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www.canadianlawyermag.com EDITOR’S DESK ISSUE 43.10
EDITORIAL Editor-in-Chief StopSOP and Tim Wilbur Senior Editor Elizabeth Raymer the future of Associate Editor Aidan Macnab Copy Editor self-regulation Patricia Cancilla
Writers Anita Balakrishnan, Libby Macdonald his was an eventful year for self-regulation. In Ontario, the statement of principles debate captured headlines, starting with the StopSOP campaign CONTRIBUTORS leading up to the April bencher elections and concluding in the revocation Neill May, Steve Szentesi, Philip Slayton T of the SOP requirement after the entire StopSOP slate of bencher candidates had ART & PRODUCTION been elected. Designer Marla Morelos Lead, Media Production Coordinator Catherine Giles Whatever your view is about a mandatory statement of principles, the way the Global Production Manager Alicia Chin debate unfolded seemed to me to highlight a more fundamental problem with Cover Design: Brianna Freitag self-regulation. For the cynical observer, especially among the general public, it all SALES & BUSINESS DEVELOPMENT seemed like an endless semantic debate, a sideshow that demonstrated the disfunc- Head of Sales Paul Burton tion of lawyers governing themselves. Consultant, Strategy and Business Development Ivan Ivanovitch Account Executive Steffanie Munroe In our cover story this month (p. 32), we decided to take a step back and look at Senior Advertising Consultant Ritu Harjai the role of law societies more broadly and alternative models to self-regulation in CORPORATE other jurisdictions. There is no shortage of critics of self-regulation, and many of President Tim Duce these critics are highly informed. Events and Conference Manager Chris Davis Chief Information Officer Colin Chan Human Resources Manager Julia Bookallil Global CEO Mike Shipley Rempel’s reaction, like most of the Global COO George Walmsley general public I suspect, is to wonder if EDITORIAL INQUIRIES [email protected] the lawyers engaged in this debate are SUBSCRIPTIONS Keith Fulford tel: 416 649-9585 • fax: 416 649-7870 truly fulfilling their regulatory purpose. [email protected] One of those critics that we spoke with was Anne Rempel, who is not a lawyer but ADVERTISING INQUIRIES [email protected] who experienced what she described as the “black box” system of lawyer discipline after she filed complaints regarding her elder abuse case. We asked Rempel what she thought of the statement of principles debate and her answer was telling. “If I was asked to write a statement saying that I wasn’t HAB Press Limited 20 Duncan St., 3rd Floor going to kick dogs and beat cats, I might find it an imposition — since I don’t do Toronto, Ontario M5H 3G8 that anyway, and I don’t know why they would be asking that. But I wouldn’t choose tel: +1 416 644 8740 that one to have the fight on.” www.keymedia.com This is not exactly a glowing endorsement of either side of the SOP debate. Publications Mail Agreement #41261516 Rempel’s reaction, like most of the general public I suspect, is to wonder if the ISSN 0703-2129 ©2019 lawyers engaged in this debate are truly fulfilling their regulatory purpose. If GST/HST Registration #703184911RT001 RETURN UNDELIVERABLE CANADIAN ADDRESS TO: self-regulation is going to remain in Canada, I would urge regulators in Canada to CIRCULATION DEPARTMENT listen to critics like Rempel. The future of self-regulation is at stake. 20 Duncan St., 3rd Floor, Toronto, ON, M5H 3G8 RETOURNER TOUTE CORRESPONDANCE NE POUVANT ÉTRE LIVREÉ AU CANADA AU SERVICE DES PUBLICATIONS Tim Wilbur, Editor-in-Chief 20 Duncan St., 3rd Floor, Toronto, ON, M5H 3G8
Canadian Lawyer is published 10 times a year by HAB Press Limited. In our October issue article “Innovations in estates law: How legal tech is revolutionizing death,” two services created by Patrick Hartford — NoticeConnect and Canada Will Registry KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under license by HAB Press Limited. — were described as one product, when they are two distinct products. Canadian Lawyer CANADIAN LAWYER is a trademark of HAB Press Limited. apologizes for the error. All rights reserved. Contents may not be reprinted without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. www.canadianlawyermag.com 3 Canadian Lawyer disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication.
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UPFRONT 03 Editor’s desk StopSOP and future of self-regulation 06 West update New legal-training bootcamp expanded to University of Calgary 08 Ottawa update 38 Surveyors lose suit against Teranet FEATURE OPINION ANNUAL SURVEY 12 Banking on Corporate Our annual Corporate Counsel The meaning of corporate life Survey found that in-house counsel 14 Legal Ethics are loyal to existing firms Is the criminal justice system broken? 70 Back Page Should lawyers still blog? LEGAL REPORTS 2019-20 READERS’ 58 Workplace law CHOICE Parties are held to oral settlement 32COVER STORY agreement SELF-REGULATION 64 Intellectual Property The customs of the legal profession are feeling the weight of IP practitioners wary of patented 21st-century stresses 43 medicine pricing amendments SPECIAL REPORT PEOPLE
PROFILE READERS’ CHOICE 56 Firm Insight The top service providers from ADR Willms & Shier Environmental Lawyers CROSS & mediation chambers to recruiting, LLP has grown apace with the rapid EXAMINED staffing & outsourcing expansion of environmental law and the When advising on data mainstreaming of environmentalism in strategies, Kirsten society Thompson can jump 69 Career Path from detailed technical Omar Ha Redeye has not had the most questions to a creative typical path to the heart of the legal human approach establishment, but he’s always wanted to fight the good fight 63 SPONSORED CONTENT IP UPDATE CANADIANLAWYERMAG.COM Changes to IP law necessitate new strategies 30 sponsored by Oyen Wiggs CHECK IT OUT ONLINE
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NEWS BRIEFS New legal- Law societies to herself as a death midwife on websites, training studying including that of the Canadian Integrative articling system Network for Death Education and bootcamp To understand the issues Alternatives, an organization she faced by articling founded, and Twitter. MaryMoon is not a students, three law societies polled member of the college and so the college expanded to lawyers about the types of training and argued she was violating the Health mentoring to which articling students are Professions Act with use of the term “midwife.” Justice Neena Sharma found exposed, the discrimination and University of that, although MaryMoon was violating harassment they experience and how to the HPA, the HPA infringed her freedom better train them for a modern legal of expression under s. 2(b) of the Charter. Calgary practice. Thirty-two per cent of the 549 students and new lawyers who responded to the Law Society of Alberta’s Decision draws Institute for the Future survey said they had faced discrimination acceptability or harassment during recruitment or line in of Law Practice Program articling. The most common description investigations trains law students for of harassment was “being asked about of personal marital status, plans for children and injury plaintiffs the modern profession sexual orientation,” said the Law Society In the B.C. Supreme Court case, the court of Alberta. ruled against the plaintiff because the investigation was not done to NOW IN its second year, the Institute for Oil industry intentionally upset him and because benefiting from there was no direction prior to this case the Future of Law Practice Program — a CET: study to define what is an overly intrusive summertime legal-training program for law A study released in investigation, according to an article by students — has expanded to the University of October by L’Institut de Mike Adlem, a partner at Gowling WLG, Calgary, with positive reviews from students. recherche et d’informations socio- and Ryan Adlem. Generally, while The IFLP is based on the idea that law investigators can obtain social media économiques found that Canada’s oil schools are not equipping students with the information posted publicly, they cannot exports to the European Union have practical, technological skills they need to increased since Canada signed the breach social media privacy settings; valuably contribute to the workplaces they will Canada-European Union comprehensive although they can conduct surreptitious Economic and Trade Agreement. The surveillance, they cannot continue when enter. The program consists of a three-week boost for the struggling oil sector comes the plaintiff becomes aware of it; and bootcamp, plus a paid internship. The learning while the overall trade deficit has also although investigators can do modules include lessons on business funda- “incremental” phone interviews of increased, counter to the government’s mentals, professional communication, project witnesses while accurately identifying promise for the deal, and, overall, management, process improvement, innova- exports to the European Union are down themselves, they cannot misrepresent tion, technology, knowledge management, data 22.1 per cent, the IRIS said. The other themselves or arrive unannounced to a witness’ home, the authors write. winner, post-CETA, is the minerals analytics and AI, among other topics. sector, said the study. CETA was signed Second-year University of Calgary law in October 2016. SCC certifies student Daniel Frederiks did his undergrad at class action the University of British Columbia in cognitive against tech B.C. midwifery giants systems. While studying what Frederiks says is regulator can’t The Supreme Court will a cross between computer science and neuro- prevent woman allow to proceed a class action brought science, he dealt with ethical issues stemming from calling by B.C. businessman Neil Godfrey, who from emerging technology, such as AI, elder- herself ‘death alleges major electronics manufacturers care robots and drones. This led to his interest midwife,’ court says are operating a global, criminal price- in negligence and product liability, which led to The College of Midwives of B.C. sought a fixing cartel and overcharging for optical his decision to go to law school. permanent injunction against alternative, disc drives. The court found the two-year holistic death-care practitioner Pashta limitation period for filing could be Initially, Frederiks says, he wasn’t sure if MaryMoon to prevent her from calling extended by the discoverability rule and a traditional law practice would interest him herself a death midwife. MaryMoon refers by that of fraudulent concealment. and he didn’t want to spend his first law school summer at a downtown Calgary corporate
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06-07_Update 1-West-SUBBED.indd 6 29/10/2019 3:21:20 AM law firm. He worked at a tech lab in B.C. and wasn’t sure that there a traditional legal career Q&A would allow for the innovative, entrepreneurial mindset he wanted to develop. So, he opted for Leading at a the IFLP because “it would also help me get a better idea of where the legal sector was going.” But, having completed the program, he has Tim Haney global firm changed his mind. “I realized that I am indeed office managing What has stood out in your career as an especially interested in tech. I am indeed interested in partner, Calgary DENTONS formative experience? entrepreneurship. But I really do want to be a I think the mentors early in my career engendering a true sense that, to be a successful lawyer, one needs to really understand their clients’ “Every lawyer — big firm Year of call business or situation, thereby allowing them to provide bespoke legal solutions. If you don’t, at first, understand the business or the fact or small — needs to be 2003, Alberta pattern of the of the particular client need, it’s very difficult to render an entrepreneur.” Main practice areas good legal advice. It becomes very formulaic. And that’s something I M&A, securities, tried to stay away from. Good mentorship is something I received a lot of early in my career and it’s really paid dividends to this day. Ian Holloway, dean of Law, corporate finance University of Calgary Why Dentons? To what do you attribute your early rise in the ranks? Member of Fraser Milner Having the support of a tremendous team at Dentons is really the practising lawyer in those areas and in those Casgrain LLP, which fundamental reason as to why I’ve been so successful . . . It’s truly been a team approach. Obviously, hard work, ethics, passion — these fields and be of added value there,” he says. merged with Dentons types of things are always helpful. But it really starts and ends with the “The program really showed me that I do want Why have you team approach. to be a practising lawyer.” remained at Dentons? The IFLP taught him that the legal profes- What have you done to distinguish yourself at Dentons? Global platform and sion can be hesitant to change. “Backward- Always listen and truly understand the business or scenario of your a dynamic, practical, looking,” precedent-based common law and the client before attempting to render any advice. . . . I always try to forward-thinking culture understand an organization, team members, issues and what’s going partnership, consensus-based model of doing on before undertaking initiatives. business can lead to stubborn conservatism, A second point would be [to] always reflect and learn when Frederiks says. Firms and corporations need scenarios don’t quite go according to plan. I think it’s essential to learn “champions” to be catalysts within an organiz- and be an intellectually dexterous practitioner and a leader to learn ation and force the innovation and adaptation from when things go off the rails. If you don’t reflect on those types of to and implementation of technology, he says. scenarios, you miss a learning opportunity. One of the most important ones — both for as a lawyer and as a More than making law students “practice leader — would be to grasp the concept that tactical advice is quite ready” for the law firm they join for articles, different than strategic advice. That’s a fine distinction, but I think a the program equips them for where the firm is lot of practitioners and leaders need to realize the distinction. Most headed in seven or 10 years from now, he says. importantly, management and leadership are not synonymous.
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NEWS BRIEFS Disclosure of published in September, making her the journalist first justice of the high court to ever write sources must such. In an event in Toronto to mark the be in public book’s launch, McLachlin spoke of her interest: SCC childhood in rural Alberta and her career on the bench, and she said she supported A journalist can only be required to reveal calls to appoint an Indigenous justice to a source if it’s absolutely necessary and the SCC. One reason she wrote the book in the public interest, the Supreme Court was to reach “young women out there ruled in Denis v. Côté, 2019 SCC 44, its who dream of becoming a lawyer or a first case interpreting the Journalistic judge,” she said. Sources Protection Act. The case concerned a Quebec politician facing criminal charges who obtained a legal order requiring a journalist to reveal her Federal courts sources in a story. The decision launch bijural confirmed that the new statutory pilot project scheme created a presumption against A pilot project disclosure and that the burden of implemented by the establishing that the disclosure of federal courts in September will allow for journalistic source information is in the the application of Quebec’s Code of Civil Surveyors public interest falls on the party seeking Procedure in specified judicial disclosure. proceedings and will apply to actions originating in Quebec. The initiative is lose suit aimed at making the procedure before Punishment the federal courts more familiar for applying at practitioners trained in the civil law against time of tradition. The pilot project was designed commission or to respond to a lack of familiarity with the sentencing common law-based federal courts’ rules Teranet dictates sentence of procedure by the majority of Quebec counsel, who have more experience with A convicted person has the right to the the Code of Civil Procedure. lesser of two punishments that applied SCC dismisses breach at the time they committed the crime or when they were sentenced, the of copyright appeal Supreme Court of Canada ruled on Oct. Election laws 11. In the 4/3 decision in R. v. Poulin — a may chill free but finds 1921 Crown Quebec case concerning a man speech: CCLA copyright provision convicted of sexually abusing his The Canadian Civil nephew decades ago — the majority of Liberties Association should be referred back the Supreme Court found that there has penned an open letter to Elections were only two relevant points in time to Canada requesting clarification of certain to Parliament assess the sentences that are available provisions in the Canada Elections Act to an offender: the time of the that pertain to third parties. In its letter, commission of the offence and the time the CCLA charges that “there is too IN ITS first decision to comprehensively of sentencing. much confusion about third-party review s. 12 of the Copyright Act, the communications [which] is chilling free Supreme Court of Canada has dismissed the speech at the very time that democracy appeal of Ontario land surveyors over breach ought to encourage free expression.” Former CJ of copyright, finding that Ontario holds Elections Canada’s latest public bulletins McLachlin first copyright in plans of survey filed in the prov- to pen memoirs concerning partisan activity have not ince’s land registry. Former chief justice of defined those terms in a way that Canada Beverley permits organizations such as the CCLA In Keatley Surveying Ltd. v. Teranet McLachlin’s memoirs — Truth Be Told: My to steer clear of legal prohibitions, the Inc., a unanimous Supreme Court found Journey Through Life and the Law — were organization says. that plans of survey are published under the direction or control of the Crown, and so
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08-11_Update 2-Ottawa-SUBBED.indd 8 29/10/2019 3:21:42 AM pursuant to s. 12 of the Act copyright goes to and user rights balanced under s. 12. CIPPIC But while the key finding was that the the province as a result. lead counsel Jeremy de Beer, of the University scope of Crown copyright is narrow and that However, the court found, this Crown of Ottawa’s Faculty of Law, Common Law the government doesn’t acquire copyright copyright provision — enacted in 1921 and section, said he was pleased to see the court merely by making work available online, “the not updated since — should be referred back emphasize the importance of a balanced takeaway . . . is the urgency with which statu- to Parliament. approach to the Copyright Act as a whole. tory reform is now required,” de Beer says. “Ultimately, I think the court narrowed the scope of Section 12 [and] plainly recog- nized the important public interest in making sure that copyright vests in the Crown for OSGOODE PROFESSIONAL DEVELOPMENT those works that serve vital public purposes,” CONTINUING LEGAL EDUCATION says Julie Parla of McCarthy Tétrault LLP, a counsel for the respondent Teranet. The respondent, Teranet Inc., manages the Province of Ontario’s electronic land registry system. Documents prepared by Make your “Section 12 should be rewritten if it continues CPD hours count. to exist at all.” Kim Nayyer VP, Canadian Association of Law Libraries There are many options for your CPD. Don’t take the first thing that crosses your desk. land surveyors, such as drawings, maps, Choose OsgoodePD and make it count. charts and plans, are registered in the ELRS. The public can obtain those documents Get what you need before the end of the year: online through Teranet for a fee. Keatley Surveying Ltd. was the repre- • Relevant programs that work with your schedule, sentative plaintiff in a certified class action offered online or in person. brought on behalf of land surveyors whose plans of survey were scanned and copied into • Insightful updates on recent developments, one-day the respondent’s digital database and made conferences, and Certificate programsworth your time. available online. It claimed that Teranet was in breach of copyright by reaping profits at • Sharpen your skills and knowledge with specialized the expense of surveyors. EDI, Professionalism and Substantive CPD hours in your In the 7-0 decision, the Supreme Court area of practice. upheld the decisions of the lower courts. But while the majority found that copyright is vested in the Crown when the Crown exer- Explore our upcoming live and on demand programs: cises direction and control over the publi- cation process and over the work itself, the osgoodepd.ca/cpd-2019 concurring minority found that whether the Crown has enough direction or control over the work itself is not relevant. The Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic inter- vened in the case from a concern to see creator
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08-11_Update 2-Ottawa-SUBBED.indd 9 29/10/2019 3:21:42 AM UPFRONT OTTAWA UPDATE
Q&A
Years in practice: 33 sophisticated loss prevention measures.” Career highlight: “It would be hard to choose between Career lowlight: “This one is easy: Miazga v. Kvello Sean Dewart Jane Doe v. Toronto Police and Hill v. Hamilton- Estate. Although there were earlier signs of liberalization, partner Wentworth Police. Jane Doe (the case and my client) the Supreme Court made it clear in Miazga that Crown DEWART GLEASON LLP shone a bright light on deeply entrenched sexism and prosecutors in Canada are essentially immune from civil bigotry in the Toronto Police Service. The evidence was liability for their wrongs. With respect, the court set the shocking. Hill is more significant as a legal precedent, bar way too high. The wrongfully convicted should be although I am still waiting for when the potential entitled to redress for prosecutorial misconduct. Instead, for tort liability causes police services to implement they are the justice system’s roadkill.”
