A Toronto immigration lawyer who claims Citizenship and Immigration Canada tried to drive him out of business has won a new review of his access to information request on ministry communications about him.

CIC initially withheld more than 400 pages of the 509 it found mentioning Forefront Migration Ltd. owner Timothy Leahy, claiming they were protected by solicitor-client privilege.

The ministry decision was confirmed by the office of the privacy commissioner and a Federal Court judge, but in a Sept. 4 ruling, a three-judge panel of the Federal Court of Appeal found shortcomings in the ministry’s actions. The court found it was unclear who had made the decision to withhold the documents, and that there was no indication of how the determination was made.

“The decision letter, signed by Ms. McManus, merely asserts the exemptions that apply. No further reasons are given. The record consists of a relatively thin affidavit, documents that have been produced to the appellant, and documents that have been withheld from the appellant. This material does not provide us with the basic information we need in order to discharge our role,” says the appeal ruling.

“It may be that some or all of the documents were properly withheld from Mr. Leahy. We are unable to render a decision on this view of the paucity of evidence before us. In that circumstance, it would be inappropriate to order the disclosure of any document. Instead, we remit to a different decision-maker for redetermination.”

Leahy wants to uncover the chain of events that led to a September 2007 CIC operational directive ordering visa offices to have no contact with him because he was “considered not to be an authorized representative” under the Immigration and Refugee Protection Act.

Because the Law Society of Upper Canada listed his status as “not practising law — employed,” CIC took the position that Leahy was not a member in good standing of a Canadian law society, a requirement for authorized representatives who are not licensed immigration consultants.

The CIC also sent out letters to any applicants that were listed as clients of Leahy’s instructing them either to find another representative or proceed self-represented with their applications.

A short time later, the issue was rendered moot when Leahy’s law society categorization changed to “practising law — employed,” and the CIC sent out a new directive in January 2008 indicating that he would now be considered an authorized representative.

“It destroyed my practice. People were being crucified because they were associated with me. . . . I still see action that I think are because I’m counsel,” Leahy told Law Times earlier this year, adding he was confident the withheld documents would reveal the “smoking gun” he was looking for.

The bad blood between Leahy and CIC goes all the way back to 2002, when Leahy was admonished by the Law Society of Upper Canada for directing improper correspondence to immigration officials sent out of indignation on behalf of his clients.

According to Leahy, the officials complained after getting riled by his strongly worded complaints about allegedly abusive behaviour by immigration officers towards his clients.

In one case complained of, according to Leahy, an immigration application filed on behalf of a 70-year-old rice farmer from Hong Kong was returned because Leahy had failed to include the man’s intended occupation in Canada. He sent it back again, writing “Federal court judge.”

Leahy ran into more trouble with the law society in 2004, earning a nine-month suspension (http://canlii.ca/en/on/onlshp/doc/2004/2004onlshp10/2004onlshp10.html) for practising while uninsured between 1997 and 2001.

Leahy argued at a hearing that he had not been engaged in the private practice of law, but that he was employed as corporate counsel for a company he had formed, a situation he believed exempted him from paying insurance fees. But a panel rejected his case, finding that his appearances for his company’s clients at the Federal Court constituted the private practice of law.

A Ontario Superior Court judge has halted a peace bond application made by four lawyers against their former boss after the Crown expressed concern about the sprawling feud’s use of court resources.

A justice of the peace dismissed the application by Ian Little, Dianna Morello, John Vettese, and Piera Segreto against Frank Loreto in November last year, but the four lawyers appealed, prompting an intervention from the Crown. Then on Aug. 27, Ontario Superior Court Justice Peter Lauwers granted the Crown’s request for a stay of proceedings.

Little, Morello, Vettese, and Segreto were once associates at Loreto’s personal injury firm, before an acrimonious split in 2008. An explosive meeting over the four lawyers’ proposed partnership agreement ended with their dismissal as an angry Loreto reacted to what he called an “ambush.”

After the four lawyers formed their own firm, Loreto launched a $3-million claim against the new firm over approximately 200 clients whose files were transferred to the new firm. Loreto also launched a series of small claims court actions, Superior Court assessments, and delivered accounts to most of the transferred clients, before another Superior Court judge stepped in last year to streamline the assessment process.

