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Vol. 35, No. 37 february 12, 2016 lawyersweekly.ca

Landmark Nation ‘can and must do better’ tort creation say ministers of child treatment worries some CRISTIN SCHMITZ First Nations children in welfare system chronically received less OT TAWA

The Ontario Superior Court’s CRISTIN SCHMITZ recent creation of a sweeping OT TAWA U.S-style privacy invasion tort does more than provide civil It’s rare to witness the attorney recourse for people whose intim- general of Canada, or other cab- ate images are disseminated inet ministers for that matter, without their consent — it also enthusiastically welcoming a tri- provides new redress for those bunal decision against Ottawa, whose “private lives” are publi- especially when it means millions cized without permission when it more in federal spending — in this “would be highly offensive to a case on upgrading First Nations reasonable person and is not of child welfare services to be “sub- legitimate concern to the public.” stantively equal” to those pro- The novel “public disclosure of tecting other children. private facts” cause of action Jus- But that’s exactly what Justice tice David Stinson devised last Minister and Attorney General month in his judgment goes far Jody Wilson-Raybould, and beyond the facts of the case Indigenous and Northern Affairs before the judge — which involved Minister Carolyn Bennett, did Jan. the non-consensual distribution 26, after the Canadian Human of sexually explicit images — to Rights Tribunal released a ground- paving the way to civilly con- breaking decision that some see as strain and punish the non-con- a robust precedent for improving sensual publication of any private chronically underfunded First “information” when the matter Nations child welfare services and publicized — or simply the act of for pushing Canada to upgrade Federal Minister of Justice and Attorney General Jody Wilson-Raybould, left, looks on as Minister of Indigenous publication itself “would be substandard services for indigen- and Northern Affairs Carolyn Bennett speaks about the landmark Canadian Human Rights Tribunal decision highly offensive to a reasonable ous peoples: First Nations Child finding discrimination against First Nations children in the welfare system.ADRIAN WYLD / THE CANADIAN PRESS person, and…is not of legitimate and Family Caring Society of Can- concern to the public:” Jane Doe ada v. Assembly of First Nations v. the federal government has for on the basis of their race or national First Nations children formal v. N.D., 2016 ONSC 541. A.G. Canada (for the Minister of years violated s. 5 of the Canadian or ethnic origin, by underfunding equality by spending less on them In the light of the plainly Indian and Northern Affairs Can- Human Rights Act (CHRA) by dis- their child welfare and protection than what’s spent to protect other egregious facts of the case, the ada), [2016] CHRT 2. criminating against some 163,000 services, including failing to adjust Canadian children. It also denied court did not have to define After hearing 73 days of argu- indigenous children living on for inflation since 1995. substantive equality since their what “highly offensive” and “not ment, the tribunal concluded that reserves and in the Yukon Territory, The government didn’t just deny Grammond, Page 2 Fraser, Page 11

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Contents Grammond: Shift of strategy News

Ministers say nation ‘can and must do better’ 1 in approach of First Nations Landmark tort creation makes some uneasy 1 Continued from page 1 able water etc. “because the govern- needs are often higher owing to the ment will have to show that it is Judge leery of battleship expenses in dinghy wars 3 harms visited on their commun- treating aboriginal peoples equally ities from the Indian residential with other Canadians. In other Circumstantial evidence is seen schools, and from sub-par services, It is ‘We deserve equal words, the aboriginal peoples are as enough 4 such as poor housing, which leads treatment.’ And saying entitled to receive the same essen- to overcrowding that sparks allega- tial services as other Canadians on Driver to appeal legality of search that puts the light on and arrest 5 tions of neglect, held tribunal an equal basis, and that’s not hap- members Sophie Marchildon and the sad fact that First pening now.” Focus Edward Lustig in their 182-page Nations and indigenous Daniel Poulin, counsel for the ruling. (It was under reserve for 15 Canadian Human Rights Commis- ADR months and is dedicated to tribunal peoples do not receive sion, said complaints related to Another hurdle to annulments 12 member Réjean Bélanger who died equal treatment. First Nations education and poli- during the deliberations.). cing are ready for hearing by tribu- Time crafting arbitration clauses “Overall, [the department’s] nals, and the commission has com- well spent 13 method of providing funding to government agrees that we can and Sébastien Grammond plaints about inadequacies in other Why it’s hard to match mediator ensure the safety and wellbeing of must do better.” Lawyer programs under consideration. with dispute 14 First Nations children on reserve Sébastien Grammond, counsel It is significant that the tribunal and in the Yukon, by supporting for the complainant First Nations rejected federal arguments that the Health Law the delivery of culturally appropri- Child and Family Caring Society of in First Nations strategy in treatment of First Nations children ate child and family services that Canada, a non-profit research and their fight for adequate federal cannot be compared to that of The biosimilar patent puzzle 15 are in accordance with the provin- policy body which supports First funding of services. other children, and that federal Regulators hot on the trail of fake cial/territorial legislation and stan- Nations child and family services “What’s new essentially is that we funding is not a “service” capable of practitioners 16 dards and provided in a reasonably agencies, said a big question is are using the right to equality, and being discriminatory because the comparable manner to those pro- whether the new Liberal govern- the [CHRA’s prohibition against government structures its pro- Business & Careers vided off reserve in similar circum- ment will continue its predecessor’s discrimination in services]…to fur- grams so they are actually delivered stances, falls far short of its object- eight-year defence of the complaint ther the claims of the indigenous by the provinces or First Nations Canadian law firms take P3 ive,” the tribunal found. in light of Wilson-Raybould’s state- peoples, so it’s an entirely different child welfare agencies (using fed- expertise to U.S. 21 To the contrary, “the evidence ment to the Commons last month way of framing those claims,” he eral money). demonstrates adverse effects for that “there will likely not be any explained. “It’s not: ‘We have Bottom line, “it means that the many” First Nations children and reason why we would seek judicial Aboriginal rights because we were [Canadian] Human Rights Act families, including that the federal review of this decision.” here before.’ It’s not treaty rights applies” to the government and its funding formula provides an incen- (In 2009 Wilson-Raybould was because ‘We made a deal with you funding of First Nations services, tive for children to be removed elected regional chief of the B.C. and we want you to uphold it.’ It is Poulin said. “It’s important for all from their homes. The evidence Assembly of First Nations, but ‘We deserve equal treatment.’ And the programs that the federal gov- accepted by the tribunal indicated stepped down last year to run for saying that puts the light on the ernment delivers on-reserve.” that First Nations children are 12 the Liberals. The AFN is the other sad fact that First Nations and The tribunal ordered the govern- times more likely to be placed in complainant in the case, launching indigenous peoples do not receive ment to stop discriminating and to foster care than non-indigenous its complaint in 2007.) equal treatment.” reform its funding programs to children. Federal officials have esti- “We are currently reviewing The decision “may very well be a address the identified problems. mated that funding, as compared the decision to determine game changer,” he added, “in the The government was also ordered to off-reserve children, is up to one appropriate next steps and once sense that the federal government to immediately stop its restrictive third less. determined, we will communi- can no longer assume that it has approach to “Jordan’s Principle” — a Pledging to “make the right chan- cate on the way forward,” free rein to define all the social ser- policy endorsed by Parliament that ges for better outcomes for First Indigenous and Northern vice programs, the education pro- is supposed to ensure that funding Nations children” in collaboration Affairs spokesperson Michelle grams and all the rest, for First disputes among government levels with the indigenous leaders and Perron said by email when Nations communities, as it cur- and departments do not impede ANNOUNCEMENTS 22 communities, and the provinces, asked if the government will rently does in a way that…fre- First Nations children from access- CAREERS 23 Wilson-Raybould and Bennett said seek judicial review on jurisdic- quently does not deliver substan- ing government services on terms CLASSIFIED ADS 19 in a joint statement “the tribunal tional or other issues. tive equality to the indigenous equal to other children. DIGEST 17 has made it clear that the system in Grammond, a University of peoples” in services and funding. The tribunal emphasized that NAMES IN THE NEWS 4 place today is failing. In a society as Ottawa law professor who was Grammond predicted the deci- “more than just funding, there is a prosperous and as generous as part of an eight-lawyer team, sion will impact other programs, need to refocus” the policy of the Canada, this is unacceptable. This said the case illustrates a shift related to education, health, drink- government’s funding program “to respect human rights principles and sound social work principles.” However “given the complexity RICHES, MCKENZIE & HERBERT LLP PSL Legal Translation Inc. and far-reaching effects” of the PATENTS, TRADEMARKS, COPYRIGHT, LITIGATION relief sought by the complainant Caring Society and AFN, including BARRISTERS & SOLICITORS - PATENT & TRADEMARK AGENTS general and individual compensa- BRANT LATHAM, B.A.SC. B.SC. (CHEM. ENG.), LL.B. GARY M. TRAVIS, B.SC. (GEOL.), LL.B. Pierre St-Laurent tion, the tribunal reserved its rul- JEFF PERVANAS, B.A.SC. (ENG. SCI.), LL.B. MICHAEL ADAMS, B.ENG. (MECH. ENG.), B.SC., LL.B. ing on other remedies, pending MICHAEL YUN, B.SC. (BIOCHEM), J.D. THOMAS MCCONNELL, B.SC. (BIOL.), J.D. Lawyer-Translator STEVEN CHENG, B.A.SC. (ELEC. ENG.), J.D. further submissions from the par- Phone: 613-599-9243 ties. The panel said it would con- TRADEMARK AGENT MARTA TANDORI CHENG tact the parties within three weeks [email protected] of its ruling to determine the pro- 2 BLOOR ST. EAST, SUITE 1800 TELEPHONE: (416) 961-5000 TORONTO, ONTARIO M4W 3J5 FAX: (416) 961-5081 cess for resolving “its outstanding ESTABLISHED 1887 E-MAIL: [email protected]; www.psllegaltranslation.com questions on remedy answered on [email protected] an expeditious basis.” THE LAWYERS WEEKLY february 12, 2016 • 3

News Judge sees battleship expenses in dinghy wars

CRISTIN SCHMITZ Judges from coast to coast are observed Justice Mitchell. The OT TAWA becoming increasingly directive law on one key issue was well in insisting on proportionality settled by Supreme Court of Over-lawyering to forestall pro- in litigation, however the P.E.I. Canada case law the P.E.I . fessional negligence claims and That, of course, is not to say that senior lawyers Court of Appeal’s judgment courts have consistently fol- to train juniors at clients’ should not bring junior lawyers along to court stands out for highlighting lowed. The other main expense is contributing to the “over-lawyering” as an obstacle issue — whether the appellants unaffordability of litigation, the so that junior lawyers can learn to litigate. It to access to justice for average have a cause of action — “was a P.E.I. Court of Appeal says in a is, however, to say that training a junior lawyer litigants. fairly standard issue of statu- broadside against skyrocketing should be a firm overhead and not something for In the personal injury case on tory interpretation regarding legal bills. appeal, the respondent defend- which some research into legis- P.E.I.’s top court complained which clients pay. ants’ bill of costs for a half-day lative history was needed,” the last month that lawyers are motion and the half-day appeal, judge observed. “It didn’t need, driving up the cost of litigation Justice John Mitchell on a substantial indemnity or call for, $95,000 worth of by doing excessive research, P.E.I. Court of Appeal basis, was $98,231 including legal work. and assigning two or more HST and time and taxes for “Small wonder people are counsel to a file, when one will to see one lone lawyer on each just for clients, but for the bar, assessing costs. staying away from the court in do. side of a case in court,” he Justice Mitchell warned. “Law- Yet the issues in the case “were droves,” the judge remarked. “One does not need to build a added. “While there are cases yers are pricing themselves out not overly complicated,” Justice Mitchell, Page 10 battleship to do the job of a din- where two lawyers are neces- of the litigation market. There ghy,” Justice John Mitchell sary, they are few and far are fewer and fewer litigators bluntly observed in making “a between,” he stressed. “That, of and more and more mediators.” few general comments for the course, is not to say that senior He stressed that lawyers need OSGOODE benefit of the bar” on behalf of lawyers should not bring junior to focus and hone their cases, PROFESSIONAL a bench that also included P.E.I. lawyers along to court so that i.e. not cite 10 cases when there Chief Justice David Jenkins and junior lawyers can learn to liti- is one Supreme Court of Can- DEVELOPMENT Justice Michele Murphy. gate. It is, however, to say that ada ruling on point. CONTINUING LEGAL EDUCATION Justice Mitchell went on to training a junior lawyer should “The skill of the advocate is to lop off more than two-thirds of be a firm overhead and not identify the salient issues, zero a “typical” bill of costs in a per- something for which clients in on those few issues on which sonal injury case that he con- pay.” the case will turn, not inundate The Osgoode Certificate in sidered “too much” and illustra- The Court of Appeal under- the court and one’s opponents tive of “a trend across the scored the golden rule of litiga- with case law and argument on Public-Private Partnerships (P3s) profession that I find disturb- tion that the costs of a matter issues that are tangential,” he ing. should be proportional to its stressed. “When a client asks Our truly outstanding multi-disciplinary faculty with years “Small wonder people are complexity and value. his lawyer the time of day, he of experience working with all levels of government will drill staying away from the courts in Disregarding proportionality doesn’t need to be told how to down on what you need to know about P3s. Don’t miss this droves,” the former criminal is having dire consequences not build a watch.” intensive, comprehensive and practical learning opportunity. and civil litigator remarked. However, he added, “I under- Day 1: March 31, 2016 stand the pressures lawyers face Fundamentals and Framework of P3s to come to court prepared lest Day 2: April 7, 2016 they themselves be sued for landPRO Procurement and the P3 Project negligence. No lawyer wants to conF e R ence 2016 come to court and be surprised Day 3: April 14, 2016 by an argument they had not Financing a P3 Project – Government, Debt & Equity contemplated or researched. The Real PR oPeRTy Day 4: May 3, 2016 No lawyer wants to be the IndusTRy I s Constructing, Operating, Maintaining and Insuring defendant in a negligence law- the P3 Project suit where his/her competence changIng… is the issue. That can be career- aRe you R eady? Day 5: May 10, 2016 limiting, if not career-ending.” Managing the P3 Project Lawyers are therefore tempted “to over-lawyer, research and brief every possible issue,” he Program Directors said. Marni Dicker, Executive Vice President, General Counsel and Corporate “The result is that courts often Secretary, Infrastructure Ontario receive long, complicated briefs Richard H. Shaban, Borden Ladner Gervais LLP with 20 to 30 cases covering Dates Registration Fee every conceivable issue from March 31 - May 10, 2016 $3,795 plus HST every possible viewpoint.” 5 Days over 6 Weeks Financial aid and group The many cases must then be discounts available. copied for the other side and Wednesday, March 2, 2016 Location the court. The Court of Appeal Osgoode Professional Development In Toronto or via live webcast 1 Dundas St. W., 26th Floor WEBCAST AVAILABLE requires four copies each of the Toronto, ON brief and case law. “The photocopying alone in this case for Approved for 1.75 Professionalism the motion and appeal cost Register now at osgoodepd.ca/P3s about $1,570, plus taxes,” he and 3.5 substantive hours. pointed out. Eligible CPD/MCLE hours: LSUC (ON): 35.25 CPD Hours (3.0 On top of that, clients often Professionalism; 32.25 Substantive). OsgoodePD has been approved are asked to pay for multiple register t ODAY as an Accredited Provider of Professionalism Content by the LSUC. lawyers. “Lawyers now seem to travel in pairs, if not in teams,” www.LandProConference.com the judge observed. “This was A WORLD LEADER IN LAW SCHOOL Brought to you by not the case 20 or 30 years ago, LIFELONG LEARNING but certainly seems to be the rage these days. “It has become almost a rarity Priority Service Code: 15-51LW