Rights in peaceful protest
On Oct. 4, a unanimous Supreme Court Police were liable for battery for their use and its significance. of Canada ruled that no power exists at of force in unlawfully arresting Randolph common law for police to arrest some- Fleming, who was carrying a Canadian one acting lawfully in order to prevent an flag to join a counter-protest against the Were your objectives met in this apprehended breach of the peace, in a blockade, and that, therefore, no new trial case? decision that will affect police powers was needed on the issue of excessive Yes, very much so. The court could not have in protests. force. spoken more clearly about the common law In Fleming v. Ontario, the Supreme Sean Dewart of Dewart Gleason LLP power to arrest for apprehended breach of Court found that a counter-protester’s in Toronto, who acted for the intervener, the peace. The judgment was remarkable arrest at a 2009 Six Nations blockade the Canadian Civil Liberties Association, for its clarity in setting out [the] importance was unlawful. It found that there was no in the case, called the decision “a great of everyone’s civil liberties but particularly basis for intervening in the trial judge’s day for civil liberties in Canada.” Canadian the rights of people engaged in legitimate conclusion that the Ontario Provincial Lawyer asked Dewart about the decision political protest.
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08-11_Update 2-Ottawa-SUBBED.indd 10 29/10/2019 3:21:44 AM How did the court’s decision in should be deployed, such as putting a this case diverge from the test police barrier between Mr. Fleming and the “I think it’s fair to say established in R. v. Waterfield [1963] other protesters. that the power to arrest 3 All E.R. 659 (a leading English I think it’s fair to say that the power Court of Appeal decision establishing to arrest for apprehended breach of the for apprehended breach the common law authority of peace, regardless of who is threatening police officers to stop and detain violence, has been significantly curtailed by of the peace, regardless individuals)? this decision. The Waterfield test was . . . refined and of who is threatening considerably narrowed by the result in What are the implications for the violence, has been this case. Mr. Fleming had not committed right to engage in legitimate protest any offence nor had he threatened to. His in Canada? significantly curtailed political expression was thought to be It certainly reduces the likelihood of provocative, and he was arrested in order, another G20 [summit] disgrace. Arrest for by this decision.” so the police said, to prevent other people apprehended breach of the peace was the from acting violently. The court said [that] fig leaf police services used in the G20 situ- in these situations there is no common law ation [in Toronto in 2010], which resulted power of arrest, there are less intrusive in the largest mass arrest in police history. measures that are available and that those They can’t do that again.
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www.canadianlawyermag.com 11
08-11_Update 2-Ottawa-SUBBED.indd 11 29/10/2019 3:21:44 AM BANKING ON CORPORATE OPINION
The reaction of shareholder groups has been swift and predictable. The Council of The meaning of Institutional Investors, for one, respectfully disagreed, noting that the Roundtable’s statement “undercuts the notion of managerial accountability to shareholders” and repeating corporate life the common criticism that accountability to everyone means accountability to no one. Put differently, corporations serving multiple The debate about whom corporations should serve constituencies cannot be effectively held has been brought back to the fore by a Business accountable to any. They might have (though they didn’t) even put it to music: “Corps, Roundtable statement huh, good god y’all, what are they good for, absolutely everything, say it again!” LATE THIS past summer, The Economist’s to undertake initiatives based on social There is a response to this, naturally. The cover posed the question “What are companies concerns (such as safety or environmental concerns expressed about corporations having for?” For many, this marked the latest flurry of matters), but only if they are directed to multiple, and often competing, objectives is discussion in the long-standing debate about enhancing shareholder value. fundamentally based on questions about the the purposes that corporations properly serve. The recently increased focus on the subject role of corporations in society. The CII itself For members of my family, it was an occasion did not arise from nowhere. The debate argued that responsibility for defining societal to feign annoyance about my constructive and has been rumbling in Canada since our objectives rests properly with governments and insightful protest of the grave crime of ending a Supreme Court’s decision in BCE Inc. v. 1976 not with corporations. sentence with a preposition. Debentureholders, a leading judgment on the The Business Roundtable, however, was Putting aside familial disagreements about duties of corporate directors to act in the best focused on each individual corporation grammar for the moment, the impetus for interests of the corporation. identifying and seeking to fulfil its very own the recent heightened focus on corporate South of the border, the societal role of purpose. Whatever a given corporation’s goal, objectives was the release by the Business corporations is newsworthy. The Democratic the corporation’s actions should be measured Roundtable, an organization of the United States’ most powerful chief executives, of its “The Roundtable . . . argued that “Statement on the Purpose of a Corporation.” In that statement, the Roundtable abandoned companies should balance the needs of the view that companies must prioritize the interests of shareholders, often called the their various stakeholders, including “shareholder primacy principle.” It argued that companies should balance the needs of their customers, employees, suppliers and local various stakeholders, including customers, employees, suppliers and local communities, as communities, as well as shareholders.” well as shareholders. While the academic debate about Party leadership race, for example, has in terms of their furtherance of that goal, the shareholder primacy predates it, the prominently featured candidates’ proposals achievement of which should benefit all of the granddaddy of the dogma that directors’ for refocusing corporate attention on non- corporation’s stakeholders. Each corporation primary fiduciary obligations are to protect shareholder constituencies (such as Senator has its own purpose. shareholders’ interests in a takeover bid Bernie Sanders’ proposed prohibition on This aligns with the statutory expression context is the Revlon decision of the share buy-backs unless increases are made to of fiduciary duties in Canada, namely a duty Delaware Supreme Court in 1986. In that employee compensation and Senator Elizabeth to act not in the best interests of one or more case, the court concluded that “while concern Warren’s proposed requirement for employee specified stakeholder groups but, instead, in for various constituencies is proper . . . that representation on corporate boards). Even the best interests of the corporation itself. principle is limited by the requirement that the U.S. president has embraced this to some there be some rationally related benefits extent, advocating penalties for corporations Neill May is a partner at Goodmans LLP in Toronto focusing on securities law. He can be accruing to all shareholders.” Corporations that locate productive activities internationally reached at [email protected]. The opinions may take steps to advance the interests and thereby undermine employment in expressed in this article are his alone. of non-shareholder constituencies or corporate America.
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12_Column 1 BOC-SUBBED2.indd 12 29/10/2019 3:22:03 AM “A performance that truly nourishes and lifts the spirit.” —Stephen L. Norris, co-founder of The Carlyle Group
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13_Falun Dafa Ad.indd 13 29/10/2019 3:22:17 AM LEGAL ETHICS OPINION Is the criminal justice system broken? The Secret Barrister: Stories of the Law and How It’s Broken describes a U.K. justice system in need of repair
A BOOK recently published in the United Kingdom has created a sensation in that nation’s legal and political circles. The Secret Barrister: Stories of the Law and How It’s Broken describes the dysfunction of the U.K.’s criminal justice system. The anonymous author calls himself (or herself; we don’t know which) “The Secret Barrister.” The Guardian newspaper calls the book “a plea to rescue a justice system that has become utterly broken.” The Spectator magazine said the “immensely impressive” account was “a desperate, last-ditch attempt to open the eyes of those outside the profession to the injustices which exist within our justice system.” The Daily Mail described the book as “ . . . of some brilliance, clearly explained, cogently argued . . . Its main distinguishing quality, though, is its absolute reasonableness . . . “ Stories of the Law and How It’s Broken was a Sunday Times top-10 bestseller for 24 weeks, selling more than 250,000 copies. A copy was given to every member of the U.K. parliament, financed by a crowdfunding campaign. This is a big book raising big ethical issues. The Secret Barrister argues that a criminal abused. “Serious criminal cases collapse on find the truth and that it will be neutral in justice system collapses when government a daily basis because of eminently avoidable seeking it. These assumptions, she writes, are funding is inadequate. Many of the U.K. failings by underfunded and understaffed “dangerously untenable.” State competence system’s failings, they say, betray “warped police and prosecution services . . . The and impartiality are myths. Incompetence, spending priorities whereby politicians bottom line is that victims of crime are error, recklessness and malice prevail. persuade voters that 1p [pence] off a pint of denied justice, and people who are not guilty In a degraded criminal justice system, the lager is a better investment than a working find themselves in prison.” lives of innocent people are easily ruined. justice system.” (Sound familiar?) The criminal justice system is in the If you are not guilty and spend time in When there is not enough money, the hands of the state, but, says the Secret prison before your innocence is established, guilty go free, the innocent are imprisoned Barrister, these are unsafe hands. Most “everything you have built over the course and the victims of crime are ignored or of us think that the state is competent to of a lifetime . . . is suddenly, without notice,
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14-15_Column 2 Legal Ethics-SUBBED2.indd 14 29/10/2019 3:22:35 AM snatched away from you and placed on a high shelf beyond your criminal justice system? What do Canadian prosecutors and reach.” At the end, there is “no compensation. No assistance in piecing defence lawyers, those steeped in our criminal justice system, together, or even sweeping up, the fragments of your shattered think about what happens in this country? For that we need a existence. Not even an apology.” broad discussion. It is not enough for the legal profession to peer While the innocent are imprisoned, the guilty walk free. The Secret benevolently at its innards or for the government to do a study Barrister writes: “Walk into any criminal court in the land, speak destined for the shelf. The public, particularly those who have to any lawyer or ask any judge, and you will be treated to uniform experienced the criminal justice system directly, must be involved. complaints of court deadlines being repeatedly missed, cases arriving And the media, still society’s principal interlocutor, must be front underprepared, evidence being lost, disclosure not being made, and centre. victims being made to feel marginalized and millions of pounds of By the way, the Secret Barrister has an acclaimed blog: public money being wasted. And, as a consequence, every single day, www.secretbarrister.com. In 2016 and 2017, they were named provable guilty people walking free.” Independent Blogger of the Year at the Editorial Intelligence Victims of crime are treated with “institutional callousness,” the Comment Awards. In 2018, they were named Legal Personality author says. Their rights are subjugated “to the interests of the court; of The Year at the U.K.’s law society awards. Someone is paying the interests of the prosecution; and the interests of the defendant.” attention. And there’s more to come. A new book from their pen, Fake Law, is expected in the spring of 2020. “The system’s failings betray Philip Slayton was the dean of law at the University of Western ‘warped spending priorities Ontario, a Bay Street lawyer, president of PEN Canada and is now a best-selling author. His latest book, Nothing Left to Lose: Freedom whereby politicians persuade in Canada, is forthcoming. voters that 1p off a pint of lager is a better investment than a working justice system.’”
A 2016 study by the U.K. House of Commons Public Accounts Committee found that only 55 per cent of people who have been a victim or a witness in criminal proceedings would be prepared to go through such proceedings again. This is a stunning indictment of the U.K.’s criminal justice system. Worst of all, says the Secret Barrister, is that no one seems to care about this state of affairs. Members of the general public, uninvolved in the Kyla A. Baxter, CSSC president, baxter structures criminal justice system (if they’re lucky) and observing it from a distance (if at all), pay no attention. Politicians have discovered they can win votes if they pander and “misunderstand, misrepresent and abuse” the law. The What do your clients need? legal establishment, secure in its bubble, protected by a carefully created and self-enhancing mystique, doesn’t seem troubled by this “catastrophic The means to move on. dissonance in public understanding.” And the motivation of some lawyers ™ is suspect. Lawyers have “a desperate need to be centre stage in the Guaranteed . climactic scenes of people’s lives.” They seek “to play the action hero in the story of somebody else’s life.” Baxter Structures customizes personal injury The media bear much of the responsibility for all this. The settlements into tax-free annuities that can newspapers’ grasp of the law “appears looser every day. The help your clients be secure for life. financial strangulation of local journalism and dedicated court reporters means that national news outlets frequently rely on incomplete press releases from the police, or partial accounts Need more information? from the victims. . . . Throw in a choice quote from a conveniently Contact us at 1 800 387 1686 outraged MP, and you have a Twitter storm . . . ” or baxterstructures.com Does the Secret Barrister’s devastating analysis apply to Canada’s
10711_Baxter_QuarterPage_CndLawyer.indd 1 2019-10-23 1:50 PM www.canadianlawyermag.com 15
14-15_Column 2 Legal Ethics-SUBBED2.indd 15 29/10/2019 3:22:39 AM 316_Rising Ads.indd Stars 8 Ad.indd 16 14/10/201929/10/2019 5:17:233:22:53 PMAM 1-866-685-3311 | mcleishorlando.com
18 FOCUS ON PERSONAL INJURY 23 NEWSMAKERS CLASS ACTION PROCEEDS THE TOP STORIES AGAINST PAIN CLINIC IMPACTING LAWYERS NOW Causation and standard of care issues lie at the heart of whether a class Ontario’s 2019 legal year in review, from clinics and tribunals to benchers action is the preferable procedure and students to regulators and referral networks
28 INSIDER 29 BIZARRE BRIEFS INDUSTRY MOVES AND SHAKES ROUNDUP OF WEIRD LEGAL NEWS Norton Rose Fulbright lawyer Karen Jensen will be Canada’s first pay Suspended judge tried to sneak into neighbour’s house to steal equity commissioner underwear
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17_LT TOC-SUBBED.indd 17 29/10/2019 3:23:14 AM FEATURE FOCUS ON PERSONAL INJURY
Class action proceeds against pain clinic Causation and standard of care issues lie at the heart of whether a class action is the preferable procedure
THE ONTARIO Superior Court reaffirmed Ont. Approaching trial, the plaintiff was that infectious outbreaks are well suited to attempting to amend the common issues. class actions, as well as the use of subclasses, Plaintiffs at the start of a class action when it approved a certification amendment frequently suffer from a lack of information and de-certification motion in a medical and may not be sure what the cause of their infectious outbreak case. malady is, he says. The discovery process In Levac v. James, 2019 ONSC 5092, provides more information. Superior Court Justice Edward Morgan “We learned that the doctor was aware commented that “certification under of infections associated with his practice the CPA is not a particularly high hurdle” in relatively early on . . . and this laid the denying a defence motion to have the class foundation for a claim of breach of fiduciary action decertified. duty,” says Harte. Later, the plaintiff sought Between 2010 and 2012, the Rothbart to amend her pleading to reflect the reality amount to proof of causation and standard Centre for Pain Care Ltd., a Toronto she said the discovery evidence revealed. of care for the purposes of tort liability or pain management clinic, experienced a James sought to de-certify the action, whether the cause of each claimant’s injury bacterial infection outbreak. Dr. Stephen arguing that the discovery evidence showed must be determined individually. James, an anaesthesiologist at the clinic, there was insufficient commonality among The judge noted “conflicting evidence” as administered epidural injections to the claims of the 21 class members, each of to whether James’ practices were uniformly Anne Levac and other patients, and was whom should sue as individuals. His counsel implemented for all of his patients and found by Toronto Public Health to have proposed that this be done in a joint action, about the likely sources of the infections. had his hands colonized by methicillin- “so that while each individual plaintiff These causation and standard of care issues sensitive staphylococcus aureus, a strain would have to prove his or her case, there gave rise to the plaintiff’s wish to expand the of bacteria that is relatively rare in can be efficiencies in the trial process in the common issues and James’ wish to decertify North America. The infection caused sense of having expert witnesses and the the proceeding as lacking commonality abscesses to form in and around the spinal Defendants themselves testify only once,” at all. After weighing the evidence, the column of several patients, including the the judgment read. judge decided that a class action was the representative plaintiff. The case raised the question of whether preferable procedure. The resultant class action was certified statistical evidence with respect to rates of “In the case at hand, we were able to twice, says the plaintiff’s counsel, Paul infection and evidence of James’ infection push the envelope,” Harte says. Normally, Harte of Harte Law PC in Richmond Hill, prevention and control practices could a defendant might dispute the cause of
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18-22_LT Focus 1 – Personal Injury Law-SUBBED2.indd 18 29/10/2019 3:23:42 AM was the use of subclasses, Harte says. The Class Proceedings Act allows a subclass to be defined so that common issues are only common to some of the class members. In this case, he says, the defence was going to argue that a certain number of patients should have brought their lawsuit sooner. But, he says, the lawsuit was brought in September 2014, which stopped the clock from running. Anyone who had a procedure prior to that could not have a limitation argument, but someone who had an injection more than two years before the claim was filed faced a potential limitation defence. “The test for limitation is at a very high level when you knew or ought to have known of underlying negligence,” he says. “And so we say that there are arguments common to a subclass, which can be dealt with in class proceeding. So, for example, if the doctor is found negligent, on the basis of a breach of fiduciary duty there, they would have to know when the doctor knew about the various infections. And the doctor’s evidence was that he didn’t tell anybody. “The Class Proceedings Act is one tool where we can find economy. So, here, sub- classes were set up for common issues, and the limitation period is one example of that.” Paul Miller, a plaintiff-side personal injury lawyer in Howie Sacks & Henry “The threshold for determining LLP in Toronto, says he found the decision “significant in that a court does not want whether a common issue exists is to be the finder of fact at certification. . . . The judge [here] says, ‘The real test of ‘some basis in fact.’ It’s a very low threshold.” this methodology will come at trial.’ That Paul Harte, Harte Law PC shouldn’t be done at certification, because you’re not having a full-blown examination- the illness, he says, “but here, the expert causation. “But the defendant could still in-chief and cross-examination.” evidence said that the rarity of this type of argue that Mrs. Smith got it from her The decision “is also is a great infection meant the chance that any class neighbour’s epidural clinic.” demonstration of the flexibility of the class member got the infection from anywhere Rather than having the expert testify at action process,” says Harte. “And that is else is very, very low.” the beginning of each individual trial, “you get particularly with respect to common issues, On the basis of that evidence, says those decisions made at the common issues because that’s what the case is predominantly Harte, the court was willing to consider trial, and an expert would not need to testify about. It reaffirms that common issues the possibility that that evidence might at the beginning of each trial. So, this whole can be refined, added, deleted, to reflect be sufficient to establish a prima facie decision was entirely on a procedural matter.” the development of evidence that develops case, meaning sufficient evidence to prove Another interesting issue in the case through an action.”
