Jennifer Brown is the Managing Editor of Canadian Lawyer InHouse and Law Times. She has been a business magazine writer and editor for 10 years covering the IT, occupational health and safety, and security sectors for the business-to-business press prior to arriving at InHouse. She was also a newspaper reporter for five years in the Greater Toronto Area covering health care and education before going to work at a daily news online portal reporting on the technology sector.
|Meerai Cho pleaded guilty in Ontario provincial court Wednesday to one count of criminal breach of trust.|
The matter was heard before Justice Jamie Chaffe at the 1000 Finch Avenue West court.
As Law Times reported in September 2014, Cho was arrested and faced 75 charges related to fraud over $5,000, possession of property obtained by fraud and breach of trust. At that time, she said she transferred the condo purchasers’ deposit funds, which she was holding in trust, to her client who was the developer of a North York building. The transfer of the funds to the developer was contrary to the rules of the Condominium Act.
“What it came down to was a breach of trust — all the facts went into the one count as opposed to 75 counts,” Trudell says. “She didn’t set off to defraud anyone. She didn’t put any of the money in her own pocket.”
Cho claimed she transferred the money to the developer, Joseph Lee, through an “honest mistake” due to her inexperience.
Trudell says $13.5 million went through her trust account to the developer. The money came from purchasers of condo units in the Centrium condo project at 5220 Yonge Street in Toronto. The project had about 140 investors — at least 50 of them were in court on Wednesday.
“Unfortunately, she trusted him completely, unquestionably and he took off with all the money and is hiding somewhere,” Trudell told Legal Feeds.
As late as 2014, the developer would send Cho emails indicating he was sending her the money back.
“She kept feeding his demands to save the project and continued to do that because she thought he was going to send the money back and the project would work,” says Trudell.
At one point, Cho mortgaged her own home and gave $400,000 of her money to try and save the condo project.
Trudell says Cho received none of the money and that was a significant factor in the court not ordering restitution.
“If you get the fruits of the crime, then obviously restitution is appropriate, but in this case, because she got nothing, she has nothing and chances of repaying it are negligible and she was receiving a penitentiary sentence on the scale of large-scale fraud,” he says.
Cho stopped practising law and agreed to temporary suspension of her licence in 2014 and will now lose her right to practise.
Trudell described it as an “emotional day in court” as seven people read victim impact statements.
“The victim impact statements were raw and emotional,” says Trudell. “They are people who are still angry, of course, but when they realize she got not one penny, people might look at her a little differently.”
Trudell said some victims have made applications to the Law Society of Upper Canada compensation fund and it is "anticipated the victims will be compensated."
In a statement, the LSUC said its Compensation Fund "will move as quickly as possible to provide claimants with any grants for which they may be eligible, on the basis of the lawyer’s dishonesty. The process is already underway and, if grants are approved by the Compensation Fund Committee, eligible claimants should begin receiving fund grants in the spring."
Cho’s guilty plea and the evidence provided will be used to complement the LSUC's own evidence during the law society hearing, which is currently scheduled for March 8, 2017.
There is no limit on the total number of grants paid in respect of an individual lawyer. The Compensation Fund has per claimant limit of $150,000 for losses resulting in the period between September 2010 and July 2013, when Cho transferred monies held in trust for the purchasers to the developer of the condominium project. Each claim is assessed on its own merits to ensure it conforms with the Law Society Act and the Compensation Fund Guidelines.
Cho, originally a journalist in Korea, came to Canada and became a lawyer. Trudell says many of the victim impact statements came from people who also came to Canada to invest and lost everything.
“A lot of the victims said they had no faith in Canada and the justice system and legal system because lawyers are supposed to protect them,” says Trudell. “She [Cho] stood up, apologized to them and told them not to lose faith in the legal system . . . She said there are a lot of wonderful lawyers; don’t use me as an example.”
Cho will serve the sentence in a federal institution, likely Grand Valley Institution for Women in Kitchener, Ont.
Lawyers for the victims are also pursuing civil actions.
Trinity Western University et al. v. Law Society of Upper Canada will be heard with Law Society of British Columbia v. Trinity Western University, et al.
The university won in British Columbia, where an appeal court overturned a law society refusal to accredit its graduates, but it lost in Ontario, where the law society refused accreditation. The Nova Scotia Barristers’ Society lost twice in court against Trinity Western and has said it doesn’t plan to appeal.