But it was Loreto’s attempt to personally serve his four former employees with documents that prompted their peace bond application, alleging Loreto engaged in threatening behaviour during the encounter.

After three full days of evidence, Justice of the Peace Roberto Zito dismissed all allegations against Loreto on Nov. 10, 2011, finding that although he “was very loud and obnoxious in his behaviour, [he] never pronounced any direct threats, nor attempted to carry out any of the alleged threats.”

Zito also expressed his concern that “on several occasions the parties, in way or another, did very little to avoid confrontation.”

“This court is puzzled, since the applicants and the defendant are officers of the Court, and as such they all should lead by example, setting a standard of proper conduct and behaviour and to do everything they can to stay apart from each other at all times, especially during this time of civil law suits,” Zito went on, according to a transcript.

After the four lawyers indicated their intention to appeal, the Crown stepped in, announcing its view that there was no legal error in Zito’s decision, and its intention to stay the appeal, in a letter to Ontario Superior Court Justice Edwin Minden, the trial co-ordinator for the Newmarket courthouse.

“It is the Crown’s respectful view that to further pursue the matter in this forum would be an unwise and unnecessary use of resources, especially given the multiplicity of proceedings that have already occurred and the inherent professional obligations of the parties towards one another,” wrote assistant Crown attorney David Moull in his June 18 letter.

Minden was more withering in his assessment when the parties appeared before him two weeks later, saying he had never heard of an appeal from a failed peace bond application in his 35 years on the bench and at the bar. Peace bond cases in his day lasted “20 minutes . . . maybe an hour,” he said, not three days.

“To allow an appeal to go forward in the circumstances outlined in all three of these filings would be a very, very unwise and frankly injudicious use of court resources, particularly so where the people involved are all lawyers, are all people who, quite frankly, should know better and, last but not least, given that, as I understand it, other routes to resolve differences are not only available, but have been pursued and are being pursued,” Minden said, according to a transcript.

“I am asking all the parties to take a deep breath, to reconsider and frankly to end this right now. I am not hearing any of the parties today, you are here today to here me.”

Despite Minden’s plea, another hearing was scheduled before Lauwers on Aug. 27, where he stayed the appeal on a motion from the Crown.

A Labrador judge wants his own day in court after accusing his chief justice of trying to silence him.

According to St. John’s newspaper The Telegram, Provincial Court Justice William English has applied to the Supreme Court of Newfoundland and Labrador for a declaration that Provincial Court Chief Justice Mark Pike infringed on his judicial independence and his Charter rights to free expression.

English ran into trouble with his judicial boss in August last year, after releasing eight accused without bail conditions, citing a lack of resources at the Happy Valley-Goose Bay court where he sits, according to The Telegram.

Pike responded with a CBC interview that was critical of English’s decision.

In his claim, English also accuses Pike of sending him an email that ordered him to “refrain from any comment from the bench or otherwise, in public or private, regarding the adequacy (or lack thereof) of judicial or court resources. This is the sole purview of the judicial and court administration,” according to a portion quoted by The Telegram.

English wants the Supreme Court to find that Pike’s order is of “no force or effect,” claiming the chief judge lacks the “statutory and inherent jurisdiction” to make it.

Pike followed up with another email to English, indicating that he had been referred to the provincial judicial council for possible disciplinary action over his bail decision, according to the claim.

English also wants the province to cover his legal costs associated with the dispute, and his claim urges the Supreme Court to appoint a retired judge to settle the matter after the justice minister denied him coverage, according to The Telegram.

English is due in court for a hearing on the application on Sept. 26 in St. John’s.

Law firms need to get serious about their online reputations, according to an expert in the field.

Being proactive about getting good reviews can annul the pain of getting bad ones. (Image: Shutterstock)

Kent Campbell, the founder and chief strategist at InternetReputationManagement.com, says online reviews of their work are becoming more and more prevalent for law firms. The savviest operators, he says, are getting proactive with reviewers.