12086 Krcmar LandPRO OneSixth Pg Ads-FA.indd 1 2016-01-29 2:21 PM 4 • February 12, 2016 THE LAWYERS WEEKLY

News

Moves Circumstantial evidence seen as enough ■ Maxwell Brunette joined Gowlings in its Vancouver office as partner. Brunette practises as a labour and employment MICHAEL BENEDICT that personal possession is not lawyer. He was previously a required to establish possession. partner at Blakes in Calgary. Despite an unusual fact situa- “If the accused had access and it ■ Gilbert’s LLP announced Mark tion, the Court of Appeal of New was knowingly placed for the Eisen as a partner. He is a Brunswick has affirmed that The Crown accused’s use, then you have con- registered patent and constructive possession of con- demonstrated structive possession,” she said. trademark agent with more trolled substances for the pur- Silver also pointed out that than 30 years of experience poses of trafficking can be deter- knowledge and control, while the trial judge made a patenting inventions in a mined solely on circumstantial and that’s all it takes rational inference that Mowry variety of mechanical, evidence. In R. v Mowry,[ 2016] to show constructive constructively possessed the electrical and IT technologies NBCA 2, the New Brunswick drugs, there also was no rational and protecting trademarks. high court upheld a conviction possession. alternative finding. The firm also welcomed Paul although no illegal drugs were Citing a recent Alberta Court Chodirker as counsel. His found inside the accused’s house, Jonathan Dawe of Appeal decision, R. v. Pear- practice includes and there were no fingerprints Dawe Dineen son, [2014] ABCA 379, Silver entertainment and corporate or other direct evidence linking But the appeal court, in a said alternative inferences must transactional work with focus him to the drugs found outside decision penned by Justice be “reasonable and rational, not on live events, music, on his property. Margaret Larlee on Jan. 21, just possible.” branding, sponsorship and In September 2014, 15 police instead found that, “although In Mowry, she added that it’s endorsements, officers executed a search war- no explicit evidence on the rec- clear, “A stranger would not have merchandising, gaming, digital rant on the home and property ord indicates that Mr. Mowry buried the drugs that way.” media initiatives and other belonging to Allen Mowry, who had the requisite knowledge of Indeed, the New Brunswick licensing. He was previously lived on a secluded wooded the controlled substances, it is appeal court found, “it is the legal affairs director for area about 15 kilometres from reasonable and rational to con- irrational to think that some Live Nation Global Touring. Fredericton. clude, from the circumstantial unknown person, wishing to hide ■ Dentons announced that David Outside Mowry’s home, police evidence, that he did have the illegal drugs, would hide these on Lefebvre returned to the firm found hidden containers in sev- requisite knowledge.” somebody else’s property in loca- as a corporate partner based in eral locations containing In determining that Mowry had tions that were inherently sus- the Calgary office. His practice cocaine, marijuana as well as constructive possession of the ceptible to their discovery by the focuses on mergers and 150 Oxycodone and Percocet illegal drugs, the New Brunswick property owner.” acquisitions. He was previously pills. Inside, they found bundles high court relied on the Supreme Similarly, the court also upheld a partner at Gowlings. of cash totalling $4,000, along Court of Canada test established the trafficking conviction as a ■ Christie E. Gibson joined the with digital scales. in R. v. Morelli, [2010] SCC 8. reasonable conclusion based on Toronto office of Cassels The trial judge convicted In that decision, the Supreme structive possession,” adds Dawe, the facts. Brock as an associate in the Mowry of possession on the Court said constructive posses- an adjunct at the University of “The pills were grouped and firm’s real estate and grounds that he was the exclu- sion occurs when the accused: Toronto faculty of law. stored according to their type and development group. sive resident of the property and “(1) has knowledge of the char- Fredericton lawyer George milligram strength,” Larlee wrote. ■ Four lawyers have joined that all the concealed or buried acter of the object, (2) know- Kalinowski, Mowry’s counsel at “The quantity was consistent Wildeboer Dellelce, including drugs were found within 150 ingly puts or keeps the object in trial and appeal, agreed that with the intention to traffic and Jeff Hergott as a partner. He metres of the dwelling in the a particular place, whether or overturning the trial judge’s inconsistent with personal use… focuses on corporate finance, home’s “zone of occupation” and not that place belongs to him, decision was a “difficult moun- These conclusions reflect a mergers and acquisitions and were readily accessible. and (3) intends to have the tain to climb. proper understanding of the law, corporate/commercial law. He convicted Mowry of traffick- object in the particular place for “Insufficient evidence could and application of that law to The other three are ing on the grounds that a large his ‘use or benefit’ or that of have led to other inferences, but findings of fact that the trial associates Tommy Sorbara, amount of pills were found, the another person.” the court of appeal agreed that judge could reasonably make.” securities and commercial cocaine was cut with benzocaine Toronto criminal appeals law- such a finding is up to the trier of For her part, Kathryn Gregory, real estate; Luigi Valente, and that the scales were in plain yer Jonathan Dawe of Dawe fact,” he said. New Brunswick Appeals Crown securities and tax, and Lara view behind the hidden bundles Dineen says Mowry’s chances of For her part, Lisa Silver, Uni- counsel, said the judgment “stays Wharton, securities and of cash. a successful appeal were “strik- versity of Calgary adjunct law the course. ” corporate finance. Mowry appealed, claiming that ingly difficult” because the trial professor and practitioner, also She added, “Knowledge and ■ Priya Sarin has joined the absence of illegal drugs in the judge was entitled to draw rea- said this was a difficult appeal control were established. The employment and labour law home and the absence of finger- sonable inferences from the because it was based on the decision reiterates that con- firm Whitten & Lublin as a prints on the jars and cans con- facts. “The Crown demonstrated facts, something assessed by the structive possession can be partner. taining the drugs outside could knowledge and control, and trial judge. established from purely circum- have led to other findings. that’s all it takes to show con- Silver added the law is clear stantial evidence.”

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News Driver to appeal legality of search and arrest

KIM ARNOTT dle of the night. When radioing in vehicle without a warrant in vio- did not constitute a search. his intent to stop the vehicle, the lation of s. 8, and the arrest that “There is either an intrusion The Supreme Court of Canada officer was warned to be careful led to the discovery of the drugs into the vehicle or there is not,” will be asked to decide the legal- because the registered owner had violated s. 9. he noted. “The conclusion of my ity of the arrest of a man found a previous drug arrest and had The Court of Appeal decision colleague that there is no search with a large unsheathed knife in been in possession of a knife. by Justices Michael Harrington when a police officer enters the his car during a Labrador traffic As he approached the vehicle, and Gale Welsh upheld the trial physical space of a vehicle driven stop following a split ruling by the officer noticed a prohibited judge’s finding that Diamond’s s. by its owner, with or without the that province’s highest court. police scanner on the dash of the 8 rights were not violated because assistance of a flashlight, is The decision in R. v. Dia- car. He also spotted a pile of the officer “minimally inserted unprecedented.” mond, [2015] NLCA 60 also money underneath the driver his head and a hand holding a However, Justice White found creates uncertainty about the when he leaned forward to flashlight into the vehicle only the search justifiable on grounds of province’s search and seizure retrieve documents from the briefly to assess his immediate officer safety, so it was not in viola- law, say several St. John’s crim- glove department. surroundings for his own safety,” tion of s. 8 rights of the accused. inal defence lawyers. Breen Using a flashlight, the officer and this did not constitute a But he rejected the use of a set In a 2-1 decision, the Supreme leaned into the truck’s open win- search of the vehicle. of “loosely connected facts” that Court of Newfoundland and Lab- and would have excluded all evi- dow and spotted an unsheathed The court also found that the might indicate the accused was rador Court of Appeal dismissed dence under s. 24 (2), resulting in hunting-style knife in the bottom arrest did not violate Diamond’s involved in some sort of Scott Diamond’s appeal of con- acquittals on the charges. of the driver’s door compartment. s. 9 rights because “the conflu- “unsavoury behaviour” as provid- victions for unlawful possession Jason Edwards, the lawyer with After arresting Diamond for ence of circumstances,” including ing reasonable and probable of a weapon dangerous to the Newfoundland and Labrador unlawful possession of a weapon the accessibility of the unsheathed grounds for arrest. public peace and unlawful pos- Legal Aid who represented Dia- dangerous to the public peace, a knife and the previous arrest his- “There is not a scintilla of evi- session of cocaine for the purpose mond before the Court of Appeal, subsequent search led to the dis- tory of the accused provided him dence in this case that the appellant of trafficking on grounds that his confirmed that his client will covery of cocaine. with reasonable and probable had previously used the knife dan- Section 8 and 9 Charter rights appeal the ruling. A trial judge rejected defence grounds for arrest. gerously, that he was attempting to had been violated. Diamond was arrested after an arguments that all evidence In his dissent, Justice White use the knife dangerously, that he In dissent, Justice Charles RCMP officer pulled over his should be excluded under s. 24(2) disputed the majority finding that was committing any offence with White found Diamond’s arrest to pickup truck for speeding on a of the Charter because the officer the officer’s minimal insertion of the knife or that he had any pur- be in violation of his s. 9 rights remote Labrador road in the mid- had conducted a search of the his head and arm into the vehicle Justice White, Page 23

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tel: 416 780 1762 To advertise, please contact: Jim Grice • Tel: (905) 415-5807 • [email protected] or Ritu Harjai • Tel: (905) 415-5804 • [email protected] 10 • February 12, 2016 THE LAWYERS WEEKLY

News Justice Mitchell: Only business and wealthy litigate

Continued from page 3 “Only businesses who may be able to deduct legal fees as a business expense and the wealthy can afford to litigate.” Very often our In our legal system, As to the successful appel- preliminary material lawyers argue cases lants’ request for $17,000 in partial indemnity costs for the has got to anticipate the for their clients appeal (a request their counsel range, because you are and judges make reduced during oral argument never quite sure which decisions. I respect that to $6,000 to $8,000) the Court of Appeal awarded only aspect of the matter system. Any further $5,000 — plus $620 disburse- is going to attract comment would be ments and HST. “In this case, I have con- the attention of the inappropriate. sidered the factors set out in to a junior lawyer, at a much particular judge, or the costs, he said he invited the Rule 57.01 and in particular the lower hourly rate, or to a law Court of Appeal. Court of Appeal to address Janet Clark concept of proportionality and clerk, while restricting senior more generally the problem of Stewart McKelvey the complexity of the issues counsel to tasks requiring more high legal bills impeding access involved and have concluded skill and experience. James Macnutt to justice for average people. that $17,000 is too much,” Jus- He also noted that not all legal Macnutt and Dumont “The whole theme that Justice tice Mitchell held. points benefit from determina- Mitchell was addressing in that Appellants’ counsel, James tive Supreme Court jurispru- part of his judgment was…cost Macnutt of Macnutt and dence. Therefore more case law being a deterrent to access to Dumont in Charlottetown, said has to be cited in order to prop- are never quite sure which aspect justice,” he said. judges make decisions. I respect lawyers in the province are erly advise the court. “If you fail of the matter is going to attract Counsel for the defendants, that system. Any further com- mulling how their practices to be thorough, then you’re going the attention of the particular Janet Clark of Stewart McKel- ment would be inappropriate.” could be affected by the appeal to be pilloried for that,” he judge, or the Court of Appeal.” vey in Charlottetown, who also court’s comments. He said cli- explained. “Very often our pre- In arguing against what had a junior, said by email “in We want to hear from you! ents save money when work on liminary material has got to Macnutt considered to be the our legal system, lawyers argue Send us your verdict: a file is appropriately delegated anticipate the range, because you other side’s “outrageous” bill of cases for their clients and [email protected] Alternative Dispute Resolution Directory

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News Fraser: Sees ‘very significant’ fallout from decision

