|Malcolm Mercer says that, due to changes by the LSUC, a lawyer providing a referral will ideally look for whoever will get the best return for the client.|
The cap was one of a number of recommendations Convocation approved in an attempt to make referral fees more transparent.
The recommendations followed an interim law society report that found clients of some personal injury firms were sometimes unaware that they were being referred to another firm or that a referral fee was paid.
The working group also found that referral fees had been creeping up to sometimes exceed more than 25 per cent.
“The working group recognized that there isn’t a clearly right answer and that reasonable people can have different views as to what the right cap should be and the result was an attempt to not have a cap so harsh as to in effect be a prohibition, and to generally try to achieve a reversal of the increases experienced and to get referral fees back to where they were historically,” says Bencher Malcolm Mercer, who is chairman of the Advertising and Fee Arrangements Issues Working Group.
Convocation opted for a cap rather than an outright ban of referral fees at its February meeting, but the working group has since determined the amount of the cap, in addition to the details of a number of transparency measures.
The transparency measures Convocation approved included a requirement that lawyers fill out a standardized form for referral fees. The form will have to be signed by the referring lawyer and the lawyer receiving the case, as well as the client.
David Sterns, president of the Ontario Bar Association, says that while he is supportive of the recommendations, the form is “a bit over the top.”
“The key point is that the client is aware of the fees. Adding on a requirement that an agreement be signed by three parties seems to me to be too much paperwork for questionable results,” he says.
“The key is that the client needs to know about the referral fees, but lawyers shouldn’t be put to a requirement to have three-way agreements to establish that.”
Lawyers will also be required to record referral fees in their books going forward and will have to submit information to the law society concerning their referral fee practices in their annual reports.
The law society also banned upfront prohibition fees, meaning lawyers will be unable to go to a number of lawyers to shop around for the largest referral fee before referring the matter.
Mercer says that rather than having an incentive to get the biggest payment upfront, the referrer will ideally look for whoever will get the best return for the client and, therefore, the best return for them. The prohibition will, therefore, align the interests of the client and the referring lawyer, Mercer says.
The working group is still set to tackle advertising issues in the real estate bar, as well as contingency fees. Mercer says he expects recommendations on those issues could come before Convocation in late spring or early fall.
At its meeting in February, Convocation also approved changes to advertising that would include a requirement that licensees identify whether they are paralegals or lawyers in their advertisements and a ban on lawyers advertising work they have no intention of doing.
Convocation also introduced a ban at that meeting on second opinion advertising, which encourages clients who have already retained lawyers to switch to the advertiser.
For more information on the Law Society of Upper Canada’s sliding cap on referral fees, see the digital or hard copy edition of Law Times this coming Monday (May, 1, 2017).
|Michael Fenrick says the decision highlights the permanence of a defamatory statement in the Internet age.|
Lawyers say the decision in McNairn v. Murphy, and others like it highlight the permanence of a defamatory statement in the Internet age.
“The nature of email communications, blog posts, tweets, things along those lines, is they’re in an odd sense much more permanent,” says Michael Fenrick, a partner with Paliare Roland Rosenberg Rothstein LLP.
“You lose control of them once they’re out in the world. They take on a life of their own.”
The McNairns bought the condo as a “dream vacation property” in 2014. At the time, the building’s property management company was under investigation for an alleged fraud. This in addition to dissatisfaction with how the property was being managed spurred a collective action by the condo owners against the company and the creation of a homeowners’ association.
McNairn became president of the association and a new property manager was contracted for the building.
In 2015, the second property manager terminated its contract with the building after allegedly suffering verbal abuse from one of the owners who was critical of the new company. McNairn, who was discouraged by the situation, resigned as president in June 2015.
In July, the vice president of the association sent an email to update the owners. One of the defendants, Shannon Murphy, then hit reply all and sent an email alleging McNairn had quit “after accusations of theft.”
McNairn responded directly to Murphy saying he felt he had been defamed and asked her to retract the statement and apologize.
Murphy then sent an email to all 37 owners apologizing, and included the contents of his private email to her. She did not retract the theft accusation. McNairn felt that the reproduction of his private email had made the situation worse and was meant to discredit him.