“When someone thinks you’ve done a great job, suggest that they go to a review site, and write a good review,” he says. “Good reviews are much harder to get than bad ones, and if you can honestly build a strong base of positive reviews, then when the inevitable bad one comes along, it’s effect is going to be diluted. Otherwise, you can get stuck in the one-star mode for a long time, and you revenues will drop.”

While there aren’t as many such review sites in Canada as there are in the United States and elsewhere, they are becoming more prevelant so Canadian lawyers would be wise to heed Campbell’s advice.

Here’s some of Campbell’s dos and don’ts for law firms when they do come across a bad review.

• Don’t share the bad news: Business owners often want to talk about the bad review with their team, but Campbell urges them to resist the temptation: “It’s the opposite of containing the problem. You share the bad news, which is the same as spreading the negative sentiment.”
• Don’t respond online: It’s possible that any additional comments on the review site will just strengthen the link in the eyes of search engines, says Campbell. By defending yourself online, he says you will actually draw more attention to the negative comment.
• Don’t fire off a demand letter: At least not immediately. Your complaint could easily find its way online, get indexed, and then pop up as a link in search results. This also applies when it’s the firm’s client that is the target of a bad review. Campbell says he’s seen zealous law firms get dragged into their clients’ problems with an over-the-top cease and desist letter. “They do damage to the client accidentally, and then damage themselves by getting caught in the blast radius,” Campbell says.
• Do call the reviewer: And when you get hold of them, remember to speak calmly. Phone calls are better than email, according to Campbell, because your paper trail can easily be reposted online. “Lawyers love putting things in writing. It’s drilled into them,” Campbell says. “We like to tell them to call first.”
• Do try to get a retraction: If you can get hold of the reviewer by phone, offer to fix the problem they identified and see if they’ll take the comment back once you do. That can save the cost of an intervention by reputation experts like Campbell to push the review further down in search results, he says.

The Human Rights Tribunal of Ontario has declared a law school graduate a vexatious litigant after her fourth failed attempt to take action against the University of Windsor for including her failed first year on her official transcript.

Anica Visic had attempted to add the university as a respondent to an application alleging human rights violations by the Law Society of Upper Canada, stemming from the regulator’s decision to extend her articling requirement and to institute a good character review before she could be called to the bar.

But in a decision released last week, HRTO vice chairperson Ena Chadha refused to add the university, dismissed the application against the LSUC, and granted the university’s request to label Visic a vexatious litigant with respect to the issue of her official transcript.

“I conclude that the applicant’s repeated attempts to pursue the same allegations against the University about her official transcript have reached the point of abuse of process. As such, I determine that a vexatious litigant order is necessary to prevent the applicant from initiating further human rights applications or making requests against the University and its agents with respect to the matter of her official transcript,” Chadha wrote.

“If the applicant seeks leave to commence a future application involving the University regarding the matter of her official transcript or makes a request to add the University to another application in relation to the official transcript, written submissions must be included with her materials outlining why the application or the request is intended as a legitimate assertion of her Code rights, is not intended to vex the University or its representatives, and will not result in an abuse of process.”

Visic failed two courses in her first year at Windsor in 2000, and was told her studies would be discontinued, according to Chadha’s decision. Visic was granted readmission to first year on medical grounds in 2002, and went on to graduate in 2005.

In 2005, when she discovered the university was including her failed grades on her official transcript, Visic launched a human rights complaint against the school and three professors, which was ultimately dismissed as out of time. Another similar complaint against the university was dismissed in 2010 by the HRTO.

Last year, the HRTO dismissed another human rights complaint by Visic, this time against her articling firm, after her principal requested to see her official transcript. During a reconsideration of that decision, the HRTO again refused to add the University of Windsor as a party.

Despite her most recent failure at the HRTO, Visic’s civil action against the university, launched in 2005, remains outstanding. Her good character hearing at the LSUC is due to start on Monday.

Peter Lawless on the track with racer Michelle Stilwell.

Before Paralympian Michelle Stilwell takes to the track Wednesday night in search of a second gold medal at the London Paralympic Games, one of the last faces she will see belongs to her coach Peter Lawless.

