Legal Feeds Blog
An Ottawa-based real estate lawyer found to have committed real estate fraud by the Law Society of Upper Canada’s discipline tribunal in 2014 has won his appeal. His substantial penalties have been set aside due to inordinate delays in his case and for what his counsel describes as the LSUC not following its own disclosure policies.
|His client Luigi Savone was treated unfairly by the discipline tribunal, says Brian Radnoff.|
His counsel says on one hand it’s a victory for Savone, while on the other, he battled the allegations starting in 2007 and will have to go through the process again.
Savone’s lawyer Brian Radnoff, a partner at Lerners LLP, says his client was treated unfairly by the tribunal as it would not allow production of vendor and lender documents the defence considered vital to its case and yet still moved for disbarment.
“Lawyers in this province would be similarly disturbed to learn that where the law society is trying to disbar a lawyer in this situation, who only acted for the vendors, the law society is refusing to produce the files for the lawyers of the purchasers and the lenders, despite the fact that they’re clearly relevant and may well contain exculpatory information,” says Radnoff.
“Under their disclosure obligations, which are the Stinchcombe standard, there is no question that they’re required to produce those files.”
The appeal tribunal, chaired by Christopher Bredt with Robert Armstrong, Janet Leiper, Barbara Murchie, and John Spekkens wrote: “the hearing panel erred in dismissing the motion for disclosure of the files of the lawyers who acted for the other parties. In our view, the transaction files are potentially relevant. Subject to claims of solicitor/client privilege, they ought to have been disclosed, if relevant.”
The March 2015 penalty against him of $100,000 was to cover costs of the LSUC’s investigation. Savone also faced losing his licence after the LSUC tribunal found the 30-year veteran was wilfully blind to the accommodation of fraud.
The disciplinary panel ruling by chair Mary Louise Dickson and rounded out by Ross Earnshaw and Sarah Walker found on a balance of probabilities that Savone had engaged in professional misconduct when he assisted in dishonest conduct of clients in obtaining mortgage proceeds under false pretences in that he abdicated his responsibility to review and check that statements of adjustment properly reflected the 12 transactions in question.
“Where a staff member prepares the Statement of Adjustments, the vendor’s and purchaser’s lawyers have an obligation to review it with their respective clients. In his evidence, Mr. Savone testified he never reviewed the Statements of Adjustment with his clients but left this to his clerk, Gerry,” the panel wrote in its ruling. “This is an admission that he, an experienced practitioner, chronically fell below the accepted standard of care and abdicated his responsibility to his client.”
In its ruling, the LSUC determined the statements contained clear indications of reverse engineering and fraudulent entries designed to permit the closing of the transactions on a “no-money-down” basis for the ultimate purchasers.
But Radnoff says the tribunal erred in not following its standards for disclosure.
“There was no direct evidence he was involved in any fraud, if there even was any fraud, but the law society’s position is the only proper punishment is disbarment,” says Radnoff.
“I think that lawyers in this province would be even more disturbed to hear that the law society has expended significant resources and costs prosecuting this lawyer and now there’s going to have to be a re-hearing be cause the society failed to meet its disclosure obligations when there’s no question they knew exactly what their obligations were.”
The LSUC could not be reached for comment before this article was posted.
People involved in human smuggling cannot be denied refugee status in Canada simply on the basis of having assisted in the smuggling, if they have not received any financial benefit from the activity, the Supreme Court ruled on Friday.
|Canadian border officials and police stand on the deck of the MV Sun Sea after its arrival in B.C. in 2010. (Photo: Andy Clark/Reuters)|
“I conclude that a migrant who aids in his own illegal entry or the illegal entry of other refugees or asylum seekers in their collective flight to safety is not inadmissible. . . ,” Chief Justice Beverley McLachlin wrote for the court in B010 v. Canada (Citizenship and Immigration), which was heard with R v. Appulonappa.
The court also ruled that Canada cannot level criminal charges against people simply for having helped someone gain illegal entry, or else “a father offering a blanket to a shivering child, or friends sharing food aboard a migrant vessel, could be subject to prosecution.”
To try to dissuade boatloads of migrants from arriving on Canadian shores, the government of former prime minister Stephen Harper had decided to go only after the organizers, in the hope of dissuading future smugglers from arranging such ventures.