“With the click of a mouse, Murphy smeared and diminished his good reputation,” Justice Robert Beaudoin wrote in his decision. “She then did little to reverse the damage she had done.”
Shortly after Murphy sent her email, Gabriel Pene, an American lawyer and the other defendant in the lawsuit, sent an email to all 37 owners saying McNairn’s email to Murphy was “leaden with threats, demands and the general bullying tone and mindset that does not comport with a ‘reputation for honesty and integrity’ or even the most basic principles of professional ethics.”
McNairn believed that this further mischaracterized his email and further maligned him.
According to the decision, Pene did not take any steps to retract his statements, and he did not respond to correspondences by McNairn’s counsel to resolve the dispute, so McNairn commenced the defamation lawsuit.
“As a lawyer, Pene would know that there is nothing improper in McNairn’s second private email to Murphy,” said Beaudoin.
“Despite this, Pene characterized McNairn’s second private email to Murphy as being laden with threats and demands . . .”
McNairn claimed that Murphy and Pene have also started legal actions in Costa Rica against the building with the intention of discrediting him.
Beaudoin issued a default judgment against Murphy and Pene as both were noted in default, as they decided not to defend the claim.
The judge awarded $70,000 in damages against Murphy and $90,000 against Pene.
McNairn said the saga affected his applications to become a judge, as he disclosed details of the litigation when he was applying to be a justice in the Ontario Court of Justice and Superior Court of Justice.
“It’s something that you don’t really see that often that a plaintiff is suing for damages to his reputation, not only as a lawyer but as a potential future career as a judge that could have been impacted by this as well,” says McNairn’s lawyer, Jeff Saikaley, of Caza Saikaley LLP.
Fenrick says the decision goes to show how important reputation is for lawyers and the lengths they will take to ensure their reputation is protected.
“All lawyers know their reputation is their greatest currency and so it’s important to protect your reputation as much as you can,” says Fenrick.
Saikaley says McNairn is in the process of retaining counsel in other jurisdictions to enforce the decision.
He may, however, have a harder time enforcing the judgment in the United States, lawyers say.
It can often be more difficult to get a defamation judgment in the U.S., says Peter Downard, of Fasken Martineau DuMoulin LLP, but McNairn’s case may succeed as it does not involve a public figure.
“This may not be the sort of case for which U.S. defamation law would provide the defendant with additional protection since it doesn’t involve public figures and it does involve findings of malice by the judge,” he says.
But even if the lawyer is not able to retrieve monetary damages, Downard says the decision still serves as a vindication of McNairn’s reputation.
Pene did not respond to a request for comment and Murphy could not be reached.
|The Law Society of Upper Canada issued a six-month suspension for a lawyer who failed to properly aid Roma refugees on claims.|
While counsel for the law society had asked the panel to revoke Farkas’ law licence, the tribunal settled on the six-month suspension and determined the lawyer could return to practising refugee law if he completes a one-year supervision plan under the mentorship of a specialist lawyer.
“We are of the view that Mr. Farkas is a good candidate for rehabilitation. And to this end, after his suspension, he should be allowed to return to his refugee law practice under supervision,” the panel’s decision said, in Law Society of Upper Canada v. Farkas.
Lawyer Raoul Boulakia, who was not involved in the proceedings, says he has concerns about the fact that Farkas will be able to return to representing refugees. He says that if he were on the panel, he would have argued to revoke Farkas’ licence.
“To me the extent of harm that was done to so many refugees’ cases is not reflected in the penalty,” says Boulakia, who is a board member and past president of the Refugee Lawyers Association.
He questions whether Farkas should be allowed to practise refugee law, considering what he says is the lawyer’s lack of judgment in basic matters.
“I don’t think that representing the most vulnerable people in society is an entitlement,” he says.
The law society launched its investigation into Farkas after 10 Roma clients from Hungary filed complaints with the regulator. In addition to failing to supervise his staff on their claims, the clients said Farkas had them indicate on their forms that they were in danger of being tortured if returned to Hungary, without submitting information to support such claims.
One complainant said Farkas had provided inadequate assistance when she wanted to pursue judicial review of a decision denying her claim.