Read more about the Trinity Western law school proposal and the debate that has taken place in the profession around the issue in the Canadian Lawyer magazine February cover story "Dividing the bar."
|Caravel Law co-founder Joe Milstone says law firms in the U.S. have been making common, basic precedents available for quite some time.|
Recently, Caravel Law, formerly Cognition LLP, launched Caravel Law Compass — a platform to assist startups and investors in generating free first-draft documents and expedite the financing process.
“The idea is about making basic information and documents ubiquitous and available to everybody,” says Caravel co-founder Joe Milstone, who notes it may also be a tool used by in-house counsel.
“There is really no reason why this couldn’t be incredibly valuable to corporate counsel as well, in terms of doing financing and in-sourcing — it’s one of those areas often considered not a core area of expertise and so they flip it outside,” he says.
Using technology and automation, Caravel took documents important to small to mid-size companies to create early drafts of what tend to be common financing documents.
“More than making the templates available, we’ve created a way to provide free access to this portal and tool so companies plug in information and develop their own initial drafts, which can save them a lot of money,” says Milstone.
When the company decides it needs further legal advice, it can go to outside lawyers, but in between, it has saved some money as opposed to paying for a precedent that has been created over and over again.
“There’s no reason why it can’t be valuable to corporate counsel as well in terms of how they are doing financing and in-sourcing more than they traditionally have. You’re often paying a lot of money for what is likely pulling a precedent off the shelf in many cases,” says Milstone.
In creating the tool, Milstone says Caravel looked at the “best of breed” of various documents and using Contract Express (a product developed by a U.K-based company prior to it being acquired by Thomson Reuters in October 2015) created the appropriate questions to self-generate documents at the early stages of a matter.
Caravel has a partnership with National Angel Capital Organization to provide the service for its members and small to medium-size companies. Caravel used the tool to create automation for basic incorporation, but it had not taken it a step further for the financing process.
“The thinking is that there is no inherent IP value in just a document or a precedent,” says Milstone. “We hope to, and we feel we can play a valuable role in terms of customizing and tailoring and negotiating those documents. But if we can’t add that value, then, frankly, we’re happy to make that IP available to everybody on a free basis. Our value comes in with what we can do with it afterwards.”
The next step for Caravel, says Milstone, is creating similar frameworks and templates for regular business documents such as non-disclosure agreements, supplier, vendor and sales agreements.
This kind of service has been offered by some firms in the United States for quite a while, including Cooley LLP, an international law firm based in Palo Alto, Calif. It is a firm often pointed to as a primary example of how firms are making precedents available to clients for free.
“It’s been done in the States by larger firms long ago and long-awaited in Canada but has been frustratingly not available for companies,” says Milstone.
|Nathaniel Lipkus and Bradley White represented Mylan Pharmaceutical in the case involving a commonly used anti-inflamatory drug.|
AstraZeneca Canada Inc v. Mylan Pharmaceuticals ULC. It is the first ruling on the validity of the Vimovo formulation patent anywhere in the world.
The naproxen-esomeprazole combined drug is used for patients with arthritis who might have some risk of side effects with their stomach.
The drug is used for osteoarthritis, rheumatoid arthritis and ankylosing spondylitis — a form of spinal arthritis. It is one of the most heavily prescribed class of drugs on the market.
While separately naproxen and esomeprazole were already generically available, some patients might be prescribed two pills to take but not always follow through to take them together. Now they can get what they need in one pill and for less cost. The generic version should be on the market imminently.
Similar patents are currently being litigated in the United States.
Although naproxen and esomeprazole are both generic drugs in Canada, the Vimovo patent enabled AstraZeneca to charge a higher price for its combination product.
Mylan was arguing that the formulation patent was obvious in view of the prior art and what was out there, while AstraZeneca was saying the formulation was inventive.
The court found the combination formulation to be obvious given prior art and common general knowledge.
Bradley White, partner at Osler Hoskin & Harcourt LLP who led the case for Mylan, says the two components of the drug — naproxen and esomeprazole — were already genericized products.
“What the patent in this particular case covered was a formulation that combined these two products together into a single dosage and it was that formulation they asserted was inventive,” he says.
