Gabrielle Giroday is the editor of Law Times. She is a journalist and former government spokeswoman who has won awards for her work in both media and public service. She has experience writing and communicating about legal and justice issues, foreign affairs, gender issues, and economic analysis for publications across Canada.
Ontario Attorney General Yasir Naqvi hasn’t been shy about expressing the need to embrace technological advancement when it comes to the province’s justice system.
On Jan. 18, at an event at the Law Society of Upper Canada, Naqvi said the province is looking at e-filing of divorces.
“We’re looking at all different ways to make services available online. E-filing is, in my view, the very first important step we have to do . . .,” he said.
“I wanted to see on the family law side what could be done, so we’ve asked to see if divorce applications could be filed online.”
The move comes after the province introduced more digitization at Small Claims Court.
Jonathan Richardson, an Ottawa-based lawyer with Augustine Bater Binks LLP, said says he is “pleased” by the news about possible digitization.
Richardson said says the proposed change is “good for lawyers.”
“Any step which both reduces the amount of paper required while making a process more efficient is a step in the right direction,” he says.
He says there could be two significant potential ramifications.
“Firstly, pursuant to the Family Law Act, a person has until the earlier of six years from the date of separation or two years from the date of a divorce to seek an equalization of net family property.
“A party may not realize when e-filing for a divorce or receiving an e-filed divorce that he [or] she is starting the limitation period to seek an equalization payment,” he says.
He also said says that most — if not all — insurance companies “will no longer provide extended health-care benefits to a partner when he [or] she is no longer a spouse.”
“E-filing for a divorce could result in that party being denied extended health-care benefits on a spouse’s plan,” he says.
“That works both ways.”
Brian Galbraith of Galbraith Family Law PC also says the move to digitize the divorce process will be welcomed.
“It will make divorce work more efficient so [it] should result in a cost savings to the consumer,” he says.
Steven Benmor, a Toronto-based lawyer with Benmor Family Law Group, agrees.
“Ontario should join the rest of the world and adopt IT, which is the fastest, cheapest and most modern way of communicating,” he says. “All legal cases are all about communication between [the litigant or litigants], lawyers and judges.”
A well-recognized Canadian judge has another accolade on her list of accomplishments — the fact she’s now been named the global jurist of the year by Northwestern University.
|Justice Rosalie Silberman Abella will speak about international law when receiving an award in Chicago later this month.|
Previous recipients include Gloria Patricia Porras Escobar of the Guatemalan Constitutional Court, Justice Shireen Avis Fisher of the Special Court for Sierra Leone, and Acting Chief Justice Dikgang Moseneke of South Africa’s Constitutional Court.
“Justice Abella has long been recognized internationally as one of Canada’s foremost jurists,” said Adam Dodek, a law professor at University of Ottawa. “This award confirms that long and widely-held view.”
The award is on behalf of the Northwestern Pritzker School of Law’s Center for International Human Rights.
“Justice Abella’s extraordinary personal story and her outstanding professional achievements really make her a compelling figure, someone who is well-worthy of this honour and someone who we are very excited to welcome to Northwestern Law School to have the chance for our students and faculty to interact with her, and hear from her,” says Juliet Sorensen, the centre’s Harry R. Horrow Professor of International Law, who was part of the four-person selection committee who chose Abella for the award. Sorenson says Abella was nominated for the honour.
Abella —who graduated from University of Toronto with a bachelor of arts and a law degree — will speak on January 25 at Northwestern about whether international law has kept up with the world.
“Abella is a pioneer in many ways. She is the first Jewish woman and the youngest person ever appointed as a judge in Canada,” said the news release from Northwestern announcing the award. “She also is the first Jewish woman appointed to the country’s Supreme Court.
Born in a displaced persons’ camp in Stuttgart, Germany, in 1946, Justice Abella is the daughter of two Holocaust survivors.”
A biography on the Supreme Court of Canada’s website notes Abella was appointed to the Ontario Family Court in 1976, and the Ontario Court of Appeal in 1992. She joined the Supreme Court in 2004.
