa- on two main approaches — mind- fix and they come to you because underlying reasons for litigation tions. Lawyers topped the list. The fulness and meditation. they want to feel more whole and may find the motivation to be JOHN Canadian Bar Association’s Legal Mindfulness means being in at peace. They want you to care anger or revenge. Who wants to STARZYNSKI Profession Assistance Conference the moment, in the here and now. about them. In talking to the cli- be a part of that when you are not tells us that lawyers have up to It means knowing yourself physi- ent, he discovers that the client looking at the big picture of trying three times the incidence of sub- cally, emotionally and spiritually, has had an offer for a long-stand- to settle disputes at the minimum The way we spend our days stance abuse and mental health mapping out a balanced day, ing family company, does not of collateral damage to spouses, is the way we spend our lives issues as the general population. At allowing yourself to spend time in want to sell because he would like children and the financial viability — Annie Dillard the Ontario Lawyers Assistance meditation daily, and by asking his kids to continue the family of a separated family? You are a With the new year now here it Program, we anecdotally see that yourself the question: How could business but is in a cash crunch. counsellor, trusted adviser, prob- is time to take stock of where these factors are very relevant to I spend my days in a way that The talk is of the client as a per- lem solver and peacemaker along you have been and where you disciplinary complaints and claims would make me feel excited about son, businessman, father and pro- with your role as advocate when want to go. A book can help you experience. Suicide ideation and waking up in the morning? vider. The lawyer discusses other that is necessary. As a lawyer, you make the changes you want this completion is on the rise in the Keeva tells a story about a cli- ways to deal with the capital chal- are a healer. year. Transforming Practices, profession. This is all bad news. ent who calls his lawyers’ offices to lenges and the client leaves happy I wrote an article a number of Finding Joy and Satisfaction in As lawyers, we need to deal ask that the documents and tax that he has not made a mistake. months ago in these pages about the Legal Life by Steven Keeva, with these life-threatening issues implications of selling his busi- The lawyer does not get that piece meditation. I will not repeat it an editor for the American Bar by going to the resources that ness can be ready for him in a day. of business, but the client is so here except to say that time spent Association’s The Lawyers give meaning to our lives: rela- The lawyer in charge of the legal happy that someone listened and in focusing on the breath and Magazine, shows lawyers how to tionships, giving back to society, work waits for the client to come helped that business is referred to clearing your mind will help you “find profound satisfaction, creating something that endures, into the office to talk. He advises the firm. to perform your work more effec- pleasure, and joy in his or her possessing a sense of spirituality, that he does not just become a In the matrimonial realm, tively. Spend at least five minutes work,” according to its cover. working productively and being mechanical practitioner but needs there is the client-lawyer discus- a day cultivating inner stillness. A study at Johns Hopkins in love. to know why the work needs to be sion about the reason for legal Stop and be still when you need University in 1990 looked at the Keeva’s book talks about a done. He listens, realizing that work and how it will be handled. See Mindfulness Page 26

The Legal Services Division of the City of Toronto is seeking two senior lawyers with a minimum of 8 years practice in real estate !CCIDENTª"ENElTS)NSURANCEª$EFENCEª and/or expropriations law, experience in transit matters being considered an asset. These are one year contract positions, with ,AWYERª0OSITION possibility of renewals. -ILLERæ4HOMSONæ,,0 æONEæOFæ#ANADASæLEADINGælRMSæINæTHEælELDæOFæ INSURANCEæDEFENCE æISæSEEKINGæANæASSOCIATEæTOæJOINæOURæ)NSURANCEæ REAL ESTATE LAWYER (ONE YEAR CONTRACT) 0RACTICEæ'ROUPæINæTHEæ7ATERLOOæ/FlCEæ/URæ)NSURANCEæ0RACTICEæ'ROUPæ You will provide a broad range of real estate law services to City OFFERSæAæFULLæRANGEæOFæSERVICESæTOæTHEæINSURANCEæINDUSTRYæANDæINCLUDESæ Council, its Agencies, Boards, Commissions and staff, including LAWYERSæWHOæAREæRECOGNIZEDæLEADERSæINæAREASæOFæPROPERTYæANDæCASUALTYæ the provision of advice and opinions, drafting reports, by-laws CLAIMS æAUTOMOBILEæACCIDENTæBENElTæCLAIMS æLIFEæANDæDISABILITYæINSURANCEæ and transactional documentation, and attending Committee and 7EæAREæLOOKINGæFORæAæHIGHLYæMOTIVATEDæPERSONæWHOæWANTSæTOæBUILDæAæ Council meetings. SUCCESSFULæCAREERæINæINSURANCEæDEFENCEæWITHæAæFOCUSæONæAUTOMOBILEæ ACCIDENTæBENElTS You must be a member in good standing with the Law Society of Upper Canada. You