“The fact these two components were already generically available, it really seemed like a formulation patent that had been put in place that would permit the brand company to charge brand prices for something that to some extent was already being done.”
The case turned specifically on the expert evidence filed in this case, says White.
In the decision, Justice Alan Diner wrote: “I agree with Mylan that this combination was an example of illustrating the prior art.”
“Overall, it’s clear the courts favoured our evidence,” says White. “We were saying all these various elements of this particular formulation were known in the prior art and, therefore, it would have been obvious to the person to bring the various pieces of the prior art together along with common general knowledge to arrive at the invention.”
It is common for patent holders to try to combine their drug with another drug and see if there is a way to extend their patent protection.
“In this case, we had a very decorated clinician who said these drugs are being combined in the clinic all the time and there isn’t really anything special about putting them together,” says Nathaniel Lipkus, partner at Osler who was on the team with White for Mylan.
AstraZeneca argued the way it formulates the drug is special, but through the evidence, Mylan was able to demonstrate the way AstraZeneca did it was something that had already been done before.
“When you added it all up, there wasn’t an inventive contribution,” says Lipkus.
He says one of the things judges have a difficult time doing is stepping into the shoes of the scientist confronted with this problem.
“Our formulators did a great job helping the judge step into those shoes and explain that ‘we know how to formulate these drugs together and there are pre-existing formulations that look exactly like this, just with different drugs’ and the judge was clearly persuaded by that evidence,” says Lipkus.
There is still an opportunity for AstraZeneca to commence an infringement proceeding against Mylan upon launch of the generic version of the drug.
|Justice Frank Newbould|
According to a statement from Newbould’s lawyer Brian Gover of Stockwoods LLP, the Indigenous Bar Association filed a complaint with the CJC related to a proposed land claim settlement that was discussed in 2014 at a public meeting called by the Mayor of Sauble Beach.
The land claim was to part of Sauble Beach. At the meeting, comments about the proposed settlement were requested. Newbould’s family has a cottage in the area and has owned it for nearly 100 years. He spoke briefly at the meeting.
He also wrote a letter to the town council in his “personal capacity” about the issue. Feedback had been invited before the council was to formally consider the proposal.
Newbould was notified by the CJC of seven complaints that followed, questioning whether a judge who owns property that may be affected is entitled to comment on such issues.
The complaints were dismissed by the CJC including one from the Indigenous Bar Association in January 2015 on the basis that “no further measures need to be taken by the Council pursuant to its mandate under the Judges Act.”
“The Chairperson of the CJC’s Judicial Conduct Committee expressly found that it was not in the public interest to request additional information from the complainant, or to seek Justice Newbould’s comments and those of his chief justice. Nor did the Chairperson consider it to be in the public interest to refer the matter to a Review Panel,” according to the statement from Gover.
In June 2015, the IBA requested the CJC reconsider its decision.
“It has been the position of Justice Newbould that after the complaints were dismissed, the CJC has no jurisdiction to reconsider a closed complaint. However, yesterday, February 13, 2017, the CJC notified Justice Newbould of its Review Panel’s view that this power does exist and of its decision to constitute an Inquiry Committee. This was done despite the fact that Justice Newbould had previously notified the Minister of Justice of his retirement, effective June 1 of this year, for unrelated personal reasons.
“The situation raises an issue involving perception,” the statement says. “It is one for which Justice Newbould apologized in 2014 due to the perception caused by the fact he is a judge. Throughout the entirety of his distinguished judicial career, Justice Newbould has carried out his duties effectively and without bias.”
Newbould, team lead of the Commercial Court List in Toronto, is perhaps best known for overseeing the lengthy cross-border Nortel trial.
The decision to go ahead with the inquiry was made by a Judicial Conduct Review Panel of five members, which, in accordance with Council’s 2015 procedures, brought in additional transparency and public participation to the process. The panel was comprised of three members of Council, one puisne judge and one layperson.
Members of the panel reviewed allegations relating to the judge’s participation in the debate on the proposed settlement to a boundary dispute that was the subject of a land claim involving a First Nation in Ontario.
The CJC has confirmed the issue is related to a claim in Sauble Beach involving the Saugeen First Nation.
After review of the matter, the panel agreed that, if proven, the allegations surrounding the intervention of Newbould in the context of a court case could be so serious that they may warrant the judge’s removal from office.