“They were refugee claimants seeking assistance in a complex legal process that was unfamiliar to them,” the decision said. “They required a lawyer’s guidance and assistance in preparing their accounts of what had occurred to them in Hungary, services Mr. Farkas failed to adequately provide.”
Counsel for the law society said Farkas had “failed to serve to the standard of a competent lawyer,” and that he was “dishonest and acted without integrity.”
The panel found that Farkas’ abdication of some legal work to his staff was not because of dishonesty, but because of an “egregious misconception of his responsibilities.”
In its analysis of what Farkas’ penalty should be, the tribunal panel referred to the penalties in two other recent cases that involved lawyers who failed to serve Roma clients — Law Society of Upper Canada v. Hohots and Law Society of Upper Canada v. Jaszi.
In Hohot, Viktor Serhey Hohots improperly supervised staff, which did inadequate work. The lawyer was issued a five-month suspension, and was barred from practicing refugee law for a period of two years.
Erzebet Jaszi failed to pursue her clients’ applications, missed filing dates, overbilled LAO and failed to appear at hearings for clients. Her licence was revoked.
The panel found that Farkas’ misconduct was more similar to Hohots’ conduct than that of Jaszi. The decision said that while Farkas did an inadequate job, he acted “more diligently regarding their interests” and did not abandon his clients.
The panel also found that Farkas’ misconduct did not go as far as Hohots, who failed to prepare clients for hearings and failed to adequately represent their interests in hearings, according to the decision.
The panel also took into account the fact that Farkas had done pro bono work for four of the complainants, which it found showed he was not motived by personal gain.
In addition to the suspension and supervision program, the panel ordered Farkas to pay $200,000 in costs.
“The panel also wants to stress that, in ordering a six-month suspension as opposed to the revocation of licence, we are by no means endorsing the view that because no money has been stolen and no financial fraud has been committed, the Lawyer’s misconduct is thus not serious enough to warrant the harshest of penalties,” the panel’s decision said.
“On the contrary, the panel is fully aware that refugee claimants in general are vulnerable persons whose very life, liberty and security interests are at stake every time they are engaged in a legal process to determine their right to protection in Canada. The action of an incompetent refugee lawyer can have far more devastating impact than a dishonest lawyer who steals from his or her clients.”
Lawyer Lorne Waldman, who was the expert witness in the Jaszi and Hohots hearings, says the three cases show that the law society has sent a message to all lawyers that there are consequences if their representation falls below a certain level.
He says immigration lawyers had been concerned for a long time about inadequate representation Roma refugee claimants were receiving. The fact that the law society took on these three cases was very important, he adds.
“There’s no question that the lives of a lot of people were very detrimentally impacted by the incompetent representation they had in their refugee claims and given what’s at stake, that’s an extremely significant outcome for them,” he says.
Waldman added that as a result of these three cases, Legal Aid Ontario has introduced much stricter guidelines to ensure that lawyers who work on LAO refugee files are competent.
A spokeswoman for the Law Society of Upper Canada said it’s the regulator’s policy not to interpret or comment on decisions by the tribunal hearing panel.
Lawyers Marie Henein and Kenneth Grad, who represented Farkas in the proceedings, did not respond to a request for comment.
|Two former Torys LLP lawyers exonerated of professional misconduct accusations are suing the Law Society of Upper Canada for $22 million.|
The two former partners, who have both since left the profession, have also claimed misfeasance in public office, abuse of process and libel.
“Any honest, competent investigator, with understanding of transactions involving corporate groups, would have known that there were no breaches of the Rules by the plaintiffs in the Transactions,” said the statement of claim that was filed on March 28.
After investigating DeMerchant and Sukonick, the law society accused them of acting in a conflict of interest on a number of transactions between 2000 and 2003. Eight years later and after 138 days of hearings, a disciplinary panel found that there was “no evidence to counter that put forward by the [plaintiffs].”
In 2013, the law society then launched an appeal of the hearing panel’s decision. The law society’s tribunal appeal division later dismissed the appeal and recently awarded the two lawyers $1.3 million in costs, which lawyers have said was the highest costs ever awarded against the law society.