possess excellent interpersonal and 4HEæSUCCESSFULæCANDIDATEæWILLæHAVEænæYEARSæOFæACCIDENTæBENElTS communication skills as well as negotiation skills, with a INSURANCEæLITIGATIONæEXPERIENCEæANDæEXCELLENTæACADEMICæCREDENTIALSæ demonstrated ability to provide sound legal advice, information and 3UPERIORæDRAFTINGæANDæADVOCACYæSKILLSæAREæALSOæREQUIREDæ4HEæINDIVIDUALæ direction to Members of Council, senior management and City staff. WILLæSUPPORTæSENIORæPARTNERSæONæVARIOUSælLESæASæWELLæASæBEæRESPONSIBLEæ Computer literacy is required. FORæTHEæINDEPENDENTæHANDLINGæOFælLESæINæALLæAREASæOFæACCIDENTæBENElTS Committed to employment equity, the City of Toronto encourages )NTERESTEDæCANDIDATESæSHOULDæAPPLYæINæCONlDENCEæWITHæAæCOVERæLETTER æ applications from Aboriginal people, people with disabilities, RESUMEæANDæLAWæSCHOOLæTRANSCRIPTæTOæTHEæCONTACTæLISTEDæBELOWæ#ANDIDATESæ members of visible minority groups and women. MAYæBEæREQUESTEDæTOæSUBMITæAæWRITINGæSAMPLE Accommodation will be provided in parts of the hiring process 2ICHARDª*ª4RAFFORD as required under the City’s Employment Accommodation policy. /FlCEæ-ANAGINGæ0ARTNER Applicants need to make their needs known in advance. -ILLERæ4HOMSONæ,,0æ æ3OUTHæ7ESTERNæ/NTARIO Interested applicant should forward a cover letter and resume by !CCELERATORæ"UILDING February 12, 2010 to: æ(AGEYæ"LVD æ3UITEæ 7ATERLOO æ/. Anna Kinastowski, City Solicitor, #ANADAæ.,æ2 Legal Services Division, %MAILæRTRAFFORD MILLERTHOMSONCOM 55 John Street, 26th À oor, Metro Hall, Toronto ON M5V 3C6. &AXæ Fax: 416-397-5624. Email: [email protected]. We thank all applicants for their interest. Only those selected for an interview will be contacted. 4/2/.4/ªªª6!.#/56%2ªªª#!,'!29ªªª%$-/.4/.ªªª,/.$/.ªªª+)4#(%.%2 7!4%2,//ªª '5%,0(ªªª-!2+(!-ªªª-/.42²!, 24 | January 29, 2010 THE LAWYERS WEEKLY www.lawyersweekly.ca BUSINESS CAREERS Whether lawyers like it or not lawyer rating Effectively websites are becoming more ubiquitous working Ratings selves. It lends more credibility with lawyers Continued From Page 21 to their own information. If you Sites to check out only toot your own horn, you in place to defend against that, won’t be given much credit,” MICHAEL RAPPAPORT TORONTO but it’s still a potential issue. Google “lawyer rating websites” and you’ll get dozens of she says. Just like with everything else, as sites to visit. Here’s a sample of three websites worth But there’s no free lunch for How do in-house counsel go a client, you can’t take ratings lawyers that attain a high rank- about finding competent, consci- checking out: and reviews completely at face ing on a rating website because entious, cost-effective outside value,” he says. they’re immediately asked if counsel? When should you sue, The fundamental question martindale.com they’d like to place a profile when should you settle and when about any review is whether the advertisement in either the should you swallow your losses? reader trusts the reviewer. A Featuring the Martindale-Hubbell Peer Review Ratings online or print version, which At what point in a deal should you series of glowing reviews of a law- (which is owned by LexisNexis, the publisher of The Lawyers will usually set them back refer the matter to your outside yer posted by “Anonymous” or a Weekly), which are compiled from evaluations by other between $500 and $1,500. legal team? For a wealth of wis- pair of initials won’t carry nearly lawyers, this site gives lawyers a ranking both for their Metivier says the advertising dom on these issues, look no fur- as much weight as the recom- component raises concerns ther than the classic book by Mark mendation of a friend or col- province and internationally. Rankings are also provided for about the objectivity of the web- McCormack, The Terrible Truth league. Furlong points to firms by area of expertise. If you’d like to know which firm sites because such costs could About Lawyers: How Lawyers Amazon.com, where book across Canada has the most reviews of its lawyers, that’s present an unfair advantage to Really Work and How to Deal reviews can be posted anony- larger firms. With Them Successfully. mously but there are often 50 or here, too. The site also has a client review section. “They have a better ability to McCormack was both a Yale more reviews of a single title, so pay for that advertising but it University-trained lawyer and the there’s a sizeable bank of opinion. lawyerratingz.com doesn’t necessarily make them founder and president of IMG, an “Most clients are one-time better lawyers,” she says. international management orga- users of a lawyer’s service and you This site asks clients to rate their lawyer on five criteria Dave Hill, a partner at nization that handles the commer- can’t necessarily extrapolate from on a scale of one to five — knowledge, communication, Winnipeg-based Hill Sokalski cial affairs for sports figures and one experience what a lawyer is tenacity, work quality and value. (Bad reviews carry an Vincent Walsh Trippier, says the celebrities. Although McCormack like. At