Lawless, a Victoria-based lawyer, splits his time between a thriving sports law practice and training elite athletes. He was instrumental in Stilwell’s switch from wheelchair basketball, in which she was the first quadriplegic to win Paralympic gold in Sydney in 2000, to wheelchair racing in 2004.

Stilwell won the T52 class 100-metre and 200 m at the 2008 Beijing Paralympics, and has already defended her 200 m title in London. She also holds the world record for both events.

Speaking to Legal Feeds from London, Lawless says his job now is to get Stilwell in shape mentally for the 100 m. The pair have been training in the evening to simulate conditions for tomorrow’s race, which goes off after 9 p.m. local time.

“It’s not really about the physical side any more, because if you don’t have the physical side, you wouldn’t even be here,” Lawless says. “It’s about whose headspace is best, who’s best prepared.”

Lawless says he will be the picture of calm in the last moments before the race.

Paralympic gold medallist Michelle Stilwell is one of the elite athlets lawyer Peter Lawless coaches. (Photo: Toby Melville/Reuters)

“They need that. They’re going to feed off you, and they don’t need to feel fear, anxiety, or any lack of confidence from you,” he says.  

In addition to his lawyerly and coaching roles, Lawless has added a couple more strings to his bow in London, doubling as media relations officer for his Paralympic athletes, Stilwell and road cyclist Mark Ledo, as well as spare parts broker. Earlier, this week, a couple of flat tires spurred calls to specialist manufacturers in Germany, before a dealer in Coventry, 150 km north of London, came through for him.

“If your athlete needs something, you’ve got to provide it,” says Lawless.

Lawless, who was a competitive sailor before making the transition to coaching, has allowed his passion for sport to show in his legal career. Since his call to the bar in 2001, he has carved out a niche in sports law, representing sports organizations, athletes, and coaches in a variety of disputes over issues including doping and team selection. He has appeared before the International Court of Arbitration for Sports, and also sits on the board of directors of the Canadian Olympic Committee.

“It’s been very difficult for someone on the west coast, in Victoria especially, because the sports organizations are very central-Canada focused,” says Lawless.

This Paralympics is his third, and Lawless says it’s also been the best so far.

“It’s much better than previous games. Often the Paralympics are something of an afterthought, but the British population has really embraced it,” he says.

A judge has dismissed sprinter Ben Johnson’s $37-million lawsuit against the estate of his former lawyer.

Ben Johnson, seen here in 2010, has had his $37-million lawsuit against deceased lawyer Edward Futerman dismissed. (Photo: Shannon Stapleton/Reuters)

Johnson originally sued Edward Futerman for $6 million for negligence and breach of trust in 2007, and upped the ante after the lawyer’s death in 2008 with a string of new allegations over lost payment opportunities and Futerman’s alleged failure to monitor his agents.

But Ontario Superior Court Justice Carole Brown was unimpressed with Johnson’s claims, granting summary judgment to Futerman’s estate.

“I am satisfied, based on all of the foregoing, that the defendants have satisfied the onus on them to establish that there is no genuine issue requiring a trial,” Brown wrote. “I do not find that the responding party has satisfied the shifting onus on it to thereafter establish that there is a genuine issue requiring a trial. Moreover, I have found the issues to be statute-barred.”

According to the decision, the only evidence produced by Johnson on the motion for summary judgment was an affidavit by his biographer, Di-anne Hudson, who only met Johnson in 2001, about a decade after the events that led to the claim.

Johnson hired Edward Futerman within days of having his gold medal stripped from him following a positive drug test at the 1988 Seoul Olympics.

Futerman represented Johnson at the Dubin inquiry into the use of banned substances by Canadian athletes, and helped secure his reinstatement as an amateur runner in 1990.

According to Brown’s decision, Futerman was also key to the Canadian Olympic Association’s decision to overturn its life bans on those caught using steroids, allowing Johnson to return to competitive running for Canada at the following Olympics in Barcelona in 1992.