Wednesday’s decisions will make it tougher to go after those in charge, though that will still be possible if it can be proved that they gained financially or materially.
Several of the asylum seekers arrived with about 500 other Tamils who paid substantial sums to board the cargo ship Sun Sea in Thailand. Shortly after sailing for Canada, the crew abandoned the ship, leaving the asylum seekers to fend for themselves.
The Canadian authorities had concluded that several who undertook duties such as working in the engine room had helped with the smuggling and so should not be allowed to stay in the country. The court disagreed.
A separate group of asylum-seeking Tamils who the government says were the captain and chief crew of another vessel, the Ocean Lady, still will face criminal charges that they took money to ferry fellow Tamils to Canada.
The question of refugees has taken on added prominence in light of Canada’s decision to take in 25,000 Syrians on an expedited basis. One criticism of the speed with which Canada is acting is that once they land in Canada, it can be difficult to deport them if they are found undesirable.
Woman dead after being hit by truck in Toronto, Canadian Press
Two people arrested after teen stabbed in Toronto, Canadian Press
Nova Scotia shopper finds nail in potato, Canadian Press
Counsel on both sides of the dispute are declaring victory as the Supreme Court of Canada hands down a decision that protects new media from higher licensing costs, but also requires them to purchase licences for each of the “ephemeral” copies needed to piece together a polished program or publication.
|Justice Marshall Rothstein came out clearly and squarely expressing the view that, if a reproduction occurs, it’s a copy, says Barry Sookman.|
Written by now-retired justice Marshall Rothstein on behalf of the majority, the judgment involves an appeal of a Copyright Board decision in favour of SODRAC, a collective management society that handles negotiations between media outlets and francophone copyright holders.
The CBC had argued that technology had made it necessary to create multiple copies — for example, multiples of an audio file that are combined to create a single news segment — and that it shouldn’t have to pay additional licensing fees for these incidental copies.
SODRAC, meanwhile, had argued that each copy of an artist’s work created value for the CBC, and so each copy warranted a separate royalty.
Ultimately, the Copyright Board sided with SODRAC, and then set a price for the licensing using its standard ratio system — a methodology that the CBC argued was inflating the cost of licensing.
The SCC today upheld the board’s reasoning with respect to the licensing of ephemeral copies, but struck down the methodology, ruling that the doctrine of “technological neutrality” protected new forms of media from any additional tariffs.
So, in a nutshell, copyright users would have to license the incidental copies they create, but the cost of that licensing will have to reflect whatever minimal value they extract from those copies. The decision, then, sets aside the board’s licensing decision “as it relates to the valuation of CBC’s television and Internet broadcast-incidental copies . . .
“The Board did not compare the value contributed by the copyright protected reproductions in the old and new technology. It also failed to take into account the relative contributions made by the use of copyright protected works and the risk and investment by the user in its new technology, as required by the balance principle.”
Lawyers on both sides are calling it a win.
Marek Nitoslawski, the lawyer at Fasken Martineau DuMoulin LLP who represented the CBC before the SCC, says the decision is a “substantial” victory that “disavows the Copyright Board’s approach . . . of applying the simple ratio to determine the reproduction rights. . . . It was a very facile approach.”
Instead, says Nitoslawski, the board will be forced to accept that “technological neutrality is the law,” and that any evaluation of a tariff structure should avoid additional costs for copies that ultimately create little to no value.
“It’s a huge decision,” he says, “allowing the appeal from a Copyright Board decision that . . . imposed unreasonable royalty fees for an activity that generates no value or very little value for broadcasters.”
Barry Sookman, the McCarthy Tétrault LLP tech lawyer who intervened on behalf of Canadian music associations, is also hailing the decision as a victory, although for opposite reasons.
The CBC’s appeal, he says, “was an attempt to effectively override the clear wording of the act by looking at whether something should be a copy as opposed to whether it really was a copy, which would have dramatically introduced uncertainty in the law.
“Justice Rothstein came out clearly and squarely expressing the view that, if a reproduction occurs, it’s a copy. And it doesn’t matter if it’s if it’s an ancillary copy, if it’s an ephemeral copy, it’s still covered by the act.”
Sookman says that, if the Supreme Court had supported the CBC’s appeal in its entirety — by using the principle of tech neutrality to delegitimize the rights of copyright holders — the court would have effectively rewritten legislation that had already been clearly worded.