Continued from page 1 physical symptoms and severe reveal them to the world via the of legitimate concern to the psychological and emotional Internet, without legal recourse, public” means. trauma for years, analogous to would be to leave a gap in our Lawyers predict the Jan. 21 what many sexual assault victims system of remedies.” judgment will fuel class actions suffer. Currently in post-graduate “I think that what we’re going for privacy breaches against deep- studies, she fears her career as a to see is that this is a very, very pocketed defendants such as health professional will be significant decision, overall,” businesses, institutions and gov- harmed if the images re-emerge. said Halifax privacy lawyer ernments — when, for example, Wilson said she took the case, David Fraser of McInnes Cooper. they fail to safeguard sensitive which she worked largely pro Fraser is counsel in a certified information such as medical or bono, because she felt badly for class action against Health Can- banking records. Lawyers say the her client and others in similar ada for allegedly breaching the judgment will also constrain free- situations. “I got frustrated privacy interests of medical dom of expression, limit what watching these things happen marijuana users by sending information enters the public and the law not being there,” she them correspondence with a domain and could chill what the explained. She said she was return address mentioning the media publishes. appalled by the judicial discipline “Medical Marijuana Access Pro- “Privacy torts are coming,” said proceedings launched against gram.” The class action includes media lawyer Ryder Gilliland of Young women shouldn’t former Manitoba senior judge I think that what a damages claim for public dis- Blakes in Toronto. He noted that be bullied relentlessly Laurie Douglas after the judge’s we’re going to see is closure of private facts. in the U.K. many libel lawyers husband posted sexually explicit Fraser said the number of pri- have switched into privacy law in to the point of suicide, photos of her on a porn site, with- that this is a very, very vacy invasion actions has been order to avoid the complete legal and established women out the judge’s knowledge or con- significant decision, incrementally expanding across defence of “truth” — which stops shouldn’t be slut- sent. The judge later resigned, overall. Canada since the Ontario Court defamation claims cold. By way even though she “didn’t do any- of Appeal decided Jones v. Tsige, of illustration, he cited the shamed out of their thing wrong,” Wilson said. “I which recognized the new tort of example of a public figure who careers, just because thought that what happened to David Fraser “intrusion upon seclusion,” i.e. quietly enters rehab and who is her, it was garbage.” McInnes Cooper prying into another’s private con- barred from suing media outlets they have a private life, She added Jane Doe “is so cerns or places if the invasion for defamation because the news and they’re people, happy that other women who this would be highly offensive to a about her rehab is true, but who and they have bodies has happened to are going to get reasonable person. could potentially sue for public to rely on this precedent.” Gilliland predicted “lawyers are disclosure of private facts. that can be naked Wilson said she has been inun- going to be busy doing a lot of Importantly, Justice Stinson’s sometimes. dated by calls from lawyers who different privacy claims, not just decision is expected to spur dam- know people who will be able to in this kind of case, or cases that ages claims for cyberbullying. In Donna Wilson use the decision. “People are not would have been defamation in the first Canadian damages Lawyer going to stop sexting,” Wilson other contexts, but also in the award for the non-consensual remarked. “In the future I’m cybersecurity area where we have distribution of intimate images, hoping people won’t be pressured class actions arising from data Justice Stinson awarded into sexting if they don’t want to, breaches and things like that, $100,000 (plus full indemnity and if adults want to, then they’ll because there’s so much informa- legal costs of $36,209) to a uni- be seen as an author of her own just keep it private and then career and said that those eco- tion out there, there’s lots of versity student whose ex-high misfortune. “Everyone kept there’s not any harm if it’s a com- nomic losses could be very real.” potential areas in which the pri- school boyfriend pressured her to telling her it was her own fault pletely consensual thing between Justice Stinson held that two vacy torts can find ground.” make, and send him, a sexually and [she] had no case…It’s two adults.” well-established torts were also Fraser said the $50,000 general explicit video of her which he 100-per cent victim blaming,” She said she believes dam- proven in the case: breach of damages award is significant falsely promised to keep private, Wilson said. “I think it’s ridicu- ages — which exceeded in Jane confidence and intentional since the Ontario Court of Appeal but quickly posted on a porn lous and absurd for that to even Doe what most sexual battery vic- infliction of mental distress. But has thus far set “almost a cap” for website under the title “college be suggested, because women tims get — could go much higher he reasoned he should also rec- intrusion-upon-seclusion general girl pleasures herself for ex-boy- shouldn’t be bullied so relent- than $100,000. “We actually said ognize, and apply, a new species damages claims of $20,000. “I friends (sic) delight,” and also lessly for having a sex life — for they should be treated as a sexual of tort (drawing heavily on the think it’s a significant expansion showed it to young men they having a body, basically.” assault and defamation case, U.S. Restatement (Second) of of the common law and a signifi- both knew — without her know- cant expansion of the privacy ledge or consent. torts, but also potentially a sig- In an age of rampant sexting nificant expansion of the possible and cyberbullying, the decision damages that are available to provides a useful precedent for plaintiffs in these cases.” thousands of people — mostly Lawyers are going to be busy doing a lot of From the media perspective, women — and will hopefully different privacy claims, not just in this kind of the case is worrying, said Gilli- help deter misuse of intimate land, who anticipates public fig- images in future, said plaintiff case, or cases that would have been defamation ures will use the tort. “The hope Jane Doe’s counsel, Donna Wil- in other contexts, but also in the cybersecurity will be of course that from a jour- son of Toronto. “Young women area where we have class actions arising from nalistic perspective, that what’s shouldn’t be bullied relentlessly in the ‘public interest’ is defined to the point of suicide, and data breaches and things like that, because broadly, and that’s obviously established women shouldn’t be there’s so much information out there, there’s where you’ll see some of the fight slut-shamed out of their careers, going on.” just because they have a private lots of potential areas in which the privacy He noted that in the U.S. “pub- life, and they’re people, and Justice Stinson found that the torts can find ground. lic interest” has been more they have bodies that can be defendant (who did not defend broadly defined than in Canada. naked sometimes,” Wilson told the case) acted with malice, and Ryder Gilliland He also pointed out it was The Lawyers Weekly. hit him with $25,000 in punitive Blakes unnecessary for the judge to Retained before Jones v. Tsige, damages, $25,000 in aggravated devise a new tort, given that he [2012] ONCA 32 opened the damages and $50,000 in general had already found liability based door to privacy torts, Wilson damages (damages were capped on two established torts. “The said prominent lawyers turned at $100,000 because the court’s rolled into one, when you’re Torts [2010]) because to permit concern is that every time we down Jane Doe’s groundbreak- simplified procedure was used). assessing damages, and Justice someone who has been confi- create a new privacy tort we’re ing case as a loser, partly, they The judgment says the plaintiff Stinson did acknowledge the dentially entrusted with intim- creating more potential for there said, because the plaintiff might was “devastated” and suffered potential harm to her future ate details “to intentionally to be a chill.” 12 • February 12, 2016 THE LAWYERS WEEKLY

Focus alternative dispute resolution

One more hurdle to annulments Contracting out of Model Law’s Article 34 limits challenges to international arbitration awards

The parties were business partners who acquired commercial real estate in Ontario. The agreements contained arbitration clauses speci- fying that disputes would be resolved by the Rabbis of the Crown Heights Beth Din (in New York City.) R. Aaron Rubinoff The relationship deteriorated and in 2005 the parties proceeded to arbitration. The Rabbinical John Siwiec judges ordered that one of the parties should sell his interest to the other. The parties came to an t has long been recognized that a notable dif- agreement whereby Lipszyc would sell his inter- ference between international and domestic est to Popack. However, Popack discovered what I arbitration is the ability to challenge the he believed to be fraud committed by Lipszyc, resulting award. While both types of awards are and the parties went back to arbitration in 2011. open to limited forms of judicial review, only During the second arbitration, the arbitral tri- domestic awards can be appealed with respect to bunal met with one of the Rabbinical judges that the correctness of the decision. heard the first arbitration, Rabbi Schwei, to get Although appeal rights, and the ability to con- his opinion on the case. The meeting took place tract out of them, vary across the provinces and without notice to, and without the presence of, territories, such appeals are not available under the parties. The tribunal eventually decided the United Nations Commission on Inter- against Popack and ordered him to pay national Trade Law (UNCITRAL) Model Law US$400,000 to Lipszyc. on International Commercial Arbitration Lipszyc advanced a preliminary argument that (“Model Law”), which has been adopted right the parties had contracted out of Article 34 of across Canada. the Model Law. He cited the Ontario case Noble In light of a recent decision from the Ontario China Inc. v Cheong [1998] O.J. 4679 as stand- Superior Court of Justice, another divergence ing for the proposition that Article 34 is not a seems to be arising with respect to the ability of mandatory provision of the Model Law and can parties to limit challenges to international arbi- therefore be excluded by agreement. tration awards. The court rejected Lipszyc’s interpretation of The domestic arbitration acts across Canada Noble China and held that parties cannot stipulate that parties cannot vary or exclude any contract out of Article 34 for all pur- provision dealing with setting aside an award. In poses. For example, if the parties Popack v. Lipszyc [2015] ONSC 3460, however, purported to derogate from a the Ontario Superior Court of Justice recently mandatory provision of clarified that parties can limit the court’s ability Breach, Page 14 to set aside international arbitration awards. Pursuant to Ontario’s International Commer- cial Arbitration Act, which incorporates the Model Law, Popack sought to set aside an arbitral award rendered by a tribunal in New York City. In response, Lipszyc argued, among other things, that the parties had contracted out of Model Law Article 34, which provides the list of grounds upon which an award may be annulled — the grounds are primar- ily based on issues regarding the validity of the procedural process.

JJPan / iStockphoto.com THE LAWYERS WEEKLY february 12, 2016 • 13

Focus ALTERNATIVE DISPUTE RESOLUTION Time crafting clauses well spent

We can help you find the Paul M. Iacono, Q.C.

Earl Cherniak

t is said, and often true, that I arbitration clauses in commercial agreements are the last things addressed at 3:00 a.m. Peter R. Braund Hon. Harvey Spiegel, Q.C. Ernie Eves, Q.C. Helen L. Walt This is especially true of tired lawyers who know too little about arbitration, and approved by parties who, in the euphoria of a successful negotiation, are certain that there will never be a dispute that will not be resolved in the spirit of the goodwill of the moment. Charles A. Harnick, Q.C. Douglas F. Cutbush Margaret K. ReesT ony Baker This article will deal only with Jodi Jacobson / iStockphoto.com domestic ad hoc arbitration, since space does not permit tak- power to order costs? If so, should ing into account the special it be in the arbitrator’s discretion, issues that arise when parties are or should the scale be fixed? international, or when institu- Will the arbitrator have Should there be a time limit tions are involved, a rarity in the power to order in which the hearing is to be domestic arbitrations. held and reasons delivered? If Take for instance, this clause: costs? If so, should it so, it should be realistic, hav- Fred Sampliner Alicia Kuin David L. Smith, C.A. Cindy Winer “All disputes between the parties be in the arbitrator’s ing regard to the nature of the that cannot be resolved by good discretion, or should possible disputes. faith negotiations should be Is confidentiality required? If referred to a panel of one or three the scale be fixed? so,David it L.should Smith be specified, because arbitrators with the power to it cannot be assured otherwise. resolve all disputes under the Earl Cherniak Direction can be given as to laws of Ontario and who will Lerners LLP procedure to be followed, to report their decision within 30 ensure a timely resolution of the Jeffrey Musso n John Beaucage John W. Makins Derek Sarluis days of the referral.” dispute and afford rights of pro- That clause is off the chart ugly. duction and discovery appropri- To arrange a mediation, arbitration or appraisal, please call Bad arbitration clauses leave ate to the nature of potential dis- our ADR Coordinator or book online. open a court challenge to the putes. Failing the specification of jurisdiction of the arbitrator(s), held. The choice of seat is import- a procedure, the arbitrator or unnecessary expense, or set up ant, because if in a different juris- arbitration panel will determine (416) 866-2400 procedural barriers to an efficient diction from the law governing it, subject to the agreement of the arbitration. Such a clause might the agreement, the seat will parties once a dispute arises. require that “The Rules of Civil determine the procedural law Some agreements require that Procedure of [name of province] applicable to the arbitration and senior executives meet to attempt will apply to any arbitration the venue for any challenges to it. to resolve disputes within a speci- under this agreement,” or provide How the arbitrators will be fied time or that there be a medi- 130 Adelaide Street West, Suite 701 for a panel of three arbitrators for chosen should be addressed. It is ation, as a condition precedent to a $500,000 dispute. commonly done by agreement, invoking the arbitration process. Toronto, Ontario, M5H 2K4 A good arbitration clause has and if a three-person panel, by A sophisticated agreement T 416-866-2400 TF 1-844-967-5782 F 416-866-2403 www.yorkstreet.ca broad wording: “The submis- each party nominating one arbi- could provide a summary pro- sion to arbitration applies to all trator, the two nominees to cess for disputes under a speci- disputes arising out of or in choose the chair. Failing agree- fied dollar value, and a more connection with this agreement on an arbitrator or the chair elaborate process for larger ment, including any question as of the panel, provision should be value disputes. to its existence, validity or made for application to the court. Commercial lawyers alive to the interpretation, or the jurisdic- Provision can be made for each value of dispute resolution out- tion of the arbitrators.” party to have a say in the choice side the purview of the courts will The number of arbitra- of the chair, or at least a veto. give consideration to an appro- tors — one or three — is always a Some agreements, for instance priate, workable clause well in key question. The choice of three those involving intellectual prop- advance of closing, and often take should be reserved for disputes erty or a technical industry, advice during the negotiations involving a significant amount of specify that the arbitrator(s) have from those with arbitration NEXT WEEK IN FOCUS: money and where the resolution a particular expertise or experi- experience and expertise, either of the dispute need not be swift, ence in the field. inside or outside their firms.  Family Law given the expense and delays Whether or not there will be a Like many fail-safe devices (the Securities Law inherent in the formation and right of appeal should be speci- automobile airbag is a good  remuneration of a three-person fied. If appeal rights are to be example), parties hope never to panel and the scheduling logis- provided for, the drafter should have to invoke an arbitration tics of the necessary attendances be aware that provincial statutes clause, but want it to work well and hearing. vary as to the extent and exercise when it becomes necessary. The applicable governing law of appellate rights (though uni- should be specified, as well as the form legislative reform is under Earl Cherniak is a partner at Lerners seat of the arbitration, which may active consideration). LLP, and a commercial arbitrator not be where the hearing will be Will the arbitrator have the and mediator. 14 • February 12, 2016 THE LAWYERS WEEKLY