“She was the sole Commissioner of the 1984 federal Royal Commission on Equality in Employment, creating the term and concept of ‘employment equity,’” says the biography. “The theories of ‘equality’ and ‘discrimination’ she developed in her Report were adopted by the Supreme Court of Canada in its first decision dealing with equality rights under the Canadian Charter of Rights and Freedoms in 1989.”
Eugene Meehan, a lawyer at Supreme Advocacy in Ottawa, said Abella is well-known for various decisions, including the recent SCC decision in Daniels v. Canada (Indian Affairs and Northern Development), where Meehan said Abella “wrote the unanimous judgment of the Court that government is to constitutionally recognize the rights of Métis and non-status Indians.”
“Justice Abella is now the second most senior judge on the court,” said Meehan. “Though some try to peg her as being of this or that school of thought, on this or that issue, the reality is she’s a chameleon that’s able to muster majorities among different groups of allies – yet still feel strongly enough on issues of importance to her to write the lone wolf dissent.”
An Alberta judge heavily criticized for remarks he made during a sexual assault trial has asked again to make oral arguments to the Canadian Judicial Council, in his fight to remain on the bench.
|Justice Robin Camp is asking to oral submissions through his lawyers to the Canadian Judicial Council. Photo: Canadian Press|
Last November, an inquiry committee for the council in charge of reviewing Camp’s conduct unanimously recommended that he be removed from the bench.
However, in a response to the committee made available on Jan. 6, Camp has asked the council “to find that his misconduct was the product of unconscious bias and remediable ignorance.”
“Justice Camp’s misconduct was the product of ignorance, not animus. His legal decision making was reasonable,” said the submission, submitted by Camp’s counsel.
“He apologized and rehabilitated himself. In the circumstances, the ultimate sanction of removal is counterproductive.”
In the submission, Camp reiterated a request to make oral submissions through his counsel.
“The notoriety, the evidentiary and policy issues, and the extent of remorse and rehabilitation make this a highly unusual case. Justice Camp is the first judge to fight for his office and his reputation since the Council amended its bylaws in 2010 to remove the express right to oral submissions,” said the submission.
The 25-page submission notes that Camp made “instant, repeated and sincere apologies” and was “quick to acknowledge that he had failed in his judicial duty.”
“He apologized as soon as he was confronted with the law professors’ complaint.
As he came to understand the depth of his error, he apologized again and more fully,” said the submission.
“His apologies developed in exactly the way one would expect from an ethical jurist confronted with an unknown personal failing, who gradually comes to understand the nature of the problem.”
However, in its findings released last fall, the committee stated “that Justice Camp’s conduct in the Wagar Trial was so manifestly and profoundly destructive of the concept of the impartiality, integrity and independence of the judicial role that public confidence is sufficiently undermined to render the Judge incapable of executing the judicial office.”
“Accordingly, the Inquiry Committee expresses the unanimous view that a recommendation by Council for Justice Camp’s removal is warranted,” said the report and recommendation of the Inquiry Committee to the Canadian Judicial Council.
Kim Stanton, legal director for the Women’s Legal Education and Action Fund, said Camp “had a fulsome opportunity to make his case before the Committee during the hearing in September.”
“The question for the Council is not whether the judge is sorry, but whether public confidence in the judge is sufficiently undermined to render him or her incapable of executing judicial office in the future in light of his or her conduct to date.”
“The test is to be considered from the perspective of a reasonable and well-informed person,” she said.
“As stated by the Coalition (of which LEAF was a member) in our submission to the CJC Committee that conducted the inquiry in this matter, the reasonable person must include the perspective of survivors of sexual assault, and marginalized women generally, as they are entitled to a judiciary that rejects sexual myths and stereotypes and understands and respects equality.”
Frank Addario, a Toronto-based lawyer acting for Camp in the matter, said he no additional comment on the matter.
An Ontario Superior Court of Justice judge has ruled that a family law clerk with 27 years experience at a law firm did not resign from the firm at which she worked, even though she removed all her belongings and returned her security pass to one of the firm’s lawyers.
|Jed Blackburn says a recent Ontario Superior Court of Justice ruling illustrates that for a resignation to be accepted, it must be ‘clear and unequivocal.’|
In the case, senior family law clerk Rajinder Johal had been working for Simmons da Silva LLP for 27 years, and said she had been wrongfully dismissed.
