Legal Feeds Blog
The incoming 2017 Law Society of British Columbia president Herman Van Ommen is hoping to further promote unbundling to the legal profession during his term in office.
"They haven't picked it up. They haven’t really grasped the opportunities that exist because there is still some anxiety about unbundling,” he says. “The issue is not about changing our rules and policies, it is convincing the profession it is a good thing.”
In 2008, the benchers approved 17 recommendations that would make it easier for lawyers to provide unbundled services to clients.
Some factions of the legal profession, such as family law practitioners belonging to Mediate BC, have embraced unbundling. Mediate BC offers an online tool kit on unbundling to help its members in the practice of family law.
“But unbundling can be used in every area of the law,” he says. "The key to it is being clear what the lawyer will do and what they will not do.”
During his term, Van Ommen is planning to talk more about how unbundling can increase sorely needed access to justice for the public. It can also be useful in outlying areas of B.C. where lawyers or clients may be dealing with travel challenges. The Canadian Bar Association of B.C. has also been actively promoting unbundling, he says.
Van Ommen, who assumes the mantle in January, says the current president, David Crossin, is also supporting more unbundling services and is preparing a letter aimed at encouraging lawyers in B.C. to participate in this practise.
The incoming president said that the LSBC has in place practitioner advisers who can provide lawyers with support and advice on how to carry out the service successfully.
The year 2017 will also see the new LSBC president further develop the progress made in regulating B.C. law firms. In November, Van Ommen took the interim report of the Law Firm Regulation Task Force that he headed in 2016 to the benchers.
“We would be registering the law firms, not licensing them,” he points out as the LSBC already licenses lawyers.
The LSBC's approach to regulating law firms, he says, will be proactive. There will be a focus on ensuring that law firms have the information they need as well as the help they need in resolving problems, he says.
But one of the main initiatives within the interim report (available on the LSBC website) sets out the elements of the professional infrastructure policies that law firms should have.
"We want to make sure that when lawyers work together that they are creating a professional firm that will develop a healthy culture and take responsibility for such things as accounting records, resolving conflicts, education, training of staff, confidentiality of client information and file maintenance,” he says.
The interim report includes sole practitioners, Van Ommen says, as these individuals still need to ensure that records, staff training and issues such as confidentiality are maintained or there is a means for resolving conflict. The sole practitioner category also includes groups, those individuals who practice individually but share office space and support services or group together with each lawyer having a preferred area of interest.
In 2016, task force members toured B.C. listening to concerns regarding regulation. During 2017, Van Ommen says, task force members will meet with focus groups, including sole practitioners and individuals who share space.
The other focus groups will consist of firms that have two to 10 lawyers, medium-sized firms with 11 to 25 individuals and large firms with more than 26 lawyers.The findings from the focus groups along with the interim report recommendations will all contribute to the final report, which Van Ommen is hoping to complete by the end of 2017 along with bencher approval for the recommendations. The regulations on registering as a law firm and what regulatory guidelines need to be in place will begin in 2018.
"We want to take a proactive approach. Once we decide to get more specific rules in place, there will be a period of time where we tell firms start developing your [in-house] policies and procedures and call us if we can help or if you want to know if this is good enough," he says. "It will take a year or so to implement these things. Even after that, if issues arise, we will be asking do they just need help to do things better with a policy or is it a problem with not willing or wanting to take this seriously,” he says.
Lawyers throughout B.C. will have the opportunity to talk with Van Ommen over the next year as he plans to spend more time connecting with the various regional bar associations.
- Alberta court orders journalist to disclose confidential source
An Alberta court has ordered a journalist to disclose the identity of a confidential source to a law firm that is suing him for defamation.
W. Scott Schlosser, a Master of the Court of Queen’s Bench of Alberta, has ruled Fort McMurray Today columnist Kevin Thornton must provide information about a source who provided him documents for columns he wrote about the Alberta-based firm Stringam Denecky LLP.
The firm is suing Sun Media Corporation, which owns Fort McMurray Today, over three columns Thornton wrote about a dispute the firm had with one of its clients over costs.
Alberta media lawyer Matthew Woodley says the decision, if not overturned on appeal, could have a chilling effect on whether potential sources will come forward with information in the future.
“The risk is that it will have an impact on how sources or potential sources, more importantly, in the future will view the protections that are available to them and their willingness to come forward to provide information in the public interest,” says Woodley, who was not involved in the case.
Thornton’s columns addressed a dispute involving a client in a family law matter who was charged around $70,000 in bills by Stringam Denecky. The client appealed the fees to an assessment officer.
In the meantime, the client’s affidavit in the matter, which was a public document, was given to Thornton, who then used it to write columns about the high cost of legal representation in family law cases.