Focus ALTERNATIVE DISPUTE RESOLUTION Why it’s hard to match mediator with dispute

ask the parties to stop being emo- exceedingly rare and is not typ- tional in order to focus on mak- ically initiated by mediators, law- ing a “rational” decision and yers and parties. others who will recognize, It may be argued that reputa- acknowledge and help parties tion can provide the information deal with the emotions they are that disclosure by mediators does Kumail Karimjee experiencing. Some mediators not. In my view, relying on repu- like to keep parties in joint ses- tation alone is not sufficient. sions and others never do joint Mediation is a growing field ne of mediation’s promises sessions. Some will predict out- and consequently mediators are O is that, as an alternative to come or make a mediator’s pro- growing in number. When the dispute resolution through posal and others will not evaluate legal profession was much adjudication, it allows parties to at all. smaller, perhaps reputation could take ownership of their own dis- These differences in mediation be relied upon. However, there putes. approach are not just fertile are currently over 40,000 law- The idea and the ideal is that ground for theoretical debate. yers in Ontario. parties retain control over not The real and tangible differences Many lawyers are trained out- just outcomes but also the pro- between approaches to media- side of Ontario and may qualify cess used to get there. tion actually make a difference. as lawyers in the province with- Diversity or, stated another In fact, there is empirical evi- out articling with a law firm. Fur- way, process plurality, within dence which shows that mediator ther, the legal profession now the mediation field is positive. style can affect both party satis- includes licensed paralegals. With plurality, at least in theory, faction levels and substantive Self-representation is also on comes choice. With choice results achieved. Further, con- the rise resulting in parties with comes the ability to seek an siderable empirical research sug- little or no knowledge of the appropriate dispute resolution gests that satisfaction levels for options engaged in the selection process that is responsive to the AndSim / iStockphoto.com different legal processes generally process. One cannot assume that nature of the dispute and the are influenced by the level of par- all legal professionals and parties needs of the parties. ticipation and feelings of fairness have access to information However, for meaningful choice within different processes, through informal channels that to exist, parties must know what regardless of the outcome. Not all will allow them to make a mean- the choices are, be able to select It may be argued that reputation can provide the disputes and parties are the same ingful choice of mediator based from the range of options avail- information that disclosure by mediators does and matching the right process on approach. able and in some cases partici- and approach to the dispute can Process plurality within the pate in designing the process. In not. In my view, relying on reputation alone is have a significant impact. mediation field offers the prom- my view, this requires mediators not sufficient. So if process and approach ise to parties of appropriate dis- to be more transparent about matter, shouldn’t parties and pute resolution. In theory, divers- their approach and process, and counsel be provided with good ity of practice allows parties to more flexible in tailoring pro- Kumail Karimjee information about the range of choose the mediation approach cesses to make them responsive Karimjee Resolutions Inc. options available and further that best addresses their needs to party needs. take the opportunity to tailor the and goals. In practice, however, There is considerable diversity mediation process to meet the there is very little disclosure by in the way that mediation is prac- needs of the case? The reality for mediators of the approach they tised. One can speak of the role, parties entering a mediation is bring to the mediation table. model, orientation, style or formative, narrative, therapeutic whereas others will focus that there is very little transpar- Greater transparency from approach adopted; the tech- and problem solving. narrowly on what a court will do. ency about process and approach. ADR professionals about their niques and strategies favoured; The variability within media- Some exude calm while others The vast majority of mediators approach and encouragement of and, at a more general level, the tion in terms of role, style, shout dire warnings about the provide little or no disclosure of party participation in the design values or philosophy brought to approach, strategy, technique, risk of trial. There are those who approach. Further, in the media- of process will help address this the table by the mediator. values and philosophy can be ask, “What’s your number?” ten tion of litigation cases, it is not gap between theory and practice. Mediation may be purely facili- readily observed in practice. minutes into a mediation and common for there to be an invita- tative, purely evaluative or a Some mediators will ask the others who start with “What tion to discuss the process in Kumail Karimjee mediates through hybrid of both. Mediation pro- broad questions about whether a really matters to you?” advance of the mediation. Pre- Karimjee Resolutions Inc. and is a cesses are described as trans- relationship may be restored, There are mediators who will mediation process design is partner with Karimjee Greene LLP.

Breach: Article 5 states no court shall intervene except where so provided

Continued from page 12 of its obligation to provide notice Law, which is widely recognized tion — and the distinction is It would be odd if the Model the Model Law, such as equal to the parties under Article 34(2) (and legislated) as an aid to inter- necessary in order to ensure that Law contemplated limiting court treatment of the parties under (a)(iv). However, after consid- preting the Model Law. the parties involved enjoy neces- intervention further subject to Article 18, there would be no ering the severity of the breach, However, note that the ana- sary procedural safeguards. Non- the agreement of the parties. jurisdiction for the court to set the Court exercised its discretion lytical commentary only refers to mandatory provisions are thus Nonetheless, decisions from aside such an award as a remedy under Article 34 and determined this distinction with respect to identified as ones that include the Ontario courts indicate other- for a breach of a mandatory pro- that the award should not, after provisions relating to the com- words “unless the parties agree wise and should be regarded as vision. all, be set aside. position of the arbitral tribunal otherwise.” an additional notable distinction As such, the court determined In the face of mounting case (Chapter III), the conduct of the The fact that mandatory provi- between domestic and inter- that the proper approach is to law (at least from Ontario), it arbitral proceedings (Chapter V) sions are not identified with national arbitration. consider to what extent an arbi- appears as though parties have and the making of the award respect to the extent of court tration agreement seeks to the right to limit their ability to (Chapter VI). intervention, e.g. in Articles 34 R. Aaron Rubinoff is co-chairman, exclude Article 34, and if it does, challenge international awards. The importance of the distinc- and 36, follows from that fact partner and head of the to what extent it is effective given This ability seems to arise from tion between mandatory and that Model Law Article 5 International Arbitration Group and the specific matters at issue. The the distinction between “manda- non-mandatory provisions in expressly stipulates that, in mat- John Siwiec is an associate in the Court ultimately concluded that tory” and “non-mandatory” pro- these chapters follows as they ters governed by the Model Law, international arbitration group at the arbitral tribunal’s meeting visions as identified in the Ana- relate to the arbitration “no court shall intervene except Perley-Robertson, Hill & McDougall with Rabbi Schwei was in breach lytical Commentary on the Model itself — not court interven- where so provided.” LLP in Ottawa. THE LAWYERS WEEKLY february 12, 2016 • 15

Focus HEALTH LAW

14 Threading the 13 biosimilar needle 12 Patent lawyers walk a fine line between dosage regimes and medical treatment

11 The market approval process in Canada is unique in that any determination in a pro- ceeding under the Regulations is not dispositive, but merely a preliminary decision for 10 market entry. The patent remains valid and may be asserted in subsequent proceedings Nikolas Purcell under the Patent Act, despite that the biosimilar sponsor’s invalidity allegations were Geoffrey Mowatt found justified for regulatory purposes. 9 The right of a biologic patentee to initiate iosimilars, otherwise known as subse- subsequent proceedings for patent quent entry biologics or “SEBs” in infringement is favorable to patentees, B Canada, are a rapidly emerging trend particularly in the case of biologics, given in health care. that a biologic and its biosimilar counter- 8 Biosimilars present novel and intriguing part may often be administered with the legal issues that are quickly rising to the fore- same fixed dosage regimen. front of legal commentary. For example, Humira (adalimumab) is The complex technology used in the pro- dosed in multiples of 40 mg, depending on duction of biologics is becoming less costly the indication. As a result, the product is and early patents on the technology are now conveniently manufactured in 40 mg pre- 7 expiring. Biologics have also been accepted as filled syringes. Under Canadian patent law, a crucial treatment option for many indica- a fixed dosage product may be patentable tions that should occupy a standard care role, and presents a valuable asset in the battle but the cost is often prohibitive. over market presence between biologics 6 Biosimilars provide a more cost-effective and biosimilars. option for patients to access valuable biologic However, the ability of biologic innovators treatments. Of course, not all biologic treat- to obtain and assert rights for this type of ments will necessarily become available as subject matter is narrowly construed. biosimilars. Various business factors must be In Canada, certain dosage regimens may be 5 considered by potential biosimilar manufac- patentable, although a patentee must walk a turers, including the market size, the relevant fine line when drafting the claims to avoid science and technology, and the high cost of methods of medical treatment. This prohibi- development and production. tion has been maintained since the seminal To receive market approval for a biosimi- decision of the Supreme Court of Canada in 4 lar in Canada, like any traditional generic, Tennessee Eastman v. Commissioner of Pat- the sponsor must address the patent rights ents [1974] SCR 111. applicable to the comparator biologic. For While Tennessee Eastman was decided small molecules, this requirement has under the now repealed section 41 of the Pat- resulted in fiercely contested litigation. ent Act, recent decisions have shed greater 3 Such litigation is already underway for bio- light on why this prohibition exists and when similars, with the first decision in a SEB case it will be imposed. under the Patented Medicines (Notice of In AbbVie Biotechnology v. Canada, Compliance) Regulations released on Nov- [2014] FC 1251, the court stated that ember 10, 2015. (See Amgen Canada v. Apo- claims to methods of medical treatment, in 2 tex [2015] FC 1261.) Vendible, Page 16

1 p hoto.com / iStock p ixhook

0 16 • February 12, 2016 THE LAWYERS WEEKLY

Focus HEALTH LAW Regulators hot on the trail of fake practitioners

charges. In addition to criminal charges, many of the 26 health regulatory colleges in Ontario prosecute under the Provincial Offences Act and seek injunctions against individuals who wrong- Marc Spector fully hold themselves out as regulated health practitioners. Cathi Mietkiewicz The Regulated Health Profes- sions Act, 1991 (RHPA) makes it Toronto woman posing as a an offence for unregulated persons A registered nurse recently to perform one of the 14 controlled was charged with criminal negli- acts (such as administering a sub- gence causing bodily harm after stance by injection or fitting or injecting a substance into dispensing a dental prosthesis) set unsuspecting patients. out in the RHPA. It is also an According to police, she lured offence to use certain professional people in by using ads on Kijiji titles or to hold oneself out as a offering to come to people’s homes, Feverpitched / iStockphoto.com regulated health professional. workplaces or hotels to inject If an individual is found guilty of Botox. Two of her “patients” com- Fraser Health Authority issued a their “services” only to others one of these offences, they can be plained to police after suffering health alert warning his patients to from that same cultural back- fined up to $25,000 and jailed for “possible long-term effects” from be tested for blood-borne viruses ground. Such individuals take up to one year for a first offence. the injections which may or may such as hepatitis and HIV. advantage of the increased level For a second or subsequent not have contained Botox. The public also often Ultimately, after a Canada-wide of trust that may result from a offence, the penalties double. Earlier this year, a woman from does not know that a warrant for his arrest was issued, shared culture or language. Due to the time and cost Newmarket, Ont., pleaded guilty he turned himself into police in The public also often does not involved, however, and the rela- to eight counts of aggravated certain profession or Toronto and was returned to B.C. know that a certain profession or tively small sanctions that are assault endangering life for per- certain activities are and ordered to serve three certain activities are regulated. usually actually imposed, colleges forming illegal and dangerous regulated. months in jail. For example, some people con- often prefer to simply bring an injections on nine women in With cases like these, people sider Botox injections to be a injunction ordering a person to Toronto and Aurora, Ont. may think that instances of fake common cosmetic procedure stop performing the unlawful ser- The woman injected substan- Marc Spector practitioners are on the rise. We without realizing that only cer- vices or holding themselves out as ces like polymethylmethacrylate and Cathi Mietkiewicz don’t think so. Those perceptions tain regulated professionals are a registered health professional, (a plastic resin) using a syringe Steinecke Maciura LeBlanc may be based on better reporting permitted to give them. This may and then pursue contempt of and a caulking gun into the but- by media, consumers who are sav- have been one of the reasons why court proceedings if they do not tocks of her “clients.” She per- vier than ever before, and regula- people were prepared to respond comply. One significant example formed these procedures in hotel tors and police reaching out into to an ad on Kijiji promising an of this was when the College of rooms and at clients’ homes. At the community and letting people enhanced buttocks or fuller lips. Optometrists and the College of least one client needed surgery to umbia and treated hundreds of know about these predators. Price can be an incentive. Fake Opticians of Ontario successfully have some of the injected sub- patients from his home. It also does not appear that practitioners often charge much obtained a contempt of court stance removed; others have suf- Known in the media as the fake practitioners are any more less than their legitimate counter- order against a fake practitioner. fered serious health issues includ- “Basement Dentist” or the “Bed- prominent in one health profes- parts. One person stated in an He was ordered to pay a $1-mil- ing permanent disfigurement. room Dentist,” he started “prac- sion over another one. As with interview that he was attracted lion fine and spend a year in jail. This fake practitioner falsely tising” dentistry as early as the any con, if there is money to be by the low cost for dental work If you hear about fake practi- described herself as a physician, 1990s. He was caught in 2002, made, someone will try to exploit offered by the Bedroom Dentist. tioners being stopped and shut plastic surgeon or nurse in an and in 2003 agreed to a court the opportunity. And of course, they lie. Fake prac- down, it may be at least partly effort to dupe clients into paying injunction prohibiting him from There are several reasons why titioners often claim to have the because regulators are success- her to give them “butt implants.” practising dentistry unlawfully. fake health-care providers can requisite training. They hold them- fully doing their job. The Superior Court sentenced For the next decade he continued carry on, sometimes for years. selves out as registered members of her to eight years in jail. to practise dentistry anyway. One reason is that these rogues a profession. Their victims believe Marc Spector and Cathi Mietkiewicz Perhaps one of the most notori- When he was finally discovered often prey on their own com- they are receiving health care from are lawyers with Steinecke Maciura ous examples of a fake health and a warrant was issued for his munities. It is not uncommon for qualified, regulated professionals. LeBlanc, which acts in some capacity practitioner is the man who arrest he fled B.C. and was con- an individual of one ethnic back- The three cases mentioned for most health colleges in Ontario posed as a dentist in British Col- victed of contempt in absentia. The ground or place of origin to offer above all resulted in criminal and for about 40 regulators.