“[T]he main issues in this case, aside from the issue of damages is whether or not the plaintiff resigned and if she did resign did she effectively resile from that resignation,” said Sloan in the ruling.
In June 2015, the then-62-year-old clerk went to a meeting on a Wednesday with one of the firm’s lawyers and the firm’s human resources manager.
The plaintiff and defendant had differing versions of what happened at the meeting. According to a lawyer at the firm, Johal said she was displeased with a new staffing arrangement discussed at the meeting, and the day after, she removed her belongings and then went to the lawyer’s office, returning her security pass and saying she had “hit the end of the road.” She then left.
According to Johal, before she went to the lawyer’s office the day after the meeting, she overheard the lawyer telling another clerk they’d be working together closely.
She said she then went into his office and returned the security pass to him, but she denied saying she “was at the end of the road,” according to the ruling.
No written resignation letter was ever handed in and the clerk never said goodbye to any of her colleagues, said Johal’s lawyer, Philip White, of Grosman Grosman & Gale LLP.
“The following Tuesday, she attempted to return to work after she calmed down, collected her thoughts and received legal advice,” said White. “The firm did not let her return.”
As part of her case against the firm, Johal said her employer did not make sure she understood the new staffing arrangements and did not question her sudden departure or emotional state when she handed back her security pass.
Ultimately, Sloan agreed with Johal, saying she did not resign and “. . . when viewing this matter contextually, a reasonable person would not have viewed the Plaintiff’s action as a voluntary resignation.”
“With respect to what transpired . . . if viewed narrowly, the Plaintiff returning her security pass and removing her belongings might look like a resignation. However, it is incumbent upon the employer to look at the larger picture,” said Sloan.
He also said “. . .the circumstances here cried out for further inquiry by the defendant.”
“While I agree with the Defendant that it does not owe a paternalistic duty to the Plaintiff, on the facts of this case, it was required to do more to determine the Plaintiff’s true and unequivocal intention,” he said in the ruling.
“On the evidence before me, it was to the Defendant’s financial advantage if the plaintiff resigned, since the evidence is clear that at least currently, the firm was top-heavy with family law clerks.
“Therefore if one resigned ‘of her own free will’ the firm would not have to pay any severance and of course if she resigned the defendant would not have to continue to find work for her and pay her ongoing salary,” said Sloan.
“So when the ‘opportunity’ of accepting the plaintiff’s resignation arose, Mr. Clark and/or the remaining management members of the firm, by their inaction decided to let ‘sleeping dogs lie’ and simply accept what they thought was a resignation, after what they thought was a reasonable length of time,” Sloan added.
To that end, Sloan ordered a trial on the quantum of damages — Johal has asked for 22 to 26 months of salary, while the firm said if Johal received damages, it should be limited to 16 months.
White says the case is “an example of an employer who is so focused on saving money that they sort of let common sense and compassion slip to the side a bit and they made a big mistake.”
Jed Blackburn of Cassels Brock & Blackwell LLP said the decision shows that “in order to be accepted, a resignation must first be clear and unequivocal and must objectively reflect an intention to resign when viewed in the entire context.”
“Factors such as an employee’s emotional/mental distress, history with the company, age, financial circumstances, job prospects and the manner of resignation may all be considered in determining whether a resignation was truly voluntary,” he said in an email to Legal Feeds.
Nicole Simes, who represented Simmons da Silva, said she could not provide comment.
A non-profit organization that had issued layoff notices to staff and was moving offices after hitting funding challenges has received funding from the Ontario government and the Law Society of Upper Canada.
|Russell Silverstein, co-president of Innocence Canada, at an announcement the organization will receive a significant funding boost for the next three years, after financial woes.|
Ontario Attorney General Yasir Naqvi and Law Society of Upper Canada Treasurer Paul Schabas announced that Innocence Canada will receive $900,000 over the next three years to sustain its operations.
Innocence Canada — an organization that helps wrongfully convicted people challenge their convictions and advocates for greater public awareness around the issue — had stopped taking applications from people seeking help in September.