When Stringam Denecky brought legal action against Thornton, Sun Media refused to produce the identity of the source in the early stages of the proceedings, citing journalistic source privilege.
The source had requested confidentiality at the time they provided the documents, which Thornton granted. In his affidavit, Thornton said confidentiality was essential to his relationship with the source and to his ability to obtain the court document that led to the columns.
Lawyers representing Sun Media Corporation argued that the lawsuit is mainly about Thornton’s opinion in the pieces and not the underlying facts.
Schlosser, however, found that the identity of the source should be disclosed as it could be central to Stringam Denecky’s case against Sun Media, as it could prove or disprove the firm’s claim of malice, recklessness or improper purpose.
Dean Jobb, a journalism professor at the University of King’s College, says the decision shows the limits on what journalists can hold back in terms of their sources. He says one of the places journalists cannot protect sources is when the journalist and media organization are subject to litigation.
“It’s a reminder to journalists that they haven’t been granted any kind of blanket or carte blanche right to protect sources,” says Jobb, who wrote Media Law for Canadian Journalists.
In making his determination, Schlosser analyzed the “Four Wigmore Factors” and found that while Thornton’s communication with the source originated in confidence, and that anonymity was essential to the relationship, the public interest in disclosing the name of the source outweighed that of protecting their identity.
“Counsel should be permitted to explore the identity and the situation of the source, given the centrality of the issue to their case and the circumstances of the promised confidentiality,” he wrote in the decision.
Schlosser noted that the affidavit provided were public and that it is not clear how confidentiality is central to the production of the documents.
“It is not difficult to see why someone might want to keep their name out of the paper, but there is a gap between this request and blanket protection claimed,” he said.
Woodley says the case is unusual, as the source simply provided a publically available document. In a traditional confidential source case, the reason that plaintiffs typically want to get the identity of a source is that the journalist relied upon information the source told them, says Woodley.
“It requires a judge to find that even if the source really did have an axe to grind, that malice or motive translates into what the journalist did, and I think that’s a step that is not necessarily based on logic,” he says.
“So it does make it a less probative or relevant information than it would be in other traditional source cases.”
Edmonton lawyer Sara Hart, who is representing Sun Media, says her client is appealing the decision, but she declined to comment further on the decision.
James Heelan, the lawyer representing the law firm, also declined comment.
A mistaken impression on the part of a Fairmont Hotel Inc. executive in 2007 will see a large tax payment to the Canada Revenue Agency, the result of a recent judgment by the Supreme Court of Canada that will influence future rectification cases.
In Canada (Attorney General) v. Fairmont Hotels Inc., the majority of the Supreme Court found that two Ontario courts had erred in holding that the respondent’s intention of tax neutrality could support a grant of rectification.
“A common continuing intention does not suffice,” Justice Russell Brown wrote for the majority. “It is limited to cases where a written instrument has incorrectly recorded the parties’ antecedent agreement. In other words, rectification is not available where the basis for seeking it is that one or both of the parties wish to amend not the instrument recording their agreement, but the agreement itself.”
Fairmont Hotels Inc. had been involved in financing the purchase of two U.S. hotels, in U.S. currency, by Legacy Hotels REIT, in which Fairmont held a minority interest; the hotels were accordingly purchased in 2003. The financing arrangement was intended to operate on a tax-neutral basis. But when Fairmont was later acquired, in 2006, that intention was frustrated, as the acquisition would cause Fairmont and its subsidiaries to realize a deemed foreign exchange loss.
Legacy Hotels later asked Fairmont to terminate their financing agreement in order to allow for the sale of the two hotels it had purchased. Fairmont subsequently redeemed its shares in its subsidiaries, which resulted in an unanticipated tax liability that Fairmont then sought to avoid by rectification of the directors’ resolutions. (Fairmont’s vice president of tax had been under the mistaken assumption that the subsidiaries’ foreign exchange tax neutrality had been secured, and so had instructed the directors of Fairmont’s subsidiaries to pass resolutions that would unwind the reciprocal loan structure with a share redemption.)
At issue for the majority was that “Fairmont has not demonstrated how its intention, held in common and on a continuing basis with its subsidiaries, was to be achieved in definite and ascertainable terms while unwinding the financing arrangement,” Justice Brown wrote. “Fairmont refers to a plan to protect its subsidiaries from foreign exchange tax liability, but that plan was not only imprecise. It really was not a plan at all, being at best an inchoate wish to protect the subsidiaries, by unspecified means.”