The process grew into an 11-year ordeal for the two former lawyers, who claim it had adverse effects on their health, reputation and livelihood.
The appeal division panel that awarded costs to DeMerchant and Sukonick found that the proceedings were not unwarranted at the beginning, but they became so after the law society failed to provide evidence to contradict testimony by an expert witness that held the two were following standard practice in the corporate bar.
In their statement of the claim, the lawyers said the law society had enough evidence after its investigation to conclude that they had not acted in a conflict of interest and that they had not breached the Rules of Professional Conduct, and yet the regulator pursued a hearing that the lawyers said was “entirely unnecessary.”
The claim said that the law society felt compelled to initiate and continue the investigations against DeMerchant and Sukonick because of public pressure it was facing at the time to discipline lawyers that had worked on the transactions.
“ . . . As would later become apparent, the Law Society had resolved to conduct a show trial and to see it through to a conclusion no matter how frail its case,” said the statement of claim.
The defamation part of their claim concerns a statement the law society made after they were exonerated, which the lawyers said was meant to “mean that the plaintiffs were in fact guilty of professional misconduct.”
The two lawyers are pursuing $20 million in special damages, $1 million in general damages, $500,000 in aggravating damages and $500,000 in punitive damages.
Sue Tonkin, a spokeswoman for the law society, said the law society has been served with the lawsuit and is currently reviewing it.
A former lawyer from Florida, who spent two years in prison for a child pornography charge, is one step closer to acquiring a licence to practise law in Ontario.
|The Law Society of Upper Canada’s hearing tribunal has determined that Ronald Davidovic has proven he took the necessary steps to rehabilitate himself.|
Davidovic was imprisoned in a federal penitentiary and registered as a sex offender after he pleaded guilty to a count of “receiving material containing the visual depiction of minors engaging in sexually explicit conduct,” according to the decision.
In 2004, police executed a search warrant at Davidovic’s home and seized his computers. He subsequently admitted to police and to his wife at the time that he had viewed child pornography since 1998. He was originally sentenced to five years in prison, but his sentence was later reduced.
He was also originally charged with a count of possessing child porn, but that was dropped when he pleaded guilty to the other charge.
Benchers Raj Anand and Jan Richardson, who served on the panel, decided to grant Davidovic’s application.
“The applicant's conduct in the years preceding 2004 was reprehensible, but it is not an automatic or permanent bar to his admission, given the evidence and positions of the parties, and in light of the applicant’s determination to be an ethical and productive lawyer,” said Anand and Richardson. Bencher Paul Cooper held the lone dissenting opinion on the split three-member panel.
The tribunal used what is called the five “Armstrong factors” in determining whether Davidovic was in present good character. These factors include the nature and duration of the misconduct, whether the applicant is remorseful, the rehabilitative efforts that have been taken and their success, as well as the applicant’s conduct since the misconduct and the amount of time that has passed since.
Anand and Richardson determined that Davidovic had made repeated statements of remorse and that the risk he would reoffend was very low.
They also noted that there is no evidence of recurrence or subsequent bad behaviour on Davidovic’s part in the 13 years since he was charged.
“The applicant’s attempts to rehabilitate himself have gone beyond steps that might be regarded as inward-looking: treatment, counselling and self-assessment,” Anand and Richardson said.
Davidovic says he was very excited and pleased with the decision.
“I’m very fortunate to have an opportunity to be able to practise my chosen profession again,” he said in a phone interview from Florida.
“I’m pleased that the country of Canada, or at least the law society, recognizes that an individual can rehabilitate themselves and I hope that this decision gives hopes to others that there is a light at the end of the tunnel, and if they do what they’re supposed to do, there is a possibility to return to a meaningful life after having been convicted of an offence.”
Davidovic provided the tribunal with a number of reports to support his application, which were written by a reverend who served as his therapist, a social worker who conducted a court-ordered treatment program and a doctor who conducted a psychological evaluation and risk assessment of Davidovic in 2013. The tribunal also received transcripts of recent interviews an LSUC investigator conducted with those who wrote the reports.
The law society’s counsel in the matter, Amanda Worley, did not oppose Davidovic’s application after he provided testimony.