“This infusion of financial support allows us to go back to where we were, and run our operation fully,” said Russell Silverstein, a criminal defence lawyer who is co-president of the organization.
“We were going to become significantly scaled down. That would have compromised our ability to service our clients. The tension is off now, the pressure is off, [and] we can go back to where we were several months ago and chart a new course for the future.”
Silverstein was at Innocence Canada’s Peter Street office for the announcement with Naqvi and Schabas, where details of the funding were revealed.
For the next three years, Innocence Canada will receive $300,000 per year from the government and the LSUC. The Ontario government will provide $275,000 per year, while the LSUC will provide $25,000 per year.
For the last eight years, the organization had been operating with about $580,000 per year. Before the announcement, it fell short when it came to meeting that amount.
“This is a wonderful gift to our clients, those who are in jail, having been wrongly convicted, who we strive to help and have been striving to help for 23 years,” said
Silverstein. He said the financial support from the government “marks an important change in the culture of access to justice.”
“We pledge to take this grant of $300,000 per year for the next three years and devote it to the continuing work we do, which is to work for the exoneration of those who have been convicted of crimes they did not commit,” said Silverstein.
The organization, which was formerly known as the Association in Defence of the Wrongly Convicted, is the only full-time non-profit organization that delves into potential wrongful convictions by using tools like private investigators and forensic pathology testing, independent of educational institutions and government.
Innocence’s Canada executive director Debbie Oakley recently told Law Times lawyers from across the country participate in pro bono work for the organization, says Oakley, with an estimated $3.5 million worth of work taking place annually.
She also said there were still 85 cases Innocence Canada was handling that are under review, including 16 where they believe innocence has been established.
“The simple reality is that despite our collective best efforts, we sometimes do get it wrong,” said Naqvi. “That is why it is so important to have an organization like Innocence Canada as part of our justice system. It is an organization that advocates for those who are all but forgotten by society.”
Naqvi said the funding will be provided to the organization for things like reviewing cases and for advocacy.
“Our justice system has great strengths. It is not, as we well know, infallible,” said Schabas. “The ever-present possibility of error makes it especially important to support those who represent citizens who may have been. . .wrongfully convicted of crimes.”
Silverstein said despite the infusion of funding, there will be changes.
“We intend to reorganize our process nonetheless to seek to make us as efficient as possible, change some of the ways we deal with our incoming cases, and continue to rouse public support so we get more financial support from the private sector, from individual donors, so that we don’t become dependent on government money forever,” he said. “. . .We’re confident that over the three years, we can achieve that.”
Innovation within law firms may mean working directly with clients on introducing new practices, or marketing lawyers to clients on capabilities that go beyond their technical expertise.
|Speakers at a Legal Marketing Association Toronto chapter event, focusing on changes in the legal industry, addressed shifts that firms will see in the coming years. PHOTO: Gabrielle Giroday|
Friedrich Blase, Legal X @ MaRS Discovery District executive in residence and the Un-Firm of the Future managing director, recommends stoking innovation by having lawyers find a small number of “meaningful, sizeable” client relationships. He then recommends lawyers work with these clients to design new ways of delivering services.
“Innovation is the first thing you do in the day, and then you serve the clients, because that’s what your future is all about,” he said. “You need to actually do that with some of your best clients.”
Part of the issue is that the legal industry is trailing the rest of society when it comes to innovation, said Chris Bentley, Ryerson University’s Legal Innovation Zone and Law Practice Program executive director.
He says consumers will drive change if lawyers don’t.
“We are leaving the age of the provider, and entering the age of the consumer,” he said.
Peter Carayiannis, partner with Deloitte Conduit Law LLP, said different factors have pushed law firms to innovate. He said one contributing factor was the 2008 global economic crisis which “really put a great deal of focus on legal budgets, on the behaviour of GCs, on the behaviour of in-house communities.”
“[T]he sort-of black box view to a legal budget was no longer an accepted position at the executive table,” he said.
Other factors include clients becoming “more inquisitive and more disciplined” about legal budgets. It also means considering the different approach taken by millennials to their careers.
