Legal Feeds Blog
A renowned rider originally not selected for the Canadian team at the upcoming Rio Olympics will now be included, after arbitration through the Sport Dispute Resolution Centre of Canada.
|Robert Cohen says a recent arbitration involving an internationally ranked equestrian, and that overturned the selection of riders who would be attending the Rio Olympics, is ‘exceptional.’|
A selection panel had chosen four riders, and their respective horses — including Robinson, but not Phoenix — to compete in eventing, which arbitrator Robert P. Armstrong of Arbitration Place describes as “an equestrian competition where a single rider/horse combination competes in the three phases of dressage, cross country and show jumping.”
Phoenix, Don Good, owner of horses Pavarotti and Bentley’s Best, and Anita and Don Leschied, owner of the horse A Little Romance, argued that Phoenix “is and has been Canada’s leading Eventing competitor for the last 10 years with significant international achievements,” and that she “satisfied all Nomination Criteria to be appointed to the 2016 Olympic Team” riding Pavarotti or A Little Romance.
“They further submit that Kathryn Robinson, who was selected to the team with her horse, Let it Bee, simply does not measure up to Ms. Phoenix,” said the ruling.
Armstrong ultimately agreed, after arbitration took place July 6, and a decision on July 11. He ultimately ruled Phoenix should attend the Olympics with A Little Romance.
Peter Howard, of Stikeman Elliott LLP, told Legal Feeds by e-mail that “Ms Phoenix, her owners, and us as their counsel, have not and do not intend to comment on the ruling.”
The hinge of the decision were conversations that occurred at the Bromont CCI3, a competition in Quebec, where Phoenix did not ride with the horses Pavarotti and Bentley’s Best. The conversations in dispute were between Phoenix and Clayton Fredericks, who the ruling describes as “a former Olympian who competed in eventing competitions for Australia” and coach of the team, and between Fredericks and Good.
“Mr. Fredericks acknowledged that it was his view that Ms. Phoenix should have run Pavarotti and Bentley’s Best at the competition in Bromont. He acknowledged that he expressed this view to Ms. Phoenix. However, he denied that he threatened Ms. Pheonix that her failure to run the horses in Bromont would keep her off the Olympic team,” said the ruling.
Armstrong, however, said in his ruling that he accepted that “Fredericks earnestly believed that both horses needed another run at cross-country before the Selection Panel would meet.”
“However, he became a man with a mission on this issue and my assessment, unfortunately, is that he lost it,” said the ruling. “He told both Mr. Good and Ms. Phoenix that Ms. Phoneix’s four horses would not be considered for the Rio Games for failure to run in Bromont — an event that was clearly not mandatory.”
“It is essential that a selection panel proceeds impartially and applies the nomination criteria in a way that ensures fairness and also the appearance of fairness,” said the ruling. “The approach taken by Mr. Fredericks with Mr. Good and Ms. Phoenix fails that test.”
Robert Cohen, a partner in the advocacy group at Cassels Brock & Blackwell LLP, has acted in sports and entertainment arbitration disputes, and called the case “exceptional.”
Cohen was not involved in the case, but says he does “not think that this case will unhinge the deference that arbitrators and courts must show for reasonable decisions rendered by Olympic or other team selection panels acting in good faith and applying appropriate considerations.”
“This seems to be one of those rare cases where, through the [marshaling] of compelling evidence, a disgruntled athlete could actually demonstrate the appearance of bias, a flawed consideration of factors by the selection committee, and possibly undue pressure being placed on other members of a selection committee by an influential member, who was ‘on a mission’ to impose his own conditions for inclusion on a team, even though those conditions were not requirements of the published selection considerations,” says Cohen.
“In short, this was a perfect storm of evidence to demonstrate the improper exercise of discretion of a selection committee so as to allow the arbitrator to find that their decision was both procedurally and substantively flawed to such an extent that an arbitrator could justifiably ‘gallop’ over the selection panel’s expertise and decision.”
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It seems Canadian lawyers are spending fewer hours on pro bono work than they were last year.
|Gordon Baird says he's aiming for 50 pro bono hours per lawyer per year.|
The percentage of lawyers completing 10 hours or more of pro bono also dropped by more than 25 per cent, to 26.9 per cent from 36.3 in 2015.
The survey average was 39.2 pro bono hours per lawyer in the last year.
However, Nicholas Glicher, director, legal, and head of African Programmes at the Thomson Reuters Foundation based in Johannesburg, says only four Canadian firms — Blake Cassels & Graydon LLP, McCarthy Tetrault LLP, Shearman & Sterling LLP, and Skadden, Arps Slate Meagher and Flom LLP — responded to TrustLaw’s request for data, which makes it difficult to “judge the whole of the Canadian pro bono community.”