In his dissenting opinion, Cooper found that Davidovic had failed to prove he was rehabilitated.
He found the reports from the social worker and the reverend were dated, anecdotal and not scientific and that testimony given by Davidovic lacked reliability.
“The lack of proper diagnosis together with the risk of re-offending in this case illustrates the applicants’ failure to satisfy his burden,” Cooper said in his dissent.
“He chose to provide dated reports, none of which addressed the simple and present context needed to explain whether paraphilia remains a concern.”
Cooper said he also remained unconvinced that Davidovic “fully comprehends victim empathy or remorse.”
“The seriousness of Mr. Davidovic’s misconduct cannot be bootstrapped by conditions when residual concerns linger about his present good character,” Cooper said.
“The Law Society, as the regulator, has an obligation to maintain high ethical standards in the public interest and to maintain the public’s confidence in the legal profession and its ability to self-govern and regulate. The practice of Law in Ontario is a privilege, not a right.”
Davidovic says Cooper’s opinion reflects the bencher’s own personal bias toward the offence.
“I think it’s inconsistent with the empirical evidence that’s out there on these types of offences,” he says.
Toronto lawyer Lee Akazaki, who was not involved in the proceedings, says the decision was born out of the ambiguity the bar has in its definition of good character. He says the standard for lawyers is much higher than that applied to a non-lawyer who has come out of incarceration rehabilitated.
“Character is something that is intrinsic within us. It’s not like a psychological condition and it’s not like a management of impulses such as anger. Character very much has to do with one’s ethical centre in the deliberation in one’s thinking,” he says.
Akazaki adds that it is difficult to come to the conclusion that Davidovic has sufficiently met the good character requirement, given the facts of the case and the nature of the crime committed.
“Just on the basis of the facts, he established on the evidence that he’s probably a reformed citizen, a rehabilitated citizen, but whether he has the good character requirement to be a member of the bar altogether, I don’t think the facts show he has the good character requirement,” he says.
“It’s difficult in this type of case to see how somebody with this particular background and the type of crime he committed can ever satisfy that requirement.”
In 2004, Davidovic petitioned the Florida Supreme Court for a disciplinary resignation and was granted permission to resign from the Florida bar with leave to appeal in five years. He did not reapply in Florida, but in 2015, he applied to the LSUC for a licence to practise in Ontario, as he plans to move to Toronto where he has family.
Davidovic says he chose to apply in Ontario because there are all sorts of impediments in Florida that make it difficult to live day to day for someone convicted of such an offence.
Before his conviction, Davidovic had practised in estate and financial planning in his early career before going on to act as general counsel for a large telecommunications company.
He says he plans to pursue criminal law in Ontario, as he has a unique perspective that will give him more empathy for those who have made mistakes in their lives.
Davidovic is still an applicant in the licensing process.
A spokeswoman for the law society said it is policy not to interpret or comment on decisions made by the tribunal hearing panel.
Updated March 24, 2017: A previous version of this story stated that the Law Society of Upper Canada’s hearing tribunal granted a licence to Ronald Davidovic. The tribunal decided that Davidovic was of good character, a requirement of the licensing process. He is still an applicant in the licensing process and has not yet been granted a licence to practise law in Ontario. Legal Feeds regrets any confusion caused.
|Tracey Clements has been appointed to be a judge of the Supreme Court of Prince Edward Island.|
Clements received her law degree from the University of New Brunswick and has been with Stewart McKelvey since she started articling there in 1993.
Called to the bar in 1995, she has since developed a general litigation practice, focusing on insurance, labour, employment and human rights law. She became a partner at the firm in 2009.
“I believe that for all of its shortcomings and deficiencies, Canada truly has one of the best, if not the best, judicial systems in the world,” Clements said in her judicial application.
“My “role” or “contribution” to that system has simply been to act as a practicing lawyer — to uphold the values that our system demands.”
Clements has served in a number of leadership roles inside of her firm as well as in a number of organizations. She has sat on a number of different committees at the Law Society of PEI and is the chairwoman of the insurance section of the Canadian Bar Association’s PEI branch.