Vendible: There is emerging case law upholding fixed product claims

Continued from page 15 2 to 10 weeks followed by a final a bi-weekly dosage regimen of In Cobalt Pharmaceuticals v. With the increasing number a strict sense, “fence in a range dosage of about 16 to 24 mg per 40 mg of Humira structured in Bayer [2015] FCA 116, Justice of biosimilar manufacturers within which physicians must day thereafter. the form of a claim to the use of David Stratas called for a full seeking approval in markets exercise their professional skill The claims were found to be the specific product in treating consideration by the Court of around the world, including and judgement” and prevent unpatentable on the basis that a condition, and pre-filled syr- Appeal or Supreme Court of Can- Canada, and the importance of the exercise of their trade (para. the dosage ranges provided a inges of the product. The claims ada of the policy and logic argu- dosage regimens for the admin- 89). This has prevented claims recommendation to physicians were found to be patentable as ments against the current law in istration of these extremely to dosage regimens in some requiring ongoing individual- they did not cover a physician’s Canada that methods of medical valuable and life-saving medi- instances when they can be ized surveillance. skill or judgment. treatment are not patentable. cines, the issue of the patent- construed to cover a method of Inventors have sought to side- However, the court cautioned Justice Stratas acknowledged ability of methods of medical medical treatment. step this problem by claiming against placing too great an that the issue would have to be treatment may again be before For example, in Janssen v. dosages in the form a fixed prod- emphasis on the “vendible prod- squarely raised on the facts, but this the SCC in the coming years. Mylan Pharmaceuticals [2010] uct. This has been described as a uct” and outlined that the driving should nonetheless provide incen- FC 1123, the claims were directed “vendible product,” and a line of factor in each case will be whether tive for litigants who have had pat- Geoffrey Mowatt and Nikolas Purcell to the treatment of Alzheimer’s case law has emerged upholding professional skill and judgment is ent claims defeated by this doctrine practise in the area of intellectual disease with a first dosage of this type of claim. expected or necessary to be exer- to seek appeal to these higher property litigation at Dimock about eight mg per day for about In AbbVie, the claims were to cised within the claim. courts for further consideration. Stratton in Toronto. THE LAWYERS WEEKLY february 12, 2016 • 17 Digest

appellant had no opportunity to fying the true defendant within the require further steps, including a a participant in the termination. Administrative respond to the complaints before limitation period, as long as the more cogent medical explanation Counsel was not faulted for taking Law the Board made its decision. true defendant would know on regarding her inability to work. an active and partisan role in the Furthermore, the Board’s decision reading the statement of claim he The plaintiff advised the defend- termination process and even man- was not reasonable. The psychia- was the intended defendant. Sum- ant’s lawyer that she would be see- aging the process by undertaking NATURAL JUSTICE trist’s assessment was sent to the mary judgment ought not to have ing her psychotherapist the next all communication with the plain- Duty of fairness - Procedural fairness Board before the toxicology screen been granted, as it was an week and updated medical infor- tiff in her own name to ensure it was completed and there was no impermissible collateral attack on mation would be sent. When the was done properly. In such circum- Appeal by a veterinarian from a interpretation of the screen. In the motion for misnomer. The plaintiff failed to follow up, the stances, however, counsel should decision of the Committee of addition, while the appellant order granting summary judgment defendant’s lawyer advised her that not seek to represent the client in Council of the Alberta Veterinary requested a psychiatrist who had was set aside and the action was if the necessary medical informa- any ensuing litigation or should Medical Association (“Council”) experience with Tourette syn- allowed to proceed. tion was not provided, her termin- immediately withdraw without the suspending his licence and requir- drome, there was nothing in the ation would be processed, either need for a motion where the coming him to attend addictions treat- psychiatrist’s report that indicated Stechyshyn v. Domljanovic, [2015] for frustration of contract or for munications of counsel are them- ment. In February and June 2014, he had such expertise and the O.J. No. 6633, Ontario Court of cause. Subsequently, the plaintiff selves seen to be controversial and the Association received two com- Council gave no justification for Appeal, K.M. Weiler, G.I. Pardu and provided the defendant with a let- are made an issue in the litigation. plaints from former employees of denying the appellant’s request. M.L. Benotto JJ.A., December 14, ter from her psychotherapist and In view of all the circumstances, a the appellant which led the Direc- 2015. Digest No. 3537-002 retained another lawyer for her fair-minded and reasonably tor to believe that the appellant Irwin v. Alberta Veterinary Medical wrongful dismissal claim. In the informed member of the public might be incapacitated. On each Assn., [2015] A.J. No. 1398, Alberta statement of claim for wrongful would conclude that the removal of occasion, the Director made an Court of Appeal, R.L. Berger, P.A. CIVIL PROCEDURE dismissal, the plaintiff pleaded that counsel was necessary for the unannounced visit to the appel- Rowbotham and B.L. Veldhuis JJ.A., Parties - Representation of - she was terminated while on dis- proper administration of justice. lant’s practice. The appellant dis- December 18, 2015. Digest. No. Disqualification or removal of counsel ability leave and that she was disclosed that he had Tourette syn- 3537-001 criminated against and terminated Forsyth v. Blue Rock Wealth Manage- drome, for which he took Motion by the plaintiff for an order because of her disability and family ment Inc., [2015] O.J. No. 6507, medication, and the Director noted removing the defendant’s lawyer as status. There were numerous ref- Ontario Superior Court of Justice, that the appellant seemed normal solicitor of record. The plaintiff erences to the defendant’s lawyer Master R. Dash, December 10, 2015. on both occasions. A third com- had been employed by the defend- in her claim. The plaintiff sought Digest No. 3537-003 plainant from an estranged friend Civil Litigation ant since April 2008. In January the removal of the defendant’s law- of the appellant was received in 2012, she went on disability leave yer on the basis that she was a wit- September 2014. The matter was CIVIL PROCEDURE for a psychological illness, but was ness to material facts at trial and referred to the Practice Review Parties - Adding or substituting - After denied long-term disability bene- that communications from her Board (“Board”). The Board did expiry of limitation period - fits (“LTD benefits”) by the defend- formed the factual foundation for Commercial Law not conduct and independent Judgments and orders - Summary ant’s group benefits carrier. She the various causes of action set out review or inquiry, but ordered the judgments - Availability retained a lawyer to represent her in the statement of claim. The Franchising appellant to attend for a physical in her claim for LTD benefits. The defendant opposed the motion on Franchisor disclosure and mental examination. The Appeal by the plaintiff, Stechyshyn, defendant’s lawyer requested the basis that its lawyer’s involve- appellant attended for a psychiat- from summary judgment dismiss- updated medical information from ment was only by communication. Appeal by the defendant franchisor, ric examination and was asked to ing his action against the defend- the plaintiff’s lawyer about the The defendant asserted that the Pet Valu, from summary judgment attend for a toxicology screen. ant, Domljanovic. In June 2006, plaintiff’s inability to work and lawyer was not a witness or partici- in favour of the plaintiff on one Without the benefit of the toxicol- the plaintiff was struck by a vehicle expressed concern that the plain- pant in any of the events outside of common issue and cross-appeal by ogy screen, the psychiatrist recom- operated by the defendant. He tiff’s inability to work was partly the letters and had no contact with the plaintiff from the dismissal of mended that the appellant attend wrote down the defendant’s related to childcare responsibil- the plaintiff other than in those let- the motion to amend the pleadings in-patient treatment and that he licence and insurance information ities. The defendant’s lawyer then ters. Further, the letters could be to add a common issue. Pet Valu not resume his work until he dem- on a notebook page. The plaintiff sent a letter to the plaintiff’s lawyer introduced into evidence by means was a wholesaler and retailer of pet onstrated a suitable period of attended hospital and provided indicating that the plaintiff’s other than viva voce testimony and food, supplies and related services. sobriety. Based on the toxicology the notebook page to the police employment was either frustrated there would be no need to call the The plaintiff was a former fran- screen, the Board concluded that officer investigating the accident. as a result of her absence from lawyer as a witness. chisee. The plaintiff commenced an the appellant was exhibiting signs The plaintiff believed the officer work without any real likelihood of action against Pet Valu alleging, of substance abuse. It ordered the would make a copy and return the return, or her absence was not HELD: Application allowed. It was among other things, that it had not appellant to attend a residential page. The plaintiff was unable to medically justified. The letter not clear that the defendant’s law- shared volume rebates it received treatment facility within 60 days locate the officer before leaving stated that the plaintiff’s employ- yer would be called as a witness to from suppliers with franchisees. and confirmed that he remained the hospital. His subsequent ment was terminated. The defend- give evidence at trial. The letters, The only issue certified was the suspended from practice. On attempts to identify the defendant ant then sent a copy of the letter to which were significant and key to a claim in relation to the volume appeal, the Council upheld the were unsuccessful. As a result, the the plaintiff with a cheque for five number of issues in the action, rebates. As the parties could not decision and directed the appellant plaintiff commenced an action in weeks’ pay under the Employment spoke for themselves and were sent agree on the wording of the com- to commence attendance at a resi- June 2008 naming John Doe as Standards Act (“ESA”). Several on the instruction of the defendant. mon issues, in his reasons, the cer- dential addictions treatment facil- the defendant. In January 2010, weeks later, the defendant’s lawyer However, the defendant’s lawyer tification judge set out the seven ity, cease practice immediately the plaintiff’s counsel requested advised the plaintiff through her communicated the words that lay common issues related to the vol- until the Board was satisfied that the police file. Police indicated lawyer to return the cheque and at the heart of the claim and, in ume rebates. Pet Valu moved for he was no longer incapacitated, they had no record of the accident. she would request that the plaintiff making submissions as counsel, summary judgment on the seven and to pay $10,000 in costs. The In March 2011, the defendant’s be reinstated. The plaintiff she would be defending the mean- common issues certified in the class Council also directed the Com- insurer obtained the police file returned the cheques representing ing and effect of her words. As action. The motion judge granted plaints Director to initiate profes- and disclosed it to the plaintiff. In ESA funds directly to the defend- such, at the same time that she judgment in favour of Pet Valu dis- sional misconduct proceedings if November 2011, the plaintiff ant’s lawyer and advised her in would be acting as counsel, she missing common issues one the appellant failed to comply. The obtained an order to amend the writing that she disagreed that her would be putting her own credibil- through five. At the judge’s invita- appellant appealed, arguing that statement of claim to substitute employment contract had been ity in issue. She was clearly in a tion, the plaintiff made a motion to his right to procedural fairness was the defendant for John Doe. The frustrated and understood that by position of conflict between her add an eighth common issue breached and the Council’s deci- defendant subsequently obtained returning the cheques her employ- own interests and her obligations alleging that Pet Valu failed to dis- sion was unreasonable. summary judgment on the basis ment was reinstated to medical- as an advocate to fairly and object- close to its franchisees that it did the action was brought after leave-of-absence status. The ively present evidence and argu- not possess “substantial purchasing HELD: Appeal allowed. The appel- expiration of the limitation per- defendant’s lawyer responded dir- ments at trial. It would not be fair power” and that it did not receive lant was denied procedural fair- iod. The plaintiff appealed. ectly to the plaintiff (having been to the plaintiff to permit the significant volume discounts from ness. Prior to being compelled to told that the plaintiff’s lawyer was defendant’s solicitor to cross-exam- suppliers. The judge dismissed the submit to psychiatric testing, the HELD: Appeal allowed. On a only providing representation on ine her on the communications motion to amend on the grounds of appellant was given no disclosure motion to correct the name of a the LTD claim and not on the between the parties when the prejudice, and then read language of documents, witness statements defendant on the basis of mis- employment matters) and advised genuineness of those communica- into the court-established wording or notice of the nature of his alleged nomer, a plaintiff was not required her that her reinstatement to med- tions were in issue. Furthermore, of the sixth common issue. On the incapacitation. Moreover, the to establish due diligence in identi- ical-leave-of-absence status would the defendant’s lawyer had become basis of the read-in language, the 18 • February 12, 2016 THE LAWYERS WEEKLY