a certain point, you need rating can be sufficient promo- died almost sevcn years ago and to ‘rate the rater,’ to decide wheth- icon of a blue, sad face, while good reviews are tion in itself, particularly for his book was published in 1987 — er or not his or her review has accompanied by a happy face.) It also provides a space smaller firms such as his, which his insights on how to work with value to you,” he says. for a written review. has 12 lawyers. lawyers effectively are as relevant Shannon Metivier, partner “They’re a good source of today as they were more than two and chair of marketing at The sites reminds people to only rate a lawyer only once. advertising without doing more decades ago. If you don’t already McKercher LLP, a 60-lawyer “You are responsible for what you write here so speak the traditional forms of advertising, have a well-thumbed, highlighted, firm in Saskatchewan, says she’s truth,” the site warns. like taking out ads in the news- dog-eared copy of his book, the skeptical about the quality con- paper. In-house counsel in following is a synopsis of his rec- trol of these websites because she major centres, for example, ommendations. doesn’t know the process they canlaw.com before they hire you, they’ll Retaining counsel follow to arrive at the ratings. This site asks the client for an overall rating of the lawyer, check out these sites to see if “I’m not certain how they whether the client would recommend them, if the lawyer’s you’re ranked,” he says. Ask and ye won’t be taken. “It is choose who is asked to review Hill says he has found web- always to the client’s advantage to the particular lawyer (in the fee was as agreed and whether the lawyer returned phone site rankings can help seal the show sophistication by knowing peer review process). Some of calls from the client. It also provides some writing space for deal with would-be clients. the pertinent questions. Showing the sites also have a client clients to say what they would tell their associates about the “I’m finding more and more awareness up front is a great deter- review. I’m not sure if that’s vol- when people come in and rent to being taken advantage of untary. We can’t give out the work the lawyer did for them. (potentially) want to hire us, it’s later on,” McCormack wrote. names of our clients, so I’m not Clients are asked to identify both the lawyer and like an interview (for the firm). To get some sense of a lawyer’s sure how they arrive at that,” themselves. The site warns that due to a high number of Rather than me do the talking, level of competency in a particular she says. I’ll say, ‘I’ll let you know what area of law, ask the following: “You could have 100 satisfied slanderous complaints, all complaints are passed on to the our peers apparently think of (1) If he or she has expertise in clients and one disgruntled one lawyer involved for a response. us. I’ve found the clients have a particular matter; and I imagine it would be the “If you have a valid, honest complaint, you have nothing been quite impressed by (the (2) If he or she has handled disgruntled one that would go rankings). That’s why I have similar cases before; and through the effort to post some- to worry about,” the site says. them in hard copy,” he says. (3) For specific examples. thing on a website.” — By Geoff Kirbyson Furlong says the best thing Remember: “You’re not shell- Metivier says as the number about ranking websites is their ing out good money for the privi- of rating websites has increased potential to increase the amount lege of being a guinea pig.” over the last few years, so, too, ing managing the directories increasingly savvy about which of knowledge available to cli- When assessing an individual has the number of requests for process has become nearly a rating sites have value and ents looking for legal help. lawyer’s competency, be sure to firms to participate in the rank- full-time job at her firm, which which ones don’t. They’re also “They shine some light into a evaluate the four key cornerstones ings process. has 450 lawyers and agents in dedicating more time to take marketplace for legal services of legal practice: “Sometimes we aren’t even five offices across the country. part in the process to improve that really needs more illumina- (1) Interviewing skills; familiar with the organization “Legal directories are a nec- the results, including partici- tion. Until now, pretty much the (2) Counseling skills; conducting the review. You’re essary evil from a law firm mar- pating in interviews and provid- only information about lawyers (3) Negotiating skills; and hesitant to respond because you keting department. The ones ing written submissions. available to clients was what the (4) Drafting skills. don’t know them but you’re hes- that are credible and well- “We can’t criticize (the rat- lawyers said about themselves, On the matter of conscientious- itant not to respond because established definitely serve a ings) if we think they’re wrong on their websites or in their ness, you want to