“The approach of millennials as they join professional services firms, including law firms, is not the same as their parents. And consequently, the decisions they will make, the compromises that they will accept, the goals and ambitions that they will have in their life, will be different,” Carayiannis said.
Bryan Friedman, general manager of Axiom, says the legal services provider attracts lawyers who want the ability to say yes or no to certain files.
“There’s often the case where a lawyer will be made to take a file that they’re really not interested in, or they’re not comfortable with,” said Friedman, who pointed to an example of a lawyer who declined to do work for a company that did strip-mining in Central America. He said Axiom works with in-house counsel to maximize their value.
“What we really try to focus on is how can we transition in-house law departments from call centres to value-added providers of legal services,” he said. “We want to make sure that lawyers in in-house departments are empowered and have the ability to make their companies more competitive, not just to evaluate risk every time it comes up.”
Carayiannis said law firms may want to look at marketing their lawyers, and their value proposition in new ways, beyond their technical expertise.
Instead, lawyers should be held up as problem solvers.
“It’s not about technical expertise. Your technical expertise is assumed,” he said.
Blase said the seeds of the Un-Firm came from conversations he had with law firms.
“In the end, I didn’t find firms that were willing to take this as an offensive play, they would do it as a defensive play when the clients asked for it, but not as an offensive play,” he said.
He added that it’s a “phenomenal” time for hungry lawyers to connect to individual consumers or smaller businesses, or the “business-to-consumer space.”
“If you’re not part of it, you’re going to get run over by it,” said Blase. “And that I promise you, is so certain, over the next 10 to 15 years.”
A Vancouver lawyer has been elected as the new vice chairwoman of the ICC Canada Arbitration Committee.
Tina Cicchetti, a partner at Fasken Martineau DuMoulin LLP and member of the firm’s litigation and dispute resolution group, will serve two years as the committee’s vice chairwoman, before becoming the committee’s chairwoman.
|Tina Cicchetti says the ICC Canada Arbitration Committee is seeking to expand its membership in Western Canada.|
ICC Canada has 124 members across Canada, and its members can participate in the International Chamber of Commerce’s International Court of Arbitration.
The court describes itself as “the world's leading body for the resolution of international disputes by arbitration.”
Cicchetti says the mission of the committee is to expand the use of international arbitration by Canadian business and to ensure practitioners are knowledgeable and can provide good service to Canadian companies.
“Canada, for being a small arbitration market and a small economy, relatively speaking, has a number of practitioners who are really highly regarded internationally,” she says.
Cicchetti says the focus of work done by Canadian members is commercial arbitration between parties, although it does do a fair amount of work related to administering investor state disputes, especially when it comes to contractual disputes involving state-owned entities with investors or contractual parties.
Current issues facing the committee include the importance of cybersecurity and proposed solutions, such as the use of secure sites for transferring materials.
“I think it’s a hot issue because it’s become an issue more widely,” says Cicchetti.
“One of the perceived benefits of arbitration is the fact that it’s private and often confidential, so you’re going to the extent of choosing a dispute resolution procedure that is confidential and then you are managing it in a way that potentially exposes it to hacking, for example, because a lot of the stuff is high value [and] often would be of interest to business rivals, state entities, other things.
“You can imagine a situation where that information would be targeted.”
The committee is also waiting on provincial governments across Canada to update international arbitration statutes.
“That’s one of the things we’re working on, is making sure that those statutes get updated, because those statutes affect any arbitration seated within the various jurisdictions,” she says.
Cicchetti was elected to the role in October and assumed the position Oct. 15.
The committee’s current chairman is Stephen Drymer at Woods LLP in Montreal.
Cicchetti says one of her goals in this role will be to expand membership of the committee in Western Canada.
“I think this committee, it’s fair to say, represents the most active international arbitration practitioners in Canada, so we have a good cross-section of academics, practitioners, counsel and arbitrators and some good young members that have come up through YCAP, which is the Young Canadian Arbitration Practitioners,” says Cicchetti.
She says there are a few core firms with active international arbitration practices in Canada, and a number of other firms “that just have them crop up because they have clients who happen to have an international arbitration.”