Nuri Frame of Pape Salter Teillet LLP, a firm that represents the Saugeen First Nation, told Legal Feeds his client did not file the complaint against Newbould despite its “deep concern about his conduct” and that his involvement had “impaired its interest and impaired the ability of all parties to arrive at a successful resolution to the issue outside of trial.”
“It is my understanding that Justice Newbould participated in a community meeting in the fall of 2014 and that Justice Newbould subsequently wrote one and perhaps more than one letter to the municipal council up there with respect to Saugeen First Nation claim regarding Sauble Beach, which is obviously a litigation going back to the middle of the nineteenth century with respect to the improper delineation of where Saugeen’s reserve ends and the failure to recognize the entirety of Saugeen’s reserve pursuant to their treaty of 1854,” says Frame.
In its statement, the CJC noted that “it is important to note that all allegations regarding the judge have not been proven. The Inquiry Committee will have the responsibility of establishing the facts about this case and of presenting a report to the Council.”
In accordance with the CJC’s Inquiries and Investigations By-laws, the inquiry committee will be comprised of an uneven number of members, the majority of which will be council members. The Minister of Justice will be invited to designate one or more members of the Bar.
|Roy Heenan, co-founder of Heenan Blaikie LLP, passed away Feb. 3. (Photo credit: Toronto Star)|
Norm Bacal, who was national co-managing partner for 16 years at Heenan Blaikie, was first a student in Heenan’s labour law class at McGill Law.
“That’s how far back we go,” says Bacal. “But I only got a ‘C’. The running joke in the firm for years after I was hired into the tax department was that I would never have to do any labour work and Roy would never have me.”
While he had only spoken with Heenan once in the last couple of years, Bacal says when he heard the news about his death he felt a “great sense of loss” for the person who had been a major influence on his life.
“Roy and Peter changed my life and sent it in a particular direction,” he says.
Montreal lawyer Karen Rogers also started her career with Heenan, working with him from 1990 to 2014.
“In one word, he was a passionate person and his passion was in the law, in advocacy, for his clients, the firm — and you could feel it,” says Rogers, now a partner at Langlois LLP and chairwoman of that firm’s litigation group. “As a young lawyer and even growing up with him, there was this enthusiasm and need to do the best of your ability. What he built at Heenan, he believed a lot in people and working as a team with respect and not only the lawyers but the support staff and to appreciate the value of the whole team.”
Rogers recalls Heenan giving speeches at the firm emphasizing that it was the “kindler, gentler firm.”
“That was very important to him,” she says.
Bacal, who also “grew up” at Heenan Blaikie, recalls Roy Heenan as another kind of teacher, saying he learned a lot from him about how to approach people.
“He cast a giant shadow because he was a big personality, but on top of everything else, he was a real gentleman, always. There are so many aspects to him as an individual and so many lessons that he taught that I think he did without meaning to teach.
“Part of what Roy taught I’m not sure he was even aware he teaching,” Bacal says. “He was charming and it didn’t matter who you were — whether it was the receptionists, the hostesses, Fidel Castro, he treated you the same way,” he says.
Heenan Blaikie became known as a firm that offered a different climate for lawyers to practise law and be treated differently. It rose to fame as having one of the top labour and employment practices in the country.
“He was a brilliant jurist and will always be remembered as such in the labour community,” says Bacal.
Rogers also worked with co-founding partners Peter Blaikie and Don Johnston. She recalls the firm having a mandate to not just work for big clients but do smaller files and help less fortunate clients — something that mattered to Heenan.
“I think he could have worked anywhere and he didn’t want to do law for money, he did it because he enjoyed it,” she says. “When you’d go to court, you’d see him running down the hallway in his gown — he was a passionate person who didn’t necessarily do things the way lawyers generally do things. He felt if you did well and excelled at what you did, the rest would fall into place.”
When the firm collapsed in 2014, it was “extremely hard” for Heenan, Rogers says, adding that for her even today it’s “difficult to understand.”
“The firm folding was not about the majority but the minority who did not necessarily get along, which caused the whole thing to happen. It wasn’t a financial issue. I was a partner at Heenan and I didn’t anticipate it, to be quite frank, and I’m pretty sure Roy didn’t anticipate it either,” she says. “It was probably one of the biggest deceptions of his life.”