In dissenting reasons, Justice Rosalie Abella, also writing for Justice Suzanne Côté, found that a “common, continuing, definite and ascertainable intention to pursue a transaction in a tax-neutral manner has usually satisfied the threshold for granting rectification.
“Allowing the tax authorities, a third party, to profit from legitimate tax planning errors, when its own rights have not been prejudiced in any way, amounts to unjust enrichment,” Justice Abella wrote.
The majority of the court took a restrictive approach to rectification in reaching its conclusion, Scott Rollwagen, the research partner at Lenczner Slaght in Toronto, told Legal Feeds. (A companion decision, Jean Coutu Group (PJC) Inc v Canada (Attorney General), considered the corresponding principles under Quebec law, and took the same approach.)
“A tax-efficient result will often form the motivation for entering into an agreement, but the question of intention is much more specific than that,” Rollwagen says of the court’s decision. “The only common intention that will support rectification is proof that the parties actually had a prior intention of entering into a transaction having a definable structure.
“Intention is the thing that you actually want to do,” he says. “The motive is why you want to accomplish it. You can get rectification when you can clearly show that there was an intention that the written agreement doesn’t effect. . . . What was really a problem in Fairmont was not the intention but the motive.”
Fairmont executed some directors’ resolutions to redeem some shares, which wasn’t what they would have done if they knew what the tax consequence would be, he says. “The motive was to avoid tax, but [Fairmont] mistakenly formed the wrong intention in effecting that motive.” The result of the Fairmont Hotels decision is “that you can’t rectify for motive.”
One implication of the decision will be increased transaction costs for corporations, Rollwagen predicts, to “make sure they get it right.” Mistakes such as occurred in Fairmont often occur when dealing with real-time commercial decisions. “Some things may need to be slowed down.
Despite an injunction to stop Montreal’s controversial pit bull ban being dismissed, opponents to breed-specific legislation aren’t giving up the fight.
|Rebeka Breder, of Breder Law Co., says lawmakers need to ‘look at the person on the other end of the leash’ when developing dangerous dog legislation.|
Camille Labchuk, animal rights lawyer and executive director of Animal Justice in Toronto, says the reality of the latest decision means pit bulls — and really all dogs in Montreal — are at risk from this “vague, discriminatory and ineffective bylaw.”
“What we know about keeping the public safe is strongly related to education and dog licensing,” she says. “This is a draconian measure that’s not going to work and is going to be expensive.”
Quebec Superior Court Justice Louis Gouin granted the temporary suspension stopping parts of the new law from going into effect on Oct. 5 in Lours v. Montreal (City of), but on Dec. 1 the injunction was dismissed by the Quebec Court of Appeal and the bylaw came into full effect.
In a statement on its website, the Montreal SPCA said the appeal court is “holding the City of Montreal to the concessions it made during the appeal hearings.”
“Importantly, the City of Montreal cannot issue euthanasia orders based on breed or physical appearance, prohibit someone from reclaiming their lost dog based on breed or physical appearance, and must allow all dogs to continue to be adopted to families residing outside of Montreal,” the Montreal SPCA stated.
According to both lawyers, Ontario is a good example of how breed-specific bans are ineffective. Labchuk says research from 2012 shows there was a 40 per cent increase in dog bites reported in Ontario hospitals since the ban was enacted in 2005.
On Dec. 10, Toronto City Council unanimously passed amendments to the city’s bylaw regulating dangerous dogs. According to the amendments, which stem from a Sept. 7 report for action called Responsible Dog Ownership: Mitigating Risks of Dangerous Dogs, dogs classified as dangerous will need to be muzzled and microchipped, will not be allowed in a leash-free area and the owner must purchase a dangerous dog tag from the city and also post warning signs on their property.
Anyone found to be in violation of the bylaw, which comes into force on March 1, 2017, could face fines up to $100,000.
Labchuk calls the changes positive, saying many of the local animal activists in Toronto “pushed quite hard” to get these amendments through.
While Breder acknowledges these amendments are steps in the right direction, she says Toronto didn’t go far enough.
“Any city that really wants to go to the root of the issue should start with education or have education as part of their dangerous dog regulations,” she says.
Additional amendments to the Toronto bylaw, especially making it illegal to tether a dog outside for longer than three hours and banning choke and pronged collars, are excellent Labchuk and Breder agree.
Breder says there are a number of examples from cities in B.C. in the last decade that have reversed breed specific legislation including Vancouver in 2005, North Vancouver in 2009, Delta the year after that, Castlegar, Cumberland, Coquitlam and White Rock in 2011 and New Westminster in 2013.
“Forget activists or pit bull lovers,” Breder says. “Looking at objective data that’s out and talking to animal behaviourists, we shouldn’t be dealing with a band-aid solution that isn’t a solution at all. Look at the people on the other end of the leash.”