“I am incredibly proud of our province and our country. I am also incredibly proud of our judicial system — in this province and likewise in this country,” she said in her application.
“But I also think that if we are honest with ourselves, we would acknowledge that increased diversity and increased perspective make for a stronger judicial system and, in turn, a stronger province and country.”
Clements’ appointment is the first of what is hoped will be many coming down the pipeline now that the federal government has reconvened some of the 17 Judicial Advisory Committees that process applications.
The federal government has come under fire to fill judicial appointments as the R. v. Jordan Supreme Court of Canada decision has led to an increasing number of serious charges being stayed because of court delays.
This prompted Attorney General Jody Wilson-Raybould to appoint 39 judges in October before her ministry rolled out changes to the application process to promote a more diverse bench.
The federal government still has more than 60 judicial vacancies to fill nationwide, but more appointments are expected soon now that some of the JACs were reconvened in January.
Wilson-Raybould announced Clements appointment at a hearing of the Senate Standing Committee on Legal and Constitutional Affairs convened to discuss court delays.
She heralded changes to the appointments process as more transparent and said it will lead to a move diverse bench.
“The newly reconstituted Judicial Advisory Committees are unprecedented for their diversity while women make up 70 per cent of all committee members,” she said in her remarks.
“Judicial appointments are clearly being reviewed and appointments will follow imminently.”
Clements will replace Justice Wayne Cheverie, who elected supernumerary status effective last September.
|Justice Annemarie Bonkalo has recommended broadening the scope of family law to let paralegals provide legal services in the area.|
“I recognize that the issue of paralegals representing clients in court is one of considerable controversy,” Justice Annemarie Bonkalo said in the report.
Bonkalo is a part-time judge and former chief justice of the Ontario Court of Justice, who was tasked with conducting a review of family law services to assess what can be done to boost access to justice. Among what are expected to be some of the more controversial recommendations is a call for the law society to create a specialized licence for paralegals to provide certain services in family law.
In 2014-15, more than 57 per cent of Ontarians who went through family court, did not have legal representation.
“When I began this review, my own feeling, based on the written submissions I received, was that in-court assistance would not be appropriate and that a line could be reasonably drawn at the courtroom door,” she added.
“As I continued to explore the issues and hear from different communities, it became clear to me that precluding paralegals from appearing in court would be a disservice to clients.”
The report contends that paralegals should also be allowed to represent clients in matters concerning restraining orders, enforcement and simple and joint divorces without property, but draws the line at more complex proceedings.
The report recommends that paralegals should not be allowed to provide services that involve child protection, property, spousal support or relocation. They also would not be able to do anything that involves the Convention on the Civil Aspects of International Child Abduction or complex child support in which discretionary determinations are needed to arrive at an income amount.
Paralegals can currently appear in the Small Claims Court, and the Ontario Court of Justice for Provincial Offences Act infractions.
Bonkalo has also recommended paralegals should not have to seek a judge’s permission before entering court, as it would create uncertainty and would be a disincentive to hiring a paralegal.
“From a practical stand, it may discourage individuals from pursuing the specialized paralegal licence in family law, as it would be frustrating to not be able to provide continuous service to one’s client,” Bonkalo said.
“It would be difficult to explain to a client that one could assist the client with filling out forms and preparing for court but that, where the client perhaps most needed assistance, the paralegal could not enter the courtroom. Such a limitation could very well play into a person’s decision on whether to hire a paralegal.”
Family lawyers have voiced concerns that they could be pushed out of the market if paralegals are given the right to provide legal services in any part of family law. Opponents have also said that family law is a very complex area, in which even tasks that seem simple can have serious consequences and can lead to more complicated matters. Family lawyers have also said paralegals simply do not have the same training and called for the government to let other reforms play out before considering widening the scope of the area.
The report, which was commissioned by the provincial government and the law society, also recommends that the regulator take steps to facilitate collaboration between lawyers and paralegals to create referral networks and interdisciplinary teams.
“After reading all the written submissions and hearing the diverse views expressed, it is clear to me that unrepresented litigants in family law need more options in obtaining legal assistance to resolve their family disputes,” she said in the report.