In 2014, Canadian Lawyer conducted a pro bono survey offering more of an in-depth look at the Canadian pro bono market.
Gordon Baird, partner at McCarthy’s and chair of its National Pro Bono Committee, says he was surprised by the drop compared to last year’s index and is hoping to increase the firm’s hours up significantly.
“Our goal — although whether it’s ultimately achievable I don’t know — is to try to get to 50 hours per lawyer per year,” Baird says.
“We’re clearly well short of that but we’re always looking for good opportunities for pro bono projects for our lawyers. I would love to see the number higher than it is at the moment.”
Part of the problem, Baird says, is that much of the work out there isn’t suited to the kind of work the firm does. There’s a ton of demand for help with family law cases, for example, but “we don’t do family law,” he says.
“Part of our challenge is to find work that fits within our skillset,” Baird explains.
“We’re constantly searching for other referral sources of interesting work. We know the work is out there — it’s just a question of getting connected to it.”
Glicher says for future reports he’s hoping to get more information about the Canadian market.
“This will give us a much more rounded, fuller picture of what’s actually happening on the ground in Canada,” he says of the TrustLaw survey, now in its third year.
Baird suggests other Canadian firms may be challenged by the actual tracking of pro bono hours. At McCarthy’s the firm lawyers file pro bono hours just like billable hours and the information can be available from the firm’s accountants “within minutes.”
Shearman & Sterling, and Skadden Arps Slate Meagher and Flom are in fact U.S.-based multinational firms with Canadian offices.
“It is a little more difficult to stand out, particularly if firms are blending the numbers across borders because there’s a much stronger pro bono culture in the U.S. certainly than there is in Canada,” Baird says.
“It does create numbers that are a little difficult for us to compare. It may not be immediately apparent but I think it’s really apples and oranges — you’re not really comparing the same thing.”
Compiled using data from over 130 law firms, representing 64,500 lawyers in 75 countries, Glicher says the index aims to provide transparency on the amount of pro bono work being done across the globe and also offer information on how to structure a robust and sustainable pro bono program.
“At the moment the U.S. market is light years ahead of the rest of the world when it comes to pro bono, and there is much more data about pro bono in the U.S. than there is in any other market — I’m in no doubt that those two things are linked,” Glicher says.
Of the firms who responded, 65 per cent have a pro bono policy, 85 per cent employ a pro bono coordinator, and 60 per cent have a pro bono committee. These structures have a significant effect on pro bono engagement levels.
The data shows pro bono engagement levels are spreading beyond the traditional markets. China’s pro bono work has grown 211 per cent since the first index in 2014, with lawyers there clocking an average of 37 hours annually — a number that rivals established markets such as Australia and England and Wales. Glicher says Asia has seen a 40 per cent year-on-year increase since the survey began.
“There’s such a swift globalization of law firms at the moment and what this brings is an understanding of how to build comprehensive pro bono programs.”
The survey also reports a substantial increase in the selection of the “Immigration, Refugees and Asylum” topic as a key focus area for pro bono work.
41.4 per cent of firms — compared to 24 per cent last year and 28 per cent the year before that — saw more pro bono hours dedicated to this area.
He says the rise in focus on the global refugee crisis shows a willingness of law firms to use their significant resources and expertise to “help tackle one of the greatest challenges we are facing, potentially, in this generation.”
A new generation of Asian lawyers are eager to assume leadership roles, says David Namkung, newly elected president of the Federation of Asian Canadian Lawyers B.C. branch, an organization that is quickly attracting Asian legal professionals to its ranks — up to 228 members in 2016 from last year's 83 members.
Namkung says he hopes to further guide FACL BC's continued growth and provide opportunities for young Asian lawyers to hone leadership skills and build community connections to aid in advancing their careers within law firms and the legal community.
“There is a big gap in leadership in law firms and organizations,” says Namkung, as earlier waves of Asian immigrant Canadians didn't see law as a favoured profession since it required strong language skills. As a result, there is not a large legacy base of Asian lawyers in leadership roles within law firms and associations today to provide that leadership and mentorship for young lawyers.
FACL, a national organization, is playing a strong role in providing that platform and connecting students with practising lawyers with judiciary and professional association members who have Asian roots. One of the founding members of FACL, Justice Maryka Omatsu, was on hand for the FACL BC annual general meeting in Vancouver where Namkung assumed leadership from retiring president Jennifer Lau. Omatsu said the organization now numbers 1,500 strong across Canada and continues to grow. Omatsu, semi-retired, was appointed to the Ontario Court of Justice in 1993 and was the first Asian woman appointed to a Canadian court. She has been honoured as a trail-blazer in the legal profession.