In the lawsuit, Johnson claimed his then-agent Larry Heidebrecht had lined up a $1-million comeback rematch with Carl Lewis, the man who trailed in behind Johnson’s world record breaking time in Seoul, as well as a $500,000 exclusive interview with Germany’s Stern Magazine. Instead, he claimed Futerman was negligent in advising him to speak with the Toronto Sun for nothing, and to take a nominal fee for his first appearance at a Hamilton, Ont. track meet.

Brown found Johnson’s own evidence on discovery confirmed that he approved the decision to speak with the Canadian news outlet first, and in any case, she found “the advice given to be either a business/public relations decision, or at most, an error in judgment, which at law, does not constitute negligence.”

Futerman’s estate claimed the lawyer had made efforts to make the comeback race happen, and blamed its failure on the death of the promoter in a car crash. Brown concluded the allegation had “no substantial merit” and was statute barred.

In addition, Johnson blamed Futerman for an alleged $750,000 shortfall in his Athletic Reserve Fund, a trust fund system for athletes administered by Athletics Canada, and alleged the lawyer authorized improper payments from the account to himself and Johnson’s manager.

But Brown decided Johnson’s claim that Futerman was responsible for monitoring his agents to make sure money owed to him ended up in the account was meritless, and not supported by the retainer agreement signed by the pair. Brown also noted Johnson’s admission in discovery that he sometimes took cash payments for races in Europe “which were not reported by himself or his former agent, nor remitted to the account.”

Futerman’s estate argued the allegations of improper payments were also meritless, because no money could be removed from the ARF account without signed directions from Johnson, and Brown agreed there was no evidence to support the claim.

Lawyers reticent about using social media need to get over their fears, according to practice management consultant David Bilinsky. He was on a panel entitled Social Media in the Courtroom at the Canadian Bar Association’s annual conference in Vancouver this morning.

Facebook and other social media sites are playing an increasingly integral role in the justice system.

“We need to be aware of these tools and how to use them, and how our clients are being affected by them,” he said. “And if you don’t have that knowledge, I think you’re missing an important piece of being able to advise your clients.”

And it’s not just judges who need to get involved, according to Bilinski’s fellow panellist, Jean-François De Rico, of the Quebec City office of Langlois Kronström Desjardins. He quoted from the Canadian Judicial Council’s ethical code for judges requiring them to “maintain and enhance the knowledge, skills, and personal qualities” necessary for effective judging.

“Historically that was with regards to the law, or maybe social events and economic situations,” he said. “I think the widespread use of information technology as a whole creates the need for the judiciary to acquire an understanding of those basic concepts and of social media as a whole. . . This is not just a specific field of knowledge anymore. This is something that is not only widespread, but affects and is implicated in a number of human activities.”

Given the ubiquity of social media sites such as Facebook, which is fast approaching one billion users worldwide, the panel’s third member, Don Richards, was surprised to find that a 2010 dismissal case he was involved in was the first in Canada involving Facebook.

“We had to rely on blogging cases,” said the Vancouver-based Farris Vaughan Wills and Murphy LLP partner. Since then, he says there have been many Facebook termination cases, “and there are going to be many more.”

Richards acted for West Coast Mazda as its firing of two union organizers was upheld by the B.C. Labour Relations Board in the 2010 decision. The two workers had posted potentially threatening language and homophobic slurs against their bosses. The supervisors were able to follow the abuse in real time since they were friends with the pair on Facebook.

Richards had to deal with establishing a nexus to the work environment in the Facebook postings, but also in preserving the evidence, since the postings were removed by the time the hearing occurred. However, the supervisors had made copies of the postings before they were taken down.

De Rico says things could be clearer on what constitutes suitable preservation of Facebook evidence.

“Printouts are a way of doing it, but courts have not indicated whether or not printing to pdf [of] Facebook pages would also be a good way to preserve it. My recommendation is if you want to preserve the evidence, do it in as many ways as you can. There’s software out there,” he said.

B.C. Provincial Court Judge Gary Cohen, who moderated the session, sits on the court’s technology committee and also writes a column, Cohen’s Computer Corner, for a judges’ magazine. He has embraced Facebook as a means of service in cases before him.