ensure that the you have no input into the pro- purpose, particularly with vali- if we don’t do our part to pro- marketing materials,” he says. lawyers who represent you are cess. It’s one thing if there’s one dating a lawyer’s expertise or vide accurate information, not Furlong says client-rating ethical, hardworking and fair or two per year but when it gets reputation in an industry. That’s only about ourselves but our sites will even change the minded. “If your lawyer is obnox- to be 10 it becomes an infringe- why we invest a lot of time and peers in different sectors. I stakes for lawyers in dealing ious, you’re obnoxious by associa- ment on your professional time,” resources in making sure our think it’s important when law- with their clients. tion,” McCormack wrote. she says. lawyers are properly ranked,” yers do these interviews that “Every client is now also a When it comes to containing Lisa Azzuolo, Toronto-based she said. they appear neutral, that they potential critic with a nation- legal costs, keep these points in national marketing director at Azzuolo says lawyers and identify and recognize other wide audience and lawyers need mind: Ogilvy Renault LLP, agrees, say- their firms are becoming industry experts besides them- to be aware of that,” he says. See Lawyers Page 26 www.lawyersweekly.ca THE LAWYERS WEEKLY January 29, 2010 | 25 BUSINESS CAREERS Destressing your law office in these stressful times dressed,” she added, “employers invite an work every weekend, the message will be want to find out what the hell is bugging DONALEE MOULTON HALIFAX increase in unscheduled time off, absence clear to lawyers, said Hornberger. them,” said Petrie. rates and health care costs, all of which “Likewise,” she noted, “if the firm says Encourage lawyers to speak up, she A hectic year is behind us, the impact hurt a company’s bottom line.” it expects legal professionals to work 40 added, by making it comfortable for of the recession still with us, and the Then there is the human toll. “Excessive hours a week and then regularly gives them to do so. “Survey employees to holidays just over. Is it any wonder law- work stress can have a profound influence them 60 hours worth of work, what is measure how they feel. Make sure yers and their staff are stressed? Law on health. For example, specific types of said will be forgotten in light of what is responses are anonymous.” firms must create a culture and address work strain have been linked to mental done and stress levels will rise.” There are a host of other things firms key issues if they want professionals who illness, certain cancers, infections and “Senior managers cannot expect can do to reduce stress levels. This are performing at their peak, and who injuries as well as heart and back prob- employees to manage their workloads includes recognizing the accomplish- will stick around. lems,” noted Morrison. appropriately if they are behaving in a ments of lawyers and staff, said Morrison. Culture creation starts at the top. So what’s a firm to do? Plenty. The tip- manner that suggests poor boundaries “Other ways are to allow flexible work “Senior partners need to set the tone for ping point, said Hornberger, is spelling and work/life balance,” said Morrison. arrangements, and offer professional and the firm, and they need to walk the talk,” out what is expected. “People need to “Senior managers are role models for the personal training and workshops on such said Chris Hornberger, a partner with know what they are accountable for and work environment, and their behaviour issues as stress management and career Halifax Global Inc., a management con- what the expectations are in terms of out- will speak louder than words when con- development,” she noted. sulting firm based in Nova Scotia. put, outcomes, quality and hours of work.” sidering the organizational culture.” Having fun is also important — and “Senior people,” she added, “always send The latter is a particular stressor. One way to help avoid conflicting mes- can serve as a stress barometer, said a message to junior staff either implicitly “Working Canadians feel most stressed by sages, and bring the organizational stress Hornberger. “Do social things together, or explicitly.” jobs that keep them at work too long or level down, is to give lawyers a voice. and pay attention when these activities And junior staff always get that mes- make too many demands on their time, “Listen to the input of everyone... You start to fall by the wayside. That’s a gen- sage. Indeed, said Jean Petrie, cardiovas- both significant factors in burnout,” said don’t want to be guessing at this. You eral indication you have a problem.” cular health and wellness coordinator Morrison. with Creative Wellness Solutions Inc. in “This is more apparent in higher level Tantallon, N.S., “[senior partners] cannot jobs,” she added, “Managers and profes- just pay lip service to this.” sionals are significantly more likely than Here’s why: The price tag is simply too workers in primary industries to report