Heenan will also be remembered for his role in the Canadian arts world. Rogers remembers the art in the Montreal office and how Heenan decided where each painting would go.
“He built, possibly single-handedly, the reputation of a number of Canadian artists, simply by the volume of Canadian art he bought over the years,” says Bacal. “He found many unknown artists and held on to their works until they became known.”
Bacal has written a book about the fall of Heenan Blaikie called Breakdown: The Inside Story of the Rise and Fall of Heenan Blaikie, which will be released Feb. 28.
As a leader, he was described as unique. “Even his detractors loved him,” says Bacal.
Visitation for Heenan is today at the Kane & Fetterly Funeral Home in Montreal. A funeral service will be held tomorrow, Friday Feb. 10, at 1 p.m. at St. George Anglican, 1101 Stanley Street in Church in Montreal.
NEW YORK — While tech disruption and innovation in the legal market is causing law firms and in-house departments a lot of pain as they try to adapt, no other one trend has been quite so vexing as recent political challenges including the new administration in Washington and the Brexit vote.
|ALM analyst Daniella Isaacson says political and economic disruption is number one issue for legal leaders.|
“What we consistently hear is that the impact of political and economic disruption is their single biggest concern,” said Daniella Isaacson, senior analyst with ALM Intelligence, who speaks regularly with managing partners, general counsel, vendors and consultants in the legal sphere.
Isaacson was speaking together with Nicholas Bruch, senior analyst also with ALM Intelligence, as part of the opening address to the Legaltech conference in New York City today.
Bruch said the biggest concerns for firms and in-house departments are around things they can’t control and regulations are just one big piece of that puzzle.
“If you look across the world, you see this very clearly if you look at the two biggest markets — the United States and the U.K. — what we see is uncertainty. I think it’s safe to say there is a lot of uncertainty over the new administration,” said Bruch, referring to the Trump presidency in Washington. “In the U.K., it’s Brexit that is driving it. We also see a similar story in the EU, in the Middle East and in future of U.S.-Asia trading.”
The global CEO of Dentons, Elliott Portnoy, who appeared in a video as part of the presentation, agreed that regulatory uncertainty is good for business but comes at a time when firms face many other challenges.
“The most consistent theme I hear from clients is that their greatest concern is regulatory uncertainty in key markets and that does create more work for our firm and others but comes at a tricky time for the industry,” he said.
Given this world of uncertainty is one in which law firms and increasingly many in-house legal departments live and work, and as lawyers are also risk managers, the state of the world should not be viewed as a threat but an opportunity to serve as advisers in difficult times.
“For law firms, it means more questions, more clients, more billable hours. For law departments, it’s an opportunity to showcase your abilities to the broader organization,” said Isaacson.
Portnoy said firms like Dentons need to be “far more nimble, far more agile in adopting the same innovation strategies that our clients are using.”
New competitors providing new services are also a threat — not just other law firms competing with each other but also in-house departments competing with law firms and service providers particularly who are creating something entirely different with artificial intelligence, blockchain and machine learning.
Bruch also noted that the in-house departments are also under pressure and are rapidly changing how they source services. There are companies leveraging non-lawyers, virtual lawyers and contract lawyers. ALM Intelligence data shows 80 per cent of law departments are in-sourcing more and 40 per cent are decreasing their use of law firms, while 70 per cent are increasing their use of alternative service providers.
Isaacson said firms can save millions by moving to shared service centres or from re-engineering staffing.
At an earlier session with ALM editors, top trends discussed included a move at some firms with regulatory practices taking on social media work for clients in a model that doesn’t require the staff involved to bill hours. This signals a move toward firms generating revenue in different ways and having to determine how partners take that revenue home.
Requests for proposals also continue to determine who gets work. Often defined as “Flintstone or Jetson” firms — those who demonstrate they are using technology and better understanding how a company works are winning over the Flintstone firms. In one instance, a firm lost a bid when it proposed addressing certain matters by going to trial even though the company had expressed no interest in arriving at a solution that way.
Analytics were also highlighted as a big driver for law firms this past year. There is also a trend toward consolidation in the e-discovery sector, while cloud technology has seen a slower adoption. It is expected that artificial intelligence will pick up speed in the next year or two.
Legaltech continues tomorrow and Thursday.
The Law Foundation of Ontario’s Responsive Grants Program is accepting applications from non-profit groups interested in improving access to justice.