“I’ve ordered service either by Facebook or pretty much any other electronic form where I’m pretty sure they’ll actually see a copy of the document,” he said. “As far as I’m concerned, it’s much better than just posting it in a newspaper where you’re pretty much assured they will never see it.”

Is the Canadian Bar Association becoming too political?

That was the question some CBA council members were asking over the weekend as they debated the divisive and disparate issues of drug policy and daycare.

Resolution 12 on harm-reduction drug policy urged the federal government to soften its approach to drug addicts in the criminal justice system by approaching all drug use as a “normal human activity that may have harmful consequences to the health of individual users and society as a whole, and take a policy approach through the regulation and taxation of drug use and distribution that aims to reduce any harm and dedicates funds raised to effectively addressing that harm, such as through the creation of more supervised injection sites.

Supporter Gail Wartman of Moose Jaw, Sask., said she had seen friends and clients struggle with addiction.

“What criminalization does is it penalizes them additionally way beyond the addiction that they struggle with. And until they’re able to be treated as human beings, and taken care of, including at safe injection sites, the problem is only going to get worse,” she said.

Detractors like Kathleen Kelly questioned the effectiveness of safe injection sites, but Ken Armstrong of Vancouver wondered whether it was a suitable subject at all for the CBA.

“We ought not to be taking political positions that go outside sort of the lawyers for lawyers kind of issue,” he said. “This is not necessarily a rule of law issue. In my opinion, it’s a political issue . . . we do have to be mindful of where the boundary is between us as a legal organization versus just taking a political position. I do believe it’s beyond our scope.”

The resolution was eventually tabled after its sponsors agreed to go back and have another look at its wording.

Earlier, another resolution on the retention of women in the profession urged the CBA to support a 2001 study by the Margaret and Wallace McCain Family Foundation that recommended expanding “publicly funded preschool education for all 2- to 5-year-olds. It would be available, affordable, top-quality and voluntary.”

VANCOUVER — Canada’s top judge dismissed concerns of judicial burnout as the Supreme Court of Canada prepares to replace its third member in less than a year.

Two of the retirements came well ahead of the mandatory retirement age of 75: Louise Charron left last year at the age of 60 after seven years on the top court, while Marie Deschamps stepped down last week at the age of 59, on the 10th anniversary of her appointment.

“I don’t think anyone is burning out, but it is a tough job,” Chief Justice Beverley McLachlin told reporters at the Canadian Bar Association’s annual conference in Vancouver. “There are many who stay longer and if you look back over the history of the court you will find that even in days when the workload perhaps wasn’t as heavy as it is now, that some people stayed shorter, some people stayed longer. I don’t think we’re seeing anything like a mass exodus.”

McLachlin revealed the nation’s top judges are laying off the e-mail this month, avoiding circulation of draft reasons for decisions on reserve, in an effort to establish an unofficial holiday period.

“I think it’s a good thing to get a psychological break. We’re trying it,” McLachlin said. “It means the work will all be there in September, and we’ll have to see whether people really feel it worked well or not.”

But she said a more formal summer break like the ones enjoyed by judges at the U.S. and U.K. Supreme Courts is simply not practical in Canada because of a combination of the hearing load, translation time, and other factors.

“We stop hearing cases in June. There is no way we can get those cases out by the end of June and do the job we have to do on them,” she noted.

McLachlin also poured cold water on the idea of sabbaticals (as suggesed in by Charron in an interview with Canadian Lawyer) to allow Supreme Court judges a chance to recharge their batteries, explaining that litigants may factor the absence of certain judges into a decision on whether to appeal.

“It would diminish the certainty of, and confidence of people in, the court. We have never sat in panels in the supreme court because we believe that the opinion of every justice named to that court counts, and we’re named from different regions,” she said. “There are many complexities to suggesting that a judge of the court should be entitled to go away for six months or a year, and probably most judges wouldn’t want to do it.”

Earlier, McLachlin had addressed the CBA council in the city where she spent much of her early career as a lawyer and judge, using the occasion to talk commend the CBA for its involvement in a number of access to justice projects .

“I have spoken about how access to justice on both the civil side and the criminal side is the most pressing problem facing our justice system. That remains the case today,” she said.