Digest judge found that Pet Valu breached first sentence of imprisonment she had created or was associ- its duty of fair dealing under s. 3 of Conflict of Laws Constitutional in a federal penitentiary. The ated with, caused her to feel the Arthur Wishart Act (“AWA”) Law changes to the parole system harassed. She admitted that, at and answered common issues 6(i), Jurisdiction had the effect of appreciably the same time she was feeling (iii) and (iv) in favour of the plain- Domestic issues (between Canadian increasing the amount of time harassed by Elliott, she was tiff. Damages, the seventh common jurisdictions) - Determination of - Canadian Charter of such offenders would be incar- engaged in several Twitter cam- issue, was yet to be determined. Pet Where cause of action arose Rights and Freedoms cerated in comparison to what paigns to make it clear to Elliott Valu appealed arguing that the Legal rights - On being charged with they would have expected under that he was harassing women. judge erred by unilaterally and Appeal by the Gulevichs and an offence - To benefit of lesser the regime in place at the time Reilly, the second complainant, unfairly amending common issue the Alberta Minister of Health punishment they committed their offences. never met Elliott, but became six and in finding that it breached s. and Wellness from an order set- This constituted a variation in involved in Twitter discussions 3 of the AWA. The plaintiff cross- ting aside their service outside Appeal by 15 inmates from dis- punishment within the mean- with him that became heated appealed the dismissal of its motion Alberta of a negligence claim missal of their constitutional ing of s. 11(i). The Crown failed and at times insulting. Reilly to amend to add an eighth com- against Miller. Ms. Gulevich challenge to s. 10(1) of the Abo- to establish any error in the retweeted misinformation about mon issue. was living in Ontario in 2007, lition of Early Parole Act reasoning or conclusions of the Elliott’s sexual involvement with when she started experiencing (“AEPA”). The AEPA eliminated appellate decisions on the issue. a 13-year-old, while Elliott HELD: Appeal allowed and cross- headaches and visited various the accelerated parole review The AEPA was retroactive legis- called Reilly a “bitch” and appeal dismissed. But for the health care professionals for (“APR”) process by repealing lation that automatically and insulted her body. Their exchan- motion judge’s suggestion that the help. Miller was a radiologist certain provisions of the Cor- appreciably increased the appel- ges preceded and followed the plaintiff move to amend its plead- who reviewed the results of a rections and Conditional lants’ period of incarceration. same meeting involving Guth- ings and add an eighth common CT scan Gulevich had in Nov- Release Act (“CCRA”). The As found in the prior cases, the rie, the location of which Elliott issue, Pet Valu was in a position to ember 2007. He reported the appellants were first-time non- AEPA was not the least restrict- mentioned in a tweet. obtain complete summary judg- results as normal. When she violent offenders who offended ive means to meet the government on the common issues. In was diagnosed with a brain prior to the repeal, but were ment’s objectives. Pursuant to s. HELD: Elliott was acquitted on all the circumstances, allowing the tumour in 2011, after she had convicted and sentenced after- 11(i) of the Charter, the appel- counts. Twitter was a powerful plaintiff to amend its statement of moved to Alberta and had suf- ward. They consequently were lants were entitled to the bene- forum and gave an individual the claim to add an eighth common fered worsening headaches refused APR. Under the old fit of the APR process. potential to communicate with issue would have caused an injus- since 2008, Gulevich under- APR provisions of the CCRA, many people as if that individual tice to Pet Valu. The motion judge’s went surgery and cancer treat- the applicants would have been Nucci v. Canada (Attorney General), had access to the mass media. As conclusion on common issue six ment. She and her husband permitted day parole eligibility [2015] M.J. No. 319, Manitoba Court such, the individual had a respon- was founded on what was effect- retained a radiologist and radi- after serving one-sixth of their of Appeal, A.D. MacInnes, W.J. Bur- sibility to act within the law. The ively an impermissible amend- ation oncologist to review the sentences. Under the new pro- nett and J.A. Pfuetzner JJ.A., individual, however, also enjoyed a ment of that common issue. The November 2007 CT scan. The visions, the applicants were not December 15, 2015. Digest No. constitutional right to freedom of precise wording of common issue radiologist noted a readily- eligible for day parole until six 3537-006 expression. Elliott could not be 6(i) was determined by the certifi- identifiable abnormality, opin- months prior to their full parole imputed with knowledge that he cation judge. The motion judge ing that Miller fell below the eligibility date, at one-third of was harassing Guthrie by sending erred in interpreting common standard of care of a reasonable their sentences. The applicants tweets using her handle and hash- issue 6(i) as also asking if “signifi- radiologist by failing to report sought an order applying the tags. His tweets suggested he cant volume discounts” were it. The radiation oncologist provisions of the abolished APR Criminal Law believed he was engaged in permis- received by the franchisor. The opined that Ms. Gulevich’s out- process on the basis that the sible discussions defending himself addition of the words “significant come would have had a differ- retroactive or retrospective CRIMINAL CODE OFFENCES against claims of harassment of volume discounts” was material. ent outcome had her tumour application of the AEPA vio- Offences against person and women which had been, at least in They parroted language in the been diagnosed and treated lated their ss. 7 and 11(i) Char- reputation - Harassment and part, instituted by Guthrie. How- rejected proposed amendments to earlier. The Gulevichs and ter rights. They submitted that threatening - Criminal harassment ever, by using her handle and hash- the statement of claim and the Alberta commenced an action the punishment for their or stalking tags, Elliott was at least reckless as proposed common issue eight. against Miller in Alberta and offences was varied between the to whether or not Guthrie was The reading-in of those words into served him in Ontario. The time of commission and the Trial of Elliott on charges of two harassed. He must have known she that common issue was tanta- judge found that because the time of sentencing, thereby counts of criminal harassment would see or hear about his many mount to an amendment on the tort was committed in Ontario, guaranteeing availability of the and breach of a peace bond. tweets connected with her. While judge’s own initiative. In the Ontario had jurisdiction over lesser punishment. The appli- Elliott was a graphic artist. Guthrie genuinely held fear for her absence of certified common the claim. He found Ms. Gul- cation judge found that enact- Guthrie was a community activ- safety that was subjective to her, the issues asking whether Pet Valu evich failed to rebut the pre- ment of the AEPA prior to sen- ist and organizer who used Twit- element of the offence that the fear represented to franchisees that it sumptive jurisdiction because tencing did not amount to a ter to meet people, share inter- be reasonable in all of the circum- received significant volume dis- the misdiagnosis in Ontario variation of the appellants’ ests and contribute to the causes stances had not been established counts and breached that rep- was not a relatively minor ele- punishment after the commis- for which she worked. They met beyond a reasonable doubt. She resentation, and whether Pet Valu ment of the tort, but was the sion of the offence and prior to for dinner once and exchanged had no right to expect that Elliott had breached its disclosure obliga- foundation of her claim and the their sentencing. Although emails discussing the possibility would not send tweets using her tions under s. 5 of the AWA, the incident causative to her dam- changes to the conditions of a of Elliott designing a logo and hashtags and handle while she con- motion judge used the read-in ages. He therefore set aside ser- sentence might constitute pun- poster for Guthrie’s Women in tinued a campaign to call Elliott words to justify those inquiries. He vice of the claim. ishment, prospective changes Toronto Politics group. Elliott out as a man who harassed women. then seemingly equated non-dis- to parole administration prior was not chosen to provide There was no evidence of any closure of the breach of that rep- HELD: Appeal allowed. The tort to imposition of a sentence was graphic design services. He and threats or comments of a sexual resentation to unfair dealing by occurred in Alberta, because it was within Parliament’s authority Guthrie had some civil exchan- nature made by Elliott in reference Pet Valu in the performance of the there that Ms. Gulevich became and did not engage protection ges on Twitter prior to disagree- to Guthrie. Knowledge that Elliott franchise agreement to find a increasingly symptomatic but under s. 11(i) of the Charter. ing about a campaign Guthrie harassed Reilly was imputed to breach of s. 3 of the AWA. Even if failed to take the course of treat- The inmates appealed. instituted to call attention to a him based on the insulting words the judge was correct in finding ment she would have taken had software designer who had he used. Reilly, who only com- that Pet Valu represented to fran- Miller properly diagnosed the HELD: Appeal allowed. Two designed a misogynist game. plained about Elliott’s conduct chisees that it received significant tumour in 2007. The province most other appellate courts con- Their exchanges on Twitter, after hearing he had been arrested, volume discounts in disclosure substantially affected by Miller’s cluded that the retrospective which included direct messages failed to convince the court she documents or the franchise agree- activities and their consequences repeal of the APR process was as well as tweets using each actually feared for her safety. Crown ment, he cast the net of s. 3 too was Alberta. An additional claim in contrary to s. 11(i) of the Char- other’s handles and hashtags, counsel stated at the outset that the widely. The disclosure at issue was breach of contract based on the ter and not justified under s. 1. became increasingly heated over alleged breach of Elliot’s peace not withheld in bad faith in con- formation of a doctor-patient rela- The Supreme Court of Canada a period of six months prior to bond was the commission of the nection with Pet Valu’s perform- tionship between Ms. Gulevich and concluded that the retrospect- Guthrie making a police com- criminal harassment offences. ance or enforcement of the fran- Miller could be adjudicated by the ive application of s. 10(1) of the plaint. She testified she did not Since he was not found to be guilty chise agreement. Alberta court, once it took jurisdic- AEPA to offenders sentenced feel harassed or fearful for her of those offences, the charge of fail- tion over the negligence claim. prior thereto constituted pun- safety until after an incident ing to comply with his peace bond 1250264 Ontario Inc. v. Pet Valu ishment, and thus violated s. when she was out with friends, was also dismissed. Canada Inc., [2016] O.J. No. 186, Gulevich v. Miller, [2015] A.J. No. 11(h) of the Charter. The British during which Elliott sent a tweet Ontario Court of Appeal, A. Hoy 1431, Alberta Court of Appeal, J. Columbia and Ontario Courts of mentioning their location. R. v. Elliott, [2016] O.J. No. 310, A.C.J.O., J.L. MacFarland and P.D. Watson, P.A. Rowbotham and B.K. Appeal found that the AEPA Guthrie’s position was that the Ontario Court of Justice, B. Knazen Lauwers JJ.A., January 14, 2016. O’Ferrall JJ.A., December 23, 2015. infringed the s. 11(i) rights of volume of tweets Elliott sent, J., January 22, 2016. Digest No. Digest No. 3537-004 Digest No. 3537-005 non-violent offenders serving a using her handle and hashtags 3537-007 THE LAWYERS WEEKLY february 12, 2016 • 19