Each year, the Responsive Grants Program includes one round of major grants (up to $100,000) and two rounds of small grants (up to $15,000). The next deadline for both small and major grants applications is March 31.
“We really leave it to the community and to the organizations that know the legal needs of the communities to tell us what needs to happen and what projects are beneficial to the community,” says Kirsti Mathers McHenry, director, policy and programs with The Law Foundation of Ontario.
Responsive Grants aim to encourage new ideas, innovations, approaches and relationships that can help address emerging needs and connect more people to legal information and supports, especially people who are not currently being reached.
Organizations based outside Ontario can apply to the foundation for a grant if the proposed project offers a benefit to the people of Ontario.
The grants have provided seed money for hundreds of innovative projects across Ontario. For example, past grants have provided legal information support for street youth, funded a theatrical production to educate Thunder Bay high school students about restorative justice and funded the pilot of “That’s Not Fair!”— an animated series of videos, online games and lesson plans to introduce children to critical thinking about democracy.
Organizations that are interested in applying are encouraged to review the foundation’s full listing of grants made and to contact one of its grants officers with any questions or ideas they may have.
“We do see timely projects like LifeLine Syria’s application that respond to emerging and current needs,” says Mathers McHenry.
Some applications come from lawyers or non-profit organizations run by lawyers.
“There are also a lot of community agencies that know there is a legal need among the population they are trying to serve and they can connect to a lawyer and bring the expertise in to the organization temporarily for the project,” she says.
In some cases, the applications seek to develop an app or deliver information through a web portal or site.
“We see a lot of interesting ideas around technology and access to justice. We do a lot of work training front-line workers and we fund training to support those front-line workers,” she says.
The Law Foundation’s board of trustees makes the decisions on who receives the grant funding. The current chairwoman is Linda Rothstein of Paliare Roland Rosenberg Rothstein LLP.
“They are thoughtful, accomplished leaders in the justice sector and they make all the decisions about what gets funded,” says Mathers McHenry.
For full details and funding criteria, go to lawfoundation.on.ca.
Despite much talk over the last decade around boosting diversity and inclusion in law firms, women and racialized lawyers continue to be under-represented in the Canadian legal profession with Caucasian men continuing to far outnumber those two groups in senior leadership roles, according to a study from the Canadian Centre for Diversity and Inclusion.
In fact, the study shows Caucasian men who responded to the survey have the greatest odds of being an equity partner, and they are seven times more likely than racialized women to be an equity partner.
The study, “Diversity by the Numbers: The Legal Profession,” conducted by the CCDI in partnership with the Canadian Bar Association, shows the representation of minority groups in the legal profession has not changed substantially over the last three years that the CCDI has been collecting data. In 2014 and 2015, 73.99 per cent and 76.88 per cent of senior leader respondents were men. In 2016, 75.34 per cent of senior leader respondents to the survey were men and 90.78 per cent of senior leaders were Caucasian.
In 2014 and 2015, 89.28 per cent and 88.91 per cent of senior leader respondents were Caucasian respondents, respectively. Another statistic of note is that 81.9 per cent of senior leaders are equity partners.
“Results from 2014, 2015 and 2016 do not show a shift towards a more diverse and inclusive workforce, particularly in partner and leadership roles,” the report states.
The study, sponsored by Borden Ladner Gervais LLP, Cassels Brock & Blackwell LLP, Dentons Canada LLP, McCarthy Tétrault LLP and Miller Thomson LLP, shows women and racialized respondents are under-represented in equity partner and senior leader roles and over-represented as associates and articling or summer students.
Authors of the report say factors contributing to the perpetuation of these numbers include “inflexible working conditions, rigid firm culture, high client expectations and overall economics of the profession.”
While some might point to a tough economy since 2008, Deanna Matzanke, director, measurement and analytics at the CCDI, says the economy is a “significant red herring” and what the report shows is “a compelling validation” that the current law firm model makes it difficult for women and minorities to rise to equity partner positions.
“ . . . the process of billable hours, the emphasis placed on client relationships, and the hierarchal ‘Old Boys Club’ network in law firms do not support or foster a diverse and inclusive environment.”
The report goes on to say that women find themselves in a difficult position when faced with trying to balance family needs with law firm demands. Also, “ . . . lawyers from minority groups do not have the same social and cultural capital to network and find mentors who relate to them, because the pool is very small.”
