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Times they are a changin’

|Written By Jim Middlemiss

As my first blog, I thought about writing a piece on some interesting court decision, such as the Nov. 25 ruling in Anderson v. Attorney General of Canada,  where the Supreme Court of Newfoundland Trial Division found the federal government committed an abuse of process in a class action involving five schools, dormitories, and orphanages in Newfoundland and Labrador. After all, it’s not often that the federal government is found to have committed an abuse of process.

The actions, being prosecuted by a group of firms, including Ches Crosbie Barristers and Kirk Baert, of the Ontario firm Koskie Minsky LLP, are based on negligence and breach of fiduciary duty.

The feds got their knuckles wrapped by Justice Robert Stack after counsel for the attorney general sought to make a claim apportioning damages for any fiduciary duty among various parties. However, Stack took great exception to that, noting that the Crown raised the matter in an earlier decision in the case involving Justice Gillian Butler and lost.

He called the Crown’s position nothing more than a “collateral attack” on Butler’s ruling, and an attempt to re-litigate the matter, which amounted to an abuse of process.

“The ship of apportionment of fault for breach of fiduciary duty set sail two years ago. It is not returning,” he wrote when ruling that the federal government pay for the costs of the portion of the application dealing with the apportionment question.

Then I thought, I could also write about one of the many upcoming cases before the Ontario Court of Appeal or the Supreme Court of Canada, which lawyers would find interesting, such as CIBC Mortgages Inc. v. Computershare Trust Co. of Canada, an important mortgage fraud cause dealing with priorities, which is currently before the Ontario Court of Appeal.

Of course there is also pending legislation, like bill 5, the Ontario respect for municipalities act (City of Toronto), which if it ever saw the light of day — it likely won’t, as least in the current form — would shake up municipal planning in Toronto.

Or there are the growing number of legal initiatives at the federal level following the election of a new government, from dismantling the Harper’s tough-on-crime agenda to climate change.

But instead it struck me as I was scrambling looking for topics, that very little has changed in the way that news is generated since I first sat in the Law Times editor chair in January 1990, when the publication launched.

This January marks the paper’s 26th birthday. At the time, Ian Scott was the attorney general, Charles Dubin was the chief justice, and a typical Bay Street law firm was a few hundred lawyers. The news of the day was regulation of paralegals and the Patti Starr affair — or Pattigate — involving a Queen’s Park Liberal operative who was charged and convicted over political donations dominated headlines. National firms were still a few years off, following the Black v. Law Society of Alberta ruling from the Supreme Court of Canada in 1989.

Fast forward to 2015 and we have the Duffy Affair, paralegal regulation is still relatively in its infancy, and the chief justice is now George Strathy and attorneys’ general of different stripes continue to do their thing. Law firms are bigger than ever and growing.

News, however, is still generated by following rulings, watching legal developments, and talking to lawyers for their insights and gossip, which, fortunately, is still plentiful.

What has changed tremendously, during the past 25 year however, has been the business of both law and journalism.

Law firms get bigger, yet access to justice seems more remote now than in the past. Small- and mid-sized firms struggle with increasing rules and regulations impacting governance. Billable hours are getting squeezed and the public can barely afford lawyer’s services.

Meanwhile, on the journalism side, the business model is essentially broken and publications around the globe are scrambling. Trade publication like ours, I would argue, are in better shape than much of the mass media.

We cater to an audience that needs our information and has the means to pay for it. However, one need only look at the rash of layoffs in the media to see the carnage. Hundreds of journalists in Canada and thousands in the U.S. have been canned from daily papers, television, and radio as companies cope with the shifting advertisement climate. Skinny issues, thin sections are the rule, not the exception. Some publications, such as La Presse, are cashing out of their weekly paper versions on which they founded their operations. Others will follow suit.

The biggest change, then, in the past 25 year for me has been technological, and technology is at the root of much of the change we see sweeping both professions. For example, this blog platform in which I write. It didn’t exist. Today, it is the future, like it or not.

It’s certainly liberating. We can deliver information quicker, faster, and more precisely than we could in the past. For a profession that relies heavily on information flow and knowledge, that is a positive. However, in a profession that is slow to change, there are growing pains, as an older generation of lawyers adapt to new methods of conducting business.

By the same token, digitization of information has created enormous legal opportunities.

Privacy law was embryonic in 1990, and today drives the growth of some practice areas. Technology companies are the darling of Bay and Wall streets, and the investment banks and law firms that serve them. Crowdfunding presents business challenges and opportunities to clients and law firms. Social media law is growing by leaps and bounds. The Internet has also spawned much litigation, as the criminal justice system comes to grip with the darker elements such as online pornography and drug dealing.

In fact, I read an Ontario Court of Appeal case earlier this week, R. v. D’Souza, where police busted a young man who posted an ad for drugs on Craigslist, a popular online marketplace, similar to classified advertisements that used be the bread and butter of many newspapers. Selling drugs through an online classified ad sounds crazy, but this is how youth conduct business in 2015.

Incidently, the appeal court agreed that the youthful offender didn’t deserve a criminal record and set aside the conviction and $750 fine, imposing, instead, a conditional discharge.

As Bob Dylan sang, “Times they are a changin’.” I’m just trying to keep up.

  • digitization of information

    Brian Francis
    RE: "digitization of information has created enormous legal opportunities."
    Absolutely. Now,in only a few minutes, lawyers can search for and assemble any/all prior adverse judicial comments aimed toward expert witnesses appearing for opposing counsel. A civil justice system promising qualified and impartial experts in which judges function as gatekeepers to expert opinion evidence requires prior adverse comments to make the promise a reality. That criminal defense lawyers failed, for over a decade, to pay any attention to an early decision issued by Justice Dunn containing 14 warning regarding Dr. Charles Smith was a thread that ran through the Goudge Inquiry. How is it possible for triers of fact to ensure (medico-legal) experts are qualified, credible and reliable if lawyers don't bring prior adverse judicial comments/warnings to their attention? In this digital age the continued systemic failure to do so in the Ontario civil context is puzzling.

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