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18-22_LT Focus 1 – Personal Injury Law-SUBBED2.indd 19 29/10/2019 3:23:45 AM FEATURE FOCUS ON PERSONAL INJURY
Surveillance and social media in personal injury Ontario Court of Appeal provides guidance on use of Schedule B documents, including Facebook and surveillance, at personal injury trial
ALTHOUGH THE ONTARIO Court of a jury. The main issue at trial was whether incorrectly excluded, it concluded that Appeal found that surveillance evidence her PTSD had been caused by the collision the exclusion would not have affected excluded at a personal injury trial was not and was significant or whether it resulted the verdict. so significant as to make a difference as to from an earlier sexual assault. At issue on “I think what’s interesting is that the damages, it was a “hollow verdict” for the appeal was the exclusion of surveillance and trial judge took such a sweeping approach defence in the case with some lessons about Facebook evidence by the trial judge. in terms of excluding all the surveillance, social media as evidence. On Facebook, the appellate court found and the Court of Appeal basically said the Tanya Nemchin had alleged disabling that the trial judge didn’t make a mistake trial judge shouldn’t have been so sweeping post-traumatic stress disorder following in excluding the evidence. And although in excluding all surveillance,” says Stephen a car crash and was awarded $700,000 by it found the surveillance tapes had been Birman, a plaintiff-side personal injury
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18-22_LT Focus 1 – Personal Injury Law-SUBBED2.indd 20 29/10/2019 3:23:47 AM lawyer at Thomson Rogers LLP in Toronto. “Yet, despite that, they were of the view “This decision is a great review of that it didn’t materially affect the decision in the case. It’s really more of a process- how surveillance can be used at trial type decision in terms of how trial judges [and] of counsel’s disclosure obligations should be dealing with motions by parties to expect surveillance.” throughout the course of the litigation.” The judgment in Nemchin v. Green, penned by Justice Peter Lauwers, states, Lindsay Charles, McLeish Orlando LLP “The trial judge’s task during the voir dire is to look at each piece of video evidence Surveillance must be assessed by a trial to be admitted in evidence,” and second, that the defence wants to put to the jury, judge in voir dire for two purposes; first, “to “for the trial judge to ensure that the use and determine whether it is, in and of itself, permit the videographer to be examined in of surveillance video will not impair trial admissible. This usually requires a discrete order to ensure that the video presents a fair fairness.” The test for admissibility is set out and granular assessment.” and accurate depiction for the surveillance in Iannarella v. Corbett, 2015 ONCA 110,
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18-22_LT Focus 1 – Personal Injury Law-SUBBED2.indd 21 29/10/2019 3:23:47 AM FEATURE FOCUS ON PERSONAL INJURY
124 O.R. (3d) 523. be asked questions about their social media also represents plaintiffs. Going forward, says Birman, “It’s going to accounts, and to the extent they’re public, “The takeaway is that you really need to be more difficult to try to argue that evidence they’ll be accessed later, at discovery and have your client well prepared . . . you need should be excluded in its entirety . . . and the trial, and will be questioned about them. to hone in before the client’s examination focus ought to be more narrow, on a specific “You may be able to argue that what’s for discovery,” Charles says. “It’s important photograph or part of the video.” on those accounts isn’t relevant, but for to make sure the plaintiff understands And even though the court accepted that the trial judge’s ruling was reasonable in excluding 20 of Nemchin’s Facebook posts “What [plaintiff’s counsel] shouldn’t from evidence, “the trial judge was required to consider whether there were any realistic or be doing is giving defence lawyers a key meaningful concerns about the plaintiff and her counsel being unfairly taken by surprise to the entire site, to fish through potentially by the admission of such evidence at trial.” However, says Birman, “When it comes thousands of documents. That’s not best to social media information . . . it will be hard to argue that defendants using that practice.” information, as long as it’s relevant to the Stephen Birman, Thomson, Rogers LLP claim, would take [plaintiffs] by surprise, because, number one, it’s coming from their personal injury claims, a wide berth is given the risks of using absolute phrases; for own profiles, their own sites, so nobody to relevance,” says Birman, with anything instance, the words ‘always’ or ‘never’ should be surprised to see it.” athletically or physically challenging when describing her level of function and In this case, the parties had already expected to be examined. her injuries and symptoms. reached some agreement to access social “As a plaintiff’s lawyer, you always need “Doing so will help safeguard against media of the plaintiff, he says. The to be cognizant of surveillance being used the use of surveillance evidence and obligation is generally to disclose the sites, and also social media,” says Lindsay Charles social media being used for impeachment and plaintiffs should expect that they will of McLeish Orlando LLP in Toronto, who purposes at trial.”
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18-22_LT Focus 1 – Personal Injury Law-SUBBED2.indd 22 29/10/2019 3:23:50 AM FEATURE NEWSMAKERS
The top stories impacting lawyers now Ontario’s 2019 legal year in review
ONTARIO’S LEGAL professionals had no Lakehead University is adjusting to a first by the Law Society of Ontario and the shortage of change to endure in 2019: The new dean who hopes to push back on Federation of Law Societies of Canada and provincial or federal government either the school’s penchant for controversy by later by the national media in the wake of a enacted or explored changes to criminal focusing on Indigenous scholarship. In the federal political scandal. justice, labour laws, auto insurance, south, the Ontario Court of Appeal opened But from clinics and tribunals to prompt payment and construction its doors to live-streaming cameras, setting benchers and students to regulators and adjudication, catastrophic injury and a much-debated trend that may continue. referral networks, eight stories had even family law, to name a few. In the north, The judiciary also faced fresh scrutiny, bigger impacts on the profession:
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23-27_LT Focus_Top Newsmakers-SUBBED2.indd 23 29/10/2019 3:24:16 AM FEATURE NEWSMAKERS
1 LEGAL AID CUTS SPARK OUTCRY system — representing 21 per cent of cuts across the organization, with 30 per cent coming out of LAO’s global budget, 27 per cent from certificates and 22 per cent of the cuts focused on immigration and refugee services. Among the cuts to clinics were contingency funds, tenant duty counsel, landlord services and consolidated spending in Toronto. Parkdale Community Legal Services — one of the oldest clinics in the province and one that was already struggling to stay within the community — was among the hardest hit. LAO’s executives said that the Parkdale clinic previously received about $109 per low-income resident, compared to the average Toronto clinic that receives about $22 per low-income resident. Lawyers rallied against the budget reduction, taking advantage of tools such as social media videos to target messages at members of provincial parliament. Protests of the legal aid cuts were hosted at Queen’s Park, in Opposition to budget cuts at Legal Aid Ontario boiled over in 2019, the legislature, outside the office of the Ministry of the Attorney General’s and uncertainty persists as the bar looks to 2020. While underfunding office and at “day of action” events across the province. of legal aid has long been a complaint among lawyers, 2019 marked a Amid prodding from the province, the federal government in August pivotal year for the issue. pledged $25.7M to Ontario immigration and refugee legal aid. While At the end of March, the Society of United Professionals reached the move was celebrated by the Law Society of Ontario and the Ontario 400 legal professional members, after the addition of Legal Aid Ontario’s Bar Association, clinics that worked in other legal aid-funded areas of supervisory duty counsel lawyers. Weeks later, the provincial government law — such as criminal law — said they continued to scrape by with announced a 2019 budget with $133 million less funding to Legal Aid bare-bones budgets. Ontario — with plans to save $164 million each year starting in 2021. Federal funding to immigration and refugee legal services is set to The dramatic cut prompted LAO to slash $14.5 million from its clinic run out around March 2020, LAO estimated in October.
2 STATEMENT OF PRINCIPLES SWEEPS ELECTION AND SHAKES UP LSO
But despite tireless campaigning — including the unprecedented use of social media — no topic had as much sway as the statement of principles. A slate of benchers opposed to the statement of principles, StopSOP, won 22 seats in an election that ended April 30, upending a trend that incumbents be re-elected. The election touched off renewed debate that had already dominated discourse since the SOP rule was passed in 2017. The diversity and inclusion requirement, criticized for infringing on free speech, states that lawyers must write a statement to the regulator promoting diversity and equality. After the election results rolled in, supporters of the SOP moved quickly to try and galvanize support among the benchers outside the slate, The Law Society of Ontario’s board of directors was elected in spring launching a group called Demand Inclusion. Members were encouraged 2019, ushering in a wave of change in the approach to diversity to post on social media, write to benchers and attend Convocation and inclusion. It was clear that the election was unusual — with 128 lawyers meetings. The LSO Equity Advisory Group also asked benchers to delay on the ballot, the most candidates since at least the 1990s, if not earlier. repealing the SOP requirement until a replacement diversity program Candidates covered a wide range of topics in their platforms: technology could be studied. competency, funding for Pro Bono Ontario, the rural-urban divide in the Toronto lawyer and StopSOP member Chi-Kun Shi announced she profession, allocation of budget and lawyer fees, the role of paralegals would run against incumbent Malcolm Mercer for treasurer. But Mercer in family law reform, the disciplinary system and the quality and cost of won and an uneasy compromise was reached: A less intensive equality continuing professional development. and diversity acknowledgement will be added to lawyers’ annual reports.
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23-27_LT Focus_Top Newsmakers-SUBBED2.indd 24 29/10/2019 3:24:17 AM 3 BAR STANDS UP FOR NEW CALLS AS ARTICLING CRISIS DEEPENS that it was too much to take on amid unpaid work, student debt, the partnership path and the costs of running a campaign. Some of the remaining candidates sprung into action, calling for a new call bencher seat and launching a system to donate a sum of money for every lawyer who was called to the bar in the past decade and cast a bencher ballot. Later in the year, organizations such as the Criminal Lawyers Association and the Ontario Bar Association began collecting and distributing second-hand robes for graduates being called to the bar over the summer. Meanwhile, Ryerson University announced a revamped law school plan — this time, one that would let students skip articling. When Minister of Training, Colleges and Universities Merrilee Fullerton rejected Ryerson’s initial proposal in November 2018, her statement said “jobs are expected to be more difficult to find” in the legal occupation. “I think many law schools in Ontario are on board with that — having that opportunity for more clinical experience. But they do not by any means want to be seen as having that as the focus of what they do,” Nima Hojjati is a recent call who mulled a bencher run Yavar Hameed, principle of Hameed Law in Ottawa, told Law Times. At the start of 2019, the outlook for new calls was grim: The previous “Ryerson is ready to push in a different direction.” year, a survey found that one in five current or recent articling students Still, there will be more challenges to come. Mary Condon, dean faced harassment and discrimination, and alumni and students at of Osgoode Hall Law School, said in September that the government University of Toronto and Osgoode Hall were pressing for lower law is working on plans to further measure the success of law school school tuition. In February, a survey found that first-generation law education. students were struggling, as more than 40 per cent of law students “Given the cost of law school and the way it is expensive to run the have a parent “with at least a master’s degree, a professional degree, kind of rich program that we offer our students, we are always, at least or a doctorate degree.” in the foreseeable future, going to have to think very hard at how we While young lawyers mulled over running for bencher, they found generate those kinds of resources,” Condon said.
4 WOMEN PRACTITIONERS SAY ENOUGH’S ENOUGH
41,576 lawyers in Ontario, 5,168 were male partners out of the 23,594 male lawyers. Of 17,982 women lawyers, 1,770 were partners. With 2019’s bencher election, lawyers doubled down: Ontario’s representation of women in law is not good enough. Lenczner Slaght released ReferToHer, a list of experienced female lawyers with the aim of increasing referrals to Canadian women in the legal profession. And in February, the law society agreed to add a “gender-neutral” robing space in place of the men’s robing room, after outcry that the Lady Barristers’ room had 12 lockers and the men’s room had almost 70. On Sept. 10, a year of discussions among women leaders culminated with the Ontario Bar Association’s Momentum Summit. At the event, Lynne Vicars organized the OBA’s Momentum Summit legal leaders in Australia, the United Kingdom and the United States The LSO’s 2018 annual report shows that about 12.4 per cent of told the Canadian bar they are looking at legislative, regulatory and lawyers in Ontario were male law firm partners, compared to only 4.3 cultural changes to combat sexual harassment amid an “inflection per cent of lawyers who were female partners. That means that, of point” in the profession.
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23-27_LT Focus_Top Newsmakers-SUBBED2.indd 25 29/10/2019 3:24:18 AM FEATURE NEWSMAKERS
5 DELAYS MOUNT IN TRIBUNALS
Practitioners in Ontario tribunals said this year human rights tribunal anymore because of the that delays were plaguing their practices. In delays,” said Kate Hughes, a partner at Cavalluzzo June, Ontario Ombudsman Paul Dubé reported LLP in Toronto. The Human Rights Tribunal of a “historic” surge in complaints over the past Ontario announced in the spring that it would year, including hundreds of complaints about hold a mediation blitz for 800 cases. In June, delays and decisions across the province’s 37 lawyers who work with clients with disabilities administrative tribunals, most of which related said the backlog was exacerbating the issues. to the Landlord and Tenant Board. “There are those with anxiety disorders Conditions at the Human Rights Tribunal, who were geared up for a hearing and it gets for example, were “unworkable,” lawyers told rescheduled a week before or those with Law Times. pressing needs,” said Wade Poziomka, a lawyer Kate Hughes “I can’t recommend my clients go to the at Ross & McBride LLP.
6 DOUG DOWNEY TAKES OVER MAG FROM CAROLINE MULRONEY
Real estate lawyer Doug Downey only served meeting with legal associations about legal aid half the year at the helm of Ontario’s Ministry reform, although the cuts to many programs of the Attorney General, but it was an eventful have not been restored. Downey has also one. On June 20, he replaced Caroline been outspoken about issues such as opioid Mulroney, who had faced criticism from addiction litigation and a fight between the some members of the legal community for provinces and the federal government about her responses to cuts to the legal aid budget, the carbon tax. Notably, Downey granted the as well as the provincial government’s plan LSO authority to determine who could appear to invoke the notwithstanding clause of the in court as a regulated agent on summary Canadian Charter of Rights and Freedoms in conviction matters, allowing paralegals and a fight over the size of Toronto’s city council. articling students to avoid a sudden access to Doug Downey Since taking the lead, Downey has been justice issue included in federal legislation.
7 WIDESPREAD CLASS ACTION REFORMS SUGGESTED
A report from the Law Commission of Ontario one lawyer called “the biggest problem in suggested sweeping changes to the province’s litigation.” The report also addressed Crown class action regime, garnering the attention liability changes, noting that a new rule “could of the government and the bar. For one, the prevent some or potentially all negligence claims LCO’s legal reform watchdog said the province against the Province of Ontario” and “could should switch to a specially modified no-costs create significant if not insurmountable barriers regime from a two-way costs regime. With to justice.” more than 100 class actions filed each year and Jenessa Crognali, press secretary for Minister cost orders skyrocketing, “there is a general Doug Downey, disagreed. “What these changes acknowledgement that costs for class actions accomplish is to ensure that the government are too high,” said LCO executive director Nye can make good faith legislative, regulatory and Thomas. The report also said that delays are policy decisions without fear of being sued by Class action expert Jasminka Kalajdzic burdening personal injury class actions, which deep-pocketed lawyers,” she said.
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23-27_LT Focus_Top Newsmakers-SUBBED2.indd 26 29/10/2019 3:24:18 AM 8 ROLE OF REGULATOR IN REAL ESTATE
through submissions, considering whether to alter the restrictions on real estate lawyers who get fees and other perks paid by certain title insurers. Meanwhile, real estate lawyers told Law Times that colleagues continued to advertise fixed-fee services with exceptions, despite tighter restrictions passed by the Law Society of Ontario less than two years ago. Later in the year, Ontario’s Law Society Tribunal Hearing Division revealed it was split on the similar marketing practices of one of the province’s biggest real estate law firms, which goes by Real Estate Lawyers.ca LLP. Real estate lawyers also spoke out on other issues related to regulation. The Law Society Tribunal allowed an appeal in a long-standing mortgage fraud case after the lawyer for the accused said the law society did not warn lawyers about that type of mortgage fraud until years later. Finally, David Franklin the LSO’s decision to wait 17 months before warning the profession about Several issues raised in 2019 focused on the role of regulation in real syndicated mortgage investments was “deeply problematic” for many estate law. investors in scandal-ridden Fortress Real Development Inc.’s syndicated At the beginning of the year, the Law Society of Ontario began sorting mortgages, said Toronto lawyer David Franklin.
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23-27_LT Focus_Top Newsmakers-SUBBED2.indd 27 29/10/2019 3:24:19 AM LAW TIMES BRIEFS
INSIDER
NORTON ROSE He succeeds Mark Meredith, founding FULBRIGHT THREE JUDGES partner of KPMG Law and acting senior APPOINTED TO partner of its management committee, LAWYER KAREN ONTARIO COURT who retired on Sept. 30. JENSEN WILL BE OF JUSTICE CANADA’S FIRST The Ministry of the MCCARTHY PAY EQUITY Attorney General TÉTRAULT, COMMISSIONER announced the PALLETT VALO appointment of three new justices to the Karen Jensen, a partner at Norton Rose ANNOUNCE NEW Ontario Court of Justice, effective Oct 9. SENIOR COUNSEL Fulbright Canada LLP in Ottawa, was Chief Justice Lise Maisonneuve McCarthy Tétrault LLP appointed by the federal government as assigned Justice Valerie Leigh Brown to announced that it has pay equity commissioner. Owen Sound, Ont.; Justice Mark Moorcroft added Lucie Tedesco as senior counsel in Jensen is the first-ever holder of the to Lindsay, Ont.; and Justice Scott Gregory its national financial services group. Pratt to Windsor, Ont., according to a position, according to a statement from Tedesco joined from the government statement from the MAG. sector, where she was most recently with the law firm, where she is Canadian the Financial Consumer Agency of employment and labour chairwoman. BLANEY Canada, serving as deputy commissioner Her role, which was scheduled to begin MCMURTRY, DLA from 2008 to 2013 and as commissioner on Oct. 16, is to provide direction for the PIPER CANADA from 2013 to 2019. administration and enforcement of the Pallett Valo LLP on Sept. 3 welcomed RE-ELECT back Maria Tassou, now as senior counsel Pay Equity Act, the firm’s statement said. MANAGING and the firm’s privacy officer. Legislation is expected to come into force PARTNERS In 1996, Tassou articled at Pallett Valo in 2020 to reduce the gender wage gap in The partners of Blaney and later joined as a lawyer. In 2007, she federally regulated workplaces. McMurtry LLP re-elected Maria Scarfo left to join the Criminal Injuries as managing partner for a third three- “Karen is making history, stepping Compensation Board, under the Ministry year term. of the Attorney General, as a board into a new, meaningful role where she Scarfo, who has been managing member/adjudicator. She became will be able to participate in the partner since 2013, is one of the two chairwoman of the board in 2014, and she advancement of gender equity in this women partners on the firm’s four-person also participated in several other country,” said Charles Hurdon, Norton executive committee. She joined the firm administrative tribunals. Rose Fulbright’s managing partner in in 1989 as an associate. DLA Piper (Canada) LLP also re-elected Canada. “There is no doubt that she will Robert Seidel to an additional three-year GOWLING WLG AND make a consequential contribution, and term as managing partner, effective Nov. 1. FASKEN PART OF we wish her all the best in her mandate.” Seidel has been managing partner EQUITY Jensen practises in both English and since 2007, when the firm was still known INITIATIVES Gowling WLG signed French and has worked on cases involving as Davis LLP. According to a statement, Seidel oversaw the firm’s most significant the UN Women’s human rights, constitutional, administrative period of growth and transition, including Empowerment and labour and employment law matters leading the Canadian side of the 2015 Principles, a list of seven principles that before all levels of courts since joining combination with DLA Piper. guide businesses in advancing gender Norton Rose Fulbright in 2010, the equality and promoting women’s economic empowerment. According to a announcement said. JUSTIN KUTYAN TO statement by Gowling WLG, it is the first Jensen was previously the assistant LEAD KPMG LAW international law firm to do so. dean of the University of Ottawa Faculty of IN CANADA Separately, Fasken Martineau DuMoulin Law, where she taught dispute resolution. KPMG in Canada has LLP announced it is certified under a Before that, she adjudicated and mediated appointed Justin diversity standard called Mansfield Rule Kutyan as senior 2.0. The certification confirms that at least disputes as a full-time member of the partner of KPMG Law 30 per cent women, LGBTQ+ and minority Canadian Human Rights Tribunal. Jensen LLP. In this national role, Kutyan will lead lawyers were considered for 70 per cent or was recently elected fellow of the U.S. the management of the law firm, it said more of significant leadership roles at the College of Labor and Employment Lawyers. in a statement. firm, Fasken said.