Announcements high. “The costs associated with stress are stress from too many demands or hours.” substantial: about 20 percent of the pay- Work/life balance is a big issue for law roll of a typical company goes toward firms scrambling to meet the needs of dealing with stress-related problems like clients as those needs arise. First, law Toronto absenteeism, employee turnover, disabil- firms need to set, and then live by, realis- ity leaves, counselling, medicine and acci- tic expectations of what people can actu- dents, according to the Canadian Mental ally do, said Hornberger. Health Association,” noted Estelle In some cases, she noted, these expec- Morrison, director of Health Management tations will be entrenched in policy. For with Ceridian Canada Ltd., a human example, can lawyers work remotely if resources (HR) firm, in Markham, Ont. they have a child at home with a cold? “Many companies don’t appear to Are the number and appropriate use of appreciate how stress is affecting their sick days spelled out in an HR manual? business,” said Shelly Wolff, national Do lawyers know what these policies practice director of health and productiv- actually say? ity at Watson Wyatt Worldwide, an HR Then, of course, there is policy and and financial services consulting firm, in then there is practice. If the firm’s senior Welcome to our Washington, D.C. “By leaving stress unad- team espouses work/life balance and then newest Partner Announcements

We are pleased to welcome Craig Logie as a Partner to the Baker & McKenzie Toronto Offi ce. Craig has a wide-ranging international trade Foster Richmond LLP is pleased to announce law practice with a focus on the litigation and the admission into the partnership of Aaron M. Vanin and Heather A. McGurk arbitration of large multi-jurisdictional disputes. He is recognized as a leading practitioner Craig Logie +1 416 865 6960 in WTO/International Trade law by Chambers [email protected] Global: The World’s Leading Lawyers for www.bakermckenzie.com Business for his representation of major Canadian, U.S. and U.K. corporations before all levels of the courts, administrative tribunals and arbitral bodies on international commercial issues. Please join us in welcoming Craig to our team! Aaron M. Vanin Heather A. McGurk Baker & McKenzie has provided sophisticated legal advice and (403) 750-9631 (403) 261-5343 services to many of the world’s most dynamic and global [email protected] [email protected] organizations for 60 years through more than 3,900 locally qualifi ed, internationally experienced lawyers in 67 offi ces Foster Richmond LLP is a Calgary law fi rm practicing in 39 countries. exclusively in the area of family and divorce law. 26 | January 29, 2010 THE LAWYERS WEEKLY www.lawyersweekly.ca BUSINESS CAREERS In-house counsel can work well with outside lawyers Find ways to make changes

Mindfulness Continued From Page 23

to. Break the rhythm of work to relieve stress. Be mindful of the quality of your presence and how it affects other people. Are you keyed up, distracted, bored, over- bearing or even bursting with energy? Make eye contact with others and be there when you greet other people. Try to be as present when you answer your phone for the 27th time that day as you were at call one. Ask yourself if your body and your mind are on speaking terms. When you find yourself being judgmental, try to be discerning. Keeva talks about the fact that all this is not just pie in the sky. One of the largest law firms in Boston has gone on retreat to learn inner peace (Zen, if you SPXCHROME / ISTOCKPHOTO.COM will) and found a more produc- tive and happier place. There are Lawyers cap on fees to keep litigation costs or can it be handled in some cautions that there are times when two resources referred to in the Continued From Page 24 from ballooning out of control. other way — e.g., by a business a lawyerly thoroughness just isn’t book. The first is the Fetzer McCormack wrote that for a cap manoeuvre or negotiation? appropriate, when the real danger Institute’s Ethics, Leadership, Every in-house counsel should on yearly fees to be acceptable to If you are thinking of suing, is is that the lawyers will get together and Democracy: The Heart of the ask, at the outset of every legal lawyers it must be somewhat in there a reasonable chance of col- and what-if a deal to death. Law in Michigan. Visit the web- proceeding, how long the matter is excess of estimated costs. While lecting a judgment? Is the other Business ends are better served by site for more information at: likely to take to be resolved. this might mean paying more, side broke? Can the other side stressing the positive up front and www.fetzer.org. The second No in-house counsel should having a cap on fees is worth it, present itself as broke? Is the prin- dealing with the negative only resource listed was the overlook the role played by operat- since it will provide peace-of- ciple at stake so crucial that you after the momentum has been International Alliance of Holistic ing expenses