Digest

SENTENCING ignore the husband’s increase involved. Against Netflix’s pos- sion finding that the appellant Criminal Code offences - Offences in Family Law in income given the possible ition, the Board approved the breached a clause in the sub- relation to terrorism - Particular causal connection between the Tariff, finding that imposing roy- lease by not paying a portion of sanctions - Imprisonment - Probation - MAINTENANCE AND SUPPORT wife’s role in the marriage and alties on free trials was not a vio- the property taxes. The appel- Sentencing considerations - Appeals - Spousal support - Considerations - the husband’s earning ability. lation of the principle of techno- lant subleased premises from Extension of time to appeal Agreement - Variation or termination The husband was directed to logical neutrality, as there was no the respondent, Staburn West- of obligation - Practice and procedure - pay spousal support arrears and alternative technology equivalent bank Holdings, in a commercial Application by the accused to Appeals and judicial review ongoing support in accordance to a Netflix free trial. The Board mall and was one of two anchor extend the time to file a notice of with the agreed-upon formula. found insufficient evidence upon tenants. The chambers judge application for leave to appeal the Appeal by the wife from a judg- which to base a conclusion that held that the clause in the sub- sentence imposed at trial. In June ment refusing an increase in Goodkey v. Goodkey, [2015] A.J. No. free trials constituted “fair deal- lease that required the tenant to 2010, the accused was convicted spousal support. The parties 1361, Alberta Court of Appeal, M.S. ing”, and refused to place an onus pay its proportionate share of of participating in the activities of had a traditional marriage that Paperny, P.A. Rowbotham and B.L. on SOCAN to justify the exist- all real property taxes in respect a terrorist group. He was sentence lasted 24 years. They jointly Veldhuis JJ.A., December 11, 2015. ence of the minimum fee. of the development and the to one day in jail and three years’ owned a business operated by Digest No. 3537-009 Common Areas, if the taxing probation given the time that he the husband. The wife raised HELD: Application allowed. The authority did not issue separate had spent in pre-sentence cus- the parties’ three children and process pursuant to which the bills for the subleased premises, tody, which was the functional the husband was the family’s Board certified the Tariff was not required the appellant to pay a equivalent to a sentence of six sole provider. The husband, age procedurally fair. Netflix, as a rep- proportionate share of real years and five months. The 55, continued to be self- Intellectual resentative member of the affected property taxes imposed in accused appealed his conviction, employed. The wife, age 53, Property Law industry, had a right to be heard respect of the Common Areas of but did not seek leave to appeal worked as an educational with respect to free trial royalties the mall. The taxing authority his sentence. His appeal from con- assistant. The 2013 divorce and notwithstanding the fact it did not issued two separate tax bills. viction was dismissed in August corollary relief order reflected COPYRIGHT participate in the initial oppos- One was addressed to the appel- 2015. In June 2014, the Citizen- the parties’ agreement with Protected subject matter - Audiovisual ition process. The objectors who lant and was based on a prop- ship Act was amended to provide respect to child and spousal works - Royalties - Copyright Board - signed the agreement with erty assessment of the value of for the revocation of citizenship of support. The husband was Judicial review - Tariff hearings SOCAN did not represent the the building calculated on a any Canadian citizen convicted of required to pay $4,300 per interests of Netflix because they rental income approach. The a terrorism offence and sentenced month in spousal support. The Application by Netflix for judicial did not offer free trials. The Board second bill was issued to the to a term of imprisonment of at judgment included a formula review of a Copyright Board erred in certifying provisions of respondent and was in respect least five years. The amendment for adjusting support based on (“Board”) decision certifying the the Tariff which did not affect any of the other buildings at the came into force on May 28, 2015 the husband’s management sal- tariff of royalties for audiovisual of the negotiating parties. The mall and was also calculated and applied to convictions entered ary and the statement of earn- webcasts (“Tariff”) for the period interests of justice required that using a rental income approach and sentences imposed both ings and retained earnings of between 2007 and 2013. In par- Netflix be given the opportunity of to valuation. Since 2008, the before and after that date. In July the husband’s company. The ticular, Netflix challenged that putting its case forward with appellant paid the property 2015, the applicant received wife applied to increase sup- portion of the Tariff that estab- regard to the issues of fair dealing taxes levied in the tax notices notice that his citizenship might port after the husband failed to lished a monthly minimal fee for and technological neutrality. addressed to it, but resisted be revoked. He then sought legal respond to her request for free trials of subscription servi- making any further contribu- advice and joined a constitu- financial disclosure. Child sup- ces. This portion of the Tariff did Netflix Inc. v. Society of Composers, tion to the property taxes. tional challenge to the amend- port was terminated due to the not appear in earlier versions of Authors and Music Publishers of ment. The accused now applied youngest child no longer being the tariff that were made publicly Canada, [2015] F.C.J. No. 1485, Fed- HELD: Appeal dismissed. The for an order to extend the time a child of the marriage. That available during the regular eral Court of Appeal, Nadon, Boivin chambers judge did not err in within which to serve and file a aspect of the order was not objection period. Netflix did not and de Montigny JJ.A., December 17, her interpretation of the lease. notice of application for leave to appealed. The chambers judge object to SOCAN’s proposed tar- 2015. Digest No. 3537-010 Under the sublease, the first appeal his sentence. interpreted the order and the iffs. Other companies providing obligation of the tenant was to parties’ underlying agreement various kinds of Internet trans- pay real property taxes imposed HELD: Application allowed. The to find a material change in cir- missions of audiovisual works did in respect of the subleased accused did not form the intention cumstances was required to participate in the objection pro- premises. The tax bill at issue to appeal his sentence within 30 vary spousal support. The judge cess, which was ultimately Landlord & was not a bill for the subleased days of its imposition. However, his found that the termination of resolved by way of an agreement Tenant Law premises, even though those failure to seek leave to appeal child support did not constitute which provided for a minimum premises might be included in within 30 days was explained and a material change. The judge monthly fee per free trial sub- it. The tenant was thus obliged the accused took immediate steps found that the wife was not scriber. None of the objectors COMMERCIAL TENANCIES to pay its proportionate share of to do so once he was notified his entitled to share in the increase provided subscription services or Lease - Shopping centre - Occupancy all real property taxes. The com- citizenship might be revoked. The in the husband’s income from free trials, the Netflix business costs - Taxes mercial purpose of the sublease interests of justice favoured the $204,000 to $342,639. The model. When SOCAN and the was to ensure that each tenant extension. To refuse the order, a wife appealed. objectors sought Board approval Appeal by the tenant, Home contributed its proportionate substantial injustice might occur, of the Tariff, Netflix became Depot of Canada, from a deci- share to the total real property wrought by legislation not in force HELD: Appeal allowed. The or within the reasonable contem- chambers judge failed to follow plation of any of the participants in the terms of the original sup- Classifieds the trial process, but made retro- port order. The order clearly spective by an enactment passed provided that spousal support years later. The collateral conse- was to be reviewed and adjusted OFFICE SPACE quences, such as the loss of citizen- annually based on the parties’ AVAILABLE ship, were of such magnitude as to incomes and the formula con- render it unjust to deprive the tained in their agreement. The SHARED OFFICE SPACE Hiring? accused of the opportunity to seek judge’s finding that the spousal AVAILABLE WITH a variation of the sentence. It could support was erroneously OPPORTUNITY FOR AGENCY not be said that the proposed included in the adjustment pro- WORK AND REFERRAL WORK IN appeal was without merit. The vision was an error that went PERSONAL INJURY LAW Office Space? collateral consequences of a sen- behind the clear terms of the Busy Personal Injury and Disability tence were a relevant factor for order. The order anticipated Lawyer is interested in a shared both trial and appellate courts to the wife’s application based on office/association relationship with Services? consider in imposing or reviewing the change in the parties’ another personal injury lawyer. We offer an excellent opportunity for the imposition of a sentence to incomes. Although the inter- agency and referral work. We have ensure its conformity with the pretation error was dispositive offices in Woodbridge, Mississauga principle of proportionality. of the appeal, the judge further and Scarborough. Interested Book Your Ad Today erred in finding no material enquiries may be made to Barry R. v. Ansari, [2015] O.J. No. 6634, change from the termination of Edson at 905-856-3770 or by email Ontario Court of Appeal, G.R. child support given the manner to [email protected] Strathy C.J.O., D. Watt and G.J. in which it was linked to spousal Epstein JJ.A., December 15, 2015. support in the parties’ agree- To advertise, please contact: Jacqueline D’Souza 905-415-5801 1-800-668-6481 ext. 801 [email protected] Digest No. 3537-008 ment. It was also erroneous to · · · 20 • February 12, 2016 THE LAWYERS WEEKLY Digest taxes attributable to the Com- HELD: Application allowed. A The defendants denied liability. of two 2,200 square foot structures weight of the hides and the fre- mon Areas, since the Common Canadian cell phone user had a The City submitted that the action connected by a five-car garage. The quency of manual transfers. The Areas contributed to the viabil- privacy interest in his cell phone was statute-barred due to the Board determined that the develop- Board denied the claim on the basis ity of the mall as a whole. records. Telus and Rogers had claimant’s failure to provide the ment was a single detached dwell- that the injuries did not arise out of, standing to assert the privacy inter- requisite two-month statutory ing. The applicants submitted that or occur in the course of, employ- Staburn Westbank Holdings Ltd. v. ests of their subscribers. They were notice of her action. Alternatively, the Board’s determination resulted ment. The Appeals Commission Home Depot of Canada Inc., [2015] contractually obligated to do so. the City submitted that the individ- from a failure to objectively assess confirmed the decision, finding B.C.J. No. 2734, British Columbia The Production Orders at issue ual defendants acted in good faith the developer’s building plans and that the weight of the evidence did Court of Appeal, M.V. Newbury, E.A. were overly broad and infringed in performance of their duties, was contrary to common sense. not support that the respondent’s Bennett and D.C. Harris JJ.A., the rights of cell phone users to were not negligent or malicious, They sought permission to appeal employment contributed to his December 14, 2015. Digest No. protection against unreasonable and that their actions were justified on the basis the Board erred in law neck injury on a direct basis or on 3537-011 search and seizure. The Production by law under the Criminal Code or jurisdiction. the basis of an aggravation factor. Orders went far beyond what was and Police Act. In the further On judicial review, the reviewing reasonably necessary to gather evi- alternative, the defendants submit- HELD: Application allowed. The court found that the Appeals Com- dence concerning the commission ted the claimant failed to establish applicants raised legal questions of mission based its analysis upon a of the crimes under investigation. a causal connection between the sufficient importance to warrant faulty understanding of the Media & At the request of the applicants, the incident and her injuries. the Court’s consideration. Deter- respondent’s job, rendering its con- Communications court provided guidelines to which mination of the correct interpretive clusions as to causation unreliable police should adhere in the future HELD: Action allowed as against approach impacted other home- and unreasonable. The reviewing Law when seeking such orders. The City. The claimant was not owners in other municipalities with court found that the Appeals Com- court suggested the information to assaulted, as the placement of the a similar bylaw. The likelihood that mission did not account for days of Telecommunications obtain such an order should include claimant in restraints was made the Court would accept the appli- prolonged machine failure when Privacy - Protection of personal a statement demonstrating that the without malice or intent to harm. cants’ position was sufficiently high significantly more manual trans- information police officer seeking the order This was not an instance in which to justify the conclusion that the fers would be necessary and failed heeded the principles of incremen- the use of force was required to proposed appeal had a reasonable to consider that the added weight Application by Rogers and Telus talism and minimal intrusion, place the claimant in the Hobble. chance of success. The applicants of snow and feces during the winter for declaratory relief with explaining how each tower, within However, the individual defend- were granted permission to raise would increase the physical respect to Production Orders the time and date parameters ants were negligent in using the issues regarding the criteria for demands during such breakdowns. relating to the records of cell specified, related to a criminal Hobble and the City was thus vic- identification of a single detached phone users. The application investigation, explaining why the ariously liable. The claimant was dwelling under the bylaw, whether HELD: Appeal allowed. The came in response to Production particular records sought were rel- detained for her own safety due to an objective evaluation of the reviewing court erred by reweighing Orders obtained by the Peel evant, and providing details as to intoxication, and was negligently developer’s building plans was and extrapolating evidence, failing Regional Police to further the how the target of the production reclassified as having been detained required, the relevance of the his- to afford deference to the Appeals investigation of a series of jewel- order might conduct a narrower for breach of the peace. Had the torical record and related develop- Commission on matters within its lery store robberies. The police search and produce fewer records. claimant been assessed in accord- ment permits, and the intent of the expertise, misapprehending the sought to identify persons who The court suggested that such ance with the policy for intoxicated developer and whether the develop- role of the Appeals Commission, used cell phones in the vicinity requests should generally be made detainees, it was unlikely her situa- ment was intended to be a perma- and thereby failing to apply the of each store around the time it for reports, rather than raw data, tion would have escalated to the nent residence. reasonableness standard of review. was robbed. They obtained from cellular service providers, and point of being placed in restraints. The reviewing court was de facto orders against Telus and Rogers that when seeking raw data, such Given that the guards acted within Kalinski v. Cold Lake (City), [2015] applying a correctness standard of to produce records for all phones requests be justified. the lawful course of their duties, the A.J. No. 1391, Alberta Court of review when it overtly examined activated, transmitting and action was dismissed against all Appeal, T.W. Wakeling J.A., December and reweighed the factual evidence receiving data through at least R. v. Rogers Communications Part- defendants pursuant to the Police 17, 2015. Digest No. 3537-014 before the Appeals Commission. It 21 Telus towers and 16 Rogers nership, [2016] O.J. No. 151, Ontario Act, save for the City. There was no was not the role of the reviewing towers. The Production Orders Superior Court of Justice, J.R. contributory negligence on the part court to reweigh the evidence for required Rogers and Telus to Sproat J., January 14, 2016. Digest of the claimant. The action was not the Appeals Commission. In so provide information, including No. 3537-012 statute-barred, as the claimant had doing, it misapplied the requisite billing, bank and credit card a reasonable excuse for the failure Workplace reasonableness standard. There information, on both those initi- to provide notice based on her life- Health, Safety & was no evidence on the record to ating and those receiving com- long health and addiction issues, suggest that the Appeals Commis- munications. Telus estimated it and the delay did not prejudice the Compensation sion misunderstood the difference would have to disclose personal Municipal Law City’s defence. The incident exacer- in the respondent’s job duties on a information on at least 9,000 bated the claimant’s anxiety, lack of Law typical, versus an atypical, day of individuals, while Rogers sug- LIABILITIES OF MUNICIPALITY self-worth, and pre-existing PTSD- work. There was no evidence on gested it would have to retrieve Negligence - Types - Employees - type symptoms. She was con- WORKERS’ COMPENSATION the record to show that the Appeals about 200,000 records relating Training - Police - Vicarious liability for sequently awarded general dam- Benefits - Entitlement to benefits - Commission misunderstood how to 34,000 subscribers to comply others’ actions ages of $9,000. There was no Causation - Appeals and judicial review often the equipment malfunc- with the Production Orders. No wilful misconduct or malice justi- - Standard of review - Reasonableness tioned. The reviewing court also provision was made in the Pro- Small claims action by O’Shea fying an award for aggravated or erred in finding that the Board had duction Orders for the protec- against the defendants, the City of punitive damages. Appeal by the employer from a an obligation to provide the Critical tion of personal information. Vancouver and certain jail employ- judicial review decision setting Job Demands Summary to all of Both Telus and Rogers provided ees, for general, punitive and aggra- O’Shea v. Vancouver (City), [2015] aside a decision of the Appeals respondent’s treating practitioners. affidavit evidence about the vated damages. The claimant was a B.C.J. No. 2934, British Columbia Commission for Alberta workers’ The Appeals Commission applied many thousands of records each First Nations woman with a history Provincial Court (Small Claims Compensation and ordering a re- the correct test in weighing the had produced over the last two of physical and mental health Court), L.N. Bakan Prov. Ct. J., hearing. The respondent, an evidence. The Appeals Commis- decades in response to such issues and addiction. She was December 18, 2015. Digest No. employee of the appellant, had filed sion gave express reasons for why it orders and search warrants. A arrested for her own safety after she 3537-013 a claim for workers’ compensation afforded greater weight to the opin- police officer with experience in smoked crack cocaine, had an anx- for a neck injury allegedly sus- ion of the Board’s own medical seeking such orders gave evi- iety attack, and took refuge in a tained by manually transferring consultant over that of the respond- dence about the importance of stranger’s vehicle. The supervising Municipal boards and hides to a processing machine. The ent’s doctors. The weight given by this investigative tool in cases officer processed the claimant as tribunals respondent operated a down-pull the Appeals Commission to expert where a single suspect was being having been jailed for breach of the Jurisdiction - Practice and procedure operator that transferred cowhides medical evidence was highly fact investigated for a series of peace. The claimant was subse- from a moving conveyor to another intensive. The Appeals Commis- crimes, and in cases where quently placed in restraints by the Application by the Kalinskis for machine to be processed. When the sion’s decision in this aspect was police suspected a perpetrator of individual defendants due to con- permission to appeal a decision by transferring machine malfunc- transparent and intelligible and it a single crime used a call phone cerns she was attempting to block the Subdivision and Development tioned or was out of service, he was clear why the Appeals Com- near or at a crime scene. The video surveillance of the cell. The Appeal Board of the City of Cold manually transferred the sus- mission found as it did. particular orders that prompted claimant alleged she was negli- Lake in favour of MacIsaac. The pended hides to the processing Rogers and Telus to make the gently restrained and injured when Board upheld a development offi- machine. The medical opinions Boyd v. Alberta (Workers’ Compen- application had been withdrawn her feet were immobilized in a cer’s decision finding that a pro- about the cause of the injury were sation Board), [2015] A.J. No. 1368, and narrowed, but the parties modified device, the Hobble, while posed development in the appli- conflicting. The respondent and his Alberta Court of Appeal, P.T. Costi- sought a ruling on their consti- her hands were cuffed behind her cants’ neighbourhood qualified as a employer also took different views gan, J. Watson and F.L. Schutz JJ.A, tutionality and directions for back. She alleged that the restraint permitted use of land. The pro- of the physical demands of a down- December 14, 2015. Digest No. future orders. constituted an unlawful assault. posed development was comprised pull operator, specifically, the 3537-015 THE LAWYERS WEEKLY february 12, 2016 • 21 Business & Careers Firms take P3 expertise to U.S. Ground is fertile for public private partnerships