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28-29_LT Inside story & Bizarre Briefs-SUBBED.indd 28 29/10/2019 3:25:44 AM BIZARRE BRIEFS
Lawyer’s bathroom break did not Marie, Ont. was charged with assault with Woodside’s lawyer was happy with the justify sanction intent to resist arrest after “she proceeded decision. An appeal court said a Texas case should to bite the officer’s foot through the boot,” not have been removed from the jury Elliot Lake Today reported. Police were Judge accepted cash bribes hidden in docket when the client and lawyer arrived called at about 5:30 a.m. “regarding an unwanted person at an apartment” in Elliot beer boxes late after a bathroom break, reported ABA A former Texas judge “conspired with an Journal and Law360. Lake and found the woman, who attempted to run away. attorney to accept bribes in exchange for At 9:35 a.m., associate Chris Ainsworth favorable judicial consideration on criminal of the Poerschke Law Firm in Houston was cases in his courtroom,” according to the
told by a court co-ordinator that his case Lawyer requests to be disbarred U.S. attorney’s office. CNN reported that Washington, D.C professional responsibility had just been called. the judge, Rodolfo Delgado, will get 60 regulators have granted a lawyer’s request “Ainsworth informed the court months in prison and two years of to revoke his licence. co-ordinator that he had to use the supervised release. “Rather than wasting time, money and restroom, and she told him to hurry back,” “One of the attorneys started working paper on your sophistries, please disbar the report said. as an informant for the FBI in 2016 and The case was called again at 9:39 a.m. but me,” the former government contract would take beer boxes to the judge and slip Ainsworth didn’t arrive back until 9:50 a.m., lawyer said in an email, according to Law. money into them,” CNN affiliate KRGV the reports said. The client came at 9:55 a.m. com. Above the Law reported that the reported. “During their meetings, the judge “Ainsworth filed a motion for lawyer, Glenn Stephens, also wrote that the and the attorney discussed purchasing reconsideration and requested a hearing. regulatory body was “simply dishonest ‘wood,’ which the latter described as the He called the court three times to schedule lawyers who do nothing to regulate code word for judicial favours.” a hearing but was unable to leave a dishonest lawyers. And racists to boot.” message because the mailbox was full. He Stephens reportedly added that he would also emailed the court coordinator twice hang up his disbarment letter on the wall Authority over hog manure splits but received no response,” the report said. next to his diplomas, saying he will “be so Pennsylvania Supreme Court Although the lawyer told reporters he very proud.” A majority of judges on the Pennsylvania “could have died of embarrassment Supreme Court said local officials did not reading the opinion,” the appeal court Suspended judge tried to sneak into have the authority to demand legally binding found that removing Ainsworth case due neighbour’s house to steal underwear assurances about the impact of a hog farm. to tardiness was “excessive.” A suspended New York judge pleaded The owner of a 4,800-pig farm will not guilty to attempted burglary for trying to have to obey his town’s restrictions on Driver fined for holding chopsticks sneak into a neighbour’s home to steal her manure, reported ABA Journal. and bowl while driving underwear, the Associated Press reported. Montour Township’s rules about impacts A driver in Kelowna, B.C. was found guilty The judge was arrested and admitted on ground and surface water contamination, of driving without due care and attention, that “he had entered the home on several as well as noise and odour, were stricter than after an officer saw her eating with occasions and stolen panties from a “Pennsylvania’s Nutrient Management Act, chopsticks in one hand and a bowl of hamper.” He has since been removed from which regulates manure handling operations spinach in the other hand. the bench, the report said. The judge’s on farms,” the majority decision said. According to The Canadian Press, the lawyer told reporters that the judge has A dissenting opinion said that the majority ruling did not say that all instances of dealt with past mental illness issues. had curtailed “long-established municipal eating while driving amount to careless authority” on the issue. driving. But the decision did note that “at Case about wooden penis gift least one full hand” should be on the dismissed 50,000 apples stolen from orchard steering wheel while the car is being driven A Michigan federal judge dismissed a Owners of an Indiana orchard allege that and that hand “should not also be holding lawsuit over a wooden penis given “as a gift,” $27,000 worth of apples were stolen from some other object,” the CP report said. the Associated Press reported. School almost every tree on an acre of their land, The judge, Brian Burgess of the principal John Stanton was forced to resign according to CNN. The apples, which were Kelowna traffic court, declined to reduce after giving the gift — which was not insured, are likely headed to make the offender’s fine of $2,000 and six confiscated from a student — to a female cider or be sold through a wholesaler, the penalty points, although the average security guard. Stanton sued owners told CNN. ticket for the offence is $368. Superintendent Leonard Woodside, “It probably was an insider job,” said claiming Woodside had violated Stanton’s Jon Drummond, one of the owners. Woman allegedly bites OPP officer’s rights by terminating him. According to “Someone knew this orchard really well. foot Stanton, the guard “wasn’t as upset as They knew where to go, the portion of the An intoxicated woman from Sault Ste. officials claimed,” the report said. orchard where they couldn’t be seen.”
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28-29_LT Inside story & Bizarre Briefs-SUBBED.indd 29 29/10/2019 3:25:44 AM PEOPLE CROSS EXAMINED HUMAN CREATIVITY MEETS RIGID MACHINES When advising on data strategies, Kirsten Thompson’s disparate experiences have allowed her to jump from detailed technical questions to a creative human approach
COMPUTERS ARE all about 1s and 0s, black marriage advocacy and gay rights litigation GOVERNMENTS and white. They do not work in ambiguity. in Canada, law school sparked her interest, STRUGGLING, TOO But for Kirsten Thompson, who leads so she attended Queen’s University. the transformative technologies and data After articling at McCarthy Tétrault LLP, Thompson sits on two public bodies to advise strategy group at Dentons, ambiguity is the she joined the firm as a litigation associate governments. “All governments are doing what my clients essence of her practice. with a focus on health law and IT/IP matters. are doing,” Thomson says. “I assist companies with digital transformation. The governments are doing exactly the “I have colleagues who are tax lawyers But a conventional path was not in the cards same thing.” and securities lawyers, and you can tell who and she eventually moved inhouse at the they are because they carry around these technology company Softchoice. Open Banking Advisory Committee very large books full of rules,” she says. “My “My journey through the profession of law The federal Liberals launched the Advisory practice horrifies them, because there are has matched my journey through academia Committee on Open Banking in September 2018, and Thompson is one of four members. The committee is exploring the potential merits of open banking, which “If you are in the world of intangibles, which will allow Canadians to share their financial transaction data with financial service providers more easily. “Canada is largely what my world is, I have to worry is just starting the journey toward open banking,” says less about borders than most people.” Thompson. “Other jurisdictions are much further along.” Ontario’s Digital and Data Task Force The provincial government’s task force no rules, there’s very little guidance, it’s all in that it has been circuitous. When I first has a much broader mandate than the first principles.” started, privacy was not really a thing; data open banking committee. It aims to help “Ontarians and First principles can often be gleaned was certainly unheard of.” businesses benefit directly from the data economy, while from very disparate sources, as her career Thompson eventually returned to ensuring their personal privacy is protected,” according to path attests. McCarthys, when “the internet was now was a government press release. Thompson is one of eight on Thompson started off studying firmly established as a thing,” and started the task force. journalism and taking science courses as a practice in privacy law. Being a new area, These initiatives, Thompson says, highlight how a electives. When she finished her degree and though, it took some convincing within the lot of what governments are looking at is “how to level decided against pursuing a career in media, firm that this would be a growth area, and the playing field so that you don’t end up with giant multinational, global companies that control the resource she completed a biochemistry degree. At she moved among the firm’s knowledge and everyone else is left on the periphery.” that time, with the dawning of same sex management, litigation and technology teams.
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30-31_Cross Examined-SUBBED2.indd 30 29/10/2019 3:25:58 AM BEYOND THE HYPE
Thompson advises in many areas where hype is easy to come by but detailed knowledge is slim:
Artificial Intelligence: Companies will come to Thompson and say they want to use AI because “everybody has artificial intelligence.” After doing a deep dive into the company’s data, which is often in disparate formats, and its strategy, she will sometimes conclude that a good old-fashioned Excel spreadsheet will do the job. Cybersecurity: Having advised on more than 100 cyberbreaches, Thompson says they now have a “a cadence to the routine.” However, what continues to surprise her is the “ingenuity” of it. “It’s less and less the one-off hacker in somebody’s basement. Increasingly, it’s organized business crime. So, these are sophisticated, well-funded entities that are targeting companies.” Blockchain: While acknowledging the hype cycle for this technology is on the wane, she says its real impact will be felt behind the scenes. “It has the potential to take out an entire compliance department in a large financial institution.”
was an inhouse lawyer, Thompson noticed that things such as document retention and contract management were often pushed aside for more pressing concerns, so this offering is meant to help address that gap. Thompson continues to jump around in her pursuits, including taking coding courses online and manipulating data on her For Thompson, though, it started to dawn it for value.” own, “just so I can understand some of the on her that privacy wasn’t really the underlying This eventually brought her to Dentons, technologies my clients are using.” issue for companies dealing with technology. where even geographical boundaries are For Thompson, the rules and categories, And, unlike what the software and hardware often irrelevant. like the 1s and 0s that power the machines her clients were dealing with could offer, “If you are in the world of intangibles, her clients use, are simply means to achieve Thompson had to think more creatively about which is largely what my world is, I have to a result that needs to be driven by a human where things were going to go. worry less about borders than most people. strategy. And when humans are involved, “I was really focused on privacy for about Very few companies come to me with a things are never predictable. two years. And then it dawned on me that jurisdictionally limited data problem.” “I love what I do. And I finally was able it wasn’t about privacy; it was about [the] In her current position at Dentons, to stitch together the thing that drove me managing of information.” Thompson does not specialize in any out of journalism, the thing that drove me All her clients, she realized, were dealing industry. Recently, she helped her firm out of biochemistry. I’ve now been able to with different types of data. “They’re all launch what it calls “Dentons data” where stitch it together in an area that is both trying to protect it. They’re trying to hang on companies can get project management high level and detail oriented and this sort to it, they are trying to recover it if it’s gotten and a fixed price and timeline to get a data- of mess you never know what you’re going away from them. They are trying to leverage related project up and running. When she to get.”
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30-31_Cross Examined-SUBBED2.indd 31 29/10/2019 3:25:59 AM SPECIAL REPORT SELF-REGULATION
THE END OF AN ?
The customs of the legal profession are feeling the weight of 21st-century stresses, writes Anita Balakrishnan
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32-37_Cover Story - Self Regulation-SUBBED3.indd 32 29/10/2019 3:32:01 AM ANNE REMPEL has not had a positive This year, Ontario’s legal regulator faced you are a lawyer, it was somewhat difficult experience with self-regulation. She has increased scrutiny. The statement of sometimes to follow what was happening,” made two complaints to a Canadian law principles requirement — a rule to make says Durcan, who briefly served as a bencher society, but the process left her feeling the lawyers pledge support of diversity and last year. “I think it was concerning that concerns were not entirely addressed by the inclusion — was dissected by media across members of the public and profession were “black box” system of lawyer discipline. the country, with commentary reaching a left thinking, ‘What is going on? What is “I think that’s the one problem with crescendo in mid-September. being discussed here?’” lawyers regulating other lawyers: It gets into While the Law Society of Ontario Spectators filled Toronto’s Osgoode Hall a bit of an echo chamber,” says Rempel. In Rempel’s case, she was trying to address how lawyers handle elder abuse — “I think it was concerning that although she has since written about many issues facing self-represented litigants. While members of the public and profession the law society was easier to deal with than were left thinking, ‘What is going on?’” some other professional regulators, she questions whether more levels of outside Rebecca Durcan auditing are needed. “I think it’s about addressing the issues that leadership has done well to make its board Convocation meetings this year to see how concern the public and in a timely manner,” meetings public and train an influx of newly elected leaders would handle the says Rempel, a retired engineer who has since new members, the statement of principles statement of principles — a balance of free moved to Australia. “Taking a smaller step debate revealed issues in how the body speech and promoting equality — in two earlier, rather than waiting for a big tribunal discusses the public interest, says Rebecca days of seemingly relentless debate about hearing and very punitive outcomes.” Durcan, a lawyer whose practice focuses on diversity and inclusion. Dozens of lawyers Rempel is not the only onlooker asking professional regulation. fidgeted in the audience, by the end, as how law societies serve the public interest. “Unless you are a lawyer, and even if the 53 voting members jockeyed for their
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32-37_Cover Story - Self Regulation-SUBBED3.indd 33 29/10/2019 3:32:02 AM SPECIAL REPORT SELF-REGULATION
law society notes that it got the power to discipline members after lawyers’ “well- publicized episodes of dishonesty.” The LSNB also highlights the pushback it got through the years: that it was a legislated monopoly; that audits violated civil liberties; and that licensing standards made the profession inaccessible to diverse candidates. “So accessible was the profession in the early years of the century that several women and a significant number of Jews were able to attend the Law School; and its very first student was black,” the LSNB wrote. “Yet in the scramble to demonstrate to a sceptical public that lawyers were ethical and could be “Tell me, what difference do we make at trusted to police themselves, the bar asserted a link between securing more honest lawyers law societies? How do we improve the and imposing higher pre-law qualifications.” lot of Canadians?” But, despite more than 200 years of governance, it seems that questions about Darrel Pink the effectiveness self-regulation in the legal profession have not just persisted but turn at the microphone to discuss whether would be asking that. But I wouldn’t choose intensified, some lawyers say — as courts adding a checkbox to lawyers’ annual reports that one to have the fight on,” Rempel says. struggle to aid self-represented litigants and constituted good governance. “It’s not the only issue where they could as technology and consulting firms eye the At the meetings, law society benchers take a stand on over-regulation. To me it legal services market. also expressed worries about how the debate sends a bad message to the public.” In a study he led in Nova Scotia, Pink would look from the outside. found that as people come to Canada from “I just want to remind everybody that we The models of self-regulation across the world and lawyers are enabled to are here as governors in the public interest,” There is a need for regulatory reform in practise across wider geographies, the self- bencher and statement of principles the legal profession, says Darrel Pink, who regulatory system has broken. supporter Gina Papageorgiou said at one of recently retired as executive director of the “We now live in a globalized world, and the debates. Nova Scotia Barristers’ Society, which he the norms of responding to the needs of the Her worry? ran from 1990 until last year. community have changed,” says Richard “The public are not going to understand “I don’t think any law society in this Devlin, professor at the Schulich School of the nuances.” country can rest on its laurels,” says Pink. “I Law at Dalhousie University in Halifax and Rempel was one such member of the ask this question, and I don’t ask it glibly: chairman of the board for the Canadian public who followed Ontario’s recent Tell me, what difference do we make at law Association for Legal Ethics. “If you look to diversity debate, recalling her experiences as societies? How do we improve the lot of what’s happening in the U.K. and Australia . . . an engineer in a regulated, male-dominated Canadians? How do we improve the lot of there hasn’t been any real evidence of a threat profession that caters to Anglo-Saxon lawyers and the clients that they serve?” to judicial independence. So, I think it is a lot backgrounds. The law profession seems to be Criticisms of law societies are not to do with a traditional view of the world.” behind the times, she says. new. Indeed, Ontario’s recent diversity Rempel, for example, lives in a “If I was asked to write a statement saying debate echoes decades of dispute over the jurisdiction (Australia) that has moved away that I wasn’t going to kick dogs and beat cats, institution’s role in addressing barriers to from the law society self-governance model, I might find it an imposition — since I don’t entering the legal profession. amid “general distrust of the legal system by do that anyway, and I don’t know why they A detailed history of New Brunswick’s Australians in the 1990s and 2000,” writes
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32-37_Cover Story - Self Regulation-SUBBED3.indd 34 29/10/2019 3:32:04 AM University of Toronto professor Anita Anand in a recently published paper. “I’m a big supporter of principles and In 2007, England and Wales — which big supporter of diversity. But these had until then taken the same approach as Canada — joined Australia in implementing regulators are not doing their job at all.” co-regulation, where two or more bodies share the oversight of lawyers. In the Gillian Hadfield U.S., courts tend to delegate to state bars to set professional standards, as part of skill-based boards and other regulatory of legal services — by lawyers and non- the “separation of powers” set out by the models, Canada’s law societies stand out. lawyers alike. California and Arizona are also constitution, Anand added. South of the border, meanwhile, legal considering the approach in response to “an Canada, by contrast, has mostly stuck regulation is changing rapidly, says law era of regulatory reform.” by its self-regulation model, centred on professor Gillian Hadfield. Hadfield is The Institute for the Advancement of the law societies. Durcan notes that as other helping states such as Utah create a new American Legal System, which, like Hadfield, professional regulators move toward smaller, regulatory agency to track the provision is working with state governments on legal
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32-37_Cover Story - Self Regulation-SUBBED3.indd 35 29/10/2019 3:32:04 AM SPECIAL REPORT SELF-REGULATION