That means many leave the law firm culture for more flexible and accommodating environments elsewhere, such as in-house roles or solo practice.
Matzanke, a lawyer herself, says the results of the study are disappointing and show that diversity and inclusion are not being successfully implemented in the legal profession, despite the fact the pool of potential lawyers in law school has increased in diversity and at the associate level at law firms shows fairly high diversity.
The majority of racialized respondents in the legal profession are Asian, while all other groups show very small representation.
A total of 11 firms from nine provinces and one territory participated in the 2016 survey. Firms were invited to participate directly by CCDI via the Law Firm Diversity and Inclusion Network, and the Canadian Bar Association sent a letter to all members.
“There’s nothing surprising here really,” says Level Chan, a partner with Stewart McKelvey LLP in Halifax and the CBA’s representative on the CCDI’s advisory committee.
“As to why we’re not moving the needle much, I think it’s a matter of retention and advancement, and as you see particularly with women, there continues to be over-representation at the associate and entry level areas of the firms, but we’re not keeping them. I think that in turn is translating to having fewer people available for senior roles and as equity partners. That is the ongoing issue we’ve had in the legal profession.”
Chan argues the economy has played a factor as he says “many law firms” have gone through rounds of layoffs and that would impact the ability of people to get into partnership roles as well.
In-house lawyers and their powerful role in the market is also a big factor. With law firms under regular scrutiny by corporate clients on use of the billable hour, the ability to maintain revenue streams has been a challenge.
“My anecdotal observation is that, of course, when there is less work there is less billable hours and less billings that would translate into the numbers admitted to partnership,” he says. “One of the common responses from clients to reduce their legal costs is to hire in-house lawyers and find internal resources to do due diligence or review contracts, so that is driving that change on the in-house side, too.”
There are also more attractive roles for in-house lawyers seeking something different from the usual private practice path.
Chan says from what he has seen, those lawyers leaving big law firms are women and other minorities being drawn to in-house positions offering certain elements not offered in traditional law firm compensation schemes, such as pensions, benefits or other financial incentives.
“So long as you’re not getting racialized lawyers as partners, you’re similarly not really going to get racialized people in leadership roles and that also applies with women,” says Chan. “Certainly, I think firms are making a concerted effort to try and increase representation in leadership and I think there have been attempts to get more women in senior roles. While women are still underrepresented, there are still a larger pool of women to draw on for partners than there are racialized lawyers.”
Kate Broer, partner with Dentons Canada and a member of the CCDI’s advisory committee, agrees with Chan that lawyers have a “broader range of options” other than the traditional path of private practice and many are moving into in-house roles or to other opportunities.
The war on the billable hour may also be influencing who remains at the top of many law firms. Firms are generally taking on fewer students, and Broer says gone are the days of “guaranteed hire-backs.”
But times are changing and if firms are to retain certain talent and appeal to a new generation of clients that want to see greater diversity of talent and for their own staff who want better life balance, firms will have to better address the issue. Broer says these days it’s not only women who want to take time away from their careers to raise children but men, too.
She also points out that women are gaining voice at the top of some large firms. This year, Dentons Canada elected five women to its board of 10 directors in Canada. That is an increase from two out of 10 in the previous year and in 2009 none of the members of the board were women.
Although the CCDI tried to include Canada’s 22 law schools in the survey to provide a comparison of students enrolled against the broader profession, the schools did not participate this year, although it was originally scheduled to be conducted this year.
“My impression is there is a huge importance in getting that law school data,” says Chan. “I know in speaking to deans at law schools they do see it as an issue and are working on it, but no law school has really been particularly open and transparent with respect to that other than programs they would already have in place.”
Lawyers for the plaintiff in a youth solitary confinement class action against the province of Ontario are appealing an order that their client produce his young offender records to the Crown.
|James Sayce says judge doesn’t have jurisdiction over young offender records.|
J.K. v. Her Majesty the Queen in Right of the Province of Ontario involves allegations of Ontario’s “over-reliance on the use of solitary confinement on minors in Ontario’s youth justice facilities.”