An early foundation of lawyers in Canada was hampered by exclusionary legislation, with Vancouver-born Kew Dock Yip, the son of a Chinatown merchant, becoming the first Chinese-Canadian lawyer despite being unable to enter law at the University of British Columbia. After three attempts at entering Toronto's Osgoode Hall Law School he finally gained admittance and a law degree in 1945. Yip went on to have the Chinese Immigration Act of 1923 repealed by the Canadian government in 1947. It opened the doors for a second wave of Chinese immigration.
Namkung said it is the third wave of immigration from the 1980s that is on the front lines of challenging what has become known as the “bamboo ceiling.”
This third wave are children of wealthier immigrants whose families were left in B.C. to take advantage of the education system while the fathers flew between Canada and another country where they worked.
"We are now seeing more numbers in law schools," Namkung says, as these individuals consider a profession in law rather than traditional areas such as accounting, sciences, or medicine.
In his role as the new FACL BC president, Namkung, a partner in The Counsel Network, wants to ensure the organization continues attracting and supporting members in leadership development.
“We want to ensure that our growth is sustainable so we can invest in our administration,” he says.
FACL BC has hired its first staff member on a contract basis.
Another priority for Namkung is advocating for diversity in the judiciary and through professional organizations such as the Canadian Bar Association and Law Society of B.C. He also wants to see FACL BC take a higher profile and establish partnerships with other organizations both inside and outside the legal community to ensure “not just inward diversity but outward diversity.”
The new 2016-17 executive for FACL BC are: president Namkung; vice president Maria Kim, Population Data BC, University of B.C.; secretary-treasurer Louisa Winn, BC Ministry of Justice, Criminal Justice Branch; and retiring president Jennifer Lau, Allard School of Law at UBC, Career Services Office.
New board members are: Kristian Arciago, 2016 call; Sena Byun, Telus Corp.; Stephen Hsia, Fasken Martineau DuMoulin LLP; Vania Kim, Lindsay LLP; Mark Leung, Broadband TV; Jessica Lo, Lindsay Kenney LLP; Roland Luo, sole practitioner; Christopher Yan, Lawson Lundell LLP; and Linda Yang, McMillan LLP.
Existing board members are: Samson Chan, Campbell Froh May & Rice LLP; Karla Mukai, Campbell Froh May & Rice LLP; Mary Salaysay, BC Ministry of Justice, Criminal Justice Branch; Will Tao, Larlee Rosenberg; and Pablo Tseng, Gowling WLG.
Law students serving as directors for the various B.C. universities are: Alyssa Leung, University of B.C.; David Fung, University of Victoria; and Oliver Leung Thompson Rivers University.
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In a battle likened to David defeating Goliath, two provincial regulators have confirmed a junior mining exploration company in British Columbia can proceed with a $6 million private placement offering, despite a hostile takeover bid by a bigger American silver mining company.
|Fred Pletcher says a junior mining exploration company he represented in a legal battle is pleased with the finding that will allow the company to close a $ 6 million private placement offering, despite a takeover bid.|
The news comes after a two-day joint hearing last week before the British Columbia Securities Commission and the Ontario Securities Commission, pitting B.C.’s Dolly Varden Silver Corporation against Hecla Mining Company, of Idaho.
According to an Ontario Securities Commission ruling, the volleys started on June 27, when Hecla announced its goal to buy all outstanding shares of Dolly Varden not already belonging to Hecla. On July 5, Dolly Varden countered by announcing it would go after private placement financing of up to $6 million.
On July 8, Hecla filed an application with the British Columbia Securities Commission to stop the private placement, while on July 11, Dolly Varden filed with the Ontario Securities Commission, alleging problems with the insider offer.
Last week, the commissions came back with favourable results for Dolly Varden.
“It’s a great result, obviously, for our client,” says Fred Pletcher, partner with Borden Ladner Gervais LLP and chair of the firm’s national mining group, who acted for Dolly Varden.
“There’s been a lot of commentary in the financial and legal press about whether hostile takeover, whether private placements, are the new poisoned pill as a preferred defensive strategy in response to hostile takeover bids in Canada, and a lot of people were looking at this decision as an important precedent on that point.”
Pletcher says it is “particularly an important case because in May of 2016, the takeover bid rules in Canada were significantly changed and this Dolly Varden decision is the first case to address an alleged defensive tactic since the new rules came into effect.”