regulation, acknowledged that criticisms of protect the public interest” and “uphold and jurisdictions,” the Law Society of Yukon the legal profession are decades old. protect the interests of its members.” wrote when it looked at a new Legal “What makes this time any different?” the “There is an inherent conflict of interest Profession Act a few years ago. “[G] Institute wrote. “For starters, the legal profession there,” says Devlin. “There’s a very strong overnments are prepared to step in if the is facing an unprecedented crisis in serving the temptation and even likelihood that the regulation of legal services is not being needs of people with legal problems.” lawyers’ interests will come before the public properly conducted in the public interest.” Law societies’ failure to act quickly interest. So, in terms of the statement of The Law Society of the Northwest and adapt to change is one reason other principles, that was really a conversation in Territories has espoused that it is “nimble.” jurisdictions have moved away from self- many ways about some lawyers putting their “Our ability to get things done is the envy regulation, says Devlin. For example, Devlin self-interest or subjective vision ahead of the of other law societies,” president Alex Godfrey says, the Canadian Association for Legal public interest.” wrote in the LSNWT’s latest annual report. Ethics flagged the issue of judges returning The Barreau du Québec is perhaps the to practice over a decade ago, but it remains Competition most distinctive in Canada, allowing “a more a live issue in Canada. Another criticism of self-regulation is prominent role for the state, a bifurcation of Some alternatives to self-regulation are that, by making sure lawyers are running the legal profession, and a greater tolerance co-regulation or oversight regulation, says the show, the profession can protect of non-lawyer involvement in law firms,” law Devlin. A co-regulation model might divide the process of lodging complaints against lawyers among different regulators, while “In a democracy, where all institutions an oversight model might allow decisions made by the law society to be appealed to an need to be accountable, is self-regulation independent authority. But the Law Society of British Columbia, a defensible regulatory regime? for example, says on its website that lawyers are self-regulated as “a part of upholding My argument would be that it’s not.” lawyer independence.” Richard Devlin “It would pose a conflict of interest if the organization that regulated lawyers its economic interest, says Hadfield, professor Noel Semple wrote in a recent paper. was directly or indirectly controlled by the even as litigants go unrepresented amid Other law societies, including the LSO, government,” the LSBC says, calling lawyer unaffordable legal fees. It’s been more than a have also considered compliance-based entity independence a “cornerstone of democracy.” decade since Canada’s Competition Bureau regulation — which is used in Australia and “The reason people like self-regulation is studied legal regulation. In its last report, it has been used and expanded in Nova Scotia obvious. They believe in the independence said that many of the restrictions enacted by since 2005. The Law Society of Manitoba of the profession — that it should be free law societies raise costs for consumers. has a system with both appointed and lay from state interference. But they also believe “The way in which our law societies benchers in addition to having elections. that only they have the expertise to judge and bar associations regulate the provision Still, Canadian law societies sometimes themselves,” says Devlin. of legal services is the single biggest show little appetite for change, says Pink. He “The question is, ‘In a democracy, where determinant of the high cost of law, which is points to a 2018 debate at the LSO, which all institutions need to be accountable, is self- the single biggest determinant of the lack of — despite opposition — trimmed down the regulation a defensible regulatory regime?’ access that the vast majority of people have number of benchers in Convocation. My argument would be that it’s not.” to legal help,” says Hadfield. Ontario’s Ministry of Attorney It is difficult to have the same body “Lawyers shouldn’t be regulating their General said it clearly approved of a representing the membership and the public own markets.” more “streamlined” approach — on the interest, says Devlin. Some of Canada’s law societies are taking heels of the provincial government’s cuts At the Law Society of Prince Edward Island, note of the fault-finding. to Toronto’s city council for its large, for example, the Legal Profession Act dictates “The concept of self-regulation has lumbering leadership of 44. Critics argued that the regulator should both “uphold and come under increasing scrutiny in other that Convocation’s large membership was
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32-37_Cover Story - Self Regulation-SUBBED3.indd 36 29/10/2019 3:32:04 AM a barrier to efficiency and an invitation for government intervention. But others argued the opposite — that reducing the diverse sundry of voices in Convocation might threaten the law society’s privileges. “We’re one of the few countries in the world that still allows independent self- regulation of the legal profession. You tinker with the dynamics of that at the profession’s and the public’s peril,” one life bencher said. Will things change? Despite fears around the end of self- regulation, it’s unlikely that any one incident will unravel Canada’s law society traditions, “I think it’s very easy to imagine ideal which are so tightly woven into the profession’s psyche. solutions. It’s very hard and very The night before the Law Society of Ontario’s statement of principles debate, expensive to make radical change.” Justice Frank Marrocco spoke at the Ontario Malcolm Mercer court’s annual opening ceremony. “In 1797, Chief Justice Osgoode and What law societies can do regulators and an oversight regulator — Governor Simcoe decided that the legal Mercer concedes that there are problems were created. That has very significant profession should be self-governing,” said with the self-regulation model — but there costs. It requires huge amounts of effort Marrocco. “They concluded that a self- are also benefits. and focus by people to create an entirely governing legal profession was the best way For one, Ontario’s law societies are new system. And, at the end of the day, it’s to make legal services available to the people.’” more holistic than split up co-regulators, not completely obvious that it necessarily But Marrocco also reminded lawyers that says Mercer. That offers opportunities for changes fundamental problems.” because it was governed by an independent integration and insights with programs such He says law societies can do more body, the legal profession had a “social contract” as LawPRO, which provides professional to address problems such as the “echo to support access to justice. Less than 24 hours liability insurance. Plus, electing benchers chamber” of lawyers, pointing to his later, the benchers reached a compromise makes sure they are accountable to the meetings with self-represented litigants on the statement of principles, an issue profession at large, rather than just a over the past two years. The LSO’s paralegal that had dominated law society discussions selection committee. standing committee is also carefully since elections in the spring. Durcan praised With the government already employing balanced to make sure neither lawyers Treasurer Malcolm Mercer for his leadership prosecutors, funding legal aid and engaging nor paralegals nor members of the public in the meetings, fraught by an influx of in civil litigation, Mercer says, it could create dominate the discussion. He compared that newcomers unfamiliar with procedure. a “real problem of conflict” if the Ministry of with the issues that the LSBC has faced Still, Hadfield says that bencher elections the Attorney General also regulated lawyers. integrating paralegals into professional that stray from the public interest and the He questions whether a governance regulation. access to justice crisis serve as evidence of the overhaul is the right way to address the “The law society has to strive to continue “failure” of the self-governance model. criticisms of self-regulation. to act in the public interest, and thereby “I’m a big supporter of principles and big “I think it’s very easy to imagine ideal demonstrate it is a regulator worthy of supporter of diversity,” she says. “But these solutions. It’s very hard and very expensive public support,” says Mercer. “The system regulators are not doing their job at all. They to make radical change,” says Mercer. “I’ll can be improved. It is not prudent to jettison are not regulating in the public interest. use the example of England where . . . a everything because there are problems. It’s They’re having political elections.” whole series of new regulators — frontline better to try to fix them.”
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32-37_Cover Story - Self Regulation-SUBBED3.indd 37 29/10/2019 3:32:05 AM SPECIAL REPORT CORPORATE COUNSEL SURVEY
Historical relationships key for in-house counsel Canadian Lawyer’s annual Corporate Counsel Survey found in-house counsel are loyal to existing firms, while risk management and compliance are the most pressing issues
IN-HOUSE COUNSEL who participated in saw industry expertise as the top choice. past or will, on occasion, ask his peers for a Canadian Lawyer’s 2019 Corporate Counsel Specific lawyers are also a driving force for referral to someone with whom they have Survey place more importance on histor- 59.85 per cent this year, while law firm repu- personally worked. However, Lorne O’Reilly, ical relationships than on expertise when tation is relatively unimportant with only lead counsel at the Dow Chemical Company, it comes to selecting external law firms. Of 34.31 per cent saying they take it into consid- believes expertise is more important than the 137 participants, 66.42 per cent consider eration in the selection process. prior history with a firm. loyalty to existing firms to be a top priority, In line with these results, Peter Nguyen, “I want the person for the job who is going while only 52.55 per cent make the selection general counsel, corporate secretary and to give Dow the best value for the specific based on industry and practice area exper- privacy officer at Resolver, typically goes task at hand,” he says. “If I have a competition tise, in contrast to last year’s survey, which back to the same firms he has used in the issue, I may not have a historical firm, but I’m
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38-42_Feature1 - InHouse-SUBBED2.indd 38 29/10/2019 3:35:14 AM going to find that individual who has provided a diverse roster is not where is should be, the most expert experience and maybe she is although he recognizes that it would not be HOW MANY LAWYERS the one who is going to demonstrate to me the considered a significant issue for smaller firms. ARE THERE IN YOUR opportunity for value drivers in other areas.” “For large organizations, diversity would LEGAL DEPARTMENT? 35 Elisabeth Demone, vice president, chief be top of mind; but for smaller organizations, 33.58% legal officer and secretary at Symcor, values it may or may not be relevant, especially 30 lawyers with whom she has worked and says in regard to the relationship with external she would not hesitate to follow a lawyer who counsel,” he says. 25 23.36% moves to a different firm. For the fifth consecutive year, litigation 22.63%
Diversity is still not a significant consid- is the top issue being sent to outside firms, 20 eration for most, although the number of with 77.37 per cent of respondents indicating 15
“For large organizations, diversity would be top 10 8.03% 5.84% of mind; but for smaller organizations, it may 5 4.38% 2.19% or may not be relevant . . . ” 0 2 to 5 6 to 15 1 16 to 30 51 to 100 More 31 to 50 than 100 respondents asking law firms to provide a they seek outside help for litigation matters. diverse roster of lawyers has risen slightly Employment and labour issues came in DID THE SIZE OF YOUR with 16.79 per cent now making this request, second at 62.77 per cent. Most firms don’t LEGAL DEPARTMENT versus 11.11 per cent last year. Close to 68 have a lot of internal litigators, so seeking CHANGE OVER THE PAST per cent say they do not make this request. outside help is essential. YEAR? Some respondents left comments to indi- “You need expertise for defending against No change cate why seeking diversity is still not top of litigation matter or having dispute resolution 45.26% mind, with one writing: “Law firms tend to go the way the organization wants it to go,” staff files without asking,” Another wrote that says O’Reilly. When Dow faced Nova Chem- It grew they were “trying to minimize the number of ical in a litigation battle in 2018, for example, 32.12% lawyers/firms working on our file.” external help was needed to position Dow in Nguyen says the interest in working with the best possible footing. It shrank 13.87% IN WHAT SECTOR IS YOUR COMPANY/ORGANIZATION? We filled positions previously left vacant 13.87% 15.33% Government (municipal, regional, provincial, federal and First Nations – including boards and tribunals) WHAT ARE THE KEY 9.49% Professional services ISSUES IN YOUR LEGAL DEPARTMENT? 21.90% Financial Listed in order of importance
11.68% Industry/manufacturing 1 Risk management (including life sciences, food 2 Compliance/regulatory matters production and automotive) 3 Build in-house team/expertise and 11.68% Natural resources legal department management based (including energy) 4 Managing growth of company/ 3.65% Service and/or retail organization 5 Cost containment 8.03% Technology 6 Cybersecurity 6.57% Non-profit or academic 7 Technology and business operating institutions tools 8 Workplace issues including 11.68% Other harassment or bullying
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“Litigation is not something I’m comfort- cent spent $101,000 to $500,000 on legal able with,” says Nguyen. “In talking to fellow matters, but the number who spent between DOES THE GENERAL GCs, most of us come from a corporate, $1 million and $3 million has risen to 21.90 COUNSEL HAVE THE commercial or business background and we from 13.21 per cent in the past year. AUTONOMY TO SELECT FIRMS? are not comfortable with litigation. If it’s not The fact that concern for costs was ranked a core business item; it’s better served by as the most important thing that firms can do external counsel.” to improve relationships with legal depart- Demone agrees that it is more difficult to ments is no surprise. Yes, the general counsel/ predict issues that may arise and staff appro- “Understanding the need for cost legal department makes the priately for them. control is incredibly important. It’s business decision 62.04% It is a shared decision with “We don’t have an in-house litigator, so survival,” says O’Reilly, citing the example executive management when there is a lot of litigation, it goes exter- of the continuous downtown that Alberta /board 28.47% No 5.84% nally, and when there isn’t, we save that cost,” has seen in the energy business, which Handled by procurement/ she says. has resulted in so many businesses being department process 3.65% External legal spend is on the rise, with constrained by cost. 35.56 per cent of respondents saying it For Demone, while being upfront with cost increased this year, compared to the prior is important, the most significant thing that year. In line with last year’s survey, 24.09 per firms can do to improve relationships with her WHAT ARE THE LEGAL WHAT WAS THE EXTERNAL LEGAL SPEND FOR THE AREAS YOU SEND TO CANADIAN LEGAL DEPARTMENT IN YOUR LAST FISCAL OUTSIDE FIRMS THE YEAR? MOST?
$101,000 to $500,000 Litigation 7 7. 37 % 24.09% Employment/labour 62.77%
$1.1 million to $3 million Intellectual property 32.12% 21.90% Securities/corporate 29.93% Prefer not to answer/don’t know finance 21.90% Tax 29.93% General corporate work 28.47% $501,000 to $1 million (contracts, etc.) 11.68% Mergers & acquisitions 27.74%
$100,000 or less Regulatory matters 23.55% 10.95% Real estate 23.36% $3.1 million to $5 million Class action 16.06% 4.38% Environmental 15.33% Privacy legislation and data More than $10 million 13.14% 2.92% protection Information technology 13.14% $5.1 million to $10 million (contracts, licensing, etc.) 2.19% Immigration 11.68%
U.S./cross-border 10.95%
HOW MANY LAW FIRMS ARE YOU USING? Other 10.22% 49.64% 30.66% 18.25% 1.46% Advertising/marketing 4.38% 1 to 4 5 to 10 More than 10 0 Risk mitigation 2.19%
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38-42_Feature1 - InHouse-SUBBED2.indd 40 29/10/2019 3:35:14 AM department is to understand her business. law departments have with their primary For his part, Nguyen says: “I don’t “The two probably go hand in hand,” firm or external service provider, with a think there is sufficient education as to the she says. “I don’t want to waste money on 70.07-per-cent majority, most respondents different types of fee arrangements that are explaining my business over and over. If you would consider alternative fee arrangements, available. There should be internal education understand my business and you’re thinking with 66.42 per cent expressing an interest in within firms about the different types of fee proactively, not just about the issue I’m asking using them. Currently, only 2.92 per cent of arrangements that can be made available to you to address but also the issue that will respondents use AFAs as their primary type their clients.” come next, then, for me, it’s worth the money.” of billing arrangement, with “discount” being While 62.04 per cent said the general Nguyen agrees that firms should always be the most popular type. According to O’Reilly, counsel/legal department has the autonomy thinking about ways to improve the relation- AFAs are necessary to ensure that value is to select law firms, 28.47 per cent say it is a ship with in-house clients and to deliver the shown to the business, and they may help to shared decision with executive management. best value, which will not always be cost related. avoid the suggestion that legal is an expen- “I have the autonomy to select which law Although billable hours are the most sive overhead as opposed to a cost-effective firms to work with, but it’s not surprising that popular type of billing arrangement that solution provider. not all GCs do,” says Demone. “I assume there
DO YOU USE: WITH YOUR PRIMARY IF USING AFAS, DO YOU National firms LAW FIRM/EXTERNAL FEEL YOU ARE RECEIVING: 83.21% SERVICE PROVIDER, WHAT TYPE OF BILLING 54.93% Boutique firms (IP, employment law, tax) ARRANGEMENT DO YOU 75.91% USE MOST OFTEN? 42.25% Regional firms 69.34% International firms 36.50% Billable hours 70.07% Alternative firms Combination of billable hours 8.03% and alternative fee arrange- ments (AFAs) 23.36% LPOs Flat fees 3.65% 0% AFAs 2.92% 2.82%
More value The same value Less value HOW DO YOU CHOOSE YOUR EXTERNAL LAW FIRMS? DO YOU ASK THE LAW Historical relationships (i.e., generally FIRMS YOU DO BUSINESS loyal to our existing firms/lawyers) IF YOU USE ALTERNATIVE WITH TO PROVIDE A 66.42% FEE ARRANGEMENTS, DIVERSE ROSTER OF Specific lawyer(s) WHAT PERCENTAGE OF LAWYERS TO WORK WITH 59.85% THE NON-COMMODITY AS PART OF AN OVERALL WORK YOU SEND OUT Industry/practice area expertise DIVERSITY STRATEGY IN 52.55% FALLS UNDER AN AFA? YOUR ORGANIZATION? Technical expertise 75.61% 37.23% No 67.88% Law firm reputation 34.31% Ye s 16.79% Other 8.03% 17.07 % We’re thinking Third-party legal rankings/recognition 4.88% 2.44% 15.33% 2.19% about it 0% to 25% 26% to 50% 51% to 75% More than 75%
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38-42_Feature1 - InHouse-SUBBED2.indd 41 29/10/2019 3:35:14 AM SPECIAL REPORT CORPORATE COUNSEL SURVEY
IF YOU ARE ASKING LAW WHAT IS THE AVERAGE (ACTUAL) WORK WEEK FOR FIRMS FOR A DIVERSE MEMBERS OF YOUR DEPARTMENT? ROSTER, HOW RECEPTIVE ARE THEY TO THE 35-45 hours REQUEST? 42.34% 46-50 hours They are happy to do so 36.69% 48.08% 51-55 hours They are happy to do so but do not have 12.41% the data 11.54% 56+ hours 5.11% They do it reluctantly 9.62% Don’t know 1.46% They are happy to do it, but the data sample is too small, thus compromising confidentiality and privacy are historical relationships that need to be are global,” he says. “We’re worriers by nature 3.85% maintained at large organizations and banks, and there may be jurisdictions in which we but I would assume that even those GCs that operate that we may not be familiar with.” don’t have autonomy probably have autonomy While 42.34 per cent of respondents say WHAT ARE THE MOST to request a change of the current counsel.” they work 35 to 40 hours a week, 36.69 per IMPORTANT THINGS THAT Once again, risk management is the top cent work 46 to 50 hours per week, and YOUR LAW FIRMS CAN DO issue facing legal departments in 2019, followed most of the remainder work even longer TO IMPROVE WORKING RELATIONSHIPS WITH by compliance aspects, while technology and hours. O’Reilly, Nguyen and Demone are all YOUR COMPANY? workplace issues including harassment and surprised by the results. bullying are at the bottom of the list of prior- “I would expect a considerably larger Listed in order of importance ities. Building an in-house team and legal number of people working longer hours,” 1 Be more concerned with costs department management came in at number says O’Reilly. 2 Be more practical three. O’Reilly agrees with the majority. Demone agrees, saying she would be 3 Understand our business better “As you look at what we’re doing on a shocked if any GCs are working less than 4 Be more creative/innovative overall day-to-day basis, one of our largest value 45 or 50 hours a week. However, with the 5 Provide more strategic advice drivers is being that strategic offering for current climate for flexible working, Demone 6 Be more proactive analysis and understanding of risk, and, questions what people consider to be work. 7 Be more concerned with results given the nature of the businesses, there is no “I may not be in the office more than 40 8 Act on our feedback shortage of risks arising from many different hours a week, but I certainly work more than 9 Other areas,” he says. “You have us stretched thin 40 hours. I’m sending out emails before I to look at every aspect of what may face the leave for work in the morning or late in the organization, and risk is just that overarching evening,” she says. HOW MANY FIRMS statement of something that may happen Nguyen adds that senior staff who work RECEIVED THE TOP 80% and how we can mitigate against that.” directly with the CEO are expected to be OF YOUR CANADIAN LEGAL DEPARTMENT’S Nguyen adds: “In the absence of a dedi- available 24/7. SPEND? cated risk officer, these things generally fall Business is expected to boom with 59.85 into the hands of the GC, and I don’t think per cent of respondents anticipating an 48.85% we are generally trained at thinking in the upswing in the volume of legal work carried 42.75% way that risk professionals do.” out by their legal department and external As for compliance and regulatory matters, counsel combined during the next year. Nguyen believes it can be a challenge for GCs “The industry is changing and there are to know whether or not they are compliant, less standard template type answers that so seeking outside help is often advantageous we’re able to dole out as compared to before,” in such issues. says Demone. “More creative solutioning and 5.34% 3.05% “The breadth of the environment in outside-the-box thinking is needed, and that 0% which we operate from a regulatory aspect is means the amount of work we have to spend 1 or 2 3 to 5 6 to 10 15+ 11 to 15 increasingly large because more organizations time on has gone up.”