The class action claims $100 million in damages for negligence and breach of fiduciary duty and $25 million in punitive damages. It covers everyone detained or incarcerated at youth detention centres from Jan. 1, 2007 to the present and were placed in secure isolation while under the age of 18. Lawyers for J.K anticipate the proposed class to “number in the thousands.”
J.K. alleges the Crown was “negligent, in breach of fiduciary duties, and has breached the Class Members’ rights under s. 7,9, and 12 of the Canadian Charter of Rights and Freedoms.
On Dec. 22, 2016, Justice Paul Perell of the Ontario Superior Court of Justice ordered J.K. to produce his young offender records to the Crown. Perell ruled that records relating to J.K.’s crimes and incarceration, which took place when he was a minor, are relevant to his motion to certify the matter as a class proceeding.
Perell said that “by commencing this class action and by delivering an affidavit, J.K. has waived his right of privacy while at the same time preserving the rights of privacy of the putative Class Members, who under the Class Proceedings Act, 1992, are protected from discovery without leave of the court.
“To be a representative plaintiff is to be a champion for the class and I anticipate that J.K. will be prepared to be a champion and make the necessary disclosure of relevant documents,” Perell said in his decision, noting “appropriate orders” can be made to seal the court file and that J.K. would be protected by the deemed undertaking rule.
The order asks for J.K.’s records for before, during and after his incarceration in a number of youth justice facilities in Ontario. The documents include behaviour reports, youth management plans, serious occurrence reports, secure isolation release plans, secure isolation observation placement review, secure isolation observation logs, and other correspondence.
Before the age of 18, J.K. was convicted of several criminal offences, and incarcerated at three different youth centres. He was placed in secure isolation several times in two of the locations, the first time when he was 15 years old. At one, he said the placements lasted up to 12 hours each time in a “small soiled room with no bathroom, bed, chair or mat.”
The Crown had also requested a full criminal history file from the Canadian Police Information Centre, however Justice Perell refused to order the production of that file.
J.K.’s lawyers, Koskie Minsky LLP and Sutts Strosberg LLP, are appealing Perell’s decision and have brought a motion to stay the order pending the appeal.
“Everything Justice Perell ordered to be produced is protected by the Youth Criminal Justice Act,” says James Sayce, an associate from Koskie Minsky.
“We think there are serious grounds for appeal and that the Court of Appeal will take issue with some of Justice Perell’s reasoning and what’s in the order,” he says. “We think Justice Perell has made some errors.”
“The acts, the occurrences, events that take place while you are incarcerated or while being rehabilitated are not to be published to the public or to individual litigants in litigation,” says Sayce.
Criminal lawyer Daniel Brown points to R. v. Sheik-Qasim that covers the rationale for protecting such records.
Brown says while there are a number of scenarios where someone could gain access to YCJA records, none in s. 119 of the Act would apply to defending a civil lawsuit.
“It’s surprising that this judge would order that the young person needs to disclose his records in order to advance a civil action. It would appear to run contrary to the principles of the Youth Criminal Justice Act and the purpose behind sealing those records in the first place,” he says.
The Crown argues that the Youth Records are relevant to the certification motion with respect to whether J.K. was in secure isolation, the particulars of the institution and time spent in isolation and whether he is an “appropriate representative plaintiff” as well as to test his “credibility on the matters about which he deposed in his affidavit.”
As it stands, J.K. has been ordered to obtain the files and produce them to the Civil Law office Crown.
Sayce says the relevance of ordering the records to be produced is at issue as a certification motion is not about the merits of the claim but asks, “Can it work as a class action?”
In his decision, Perell acknowledged that “a judge, managing a class action is not a judge of the Youth Justice Court” and that he doesn’t have jurisdiction to make an order under the Youth Criminal Justice Act to grant access to records. However, he decided that:
“…it is patently obvious to me that the requested Youth Records are relevant to the certification criterion, most particularly to the common issues and preferable procedure criteria.
“The proposed common issues for the class actions concern the details of the circumstances and duration of placement in secure isolation.”
Sayce says the case is about a “systemic problem”, not about one individual’s experience.
The Office of the Provincial Advocate for Children and Youth released a report in 2015 entitled It’s a Matter of Time, which provides details on the use of solitary confinement on children in Ontario.
The report takes issue with the use of solitary confinement in Ontario’s youth justice facilities and advocates for greater safeguards and/or the complete eradication of the use of solitary confinement on children in Ontario.
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