The new rules in question fall under National Instrument 62-104, Take-Over Bids and Issuer Bids. Pletcher says “while some may view this as suggesting that private placements can be used as a poison pill as a tactical response to hostile takeover bids, I’d say it doesn’t really go that far, and the ruling isn’t carte blanche for targets to adopt private placements in response to bids.”
“There were a number of factual circumstances in this case which were fairly unique that suggested that Dolly Varden’s private placement wasn’t an abusive defensive tactic, and those facts may not be present in other circumstances,” says Pletcher.
Those who are interested in hostile takeovers — and defending from them — can learn from the background of the case.
“The first application was an application by Hecla Mining Company, which had launched an unsolicited takeover bid for Dolly Varden Silver Company to cease trade a private placement that Dolly Varden was proposing to enter into, and the Securities Commissions ruled against the application that Hecla had made so Dolly Varden is free to conduct its private placement,” says Pletcher.
The second application was one that Dolly Varden made to the Ontario Securities Commission that the Hecla takeover bid be required to include a formal valuation. This was under the insider bid requirements of Multilateral Instrument 61-101 — Protection of Minority Security Holders in Special Transactions.
“Hecla owns over 10 per cent of Dolly Varden and securities policies in Ontario and Quebec require a greater than 10 per cent shareholder to prepare a formal valuation, that’s prepared by an independent valuator and overseen by a special committee, not of the bidder but of the target, to address concerns that shareholders may have that they aren’t on a level playing field with the insider when it comes to information about the company,” says Pletcher.
“Hecla’s takeover bid had not included that formal valuation, and they said they were relaying on an exemption, but Dolly Varden didn’t think that was available so it made the application to the Ontario Securities Commission to have the valuation required for Hecla’s bid and Ontario has sided with Dolly Varden there, so the Hecla bid is effectively cease traded until they prepare and provide that valuation to Dolly Varden shareholders.”
Hecla was represented by Cassels Brock & Blackwell LLP. A firm spokesperson said they were not able to provide comment on the matter.
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Nova Scotia’s lawyers are set to march in the Halifax Pride Parade as a profession for the first time this Saturday.
|Left to right: Chief Justice of Nova Scotia Michael MacDonald; R. Daren Baxter, president of the Nova Scotia Barristers’ Society; Amy Sakalauskas, president OF CBA-NS.|
Lawyers have marched in the annual celebration before — individually or as part of other organizations — but this year will mark the first time they will participate collectively as lawyers.
The Nova Scotia Barristers’ Society is teaming up with the Canadian Bar Association Nova Scotia Branch to organize the effort, called Legally Proud, which will see lawyers wearing rainbow-coloured tabs as they walk in the parade.
“This is a way for the profession to get out into the broader community and experience Pride but still be connected as part of our professional group,” says Amy Sakalauskas, the president of CBA-NS.
Roughly 70 lawyers are expected to march with family and friends as part of the initiative. The lawyers got permission in advance from the judiciary to wear the rainbow tabs.
Sakalauskas says the Nova Scotia lawyers drew inspiration from their CBA counterparts in British Columbia, who have marched in the Vancouver Pride Parade with their own float over the last five years.
This year’s theme at the Halifax Pride Parade is “This is why,” which seeks to highlight the reasons the event is so important. These reasons include the advances in LGBTQ rights that have happened over the decades, Nova Scotia lawyers say.
Sakalauskas says the lawyers’ presence in Pride is important, as the legal community has been a big part of advancing those rights.
“By showing that as a profession we’re open to being part of these discussions and the broader discussions outside of the courtroom, I’d like to think that it makes the justice system at least appear and hopefully be more accessible to people,” she says.
Marching in the parade will also help people realize how welcoming the legal profession is, Sakalauskas says.
“There’s a real perception of a very conservative profession that people might not realize is as welcoming as it is,” Sakalauskas says.
“It puts a public face to the profession that shows — whether inside the courtroom or outside the courtroom or the office — that we’re celebrating diversity and coming together with the broader community to do that.”
Sakalauskas says McInnes Cooper LLP walked as a firm in the parade last year and several firms have served as sponsors to the event in the past, but it was time the profession marched together.
“It was just the next step in it all,” she says.
The barristers’ society and the Sexual Orientation & Gender Identity section of CBA-NS held its 14th annual Pride reception Thursday night to show support for the LGBTQ community in the lead-up to the parade.
“It really just gives us another opportunity to celebrate,” Sakalauskas says.
“I always think of Pride, as much as it’s about advocacy and routed in protest, it’s a real celebration, for us to celebrate the triumphs along the way. A parade is a really good atmosphere to do that and to include our kids and our significant others.”
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