in determining what mind, ease of planning, greater can’t afford not to sue? established and agreement in Lawyers in Virigina; its website the legal costs will be. Always ask certainty and protection against If you are being sued, is there principle has been achieved. is: www.iahl.org. You might also what the hourly rate is for part- worst-case scenarios where out- an affordable and honourable way Given that lawyers can bust up look at Stephanie Allen West’s ners, associates, paralegals, law lays really run away from you. to settle or, better still, to persuade a deal if brought in too soon, and blog on contemplative law at clerks and anyone else who will be Finally, McCormack advised the other side to drop the action? that businesspeople can get them- http://westallen.typepad.com/ working on the file. letting your outside legal counsel When one has the choice of selves into a passel of trouble if idealawg/2008/09/contempla- However, McCormack advised, know early on that if they per- initiating a legal action, is the net lawyers are brought in too late, tive-lawyers-some-mindfulness- “Hourly rates should be appraised form well, charge fairly and are result — figuring in time, money, how can dealmakers and their resources.html. Look at these with a full awareness that one law- responsive to your needs, you anger, anxiety, and ruined rela- lawyers stay usefully in sync? resources to see another approach yer’s hour can be another lawyer’s will have plenty more work for tionships — likely to be more McCormack’s solution to this to law than just blindly churning week, and that some lawyers can them in the future. advantageous than doing noth- quandary was the “deal memo.” out work. accomplish with a single phone ing at all? He had his executives negotiate Finally, there are three sug- call what others couldn’t pull off in To sue, settle or suck it up? Never let your lawyers make the points of the deal, but had gestions found on page 208 of a lifetime!” “May you be involved in a law- the final decision to sue. “When them make it clear to all con- Keeva’s book. In-house counsel should always suit in which you are in the right,” you pass matters on to an attorney, cerned that they did not have the Find a colleague with whom demand a complete and detailed McCormack wrote — citing a you’re not just delegating authori- authority to conclude the deal. you can discuss ways to renew bill from the lawyer, and should Gypsy curse. Even if you’re in the ty, you’re surrendering it,” After a rough draft of the deal was your love of practising law. Don’t review the document carefully. right, the side that committed the McCormack warned. fleshed out, he would instruct his let the idea that “It just isn’t done” When it comes to expenses, such injury maintains an unfair advan- McCormack was a staunch executives to send a copy for stop you from trying. The fellow- as meals and travel, make it clear tage through all the months or advocate of avoiding litigation review to the other party with a ship will be incredibly rewarding. from the outset that you’ll be years it takes to get a lawsuit set- unless absolutely necessary by note, “If this reflects our under- Make a list of three things you reviewing all expenses, and that tled. The downsides of litigation practising what he termed “pre- standing, I will have contracts feel helpless to change. Then, fig- you expect your lawyers to be rea- are the same today as when ventative lawyering.” This means drawn up.” ure out how to change them. sonable and prudent. McCormack penned his opus: having established procedures in One of the key insights that Finally, take a senior member Don’t be too shy to ask how (1) It costs too much; place for handling matters that McCormack offers on deal mak- of the Bar to dinner and pick their much a transaction or legal action (2) It takes too long; might spark litigation, keeping ing is that “lopsided deals don’t brain for advice and wisdom. is likely to cost. “This is a question (3) It benefits the lawyers too current on the state of the law and last… The more lopsided the The poet David Whyte has you should always ask, even much and the clients too little; and its implications for your business, contract, the greater the incen- said — “There comes a time when though it is virtually certain that a (4) It opens the gates to a and consulting with lawyers early. tive for one side or the other to you find that you’ve promised your- lawyer will bend over backward to flood of complications that take wriggle out of it.” self to things that are just too small.” avoid giving you an answer,” time and energy away from pro- Dealmaking Love yourself. You are worth it. McCormack wrote. He reasons, ductive pursuits. Keep lawyers out of the early In sum even if an estimate is vague, it will Before proceeding with legal stages of a deal. While he concedes The terrible truth about law- John Starzynski is the volun- still allow you to perform a cost- action, McCormack advised that businesspeople sometime run yers, one may conclude by the end teer executive director of the benefit analysis before embarking going through the following the risk of letting their enthusiasm of the book, is that far too few cli- Ontario Lawyers Assistance Pro- upon any legal action. analysis: Does the problem nec- for doing a deal cloud their assess- ents know how to deal with law- gram and a director of the Legal Ask if the law firm will accept a essarily call for a legal resolution, ment of the potential downside, he yers successfully. Profession Assistance Conference. www.lawyersweekly.ca THE LAWYERS WEEKLY January 29, 2010 | 27 NEWS Charron led unanimous judgments, LeBel carried ball in Quebec