Bonkalo has submitted the report to MAG and the law society, who will now determine the next steps needed to implement its recommendations.
In statement responding to the report, Attorney General Yasir Naqvi said the provincial government will be working over the coming months with the law society and the federal government to create an action plan for the recommendations.
"Over half of Ontarians who use the family law system do not have legal representation, and the problem is growing,” he said in the statement.
"It is more important than ever that we work to improve access to justice for families. Our government is ready to act. We are committed to working with our partners and the federal government to consider changes that will have a real, positive impact of people’s lives, like allowing paralegals to be trained to provide family law services."
|Daniel Bach says it is rare for judge’s to adjourn certification proceedings to allow plaintiffs to submit further evidence and even rarer for those actions to subsequently be certified on return.|
Class members say they experienced adverse side effects after having one of the devices — which are all made of the same polypropylene — surgically inserted in order to treat incontinence. The lead plaintiff, Susan Vester, claimed she suffered complications and a great deal of pain after undergoing surgery to have one of the products implanted in her.
The class action is the latest of a number of transvaginal mesh cases that have been proposed in recent years against different manufacturers.
This, however, was the first that was successfully certified on a contested motion, says Daniel Bach, one of the lawyers representing the plaintiffs.
“We’re really pleased with this decision,” says Bach, who is a partner at Siskinds LLP.
“We think it’s a big victory for our clients who are trying to get into court to have a judge adjudicate whether or not the products that were put in their body were safe and fit for their use and whether or not they were properly warned of any dangers in the products.”
The certification motion in the Boston Scientific case was originally heard in November 2015, but Perell adjourned the matter to give the plaintiffs another chance to submit more evidence. Perell determined the plaintiffs would have to provide more evidence in order to establish there was some basis in fact for common issues for their negligent design claim, as well as their claim that the manufacturer had failed to warn.
Bach says it is rare for judges to adjourn certification proceedings to allow plaintiffs to submit further evidence and even rarer for an action to be certified subsequently on return.
Perell used a little used subsection of the Class Proceedings Act, which gives judges the power to adjourn motions for certification to permit parties to amend their materials or pleadings, and to provide further evidence.
Boston Scientific argued that while the plaintiffs identified a common feature of all nine of its transvaginal mesh products, they had failed to establish that it was connected to their claims.
Both sides made further submissions, but on return, Perell found the evidence submitted by the plaintiffs established some basis in fact for common issues for the claim.
“This is evidence there is a common issue for all the women implanted with these devices about the safety and efficacy of the medical device in question, being these various Boston Scientific transvaginal mesh devices, all of which are made of the same polypropylene,” says Bach.
David Morritt, one of the lawyers representing Boston Scientific, did not immediately respond to a request for comment.
|Malcolm Mercer says the working group looking at the issue has not determined what the potential cap on referral fees could be.|
The working group examining the issue has found that clients of some personal injury firms do not always know about the existence of referral fees, or that they are being referred to another lawyer, even though the law society’s current rules require lawyers to disclose such information.
Convocation will decide on Thursday whether to adopt either an outright ban of referral fees or a cap limiting how much lawyers could pay each other for referrals.
“The working group thought that there were two plausible choices that Convocation should make,” says Bencher Malcolm Mercer, who is chairman of the Advertising and Fee Arrangements Issues Working Group Report.
“And when there was not consensus within the working group as to which of the two answers was the right one, the better course was to put it to convocation.”
The working group found that some referral fees have crept up to more than 20 per cent. Some who gave feedback to the working group have advocated for a 10-per-cent cap on all referral fees, while others have asked for a 30-per-cent level.
If Convocation decides to approve the cap, the working group will come up with an appropriate amount, as well as additional measures to ensure greater transparency.
Mercer says these measures could include a requirement of a formal written agreement between the referrer and the client. Another transparency measure could be a requirement that lawyers make it clear in their advertisements when some of the work will be referred out to other lawyers or firms, he says.
Mercer says the working group has not made a decision on what the cap would be, but he expects it would be “in the lower range.”
The law society is also looking to add to its rules on advertising, which currently include requirements that lawyers advertise in a way that is not misleading, is accurate, and is in the best interest of the public.