But the gold standard in North America is Calgary, Breder says. In 1985 the city had just over 2000 aggressive dog incidents. By 2014, that number went down to 641. The number of trials where the city tries to get a destruction order for an aggressive dog has “decreased astronomically” in that time as well, she adds.
“They moved away from an ‘animal control’ model to a ‘responsible pet owner’ model. They did this in early 2000s and what that means is they take public education very seriously. They start by educating kids in their formative years, in elementary school, on how to approach dogs, how not to approach them. Because dogs are such a part of society they worked it right into the curriculum,” Breder says.
“Essentially what that legislation does in Calgary is it targets known risk factors and known behavioural problems so that they can nip it in the bud. It’s progressive,” Breder says. “We have to remember — in the 1960s it was the Shepherd, then the Doberman, now pit bulls and the latest trend is towards banning Cane Corsos and Bull Mastiffs. Where do we stop? We, as human beings, are supposed to be intelligent and learn from our mistakes — and it’s beyond me why we’re not.”
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A judge in Alberta who was criticized by its Court of Appeal two years ago for interpreting submission as consent in a sexual assault case is retiring in January after 10 years on the bench.
A notice issued by the federal Privy Council office Dec. 9 states that Alberta Court of Queen’s Bench Justice Kirk Sisson has “elected early retirement with an immediate annuity” under the provisions of the federal Judges Act. The resignation takes effect Jan. 3 and the judge will receive an annuity of $142,392 each year for the rest of his life.
Sisson, 65, was eligible to continue sitting as a Court of Queen’s Bench until he is 75. He was a lawyer in Red Deer when he was appointed in the fall of 2006 by then-Prime Minister Stephen Harper. The current salary for federally appointed judges is $308,200.
Sissons could not be reached for comment. The executive legal officer to the chief justice of the Court of Queen’s Bench in Alberta says it is not known why Sisson is stepping down. “The Court is unaware of Mr. Justice Sisson’s reasons for choosing to retire,” says Michelle Somers.
The sexual assault case where the Alberta Court of Appeal quashed an acquittal and substituted a conviction is R v. Adepoju. Since that appellate decision in March 2014, Sisson has been overturned in three other cases.
The appellate court, in a 2-1 decision, overturned an impaired driving causing death conviction earlier this year after finding that Sisson breached a requirement to provide procedural fairness. Last fall, the Court of Appeal concluded that he made a number of legal errors in denying an application for increased spousal support following a material change in circumstances. A first-degree murder conviction in a trial presided over by Sisson, without a jury, was overturned by the Court of Appeal in 2014. The court stated that “it cannot follow the pathway to conviction of the trial judge in this case” and the reasons did not withstand appellate scrutiny.
In the Adepoju trial, the complainant testified that she knew the accused and, while at her home, he began to kiss the woman. She told him that she did not want to engage in any sexual activity. Instead, he continued to use force, grabbed the woman and pulled her pants and underwear off. The court heard that after trying to resist his advances for 15 or 20 minutes, she felt he was not going to take no for an answer so she gave in to “get it over with.” On that basis, Sisson found that the Crown had failed to prove the absence of consent, the Court of Appeal noted in its decision.
Text messages were exhibits at the trial. “I had to force you, you didn’t want it,” was one of the messages sent by the accused.
The Court of Appeal, in overturning Sisson and entering a conviction, cited the Supreme Court of Canada’s decision in 1999 in R v. Ewanchuk, rejecting the concept of “implied consent” as a defence in an assault or sexual assault trial.
“In his analysis, the trial judge considered only the sexual intercourse that took place after these protests. This is an error. Sexual assault is not confined to intercourse,” stated the Court of Appeal panel of Justices Marina Paperny, Peter Martin and Brian O’Ferrall.
“The Criminal Code makes clear that acquiescence or submission is not consent. As stated in Ewanchuk, to be legally effective, consent must be freely given,” the Court of Appeal wrote. “The trial judge erred in defining sexual assault to include only sexual intercourse and in failing to consider all of the previous acts as assaultive and sexual in nature,” the court added.
The decision of the Court of Appeal received some local media coverage in 2014 when it was issued. It was highlighted again in an article in September of this year in The Globe and Mail. That article was about the Canadian Judicial Council hearing into the conduct of Federal Court of Canada Justice Robin Camp, as well as reviews ordered of two provincial court judges in Alberta as a result of findings in sexual assault cases. A Canadian Judicial Council panel concluded last month that Camp was unfit to serve on the bench as a result of his conduct and comments in a sexual assault trial in 2014 when he was a provincial court judge in Alberta.
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.
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