In 2015, 40 Canadians were arbitrators with ICC International Court of Arbitration.
Most of the committee’s members are litigators, says Cicchetti, who have an interest or some experience in international arbitration. There are also members who are solicitors who do international deals and cross-border transactions, she says, or former in-house counsel who are current or past users of arbitration.
“Our goal is to make sure that everybody [who] is doing this work understands the full advantages of it and does a good job for their client,” she says.
A new interim head of Legal Aid Alberta joins the organization as it faces significant financial issues.
|Maria David-Evans is the new interim president and chief executive officer at Legal Aid Alberta.|
Maria David-Evans has been appointed as the interim president and chief executive office at LAA after former president and chief executive officer Suzanne Polkosnik resigned.
“I officially started on [October] the 26th, was when I was introduced to the staff,” says David-Evans.
She has extensive work experience in the public sector, including 31 years with the City of Edmonton.
She was a member of the Legal Aid Alberta board from August 2013 to September 2016, and she also served as a deputy minister for the Government of Alberta.
LAA — which has about 280 employees — has made headlines for funding challenges it has faced.
Earlier this year, in April, the media reported that the non-profit agency had received 37-per-cent more requests for service in the first three months of this year.
“Our issue has been funding . . . that continues to be a critical issue,” says David-Evans.
She says that, due to the economic downturn, there is still a higher amount of clients coming to LAA.
“If you looked just the other day, domestic violence in Calgary is the highest . . . they think that already this year it’s risen 36 per cent, so many of those people, of course, come to our doors for services,” she says.
On Oct. 20, the province of Alberta announced a funding boost for Legal Aid.
“An additional $9.4 million is being provided to Legal Aid Alberta, which administers the province’s legal aid program, to cover its operations and ensure the continuation of services for Albertans,” according to a government news release.
“This increase brings the total provincial funding for 2016-2017 to $77.9 million. Since May 2015, the provincial government has increased legal aid funding by 20 per cent.”
Regardless, David-Evans says the agency is still facing a “huge” financial crunch for 2017-18.
“It’s probably in the order of between $10 [million] and $12 million that needs to be provided into our budget. We’re working collaboratively with the Alberta government to try to figure out how to resolve that and we’re pretty positive about that opportunity to look at it collaboratively as a corporate issue,” she says.
In November 2015, Polkosnik said the agency faced “unprecedented demand.”
“Legal Aid Alberta (LAA) is experiencing record call volumes and more Albertans than ever before are qualifying for legal representation. LAA has been chronically underfunded and this additional demand for service has created an even more desperate situation,” said an LAA news release.
The 2015 release announced service changes that included a three-per-cent increase in the Financial Eligibility Guidelines and more family duty counsel at the provincial and Queen’s Bench courts.
“The previous [provincial] government increased the financial eligibility guidelines back in  by 18 per cent, and this government also increased the financial eligibility guidelines by another three per cent to ensure that the poorest Albertans . . . have an opportunity to get legal representation when they need it, and to get it quickly, and so that needs to be funded,” says David-Evans.
“For this year, the government has, in fact, funded that, but it hasn’t been without trials and tribulations since we moved through the funding issue, and certainly, prior to that, the organization has made huge changes in services to accommodate the funding pressures.”
If there is a funding gap, David-Evans says the board will make recommendations to the minister, who is ultimately responsible for making service changes at LAA.
“What we want to do is work collaboratively with the government of Alberta, and their various ministries, that both benefit from the services of Legal Aid, as well as we want to ensure that they’re aware of the cost avoidance of our services, in other words, the downstream costs that they would have to bear if the services weren’t here,” she says.
David-Evans said there will be three partners involved in choosing a permanent president and chief executive officer for LAA — the Government of Alberta’s justice department, the Law Society of Alberta and Legal Aid Alberta.
David-Evans did not comment on the reasons for Polkosnik’s resignation.
“All I can tell you is that she tendered her resignation, the board accepted it and, because of the financial situation of the organization, and certainly, we only have a very few [vice presidents] left, the board wanted to ensure that there was stability in the organization, so they asked me to step in and see if I would do this on an interim basis,” she says.