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38-42_Feature1 - InHouse-SUBBED2.indd 42 29/10/2019 3:35:14 AM SPECIAL REPORT READER’S CHOICE AWARDS 2019
2019-20 READERS’ CHOICE
READERS’ CHOICE AWARDS 2019
TOP SERVICE PROVIDERS FOR: ADR & MEDIATION CHAMBERS FINANCIAL SERVICES & CONSULTING LEGAL TECHNOLOGY LITIGATION SUPPORT & CONSULTING REAL ESTATE RECRUITING, STAFFING & OUTSOURCING
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TABLE OF CONTENTS
ADR & Mediation Chambers ...... 46
Financial Services & Consulting ...... 46 Business Valuation Services ...... 46 Forensic Accounting Services ...... 46 Legal Research - Print & E-Books ...... 46 Online Legal Research - Primary Law ...... 46 Online Legal Research – Secondary Content & Analysis ...... 46 Trustees In Bankruptcy/Restructuring Services ...... 46
Legal Technology ...... 46 Calendar & Docketing Software/Solution(s) ...... 46 Case Management Software/Solution(s) ...... 46 Cloud-Based Practice Management Software/Solution(s) ...... 47 Cyber Security Consultant(s) ...... 47 Dictation & Transcription Systems ...... 47 E-Discovery Software/Solution(s) ...... 47 Legal Document Assembly Software/Solution(s) ...... 47 Managed Security Services ...... 47 Matter Management Software/Solution(s) ...... 48 Practice Area-Specific Software/Solution(s) ...... 48 Practice Area-Specific Software/Solution(s) – Estates, Wills & Trusts ...... 48 Practice Area-Specific Software/Solution(s) – Family Law ...... 49 Practice Area-Specific Software/Solution(s) – Immigration Law ...... 49 Practice Area-Specific Software/Solution(s) – Real Estate Law ...... 49 Time & Billing Software/Solution(s) ...... 49
Litigation Support & Consulting ...... 50 Accident Investigation & Reconstruction Expert Witness ...... 50 Civil & Structural Forensic Engineering Expert Witness ...... 50 Court Reporting & Deposition Services ...... 50 Litigation Funding ...... 50 Litigation Support & E-Discovery Consultant(s) ...... 51 Medical Legal Expert Witness ...... 51 Personal Injury Damage Quantification Expert Witness ...... 51 Process Server(s) ...... 52 Public Record Searches & Filing Services ...... 52 Structured Settlements ...... 52 Translation & Interpretation Services ...... 52
Real Estate ...... 53 Commercial Real Estate – Tenant Representation Services ...... 53 Title Insurance ...... 53
Recruiting, Staffing & Outsourcing ...... 53 Legal Process Outsourcing/Document Review ...... 53 Legal Recruiter(s) ...... 54 Legal Support Staffing ...... 54
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43-55_Readers Choice Awards-SUBBED5.indd 44 29/10/2019 3:36:08 AM 2019-20 READERS’ CHOICE
EDITOR’S NOTE Readers choose preferred suppliers and vendors
elcome to the fifth annual Canadian Lawyer Readers’ Choice Awards. This feature is designed to allow you, our readers, to tell us which vendors and Wsuppliers are the best at what they do. Whether it was a crucial service or a time-saving product, there was a category for you to cast your vote. From legal tech products and business valuation services to recruiters and legal research, the Canadian Lawyer Readers’ Choice Awards showcases the companies and products that prevailed among their competitors. A total of 1,921 readers cast votes for their preferred suppliers and vendors in 38 categories. Lawyers and legal professionals rely on these businesses and that is why we have dedicated these pages to highlight those our readers recommend. The Canadian Lawyer Readers’ Choice Awards were created by Canadian Lawyer with voting conducted via online ballot. Readers were notified of the ballot through direct emails, print and online advertising and social media. Results were compiled by the Canadian Lawyer team. The ballot consisted of categories encompassing the areas of ADR & Mediation Chambers, Financial Services & Consulting, Legal Research, Legal Technology, Litigation Support & Consulting, Real Estate and Recruiting and Staffing & Outsourcing. In total, more than 300 products and service providers were listed on the official ballot and voters were also given the opportunity to write in any businesses not listed. Depending on the number of nominees, we have named the top three vote-getters in each category and listed them in alphabetical order. Categories with more than three winners indicate a tie. Again, thanks for sharing your voice and your votes. Your opinions are reflected on the pages that follow. If you do not see your favourite business recognized, please be sure to vote next year.
Tim Wilbur Editor-in-chief — Law
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43-55_Readers Choice Awards-SUBBED5.indd 45 29/10/2019 3:36:09 AM SPECIAL REPORT READER’S CHOICE AWARDS 2019
Online Legal Research – Primary Law
ADR & MEDIATION CHAMBERS • CanLII • Lexis Nexis® Quicklaw® Full Service • WestlawNext® Canada (Thomson Reuters)
Online Legal Research – Secondary Content & Analysis
• CanLII Connects • Lexis Nexis® Quicklaw® Full Service • WestlawNext® Canada (Thomson Reuters)
BCICAC Foundation Trustees in Bankruptcy/Restructuring Services 500 – 666 Burrard St. Vancouver, BC V6C 3P6 • BDO Canada Limited • Grant Thornton LLP Tel: 604-684-2821 • KPMG LLP Email: [email protected] Website: www.bcicac.com LinkedIn: www.linkedin.com/in/bcicac
For more than 30 years, BCICAC has been a trusted and efficient LEGAL TECHNOLOGY alternative to the Court system by successfully delivering confidential arbitration and mediation services. BCICAC's roster is made up of 130 top-notch arbitrators and mediators from all over Calendar & Docketing Software/Solutions(s) the World. Our goal is the successful resolution of your dispute. • Carpe Diem (Tikit Ltd.) • ADR Chambers • Intapp Time • Arbitration Place • PC Law® (LexisNexis) • BCICAC Foundation Case Management Software/Solution(s)
FINANCIAL SERVICES & CONSULTING uLawPractice 355 – 100 Gloucester St. Business Valuation Services Ottawa, ON K2P 0A4
• BDO Canada LLP Tel: 844-333-8529 • Deloitte® Email: [email protected] • KPMG LLP Website: www.ulawpractice.com LinkedIn: www.linkedin.com/in/ulawpractice-jillian-lim- Forensic Accounting Services 4446b054 Twitter: @uLawPractice • Deloitte® • KPMG LLP uLawPractice curates, produces and manages all documentation • MNP LLP necessary to remain compliant with CRA & every Canadian Law Society across the country. With a single interface, users can Legal Research - Print & E-books create dockets, manage disbursements, auto-fill court forms, intake clients, raise invoices, and so much more. • Carswell (Thomson Reuters) • LexisNexis® Canada • PC Law® (LexisNexis) • The Continuing Legal Education Society of British • Relativity® Columbia (CLE BC) • uLawPractice
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Cloud-Based Practice Management Software/ Cyber Security Consultant(s) Solutions(s) • Deloitte® • Envista Forensics • KPMG LLP
LexCloud.ca™ Dictation & Transcription Systems 133 Richmond St. W., Suite 600 Toronto, ON M5H 2L3 • Bighand • Dragon Naturally Speaking • Philips Dictation Solutions Tel: 844-450-4545 Email: [email protected] Website: www.lexcloud.ca E-Discovery Software/Solution(s) LinkedIn: www.linkedin.com/company/lexcloud-ca Twitter: twitter.com/LexCloud
When it comes to legal IT, Cloud is the better way, and LexCloud.ca is Canada’s leading provider for law firms. Enhance security, improve performance and stabilize costs by moving your firm’s IT out of Epiq the office and into a professional data centre, managed by a team 161 Bay St., Suite 1305 of legal IT experts. Toronto, ON M5J 2S1
Tel: 416-603-3003 Email: [email protected] Website: www.epiqglobal.com/en-ca LinkedIn: www.linkedin.com/company/epiqglobal/ Twitter: twitter.com/EpiqGlobal
Epiq is a leading global legal services company supporting law uLawPractice firms, corporations, financial institutions and government. 355 – 100 Gloucester St. We streamline the administration of your litigation support, Ottawa, ON K2P 0A4 eDiscovery, information governance and compliance needs. Our eDiscovery services cover the entire EDRM spectrum including Tel: 844-333-8529 forensics, processing/hosting, advanced analytics, document Email: [email protected] production and managed reviews. Website: www.ulawpractice.com • Eclipse SE (Ipro Tech, LLC) LinkedIn: www.linkedin.com/in/ulawpractice-jillian-lim- • Epiq 4446b054 • Relativity® Twitter: @uLawPractice Legal Document Assembly Software/Solution(s) With legal accounting incorporated, uLawPractice is the most trusted, efficient and affordable practice management software • ACL5 (Korbitec) available for Canadian practitioners. Audit readiness, automated • Amicus® Attorney billing solutions and court form automation are among a swath • HotDocs (AbacusNext) of tools available for Canadian practitioners who want a modern bookkeeping solution. Managed Security Services
• Clio® • Bell Canada • LexCloud.ca™ • Symantec (Canada) Corporation • uLawPractice • TELUS®
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Matter Management Software/Solution(s) Practice Area-Specific Software/Solution(s) – Estates, Wills & Trusts (Cont’d)
uLawPractice 355 – 100 Gloucester St. Ottawa, ON K2P 0A4 DoProcess Tel: 844-333-8529 123 Front St. W., Email: [email protected] Toronto, ON M5J 2M2 Website: www.ulawpractice.com LinkedIn: www.linkedin.com/in/ulawpractice-jillian-lim- Tel: 866-367-7648 4446b054 Email: [email protected] Twitter: @uLawPractice Website: www.doprocess.com LinkedIn: www.linkedin.com/company/do-process While acting as a digital legal assistant, uLawPractice’s automated interface automatically fulfills accounting procedures Will Builder® helps practitioners create professional wills and simultaneously while lawyers work through the various stages of a powers of attorney documents that are easy to use and easy to client’s legal matter. Eliminate redundancies with uLawPractice by customize. Over 15,000 legal professionals across Canada trust letting software conduct subliminal legal accounting. With uLaw, DoProcess to support the growing demands of their practice. practitioners are enabled to focus on maximizing billable hours, DoProcess is Canada’s leading provider of practice specific instead of chasing after their own paperwork. software for law offices. • Clio® • PC Law® (LexisNexis) • uLawPractice
Practice Area-Specific Software/Solution(s)
• ALF Corporate 3.0, ALF Software Inc. • ecorp, Dye & Durham Corporation Emergent • Practical Law Canada (Thomson Reuters) 1400 - 2 Robert Speck Pkwy Mississauga, ON L4Z 4E8 Practice Area-Specific Software/Solution(s) – Tel: 866-408-2833 Estates, Wills & Trusts Email: [email protected] Website: www.emergent.ca
Emergent is Canada’s largest innovator of document creation and file management software for Corporate Records and DoProcess Compliance, Wills, Estate Administration and Estate Accounting. 123 Front St. W., Our disbursement-based software, client-facing portals and wills Toronto, ON M5J 2M2 questionnaire not only make you more productive, they increase the efficiency of those with whom you interact. Tel: 866-367-7648 Email: [email protected] • DoProcess, Estate-A-Base® Website: www.doprocess.com • DoProcess, Will Builder® LinkedIn: www.linkedin.com/company/do-process • Emergent Estate-a-Base® helps practitioners manage estate administration and accounting with ease as correspondence and documents are automatically produced to facilitate solicitor’s and executor’s duties. Over 15,000 legal professionals across Canada trust DoProcess to support the growing demands of their practice. DoProcess is Canada’s leading provider of practice specific software for law offices.
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Practice Area-Specific Software/Solution(s) Practice Area-Specific Software/Solution(s) – Family Law – Real Estate Law
ChildView Inc. DoProcess PO Box 4141 123 Front St. W., Edmonton, AB T6E 4T2 Toronto, ON M5J 2M2 Tel: 800-787-8620 Email: [email protected] Tel: 866-367-7648 Website: www.childview.ca Email: [email protected] Website: www.doprocess.com ChildView Inc. produces and distributes the ChildView® computer LinkedIn: www.linkedin.com/company/do-process software that is used across Canada by family courts, family law practitioners, mediators, educators, and financial consultants to The Conveyancer® helps practitioners streamline real estate law assist in determining child and spousal support and assessing the by automating virtually every document needed when completing resulting financial outcomes. Software licenses include related purchase, sale and mortgage transactions. The Conveyancer is retiring materials and unlimited, toll-free telephone support. and being replaced by Unity® providing over 15,000 legal professionals a fast secure, web-based conveyancing platform by DoProcess, Canada’s leading provider of practice specific software for law offices.
• DoProcess, The Conveyancer® • econveyance, Dye & Durham Corporation • Real Estate, Legal Suite DivorceMate Software Inc. Toronto: Time & Billing Software/Solution(s) 28 Eugene St. Toronto, ON M6B 3Z4 Vancouver: 1202-181 West 1st Ave. Vancouver BC, V5Y 0E3
Tel: 800-653-0925 uLawPractice Email: [email protected] 355 – 100 Gloucester St. Website: www.divorcemate.com Ottawa, ON K2P 0A4
DivorceMate Software specializes in family law software for Tel: 844-333-8529 professionals across Canada. Their product line includes support Email: [email protected] calculation tools, family court forms and agreement precedents. Website: www.ulawpractice.com Their new cloud-based program is accessible anywhere, any LinkedIn: www.linkedin.com/in/ulawpractice-jillian-lim- time, on any device, and will maximize the efficiency and success 4446b054 of your practice. Twitter: @uLawPractice
• ACL Familiy Law (Korbitec) uLawPractice is an automated multi-tool for the Canadian legal • ChildView® practitioner. Translate phone calls with clients directly into dockets • DivorceMate Software Inc. from a mobile application. Handle payments, disbursements, and other expenses by importing data from any Canadian bank into Practice Area-Specific Software/Solutions uLawPractice’s automated interface. Rest easy, knowing you are – Immigration Law reconciled and compliant.
• ImmForms, Uniques Software Corp. • Carpe Diem (Tikit Ltd.) • INSZoom • PC Law® (LexisNexis) • QuebecImm, Uniques Software Corp. • uLawPractice
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43-55_Readers Choice Awards-SUBBED5.indd 49 29/10/2019 3:36:11 AM SPECIAL REPORT READER’S CHOICE AWARDS 2019
Court Reporting & Deposition Services LITIGATION SUPPORT & CONSULTING
Accident Investigation & Reconstruction Expert Reportex Agencies Witness 1010 – 925 W. Georgia St Vancouver, BC V6C 3L2 • 30 Forensic Engineering • MEA Forensics Tel: 604-684-4347 • Walters Forensic Engineering Inc. Email: (General Inquiries) [email protected] (Marketing & Communications) [email protected] Civil & Structural Forensic Engineering Expert Website: www.reportex.ca Witness Twitter: @Reportex Facebook: www.facebook.com/Reportex Instagram: @reportexagencies • 30 Forensic Engineering • Envista Forensics Reportex is a boutique, full-service court reporting and mediation • Walters Forensic Engineering Inc. firm. We strive for excellence in all aspects of litigation support, including reporting, court and IME transcription, appeal books and electronic trial services. We even have an in-house chef! At Reportex, you — and your clients — will experience unsurpassed quality, professionalism, technical support and thoughtful extras, every time.
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2019-20 READERS’ Bentham IMF funds legal fees, disbursements and court ordered CHOICE costs for plaintiffs and law firms engaged in large commercial disputes. With offices in Toronto and Montreal, we are the PERSONAL INJURY DAMAGE QUANTIFICATION EXPERT WITNESS Canadian arm of IMF Bentham Limited, an Australian publicly traded company and one of the oldest and most experienced commercial funders in the world.
50 www.canadianlawyermag.com
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Litigation Funding (Cont’d) Medical Legal Expert Witness
• Assess Med® • Omega Medical Associates • Viewpoint Medical Assessment Services Inc.
Personal Injury Damage Quantification Expert WItness Nudorra Capital Inc. 100 King St. W, Suite 5600 Toronto, ON M5X 1C9
Tel: 416-342-9590 / 877-342-9590 Email: [email protected] Website: www.nudorra.com Carol Bierbrier & Associates (CBA) 95 Mural St., Suite 600 Nudorra Capital provides fast, easy litigation loans, at the most Richmond Hill, ON L4B 3G2 competitive rates in the industry. Our simple application process, detailed loan management service, and low interest rates mean less Tel: 905-882-6947 work for you and your staff, and a greater appreciation by your client Email: [email protected] for the settlement they receive. We offer litigation loans on Personal Website: www.cbafuturecare.com Injury, STD/LTD Insurance Claims, Medical Malpractice and Family Law Divorce cases through our many offices across Canada. For over 20 years, CBA has been serving the Canadian legal community in the area of future care costing. Our reports fairly • Bentham IMF Capital Ltd. determine present and future costs associated with impairment • BridgePoint Financial Services Inc. and disability from onset to end of life expectancy. • Nudorra Capital Inc.