Sookman acknowledges, however, that the decision is the first to apply the doctrine of technological neutrality to rate-setting, which could have broad implications for copyright law.
“It does require the board to now engage in an exercise that they typically have not before. So it will potentially change the kind of evidence that has to be adduced before the Copyright Board, and perhaps also in copyright infringement cases.
“The court is saying that the principle of technological neutrality has to apply in every case, so there is a possibility that the decision would be applied as well in a damages case to an infringer.”
Crown says kids' slayings by Guy Turcotte were revenge, Canadian Press
An Alberta law firm is bringing data and visualization into its aboriginal advisory practice to show, and not just tell, courts and the Crown the impact of development projects on traditional aboriginal territories.
|Clients ‘get a much better sense of what’s going on from maps than some bureaucratic or industry documents,’ says Andrew Fehr.|
GIS, or geographic information system, is a digital system for capturing, storing, checking, and displaying data related to positions on Earth's surface.
“It has visual representation to the tree, to the bush, to the exact location of where the impact will occur,” says Nanda, adding the tool will also help First Nations in strategizing for future consultations.
The map shows information on treaty rights in specific areas along with current and planned developments in those areas. Nanda and his colleague Andrew Fehr, of North Raven Consulting, were able to pull the data on emerging developments from the Alberta government’s record of lease sales.
Clients “get a much better sense of what’s going on from maps than some bureaucratic or industry documents,” says Fehr.
Fehr explains the tool also uses remote sensing technology, which shows how areas have changed over several decades and the resulting erosion of aboriginal activities like hunting or fishing. It also highlights the cumulative effects of a number of projects, according to Nanda.
“We’re trying to really spell [out] the story of what’s happened to the traditional First Nation territories [and] how their land use has been affected,” says Fehr. “We don’t think that the Crown or the industry understand or don’t care to take the time to understand, so we want to really help spell it out.”
First Nations communities can take these maps into negotiations and consultations to “really press home the point,” adds Fehr.
The visual tool is especially important as First Nations communities are overwhelmed by requests for consultation and don’t always have the resources to adequately prepare, he says.
While Nanda and Fehr are currently hoping to use their tool in Alberta, they say it’s relevant anywhere in Canada.
Defence rests in Guy Turcotte murder trial, Canadian Press
An Ontario Court of Appeal ruling says an employer’s financial circumstances shouldn’t be a factor in deciding what is a reasonable notice period for a wrongfully dismissed employee.
In Michela v. St. Thomas of Villanova Catholic School released yesterday, the appeal court found three teachers were entitled to a 12-month notice period, not a reduced period of six months because of a perceived financial hardship on the part of the school they worked for — in one case for up to 13 years.
Three schoolteachers brought the complaint in response to a Jan. 7 summary judgment in their wrongful dismissal action against the private school.
Motions Judge Thomas R. Ledere had found that teachers Domenica Michela, Sergio Gomes, and Catherine Carnovale were wrongfully dismissed and awarded pay in lieu of 12 months’ notice he found they should have received. However, he decreased the notice period by half for each of the teachers after considering the school’s financial situation.
The teachers argued the damages should not be reduced. In addition to challenging the notice period on appeal, they also argued the motions judge was wrong in his assumption they could secure other jobs within six months of being let go.
The appeal court also sided with the teachers on that matter.
“There was no factual basis for that — it was speculation,” says Wright.
The teachers worked for the school on a series of one-year contracts over a number of years. Gomes was employed for 13 years, Michela for 11, and Carnovale for eight. In May 2013, they each received a letter from the school indicating their contracts would not be renewed for the upcoming year because enrolment was expected to be lower than the previous year.
Michela and Carnovale received a second termination letter in June 2013, and Gomes received an e-mail on June 30 stating the school was not in a position to offer him a position at that time.
The school had argued the teachers were not entitled to notice because they were employed on fixed-term contracts. However, the motion judge found they were employed for indefinite periods and were entitled to reasonable notice.
The teachers raised three issues on appeal.
• First they argued the motion judge erred in relying on the school’s alleged financial difficulties to reduce the notice period.
• Second, they said the judge erred in presuming there would be positions they could secure six months following their termination.