Judges McNeil which recognized a new and criminal (joinder and sever- Bjelland, in which he and two three judgments with Justice Continued From Page 1 automatic Crown duty to disclose ance of trials) cases. She wrote the others deplored the majority’s Charron and two opinions with police disciplinary records and majority judgment in Greater novel “unwarranted” constriction Justice Rothstein). criminal investigation files involv- Vancouver of trial judges’ broad discretion In addition to the libel and ABELLA ing serious police misconduct, Transit author- under the Charter’s s. 24(1) gen- Charter remedy landmarks she and elucidated the common law ity, holding that eral remedy provision. wrote or co-wrote, she penned the She wrote mostly on adminis- regime for production of third- government majority decision in Hutterian trative, criminal, and family law party records in criminal cases. entities may not Brethren which held that Alberta as well as the Charter’s guarantee disregard the LEBEL can require members of a reli- of freedom of religion. Highlights right of individ- gious order to be photographed included: her unanimous judg- CROMWELL uals to political He wrote 15 opinions, includ- for their driver’s licences, notwith- ment in Rick v. expression in ing some on criminal law, and was standing their belief that the Bible Brandsema, Despite his short stint on the public places, as well as the unan- the court’s workhorse in the area bars them from having their pho- which recog- Bench, he cranked out four dis- imous commercial law ruling in of Quebec law, including render- tograph taken. nized a common sents in criminal cases. He also B.M.P. Global Distribution Inc. v. ing a unani- law right to full penned the court’s unanimous Bank of Nova Scotia. mous, if contro- and honest judgments in R. v. Godin, which versial, judg- ROTHSTEIN financial disclo- held that a 30-month delay in a ment on minor- sure in matri- straightforward FISH ity language His 13 opinions fell mostly monial property criminal case rights in Nguyen into the non-criminal sphere, cases; A.C. v. Manitoba (Director was an unrea- He wrote more opinions, and v. Quebec. but their subject-matter was of Child and Family Services), a sonable delay more dissents, than anyone else: He also diverse, including aboriginal law, majority ruling that children contrary to s. 19 opinions, including nine dis- authored the tax law, commercial law and con- under 16 may make life and death 11(b) of the sents. More than any other judge, majority judgment in Lipson v. stitutional divi- decisions about their medical Charter, and the former Canada on GAAR, the most sion of powers. treatment if a court deems them Galambos v. criminal law important tax decision in decades. He wrote the capable of “mature, independent” Perez, which barrister con- unanimous judgment about their health; and overturned a far-reaching B.C. centrated on judgment in Bell Canada v. Bell Aliant, a high- Court of Appeal fiduciary duty only one legal MCLACHLIN Shafron v. KRG stakes unanimous decision about ruling that would have sparked area: criminal Insurance the CRTC’s exercise of its rate- unforeseen new ad hoc fiduciary law. Just two True to form, the chief justice’s Brokers setting powers. obligations for lawyers and other opinions were dozen opinions ventured into the (Western) Inc., persons deemed to have the upper non-criminal. constitutional, criminal and non- which admonished judges not to hand in so-called “power-depen- Important judgments of his criminal spheres. rewrite or enforce unreasonable BINNIE dency” relationships. included: the unanimous rulings She collaborated or ambiguous restrictive cove- in R. v. Basi on disclosure and with colleagues nants in employment contracts. He wrote for the court on divi- informer privilege, and R. v. to write joint He also wrote the pivotal major- sion of powers, criminal, labour DESCHAMPS Legare on the mens rea for reasons more ity judgment in R. v. Bjelland, and administrative law, including Internet luring; the majority rul- often than any which shrunk trial judges’ reme- the majority decision in Canada She wrote a lot about proce- ing in R. v. Khela on Vetrovec of the judges dial discretion under s. 24(1) of (Citizenship and dure, both in civil (class actions) warnings; and his dissent in R. v. (she co-wrote the Charter. Immigration) v. Khosa, a key administrative law ruling that 2009 SCC written opinions by judge stresses curial deference to expert administrative decision- makers while elaborating on the Abella 2 5 3 4 14 Unanimous Dunsmuir standards of review; Majority and Desbiens v. Wal-Mart which Concur balances management and labour Binnie 4 4 2 4 14 Dissent rights under the Charter’s s. 2(d) guarantee of freedom of association. A vigorous dissent in Lipson Charron 5 4 1 v. Canada decried the majority’s 10 broad view of the scope of the general anti-avoidance rule (GAAR) in the Income Tax Act. Cromwell* 2 4 6