Litigation Support & E-Discovery Consultant(s)
Epiq MDD Forensic Accountants 161 Bay St., Suite 1305 4 King St. W., Suite 1010 Toronto, ON M5J 2S1 Toronto, ON M5H 1B6
Tel: 416-603-3003 Tel: 416-366-4968 Email: [email protected] Email: [email protected] Website: www.epiqglobal.com/en-ca Website: https://mdd.com LinkedIn: www.linkedin.com/company/epiqglobal LinkedIn: linkedin.com/company/matson-driscoll-&-damico-llp Twitter: www.twitter.com/EpiqGlobal Twitter: twitter.com/mdd1933 Facebook: www.facebook.com/mdd1933 Epiq is a leading global legal services company supporting law firms, corporations, financial institutions and government. MDD is an internationally known and respected forensic We streamline the administration of your litigation support, accounting firm that works with leading law firms to provide eDiscovery, information governance and compliance needs. Our litigation support and deliver expert witness testimony in courts eDiscovery services cover the entire EDRM spectrum including and arbitrations. Lawyers and business professionals rely on forensics, processing/hosting, advanced analytics, document our proven expertise and keen investigative insight to help them production and managed reviews. accurately assess and resolve complex and contentious matters.
• Duff & Phelps Corp. • ADS Forensics • Epiq • Carol Bierbrier & Associates (CBA) • MT>3 • MDD Forensic Accountants
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43-55_Readers Choice Awards-SUBBED5.indd 51 29/10/2019 3:36:12 AM SPECIAL REPORT READER’S CHOICE AWARDS 2019
Process Server(s) Structured Settlements (Cont’d)
Lormit Personal Services 208, 6025-12 Street SE McKellar Structured Settlements Calgary, AB T2H 2K1 100-649 Scottsdale Dr. Guelph, ON N1G 4T7 Tel: 800-459-7468 Email: [email protected] Tel: 800-265-8381 Website: www.lormit.com Email: [email protected] Website: www.mckellar.com Lormit Personal Services offers a wide array of support service to the Legal profession. From Civil Process, Court Filing, Court McKellar, the recognized leader in structured settlements, is Searches, Corporate Searches, Remote Signature Witnessing the oldest and largest firm in Canada. Through us, you gain and Commissioning, to Occupancy Checks. We have branches access to expertise from over 40 of the most qualified structure from Coast to Coast with direct access to each branch. Soon to professionals in the industry. “McKellar brings value to the be launching our custom written operations system which will settlement process.” automatically update in real time. • Baxter’s Structured Settlements • Action Process Serving Ltd. • Henderson® Structured Settlements LP • Dye & Durham Corporation • McKellar Structured Settlements • Lormit Personal Services Translation & Interpretation Services Public Record Searches & Filing Services
• Accu-Search Inc. • Cyberbahn • West Coast Title Search Ltd.
Structured Settlements Alexa Translations 2001 Sheppard Ave. E., Suite 801 Toronto ON, M2J 4Z8
Tel: 416-322-6040 / 1-888-301-0607 Email: [email protected] Website: www.alexatranslations.com LinkedIn: www.linkedin.com/company/alexatranslations/ Baxter Structures 3 Church St., Suite 501 Facebook: www.facebook.com/alexatranslate/ Toronto, ON M5E 1M2 Alexa Translations is a professional services firm that has grown its Tel: 416-947-1266 / 800-387-1686 reputation in the language services industry by forging long-term Email: [email protected] relationships in the legal, financial, consumer products, technical Website: www.baxterstructures.com and government sectors, delivering customized and premium service. Helping the clients reach their business goals is the Baxter Structures was founded in 1978 and is Canada’s first foundation of Alexa Translations’ success. family owned and operated structured settlement firm. Baxter Structures remains an industry leader through exemplary support • Able Translations Ltd. and services which guarantees that every client is given the means • Alexa Translations to move on ™. • All Languages Ltd.®
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Commercial Real Estate – Tenant Representation Services RECRUITING, STAFFING & OUTSOURCING • Colliers International • Cushman & Wakefield Legal Process Outsourcing/Document Review • JLL®
Title Insurance
Epiq 161 Bay St., Suite 1305 Toronto, ON M5J 2S1 Stewart Title Guaranty Company Royal Bank Plaza, North Tower Tel: 416-603-3003 200 Bay St., Suite 2600 Email: [email protected] Toronto, ON M5J 2J2 Website: www.epiqglobal.com/en-ca LinkedIn: www.linkedin.com/company/epiqglobal Tel: 888-667-5151 Twitter: twitter.com/EpiqGlobal Website: www.stewart.ca Epiq is a leading global legal services company supporting law As the preferred choice for many lawyers, Stewart Title has firms, corporations, financial institutions and government. become known for being an experienced, reliable title insurer that We streamline the administration of your litigation support, enhances the real estate closing process. Stewart Title does not eDiscovery, information governance and compliance needs. Our support programs that reduce or eliminate the lawyer’s role in real eDiscovery services cover the entire EDRM spectrum including estate transactions. To find out more, visitwww.stewart.ca. expertise in advanced analytics, managed document reviews and contract review services. • Chicago Title Insurance Company Canada • FCT® • Stewart Title Guaranty Company
Heuristica Discovery Counsel LLP Toronto: 655 Bay St., Suite 400 Toronto, ON M5G 2K4 Calgary: 555 4th Ave. S.W. Suite 1620 Calgary, AB T2P 3E7
Tel: 833-435-4321 Email: [email protected] Website: www.heuristica.ca LinkedIn: www.linkedin.com/company/heuristica-discovery-counsel Twitter: twitter.com/HeuristicaDC Facebook: www.facebook.com/HeuristicaDC
Heuristica is not a typical law firm. Our legal team is leading the transformation of electronic evidence review and analysis by example. Our practice is focused on advising litigation counsel and their clients in the management and use of information in all phases of civil discovery, regulatory proceedings, and investigations.
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43-55_Readers Choice Awards-SUBBED5.indd 53 29/10/2019 3:36:13 AM SPECIAL REPORT 2019-20 READERS’ CHOICE The READER’S CHOICE AWARDS 2019 ULTIMATE SOURCE For Today’s Legal Profession Legal Process Outsourcing/Document Review (Cont’d) Legal Support Staffing Each issue of Canadian Lawyer is packed with unbiased in-depth case analyses, valuable strategies, expert • Epiq insights, and a wealth of information that will allow readers to prepare for cases and effectively manage • Heuristica Discovery Counsel LLP • Ricoh Canada Inc. their practice.
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Tel: 416-365-3153 Email: [email protected] Robert Half Website: roberthalf.ca/legal 181 Bay St., PO Box 824, Suite 820 LinkedIn: www.linkedin.com/company/robert-half-international Toronto, ON M5J 2T3 Twitter: @RobertHalf_CAN WWW.CANADIANLAWYERMAG.COM Facebook: www.facebook.com/roberthalf ISSUE 43.08 | $11.95 Tel: 416-365-3153 Email: [email protected] Robert Half Legal is the premier provider of legal staffing Website: roberthalf.ca/legal and consulting solutions for law firms and corporate legal LinkedIn: www.linkedin.com/company/robert-half-international departments. With North American and global locations, Robert Twitter: @RobertHalf_CAN Half Legal provides a customized approach, including managed Facebook: www.facebook.com/roberthalf review, legal project management and eDiscovery services, to help organizations handle constantly changing workloads. The Robert Half Legal is the premier provider of legal staffing company offers in-demand expertise across practice areas, as well LEGAL SCHOLAR, and consulting solutions for law firms and corporate legal as highly skilled legal professionals on a temporary, project and FEMINIST, CREE full-time basis. Val Napoleon is co-founder of the world’s first departments. With North American and global locations, Robert Indigenous law degree program Half Legal provides a customized approach, including managed LAW TIMES TOP 10 MARKETING FOCUS ON FAMILY LAW PRAIRIE FIRMS FOR THE SOLO review, legal project management and eDiscovery services, to • Kent Legal Court of Appeal says consent Evolving to keep up with Ted Flett on going can be withdrawn for use of a shifting economic and beyond slogans frozen embryo social landscape and SEO help organizations handle constantly changing workloads. The • Robert Half PM#41261516 • ZSA Legal Recruitment company offers in-demand expertise across practice areas, as well CL43.08_OFC+Spine_SUBBED.indd 2 20/08/2019 5:02:51 AM as highly skilled legal professionals on a temporary, project and full-time basis.
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43-55_Readers Choice Awards-SUBBED5.indd 54 29/10/2019 3:36:15 AM CL subs print ad.indd 1 13/09/2019 4:26:12 AM The ULTIMATE SOURCE For Today’s Legal Profession Each issue of Canadian Lawyer is packed with unbiased in-depth case analyses, valuable strategies, expert insights, and a wealth of information that will allow readers to prepare for cases and effectively manage their practice. The integration of compelling features and columns convey unique perspectives to legal professionals that are both fun and entertaining, which is why Canadian Lawyer is the premier publication for covering the Canadian legal landscape.
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CL43-55_Readers subs print ad.indd Choice Awards-SUBBED5.indd1 55 13/09/201929/10/2019 4:26:123:36:15 AMAM PEOPLE FIRM INSIGHT
Environmental escalation Willms & Shier Environmental Lawyers LLP has grown apace with the rapid expansion of environmental law and the mainstreaming of environmentalism in society
MIRRORED IN the cultural shift of Environmentalism has become mainstream the firm’s growth has given it an edge on enhanced environmental consciousness, within the industries whose pollution prompted the competition. Willms & Shier continues to grow, having the need for environmental regulation, with “Things have changed a lot for us added a Yellowknife office this May to expand companies now having environmental policies, because our firm size is as large or larger the firm’s northern Canadian business. programs and environmental managers, than any big firm’s environmental group,” Environmental law has exploded, she says. she says. “I’d be hard pressed to think of moving from the margins to become an “Environmental protection and compliance even a large Canadian law firm with 20 important aspect of the legal profession, says with environmental laws is mainstream now. environmental lawyers.” Donna Shier, a partner at Willms & Shier It is absolutely mainstream. And that’s one of The firm practises in environment, Environmental Lawyers LLP and a certified the big differences in my 40 years of practice,” Indigenous and energy law and Shier specialist in environmental law. she says. says Indigenous law has expanded as “Now, environmental law is a real discipline with a panoply of legislation,” Shier says. “When I started with [John] Willms, “Everybody is an environmentalist now.” there were two of us. And now . . . after 40 Donna Shier, Willms & Shier Environmental Lawyers LLP years, we have 20 highly specialized lawyers.” Over her 40-year practice, there has been Environmental lawyer jobs are in high well. The firms’ Indigenous practice a transformation in how people relate to demand, with a practice such as Shier’s consists of consultation, negotiation and the environment, Shier says. The evolution increasingly attractive to law students and accommodation for natural resource has resulted in a practice that looks much new lawyers. “It’s a mainstream discipline development and energy projects and is led different than that in which she began. now. There are all sorts of programs and, by Julie Abouchar. “Everybody is an environmentalist now,” yes, we have a number of applicants always. Shier was called to the bar in 1978, began she says. “Everyone is environmentally . . . There’s no dearth of people applying,” working with Willms in 1977, part-time, conscious now.” she says. doing research and writing. The firm’s Gone are the “midnight dumpers” with The firm’s growth has shifted its environmental practice grew out of the whom Shier dealt, earlier in her career, relationship with the competition. In 2007, work the firm did in rural municipalities, who would unload drums of toxic waste in John Willms told Canadian Lawyer that it primarily landfill site work, Shier says. Shier ditches and commit other similar large-scale was a challenge for a relatively small firm was fascinated by every aspect of industrial littering. Shier says she hasn’t seen those like his — 12 lawyers at the time — to keep processes, which drew her to the type of work types of intentional acts of environmental up with larger firms that had economies of the firm was doing. “I still love to go to a new degradation in decades. scale. More than a decade later, Shier says factory and see how somebody is going to
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56-57_Firm Insight-SUBBED.indd 56 29/10/2019 3:36:39 AM WILLMS & SHIER ENVIRONMENTAL LAWYERS LLP
LAWYERS: 20
OFFICES: Toronto Ottawa Calgary Yellowknife
PRACTICE AREAS: Indigenous Law Energy Law Environmental Law Litigation Northern Canada
DONNA SHIER 1977: Hired by John Willms for part-time research and writing work 1978: Called to bar
Established from the 1978 Supreme Court of Canada case R. v. Sault Ste. Marie, according to the due diligence defence, a company is protected from liability if it can show it did everything in its power to prevent the occurrence. Shier contrasts the Control Chem case with another client, manufacture something,” she says. you’re in front of.” which appealed an order from the provincial In her 40-year practice, Shier has seen In one case, Willms & Shier’s client Control government to clean up a contamination environmental law become much more Chem Canada was charged with five offences that occurred on a property on which it complicated, with multiplying rules and after an employee mistakenly dumped, into a was a tenant. Though that party was not regulations. Because of the complexity, storm drain, 3,000 litres of liquid containing responsible for the contamination, the Court she now finds herself explaining to clients aluminum chloride hydroxide sulphate. of Appeal affirmed the order because the due that they can expect “different outcomes The company successfully defended diligence does not apply to an order from the depending on the nature of the legal forum itself by pleading due diligence, Shier says. provincial environment ministry.
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56-57_Firm Insight-SUBBED.indd 57 29/10/2019 3:36:43 AM LEGAL REPORT WORKPLACE LAW
Parties are held to oral settlement agreement Mutual agreement on essential terms will make a severance settlement binding, says Ontario Divisional Court in Bombardier
At Sherrard Kuzz LLP we If you’re an employer, collaborate with our clients we’re the only call to anticipate and avoid you need to make. human resources problems. We know proactive 24 HOUR 416.420.0738 steps today will prevent Murphy’s Law tomorrow. From human rights to health and safety, and everything in between…
IS AN ORAL agreement binding? Case law settlement agreement even though the three in a letter sent to the dismissed employees has suggested it is; a contract is a contract, employees, terminated in November 2015, in April 2016. Three months later, the even if it’s not in writing. In August, the had not signed or returned the termination employees each filed a statement of claim Ontario Divisional Court reinforced this in package documents. against Bombardier seeking damages for an employee severance case when it found The court found: “Employees’ counsel wrongful dismissal. that mutual agreement on essential terms expressly stated that his clients would Although a motions judge dismissed will make a settlement binding. accept the terms of the Dec. 18th [2015] Bombardier’s motions for summary In Shete, Lada, and Chung v. Bombardier offer, provided Bombardier agreed to pay judgment, finding that the April 2016 letters Inc., 2019 ONSC 4083, the court considered an additional $2500 [per employee] for were new offers by Bombardier and not an whether the parties had reached a legal fees . . . ” Bombardier agreed to this acceptance of offers made by the employees, sherrardkuzz.com | 416.603.0700 | 24 Hour 416.420.0738 58 www.canadianlawyermag.com 250 Yonge St #3300, Toronto, ON M5B 2L7 | @sherrardkuzz
58-62_Legal Report Workplace Law-SUBBED.indd 58 29/10/2019 3:37:17 AM 58-62_Legal Report Workplace Law-SUBBED.indd 59 30/10/2019 3:03:52 AM LEGAL REPORT WORKPLACE LAW
the Divisional Court found that Bombardier’s you haven’t signed the papers. And that’s an severance package, and if the company agrees revision of its termination package did not important principle both for employers and to this, “their understanding is that they have constitute a “new offer” but was simply employees to recognize.” a deal,” he says. The employer can then be an acceptance of the offer to which the The Divisional Court’s decision in upset when, down the road, it gets a demand employees had agreed. Bombardier doesn’t reflect a change in letter from an employee’s lawyer “when they “The general principle that we see in the Bombardier case is consistent with settlement agreements in general and “As long as we agree on the essential contracts in general,” says Liam Ledgerwood, a labour and employment lawyer at Siskinds terms of the deal, you have an LLP in London, Ont. “Just like any other contract, a settlement agreement which is enforceable contract, and that’s what this agreed to orally will be binding.” Liam Ledgerwood, Siskinds LLP Yet a key lesson from the decision is the case suggests. need for caution, Ledgerwood says. “Employers have to be careful not to law, but it is important in that it’s “a great thought that everything had been settled.” evidence an agreement to a settlement before reminder,” says Stuart Rudner of employment In such a situation, says Rudner, at they’re actually ready to be bound by the and labour firm Rudner Law in Toronto. the very least, the company is unhappy, terms,” he says. Although in this case it was “Just because something’s not signed and in and there is potential for the employee’s an employer-friendly decision, “that doesn’t writing, it’s still a binding agreement.” reputation to be damaged. “And in a worst- mean that it couldn’t equally go the other Rudner says it’s not unusual for dismissed case scenario [for an employee], like in way if the context were right. You may not employees to informally write to an HR Bombardier, the person might well be held be able to backtrack on a deal just because department to ask for a more attractive to the bargain they accepted.”