GEOFF KIRBYSON Fasken’s recent work includes the Pennsylvania Rapid Bridge Replacement Project, which is replacing growing number of Canadian law firms are 558 structurally deficient bridges across the state taking the expertise they’ve developed in pub- under a design-build-maintain P3 collaboration A lic-private partnerships over the past decade between the Pennsylvania Department of Transporta- south of the border. tion and Plenary Walsh Keystone Partners. A significant portion of projects using this funding Fasken is advising Plenary, which will operate as model are in the transportation sector and include concessionaire for the bridges and be responsible for bridges, sectional highways, marine terminals, street demolishing the existing bridges, maintaining traffic lights, toll roads and other public works. While P3s during the construction and sustaining new bridges may be in their relative infancy in the U.S., many over a 25-year contract following their completion. observers agree the potential is enormous. While an industry in its early stages in the U.S. might (P3s occur when a public sector authority and a pri- sound too good to be true for entrepreneurial firms, vate enterprise agree on a deal in which the latter there’s a reason for this. With 50 states, each having entity provides a public service or project and assumes its own agenda and needs, the level of bureaucracy in much of the financial, operational and technical risk.) the U.S. is mind-boggling. Brian Kelsall, Toronto-based partner at Fasken There are governments, ranging from federal to Martineau and head of its projects practice, says P3s municipal, departments of transportation and other may have originated in England but the Canadian stakeholders, all of which have combined to make it market has developed into the world’s most sophisti- very difficult to standardize the documents and cated and successful one during the past 10 years. process. In Canada, with relatively few players, this “We’re really good at this,” he says. “The U.S. is way part is easy. behind in P3s.” “There are four strong authorities producing this Much of the success is due to the creation of govern- stuff,” Kelsall says. “It’s easier to get four people to co- ment agencies, such as Partnerships B.C., Saskatch- operate and say ‘let’s use this standard approach.’ ewan Builds and Infrastructure Ontario, which have “One thing finance people hate is new stuff. They like mandates to essentially do nothing but P3 projects. to do what’s been done before, the tried and true, so Along the way, they have built models that can be eas- there are no risks. In the U.S., all 50 states are doing ily duplicated. different things, which makes it harder to finance.” Kelsall knows what he’s talking about. Fasken was There’s no question the U.S. P3 market is growing, recently named the North American Legal Advisor of says Tara Mackay, a partner in Torys office in New the Year by industry news site P3 Bulletin. The same York. She has been working in this area for the past 13 recognition went to Norton Rose last year. Development, Page 22

shaozi / iStockphoto.com 22 • February 12, 2016 THE LAWYERS WEEKLY

Business & Careers Development: Local partners are key to success

Continued from page 21 people and politicians that American law- years and in mid-2012 moved to New York yers do. That’s why finding a solid local law to focus her efforts south of the border. firm with boots on the ground in the U.S. is “The need for infrastructure investment crucial, she says. in the U.S. over the next 10 to 20 years There’s a dearth of investment in infrastructure in the U.S. But before everybody gets too excited will be into the trillions of dollars. Just to over the last 50 years. They’re looking to fund new required about the P3 market in the U.S., Geoff keep pace with projected global GDP Gilbert, an Ottawa-based partner at Nor- growth, (the country) would need $57 infrastructure in different ways and I think P3s are one of ton Rose, would like to remind them that trillion (in investment) between now and those ways. the Canadian counterpart is still 10 times 2030,” she says. larger with one-tenth the population. Mackay says part of the reason Can- “The bountiful opportunity is in Canada. adian lawyers are increasingly being Jody Aldcorn The U.S. is an important market and we tapped to do P3 work in the U.S. is they McCarthy Tetrault have great P3 people in our U.S. offices. have more experience than many of their The U.S. is often described as the land of American counterparts in the area. As eternal opportunities but they haven’t challenging as the bureaucracy can be, realized the potential there yet,” he says. however, she says it can also be viewed as There are many troubled P3 projects in an opportunity. the U.S., too, which is in stark contrast to “There is a lack of standardization and Canada, where most of them have plenty predictability in the U.S. market,” she which have really standardized the predictable. There’s a lack of that in the of interest from multiple bidders. says. “In Canada, most active provinces in approach to projects done in their juris- U.S. That makes the market more of a Having worked in this space for the P3 have created provincial agencies, dictions. That makes the market very challenge.” past 15 years, Gilbert has lost track of the Another difference in the U.S. is the exist- number of times he has been told about ence of robust tax-exempt municipal bond the U.S. market preparing to go to the programs that aren’t available in Canada. A moon. lot of the infrastructure at the municipal “I heard that in 2005,” he says. “I won- ANNOUNCEMENTS level in the U.S. has been financed with dered if it would be true and the data these bonds and that has delayed the adop- today shows we’re way bigger (in Canada) tion of P3 for such projects, she says. and our pipeline (or projects) looks Jody Aldcorn, Vancouver-based partner incredibly strong. By sheer population of the infrastructure group at McCarthy and potential, the U.S. hasn’t realized it Tetrault, says its main P3 focus has been in yet.” Canada but as more of its clients in infra- But he is quick to point out that Can- structure, transportation and construction adian firms have far from a monopoly on look to cross the 49th parallel, it will be P3 work in the U.S. and to assume there right there beside them. aren’t a significant number of American “There’s a dearth of investment in infra- counterparts that are “all over this space” structure in the U.S. over the last 50 years. and doing a great job would simply be They’re looking to fund new required infra- false. structure in different ways and I think P3s Even though Norton Rose has a deep are one of those ways,” she says. team in the U.S., specializing recently in Canadian lawyers doing this kind of work light rail transit, they can’t do it all on have benefitted from a very structured their own. That’s why they make sure to regime in Canada where both lawyers and partner with the best local lawyers. clients have become well acquainted with “You need the right person who under- how deals are structured, how the various stands the unique regulations, legislative IN MEMORIAM parties work together as well as the poten- environment or political pressures. We tial pitfalls, she says. can execute in a local way,” Gilbert says. CHRISTOPHER G. RIGGS, Q.C., B.A., LL.B. It’s also impossible to be familiar with the “You have to have the combination or 1942 – 2016 myriad of local jurisdictions across the U.S. you’re not giving your clients the best and have the relationships with business result.” We are deeply saddened by the loss of our friend and our partner – an exceptional advocate and a visionary leader.

Chris was one of the founding lawyers of our firm in 1972 and rapidly became one of Canada’s pre-eminent labour and employment Interested in selling your firm or files? counsel. Chris spearheaded the firm’s move into all levels of court, and his contribution to the development of our judicial review practice was second to none. His frequent appearances before Get the deal done! the Supreme Court of Canada contributed significantly to the development of labour and employment law in Canada.

Under his leadership as Managing Partner from 1994 to 2002, the We have a client interested in acquiring firm grew rapidly. Chris ran his practice and the firm with the highest degree of integrity, intelligence and wit and shared his knowledge • a personal injury/malpractice law firm or generously. Chris was a role model and mentor to generations of lawyers within the firm and to many clients who relied on his • personal injury/malpractice files expertise and advice over his forty-three years of practice. (Ontario only). A Q.C., a Fellow of the American College of Trial Lawyers, an honourary Doctor of Laws (honoris causa) from the University of Collins Barrow. More than you think. Guelph, an honourary Lay Canon of St. James Cathedral but at the heart of it all – a husband, a father, a friend. To learn more, contact: We would also like to acknowledge and thank the many members of the human resources and legal community who reached out to us during the past few weeks to share your memories of Chris. We will Ben Gibbons, Partner, Corporate Finance all miss him. [email protected], 647.725.1749 THE LAWYERS WEEKLY february 12, 2016 • 23

News Justice White: Conclusion of colleague ‘is unprecedented’

Continued from page 5 a lawyer with Simmonds+Partners Mark Gruchy, head of the cedes the substantial analysis seizure jurisprudence,” he noted. pose dangerous to the public peace,” Defence. Criminal Law Practice Group around reasonable expectation The decision creates a grey Justice White noted in finding the “Clearly now, in our province, with Gittens & Associates in St. of privacy undertaken in more area around what would consti- arrest in violation of Diamond’s s. 9 what the court is saying is that an John’s, said the majority deci- recent jurisprudence. tute a search of a vehicle, said Charter rights. officer can put his body inside of sion is “surprising” as it appears “By saying that it’s simply not a Gruchy, who suggests officers The ruling’s novel approach to a car to conduct what they call a to rely heavily on the 1992 search at all, despite the officer could now argue that opening a defining a search could have visual inspection. As Justice Supreme Court of Canada case going into the vehicle, it’s chal- rear car door or leaning in to implications for police behaviour White noted in his dissent, this is in R. v. Mellenthin, [1992] 3 lenging to fit (this decision) into smell a driver’s breath would and future cases, said Erin Breen, without precedent.” SCR 615, a decision that pre- the many years of search and not be a search. CAREERS

GENERAL COUNSEL Eli Lilly Canada has an exciting opportunity for a bright, SENIOR FAMILY LAW ASSOCIATE business-minded General Counsel with a minimum of 10 years’ experience practicing law, strong pharmaceutical industry and/or health science. Dale Streiman Law LLP (formerly Dale Streiman & Kurz LLP) is seeking an You will lead the Canadian legal team and work in a dynamic international environment as ambitious senior family lawyer with 10+ years’ experience to join their dynamic, well- part of the Company’s Canadian and European region. You will advise, support, and train established GTA practice. Th e managing partner requires assistance in managing a team the business and coordinate with both regional and global legal teams. of 5 dedicated lawyers practicing exclusively in family law. Partnership opportunities You will serve as a member of the company’s leadership team, will report to the are available for the right lawyer. Qualifi ed candidates are invited to submit their cover Senior Director and Assistant General Counsel of the Canadian and European region. letter, resume and writing sample to [email protected]. Th is opportunity has arisen Please apply through www.lilly.ca as a result of our long standing partner Marvin Kurz’ appointment to the bench.

Director – Professional

Resources JUDICIAL VACANCY ONTARIO COURT OF JUSTICE KITCHENER Hicks Morley is Canada’s largest management-side labour and employment ﬁrm. We devote our practice The Judicial Appointments Advisory Committee advises the Attorney General of exclusively to human resources law and advocacy. Ontario on the appointment of Judges to the Ontario Court of Justice, and invites We advise and represent employers, including many applications for a judicial position in Kitchener. well known corporations, local businesses and public institutions, on every aspect of workplace law. This This appointment involves presiding over family law matters and also involves includes labour relations, wrongful dismissal and travel within the regional boundaries as assigned by the Regional Senior other employment litigation, pension, beneﬁts and Justice and/or the Chief Justice. executive compensation, education law, health and safety, pay equity and information and privacy.

The minimum requirement to apply to be a Judge in the Ontario Court of Justice is We are currently seeking an individual for the role of ten years completed membership as a barrister and solicitor at the Bar of one of the Director – Professional Resources. The individual will Provinces or Territories of Canada. be responsible for formalizing systems to support the hiring, professional development, mentoring and All candidates must apply either by submitting 14 copies of the current (April 2014) evaluation of Associates, Law Students and Law Clerks. completed Judicial Candidate Information Form in the first instance or by a short The position requires a JD or LL.B. The successful letter (14 copies) if the current form has been submitted within the previous 12 candidate will have a minimum of five (5) years’ months. Should you wish to change any information in your application, you experience within the professional services industry must send in 14 copies of a fully revised Judicial Candidate Information Form. and will have significant experience with student recruitment and on-campus initiatives. A Certified Human Resources Professional designation and a If you wish to apply and need a current Judicial Candidate Information Form, or if you Certificate in Organization Development would be an would like further information, please contact: asset.

Judicial Appointments Advisory Committee The successful candidate will have the ability to work Tel: (416) 326-4060 Fax: (416) 212-7316 independently and in a team oriented environment. Website: www.ontariocourts.ca/ocj/jaac/ He or she must have excellent interpersonal skills and a client service orientation. Sound judgment, strong oral and written communication skills and excellent All applications, either sent by courier, mail or hand delivery, be sent to: must organization, prioritization, project management and multi-tasking skills are required. Judicial Appointments Advisory Committee c/o Ministry of Government Services Mail Delivery If you are qualiﬁed and interested in this exciting opportunity, 77 Wellesley Street West, Room M2B-88 please submit your cover letter and resumé in conﬁdence to: Macdonald Block, Queen’s Park Hicks Morley Hamilton Stewart Storie LLP Toronto, Ontario, M7A 1N3 77 King Street West, 39th Floor Box 371, TD Centre Applications must be on the current prescribed form and must be Toronto, ON M5K 1K8 TYPEWRITTEN or COMPUTER GENERATED and RECEIVED BY 4:30 p.m. on Attention: Donna M. D’Andrea Friday, March 4, 2016. CANDIDATES ARE REQUIRED TO PROVIDE 14 COPIES [email protected] OF THEIR APPLICATION FORM OR LETTER. A Fax copy will be accepted only if 14 copies of the application or letter are sent concurrently by overnight Hicks Morley is an open and respectful workplace which fosters creativity, legal innovation and excellence in our client’s interests. We are committed to recruiting courier. Applications received after this date WILL NOT be considered. and hiring the best candidates for all roles, and from diverse backgrounds and experiences. The Judiciary of the Ontario Court of Justice should reasonably reflect the diversity of the population it serves. Applications from members of equality- TORONTO WATERLOO LONDON KINGSTON OTTAWA seeking groups are encouraged. hicksmorley.com LITIGATION FILES CAN BE COMPLEX. MANAGING THEM SHOULDN’T BE.

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