CHARRON Deschamps 2 2 5 3 12 She wrote just one concurrence and no dissents, concentrating her 2 5 3 9 efforts on speaking for the court in Fish 19 decisions involving extradition, tort (malicious prosecution), LeBel 4 5 3 3 15 the constitution (official lan- guages) and 3 6 2 1 12 criminal law. McLachlin She co-wrote the milestone 4 5 2 2 majority rulings Rothstein 13 in R. v. Grant and companion cases which reconfigured the Charter’s s. 24(2) rules for exclud- *Joined court Dec. 22, 2008 ing evidence, and wrote R. v. 28 | January 29, 2010 THE LAWYERS WEEKLY www.lawyersweekly.ca NEWS Nine conclusions emerged from barristers’ society’s futures team

Futures traditional “lawyering” skills. worldview,” it adds. “Competent lawyers leverage more difficult for lawyers to suc- Continued From Page 2 “Lawyers expressed the Another key conclusion technology and other improve- ceed without learning to desire to learn how to manage unites both generational differ- ments to make them practise embrace technology and making world” to a decrease in profes- the business of practising law, ences and the modern reality of smarter and more efficiently. it work for them and their cli- sional reputation to failures in how to deal with new technol- practising law. This is the need Younger lawyers generally better ents.” communication and, finally, to a ogy, and how to manage the for lawyers to engage technology understand the value of technol- The conclusions will likely lack of accountability for the knowledge that they have or and knowledge management. ogy and are not afraid to use it. come as no surprise to practis- profession. acquire,” the 29-page discussion Technology, in particular, However, many lawyers told us ing members of the profession, When the futures team threw paper states. posed a real concern for the pro- that they just don’t know how to noted Pink. everything they learned into the “Lawyers also need to develop fession. “Lawyers told us about best use it or that they don’t What is noteworthy, he said, mix, nine conclusions emerged. cultural competency, which their fears about technology and have time to research and dis- is the agreement around what Among these: The need for edu- means being sensitive to a wide the impact technology is having cover what’s out there. those issues are. “What was sur- cation for lawyers to include range of cultural differences and on them,” said Pink. “In today’s environment,” the prising was the groundswell that more than substantive law and awareness of their own cultural According to the report, report stresses, “it is becoming this represented. There was strong consensus about the dir- ections we have to go in.” That direction is new, NSBS President Ron Creighton told Research Solutions lawyers in the current issue of the Society Record. “The Society intends to consider the term ‘Continuing Professional Development’ in the broadest context, with an emphasis not only on the need for a law- Creighton yer to be competent in substantive legal knowledge, but also in a variety of areas including ethics, practice management, client management, cultural issues, risk prevention, financial management and ‘personal’ management.” The bar council has now voted to appoint another working group to translate the findings from the Futures Project into a concrete action plan. That plan will be ambitious — it’s intended to “meet the changing needs of lawyers, their clients and the public.”

The‘‘ Society intends to consider the term ‘Continuing Professional Development’ in And now you know you can. the broadest context... Only LexisNexis® QuicklawTM Full Service provides the history of knowledge today. “It will identify elements of continuing legal education and address issues such as commu- Know More. Visit www.lexisnexis.ca/quicklaw or nication and business management that we have paid lip ser- contact your Account Executive at 1-800-255-5174. vice to in the past,” said Pink. The first iteration of the plan is expected to be released by this fall, he added. Whatever the final lay of the land, it will be unfamiliar — but perhaps comforting — territory . for many lawyers. “The finaliza- tion of a new CPD program,” said Creighton, “will impact every LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under licence. practising member of the Society Quicklaw is a trademark of LexisNexis Canada Inc. © 2010 LexisNexis Canada Inc. All rights reserved. and the future of the legal profession in Nova Scotia.”