• Third, that the motion judge made a palpable and overriding error of fact in finding that enrolment issues constituted a financial problem permitting a reduction in the notice period to six months.
The motion judge emphasized the “character of the employment” in determining that the 12-month notice period sought by the appellants should be reduced to six.
“It should be self-evident that, by its nature, the School could not provide the security of employment offered by larger, more established and better-funded institutions. The teachers must be taken to have understood the circumstances of their employer. Every year, they had to wait until June before the School could be sure of its requirements for the upcoming year. . . ”
Writing for the panel, Justice Grant Huscroft wrote: “In my view, the motion judge erred in considering an employer’s financial circumstances as part of the ‘character of the employment.’
The ruling went on to say: “There is no evidentiary basis for the motion judge’s presumption concerning the future availability of teaching positions.”
Michael Wright and Stephen Moreau, of Cavalluzzo Shilton McIntyre & Cornish LLP, represented the teachers.
The motion for summary judgment was argued by Moreau who established that although the teachers were working on one-year fixed contracts, given the amount of time the teachers had been employed by the school it was appropriate they be considered indefinite, and therefore entitled to common law notice.
“It was an important hurdle to overcome or we would not have got to the rest of it,” says Wright.
Wright says he sees a lot of employers trying to claim financial hardship when it comes to settling matters as part of the statement of defence. The appeal court made it clear in this case that it’s “not appropriate to do so.”
“It is rare to see a judge accept it as a rationale for reducing a notice period,” he says. “When you’re negotiating at the outset if a lawyer says, ‘My client has significant hardship,’ that’s just a reality you have to deal with as part of the negotiation.”
Suspect arrested in fatal hit-and-run in Toronto, Canadian Press
Report on corruption in Quebec construction industry out today, Canadian Press
With the Paris conference on climate change coming up, Alberta is getting ahead of the issue with a strategy that includes a carbon tax of $30 per tonne by 2018.
|With the cap on oilsands emissions, Thomas McInerney says there is still room for the sector to continue to grow.|
Yesterday, the Alberta government released a plan with three main areas of focus: phasing out coal-fired electricity generation by 2030; implementing the carbon tax in two phases; and capping oilsands emissions at 100 megatonnes.
The plan includes a move toward renewable energy sources and natural gas-fired electricity in order to phase out coal. It also seeks to cut methane emissions by 45 per cent from 2014 levels by 2025.
As for the carbon tax, it will start at $20 per tonne in January 2017 and increase to $30 the following year. The province is vowing the tax will be revenue neutral with the proceeds invested in areas such as clean energy and technology, green infrastructure, and transit. It will also put revenues into an adjustment fund to help families, small business, First Nations, and people in the coal industry adapt.
When it comes to the cap on oilsands emissions, McInerney says it leaves room for the sector to continue to grow given that it’s currently emitting about 70 megatonnes a year.
“The proposed cap gives a lot of running room, which was important to industry,” he says.
And when it comes the carbon tax, he notes the government will apply it to distributors who will then pass it on to consumers.
“It draws a lot of parallels from the carbon tax that is already levied in British Columbia,” says McInerney.
Given the balancing act at play, the plan is perhaps surprisingly getting a fair bit of support from both the business and environmental sides.
“The framework announced will allow ongoing innovation and technology investment in the oil and natural gas sector,” said Murray Edwards, chairman of Canadian Natural Resources Ltd.
“Although there’s still room for improvement, the commitments we’ve seen are important contributions to solving the climate crisis and sets the stage for progressively stronger targets as we aim for a renewable energy economy by 2050,” said Ian Bruce, science and policy manager at the David Suzuki Foundation.
“Coal power in Alberta puts nearly as much carbon into the air as all oilsands operations, so the impact of phasing out these massively polluting power plants and shifting to zero-emission power sources is a landmark step that will cut emissions and save lives.”
One thing the regulations will have an impact on, of course, is the work of lawyers. As McInerney notes, they’ll affect deals in the energy sector given the added costs and will mean a lot of compliance issues for clients. The system will also replace the existing specified gas emitters regulations that seek intensity-based emissions reductions with an option for companies that exceed to pay into a technology fund. That levy was at $15 a tonne, and McInerney notes the new system will cover the “entire Alberta economy” rather than just the largest emitters.
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