The new rules would require licensees to identify whether they are a paralegal or a lawyer in their advertisements. The law society would also look to amend the Rules of Professional Conduct to “guide licensees as to the appropriate use of awards and honours, and to protect the public from misleading use of awards and honours when necessary.”
Licensees would also be banned from advertising work that they are not permitted to do, or do not intend to do.
The working group flagged the issue in its interim report that said some firms have advertised legal services that were referred out without any intention of doing that work.
The proposed changes also include a ban on second opinion advertising, which entices a potential client that already has a lawyer to retain the advertiser instead.
The rules would also ban lawyers from referring to third party awards and rankings in their ads that are “not bona fide or are likely to be misleading, confusing or deceptive.”
The working group’s interim report from the summer also tackled issues concerning advertising in the real estate bar as well as contingency fees, but the committee has not finished its work on those issues.
|Colin Ingram says the decision follows a recent trend of the Federal Court granting lump sum costs in patent infringement cases.|
In Nova Chemicals Corporation v. the Dow Chemical Company, the Federal Court of Appeal dismissed an appeal from Nova, finding Federal Court Justice John O’Keefe had not erred in his determination to grant costs in a lump sum, rather than use a full assessment process in accordance to a tariff.
“Lump sum awards have found increasing favour with courts, and for good reason,” Justice Donald Rennie said the decision, on behalf of a three-judge panel. “They save the parties time and money… When a court can award costs on a lump sum basis, granular analyses are avoided and the costs hearing does not become an exercise in accounting.”
Colin Ingram, one of the lawyers representing Dow, says the decision demonstrates a continuing acknowledgement by the courts of the usefulness in appropriate circumstances of lump sum awards in patent infringement matters.
“Part of what I think the court has been acknowledging in this case and others is that there is usefulness — in appropriate cases where it can be done — for a lump sum to be awarded at the outset by the trial judge to avoid this further proceeding,” says Ingram, who is a partner with Smart & Biggar/Fetherstonhaugh.
The Federal Court proceedings included a 32-day trial, in which the judge found Nova had infringed a patent owned by Dow in one of its products. Both companies manufacture polyethylene film-grade copolymers used in packaging applications.
O’Keefe granted Dow the lump sum of $6.5 million, which was $2.9 million in legal fees and $3.6 million in disbursements.
O’Keefe noted that the proceedings were “extremely complex”, with written submissions exceeding 700 pages, and that both parties undertook extensive testing that were at the heart of the dispute. He found that given this the 11 per cent that was allowable under the tariff would be inadequate, and that Dow should get an amount that was 30 per cent of its legal costs.
Nova opposed the granting of a lump sum, arguing that the issue of costs should go to an assessments officer.
Nova claimed the record and evidence provided were not sufficient to substantiate a lump sum. Nova objected to “the lack of a supporting affidavit and its inability to cross-examine and test Dow’s claim for disbursement of $1.6 million,” but the judge dismissed this argument, saying he was satisfied with Dow’s submissions.
O’Keefe determined that the costs should be a fixed lump sum, saying an assessment would “serve no purpose”.
In their appeal, Nova submitted that any departures from the tariff should only be granted in exceptional circumstances. Nova also argued that O’Keefe had erred in awarding costs based on a percentage of Dow’s actual fees, alleging the judge did not analyze whether the time billed by Dow’s lawyers was reasonable.
Nova also argued the judge was not entitled to come to the conclusion he did, saying the evidence provided before the judge was insufficient, with respect to Dow’s fees and disbursements.
The Federal Court of Appeal found that the evidentiary record before a trial judge that awards a lump sum does not need to provide the same level of detail as would be required by an assessment officer, who would be unfamiliar with the case.
The court also determined that the judge had a sufficient basis on which to conclude that the disbursements claimed by Dow were reasonable.
Ingram says the Federal Court of Appeal decision is an acknowledgement for the need for a practical approach in certain circumstances to certain cost issues.
“Here it’s an acknowledgement that the trial judge is in a position to assess various issues relevant to costs including the complexity of the proceedings, the nature of the trial, including the number of experts and the testing that was involved,” he says.
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