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58-62_Legal Report Workplace Law-SUBBED.indd 60 29/10/2019 3:37:19 AM The use of modern technology — email, face, to discuss their situation and agree on Even casual responses from an employee text messaging and voicemail — may also a course of action. Second, says Sherrard, should be confirmed, says Rudner. From the facilitate the collection of evidence should “We always want to ‘paper’ the instructions employer side, “Say, ‘if we accept this, can the case go to court. Whereas in the past we’ve been provided with, [and] make sure we have a final agreement?’ and make that more agreements may have been settled orally, “now, it’s typically either by email or by text, which means there’s a very clear record “We always want to have a written of this discussion,” says Rudner. Indeed, the Bombardier case “certainly communication with our clients that yells out for all of us to continue to be actually set out our instructions.” cautious, to cross our Ts and dot our Is,” says Michael Sherrard of Sherrard Kuzz LLP in Toronto. The decision could also extend to everyone understands the nature of the offer.” very clear so it will be almost impossible for other areas of employment law, he says. For So, after instructions are received, counsel the individual [employee] to turn around example, an oral offer of employment might should write to the client to confirm those later and say, ‘Well, we were just discussing likewise be considered binding. instructions. “We always want to have a written certain items, but I didn’t think this was a Top of list in developing best practices is, communication with our clients that actually complete agreement.’” first, to meet with the client, ideally face to set out our instructions,” Sherrard says. Even in an informal exchange, it’s
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important to clarify what the terms of the Sherrard also notes that the Bombardier acceptance of that offer and an exchange agreement will be, and then counsel should decision was “consistent in a line of of value (either actual or promised), says send over detailed documents containing all cases.” The motions judge in Bombardier Ledgerwood. Signing or executing a the terms, Rudner says. Employees should referred to the case of Ferron v. Avotus contract only goes to proof of the agreement also be asked to sign full and final releases for Corp for the proposition that a settlement and is not actually a necessity to form an a severance package or similar agreement. will be enforced where the parties have agreement, he adds. “That would also preclude them from filing a claim later on.” And dismissed employees should “get a “It’s a caution to all of us to be very lawyer!” he says. Although someone who has just lost a job may not want to incur legal careful in our approach to settlement costs, “they might leave a whole lot of money discussions and also in discussions with clients.” on the table,” he says, and the employer may agree to pay legal costs. Michael Sherrard, Sherrard Kuzz LLP Sherrard says the case represents “a caution to all of us to be very careful in our agreed on all essential terms. Although he “On TV, it’s always about signing the deal,” approach in settlement discussions and also concluded that this had not occurred in Ledgerwood says. “But, in reality, signing in discussions with clients. You may have the Bombardier case, the Divisional Court the deal is maybe the least important thing a negotiation orally, but you always want concluded otherwise. that we do in order to make it binding. As to bring it back down to writing,” he says, Perhaps the main takeaway from the long as we agree on the essential terms of adding that it is often in the parties’ interests decision is that, in order for a contract to the deal, you have an enforceable contract, to attempt to negotiate or find a compromise. be binding, all that is needed is an offer, an and that’s what this case suggests.”
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58-62_Legal Report Workplace Law-SUBBED.indd 62 29/10/2019 3:37:20 AM SPECIAL PROMOTIONAL FEATURE IP UPDATE
Changes to IP Brought to you by Law Necessitate
with. Lawyers must update their substantive New Strategies knowledge in these areas and make corresponding changes in strategy that need to be thought through and implemented to face such complexity. Internal procedures and docketing practices likewise need to be overhauled to ensure the requirements of the new IP regimes are met. As IP specialists, it is our job to keep abreast of all of these changes and develop new strategies to help our clients take advantage of the new IP regimes. We have invested the time and resources to prepare for and manage the many changes that have come into force over the past year, and we are ready to assist you and your clients to maximize the value of their IP assets now and into the future.
About Oyen Wiggs Through the continued success of our clients, our CONSTANT CHANGE is a feature of The goal of these new changes is to provide boutique firm has grown to 20 IP lawyers, all based modern life, and IP law is no exception. Canadian businesses with a global competitive in Vancouver. Each of our lawyers acquired an The legislation governing each of patents, advantage while facilitating continued growth advanced technical degree or equivalent experience trademarks and industrial designs in Canada of IP activity within Canada. prior to attending law school, so that we have the has been significantly amended over the Understanding and implementing all of skill set to assist with matters spanning fields from past year. The modernized IP regimes help these changes is no small task for Canadian aerospace to zoochemistry. We would welcome the Canadian businesses to expand outside of lawyers. There are changes in substantive opportunity to work with you and your clients to help them develop, protect and profit from their IP assets. Canada by providing more options for them law, procedures, deadlines, timelines, and to protect their products and brands abroad. complex transitional regimes to contend
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IP practitioners wary of patented medicine SMART • pricing amendments BIGGAR• Amendments to Canada’s Patented Medicines Regulations come into force July 1 — and they have already been met with two court challenges BOUNDLESS• In today’s fast-paced innovation economy, companies with a strong portfolio of strategic intellectual property rights are leading the way.
Smart & Biggar’s award-winning IP team CANADA’S NEW patented medicine world that applies its law so that pricing and mandate from the Patent Act, under has helped the most successful companies pricing regime will come into effect on July of patented medicines is controlled,” says the jurisdiction of the minister of industry, in Canada and around the world protect, 1; and although guidelines have not yet been Daphne Lainson, a partner at Smart & although the new amendments were enforce and leverage IP rights to grow their released, nor the next set of consultations Biggar LLP in Ottawa, who calls the changes developed in co-operation with input from business. Combining unparalleled IP expertise started, it is already controversial. to the pricing regime “significant.” Health Canada. In August, amendments to with a commercially strategic approach, we Canada’s Patented Medicines Regulations help companies safeguard creativity, exploit were published — the first since 1987 — “The constitutional challenge [to the innovations and dominate in their markets. and have so far been met with two court challenges. amendments] is the real threat. . . . In early September, the patented medicines The smart choice for IP protection, industry group Innovative Medicines Canada Now we’re entering a territory where enforcement and strategy• and 16 of its member companies filed a judicial review application in the Federal we’re going to get U.S.-style drug pricing Court of Canada. The group charges that in this country.” the new regulations would jeopardize “the industry’s rationale to invest in Canada and Amir Attaran, University of Ottawa patient access to new medicines.” smartbiggar.ca The other challenge is constitutional, Related guidance from the Patented There are three principal reforms. First, initiated in the Quebec Superior Court Medicine Prices Review Board has not yet new factors were introduced to enable the Smart & Biggar services are provided by the law firm Smart & Biggar LLP and the patent and trademark agency Smart & Biggar IP on behalf of six pharmaceutical innovator been released, although it will be important PMPRB “to consider the price of a patented Agency Co. For more details on our structure visit smartbiggar.ca/legal. companies. in how the new amendments will be medicine in relation to its value and impact “Canada may be the only country in the applied. The PMPRB takes its jurisdiction on the health care system,” according to
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SB_CanadianLawyers_Boundless_2019.indd 1 9/23/2019 9:48:33 AM 64-68_Legal Report2 IP Law-SUBBED.indd 64 29/10/2019 3:37:58 AM SMART • BIGGAR• BOUNDLESS•
In today’s fast-paced innovation economy, companies with a strong portfolio of strategic intellectual property rights are leading the way.
Smart & Biggar’s award-winning IP team has helped the most successful companies in Canada and around the world protect, enforce and leverage IP rights to grow their business. Combining unparalleled IP expertise with a commercially strategic approach, we help companies safeguard creativity, exploit innovations and dominate in their markets.
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WHAT’S TO BLAME FOR FALLING INNOVATION? “By having a stricter set of pricing “Pharmaceutical R&D investment criteria less favourable to the in Canada has fallen to below five per cent of sales, less than half of innovative companies . . . I think that its level in the 1990s, even as patented medicine prices have risen during that same timeframe. reluctance . . . to launch in Canada is This is despite significant government support through funding and grant opportunities for going to be greater.” research and investment in Canada.” Noel Courage, Bereskin & Parr LLP
Health Canada. These include an assessment presently preparing these types of analyses information, says Lainson. of pharmaco-economic value of the for the public payers,” Lainson says. And third, pricing for patented medicines medicine, i.e., the cost of a drug against its Other factors to be considered will be will be benchmarked against an updated health benefit, says Lainson, who notes that market size and gross domestic product list of countries “with similar consumer the regulations say this will apply only to per capita in Canada, which boil down to protection measures, economic standing high-cost drugs. whether Canadians can afford to pay for a and pharmaceutical markets as Canada,” “The pharmaco-economic value is certain drug. says Health Canada. The amendments will important because the board is going to Second, changes to reporting increase the current basket of countries to 12 be looking at reports that are published by requirements will mean that patentees from seven countries, drawn from member publicly funded Canadian agencies that are will have to report on all their net sales states of the Organisation for Economic
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64-68_Legal Report2 IP Law-SUBBED.indd 66 29/10/2019 3:38:00 AM Co-operation and Development. Removed European company that owns the product innovative companies that produce products, from this basket will be the United States and does not want to get involved in the Canadian “I think that reluctance of certain companies Switzerland, where drug costs are higher. pricing system because it could affect their to launch in Canada is going to be greater,” “Canadians pay among the highest prices local pricing or affect their U.S. pricing.” he says. for patented medicines in the world, after With the introduction of a stricter set of The one overarching theme of the only the United States and Switzerland,” pricing criteria that is less favourable to the amendments is that “the current system said Anna Maddison, senior media relations advisor for Health Canada, in a statement to Canadian Lawyer. “Canadians pay close to 25 per cent more than the median price that people in other developed countries pay for the same medicines,” she said. “This influences Bright minds Canadians’ access to important medications and the sustainability of Canada’s health- protecting bright care system.” Amir Attaran, Canada Chair for Pop ideas since 1893 Health and a professor cross-appointed to the University of Ottawa’s faculties of Law and Medicine, sees these amendments as designed to be in keeping with other jurisdictions. “It gives rise to an interesting rebuttal to what the industry says: ‘If we enact these regulations and lower prices and we stay at the average of the lower countries in the basket, new products won’t be launched here.’ But new products are launched in countries in the lower end of basket,” he says. Evidence shows that lower prices do not limit access to new medicines, according to Health Canada. “Countries with lower prices than Canada have new medicines introduced within a similar timeframe as they are currently in Canada,” said Maddison. She added that price is only one of several factors that play into research and development investment decisions by the pharmaceutical Ranked as one of Canada’s top IP law fi rms in both industry, and many countries with lower Canadian and international surveys of in-house patented medicine prices also have counsel, we understand the business of innovation significantly higher levels of investment by and the vital role that IP plays in today’s competitive, pharmaceutical companies. market-driven economy. Yet the way that the regulations were set years ago had an impact on whether some Congratulations to our partner Benjamin Mak for winning the 2019 Lexpert Rising Stars Awards: Leading Lawyers Under 40! companies would launch in Canada at all, says Noel Courage, a partner at Bereskin & Parr LLP in Toronto. Courage says he has talked to Canadian companies that try to license in the Canadian PATENTS | TRADEMARKS | INDUSTRIAL DESIGNS | COPYRIGHT | IP LITIGATION rights to drug products, “and I’ve been told ridoutmaybee.com TORONTO | OTTAWA | BURLINGTON that they have difficulty getting these rights sometimes because the American or the
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CANADIANS AMONG HIGHEST PAYERS FOR PATENTED MEDICINES
“Canadians pay among the highest prices for patented medicines in the world, after only the United States and Switzerland. Canadians pay close to 25 per cent more than the median price that people in other developed countries pay for the same medicines. This influences Canadians’ access to important medications and the sustainability of Canada’s health-care system.” Health Canada
contains a fair degree of unpredictability,” says Alan West, a partner in Gowling WLG’s Toronto office, who practises primarily in the pharmaceutical and health-care sectors. “The new changes will only exacerbate that and inject more unpredictability,” he says. One thing that won’t change is the provision that says the guidelines are not binding on the PMPRB, West says. This creates uncertainty for a company or manufacturer that may adhere to the guidelines only to lose out in a dispute with the PMPRB. The constitutional challenge from valid that the cost effectiveness of a drug is West also points to two of the new factors Quebec charges that the amendments to a new criterion that distinguishes this case that will be considered by the PMPRB in pricing regulations are ultra vires federal from all previous ones, Attaran says. determining whether the price of a medicine authority in the constitution; but this The challenge in Federal Court, filed by is excessive: the GDP of a country and the matter has been litigated before, and the mainstream of the industry, “turns on the per capita GDP. “If the price of a drug is set in Year One, and the . . . price of oil plummets — and Canada is a petrol-exporting country “Canadians pay among the highest prices for — if our GDP dips, how does that affect the price of medicine in Year Two?” patented medicines in the world, after only This takes pricing control away from manufacturers, says Alex Camenzind, who the United States and Switzerland.” practises with Gowling WLG in Ottawa, as Anna Maddison, Health Canada pricing becomes tied to the vagaries of the market. For now, the guidelines have not been unsuccessfully, he says. “The courts have supposition that when Parliament legislated released nor new consultations started, and said because the federal government has the Patent Act and gave the PMPRB they won’t likely be released until after the constitutional authority in s. 9.1 . . . to jurisdiction to set prices, which that power federal election dust clears. As for the two make laws in relation to patents, that was communicated to PMPRB through court challenges, Attaran says that neither is includes laws in relation to the pricing of regulations” but that the new regulations are likely to succeed. patent medicine.” Nor is the contention ultra vires the Patent Act.
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ACCESS TO JUSTICE Omar Ha Redeye has not had the most typical path to the heart of the legal establishment, but he’s always wanted to fight the good fight
“I thought I could be part of the solution.” Teenager Ha Redeye acted on his hankering for justice when he 1999 moved to Winnipeg to work with low-income and vulnerable 1998 GOES BACK TO SCHOOL populations. TAKES ACTION In the midst of a backpacking trip “I had a strong sense of social justice from childhood that manifested EARLY of the Middle East, it occurs to itself over time. I was picked on and bullied as a young child — that Ha Redeye that he could go back to experience led to an aversion to power being abused. I thought I could be school; this thought leads to a new career. part of the solution and not part of the problem.” “I realized the closest place I could do my SATs was Egypt, so I made the trip, did my SATs and gained admission to an American university studying nuclear medical technology. I graduated in the middle of a shortage, and my first 2005 job forgave my tuition debt; it allowed me education and opportunities.” TAKES HIS SKILLS TO INDONESIA After the disastrous Boxing Day tsunami, Ha Redeye decides to act to help 2006 rebuild the devastated community. FINDS THE LAW “’I saw the need and thought ‘I want to do Two years after doing a free LSAT “for kicks” and something.’ I had to recruit doctors and achieving respectable results, an elective law get fundraising — we bootstrapped a course in health management at Ryerson piques Ha relief effort. Redeye’s interest. It was one of my first legal experiences: “It was my first academic encounter with law and We had to deal with international law and I found it fascinating. I had a program director at stay on the right side of things. I didn’t expect it, but in taking on this role, I had to Ryerson who told me I should go to law school and teach myself these aspects.” pushed me to look into it seriously and move from 2007 hard sciences to a more academic field.” GOES TO LAW SCHOOL “The substance of law really excited me — I am very 2011 much a law geek. And all that hard work was channelled BEGINS TEACHING CAREER toward helping people who need help. I did the legal “I jumped at the chance” clinic while at university, which was my first exposure to While still completing articling, Ha Redeye that kind of work; my first experience of the law being used begins his teaching career when he is to help those who need the most help. I was torn between a Masters offered a post teaching a single evening and law school, and law won out because there was a social justice aspect.” course in a specialized area that resonates perfectly with his skillset. “It was kind of a fluke — I jumped at the 2019 chance when they reached out to me. I still teach at the Ryerson law and JOINS DURHAM COMMUNITY LEGAL CLINIC business clinic: The students do a lot of case groundwork while also learning After a sole practice focusing on access to justice at Fleet Street Law, Ha other skills and earning credit.” Redeye takes over as executive director of the Durham Community Legal Clinic, attracted by the organization’s holistic view of “I was drawn by the Access to Justice Hub that recognizes clients’ needs. legal issues are intertwined with social issues. We don’t “I was drawn by the Access to Justice Hub that recog nizes legal issues are intertwined with social issues. We don’t look at look at people as discrete bundles of need; we help them people as discrete bundles of need; we help them not not just with their immediate problem but by tapping into just with their immediate problem but by tapping into other resources in the system.” other resources in the system.”
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geographic market (e.g., Toronto) if it is important for your practice; this includes Should lawyers optimizing keywords, including URL, meta descriptions, biography and blog posts.
Yet, while the core benefits of legal blog- still blog? ging — visibility, brand strengthening and lead generation — have not changed over the past 10 years, some things certainly have. Yes, but times have changed and blogs must change While there were about 300 legal blogs in with them Canada a decade ago, there are now more than 650, according to www.lawblogs.ca. Leading the Canadian law blog count are civil litigation I STARTED blogging for my practice 10 years U.S. consumer products company recently (23 blogs), wills and estates (27), intellectual ago. When I first started out, I knew very little contacted me after reading my blog posts, property (31), criminal law (39), labour and about web marketing or blogs. while several other major new U.S. consumer employment (53) and personal injury (59). Attending meetups and other networking product company clients have been generated There are also more publishing platforms events then, I started to hear non-lawyers, from my advertising law posts. available now, including LinkedIn, Twitter, including many tech startup people, talk about Despite changes to legal blogging over the aggregator blogs and specialized practice direc- the web, blogs and social media. I needed past few years, many of the core strategies to tories. Practically, this means there is signifi- clients for the new competition law practice I gain web visibility have not changed much. cantly more legal content being published and had opened after returning to Vancouver from These include: likely means that it’s correspondingly more London and — without law firm marketing challenging to be seen by potential clients. Or, support — I decided to try blogging. • Using short and clear posts that show to put it another way, there is a lot more “noise” After a few inquiries, I was referred to your expertise and insight as a subject on the web than there was 10 years ago. the person who built my first blog. Built on matter expert; Potential clients are reading blog posts a WordPress platform, that site has today • Including clear branding statements; i.e., and articles less in real time and more during become three interlinked blogs that each generate traffic and leads. When I first started blogging, I remember “When I meet other lawyers . . . they still ask being asked by lawyers in larger firms whether whether I generate any business from my I thought any client would actually retain a lawyer writing for a blog. That was a common blogs or say, ‘Our firm wouldn’t likely attract skepticism then and, to some extent, still is. Yet this perception has also changed over the clients from the internet.’” past few years, with more large firms either launching their own practice-specific blogs or what you do and what distinguishes you a search for a specific type of lawyer for a contributing to aggregator sites to gain higher from your competition; particular file. I also think some in-house visibility for their lawyers. • Employing SEO fundamentals, including clients are less willing to rely on external The marketing objective for my practice is keyword-rich content and titles, counsel assurances that “we have someone threefold: Gain high visibility on key search optimized meta titles and descriptions, down the hall” that can do it and are increas- engines (principally Google and Bing); be seen and keywords and interlinked content; ingly searching for specialist advice on the web. as a subject matter expert in my areas of prac- • Using keyword-rich domain names; Lawyer blogging is more challenging and tice; and maintain and obtain new clients. search engines like them and potential there is a good deal more “content fatigue,” Each of my three blogs is focused on a clients find them (for example, in but high-quality, timely content still gener- single practice area (e.g., competition law or my case competitionlawyer.ca or ates good traffic and great new clients. advertising law), with overviews of the key canadianadvertisinglaw.com); Steve Szentesi is a competition and advertising legal topics within that area; short, inter- • Using microsites: platforms built around lawyer based in Toronto. He is a former adjunct linked and keyword-rich blog posts; and a a single practice area with content professor of competition law at the University of professional biography. optimized to reflect a particular area of British Columbia’s Faculty of Law, author of several competition law publications and lawyer-editor The lead generation benefits of blogging practice); for Practical Law Canada Competition. remain strong. For example, the GC of a major • Gearing your entire platform toward a
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