David-Evans said there are 1,151 active status roster lawyers at LAA, plus 82 students at law. There are also 77 in-house lawyers at LAA, plus another eight lawyers in management/administrative roles.
|Adrian Ishak says there is ‘an increasing fuzziness around the nature of the relationship of salaried partners’ to their firms.|
The ruling in Daniel v. Miller, Canfield, Paddock and Stone LLP, 2016 ONSC by Justice Peter Hockin relates to plaintiff Julie Daniel’s motion to receive severance after a partnership dissolved between Windsor-based Miller, Canfield, Paddock and Stone LLP and a Detroit-based international firm, Miller, Canfield, Paddock and Stone, PLC.
After the dissolution, three lawyers set up a reconstituted version of the firm with the Detroit-based international firm, and others relocated to Windsor firm Shibley, Righton LLP. However, these arrangements did not include Daniel, who argued that as an employee of the firm she was entitled to damages.
“The plaintiff in this case takes the position that at [Miller, Canfield, Paddock and Stone LLP], she was an employee and that in these circumstances the termination of her employment at [Miller, Canfield, Paddock and Stone LLP] amounted to constructive dismissal, without notice. She pleads that in these circumstances, she is entitled to damages for wrongful dismissal,” said the ruling by Hockin.
Daniel was called to the bar in 1989 and joined the Windsor firm — known formerly as Wilson, Walker, Hochberg, Slopen — in 2000 as an associate, before the Detroit-based international firm purchased a controlling interest in the Windsor firm in 2002.
As of 2006, Daniels had the job title of “salaried international principal” at the firm doing work related to corporate finance. The ruling notes she received the financial statements of Miller Canfield, Paddock and Stone, PLC and could go to the firm’s annual general meeting of principals.
However, Daniels argued she was not a partner in the firm because of her “non-involvement in the determination of compensation within the firm,” as well as other reasons.
Hockin disagreed — noting the terms of ‘principal’ and ‘partner’ are “interchangeable,” and “in the context of the practice of law, they mean the same thing.”
“The plaintiff until 2006 was an associate, but her status changed when she was admitted to [Miller, Canfield, Paddock and Stone PLC] as a salaried principal. Thereafter, she attended and participated in the regular meetings of the [Miller, Canfield, Paddock and Stone LLP] partnership. On notices, agenda and minutes, she was included and noted as a partner,” Hockin said, in his ruling.
“It could not have been lost on her that the firm’s associates were not present, nor that the subject matter of meetings was the conduct and management of the firm.
Decisions were taken on such matters as promotion, charitable donations, leases, billing and receivable problems and the firm’s reaction to [Miller, Canfield, Paddock and Stone PLC]’s criticism of staffing and overhead issues.”
Hockin ultimately finds Daniel was, indeed, a partner.
“…I do not find that the plaintiff was anything but truthful in her opinion that she was not a partner. It may have been honestly held, but based on all the evidence and the result, it was wrong,” he said, in the ruling.
Landon Young, managing partner at Stringer LLP, says the case “follows the well-established principle that if you’re a partner, you’re not an employee, and that means you don’t receive reasonable notice of termination.”
Young did not act in the case.
“It’s also consistent with other cases in human rights contexts,” he said. Young pointed to McCormick vs. Fasken Martineau Du Moulin LLP, which Hockin also cited.
“Legally, there is a significant difference between being a partner and being an employee,” said Young.
Adrian Ishak, a partner at Rubin Thomlinson LLP, says “these are issues that don’t crop up all that frequently.” Ishak did not act in the case.
“The reality is, I suspect that these issues tend not to get litigated all that frequently, because most environments where this takes place, brand is important, so it’s much better for all parties involved to settle than it is to litigate,” he says.
Ishak says law firms are generally going in one of two directions, “either in the direction of the mega-firm or in the direction of much smaller, and more local.”
“There’s an increasing fuzziness around the nature of the relationship of salaried partners to the firm,” he says.
Daniel’s lawyer, Robert Matlack, did not respond to a call for comment.
Suzanne Porter, who represented Miller, Canfield, Paddock and Stone LLP, did not provide comment.
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