Legal Feeds Blog
Court documents allege Harper knew of $90,000 payment, The National Post
Canada's Iamgold Corp. sees profits rise in joint venture despite illegal mining, Reuters
Orthodox Mennonite community has more children taken by Manitoba Family Services, more abuse charges laid, Vancouver Sun
New York man charged with trying to extort $250,000 from Paula Deen over discrimination lawsuit, Reuters
Final regulations of Obama's healthcare reform law show some changes to original plan, Reuters
Group of Egyptian activists acquitted by court of charges of inciting violence, Reuters
Czech prosecutors seek to charge former PM, Reuters
- Law firm should have asked for consent from client before accepting class action retainer
|The Supreme Court ruled the Saskatchewan law firm should have asked for consent from client before accepting class action retainer.|
In 2008, Wallace retained McKercher to represent him as the leading plaintiff in a class action lawsuit on behalf of Prairie farmers against CN Rail, Canadian Pacific Railway, and others for allegedly overcharging them for grain transportation over 25 years.
When the class action was launched, McKercher was also acting for CN Rail in a number of other unrelated matters. CN only found out McKercher was acting against it in the class action when it was served with the statement of claim. As a result of the class action, McKercher hastily terminated all retainers with CN, except for one which CN terminated. Due to the previous relationship, CN sought to have McKercher removed from the class action.
The case went before the Saskatchewan Court of Queen’s Bench where Chief Justice M.D. Popescul ordered McKercher be disqualified from acting on the class action. On appeal, the court reversed the lower court’s ruling and permitted McKercher to continue to act on the class action.
“I conclude that McKercher’s termination of its existing retainers with CN breached its duty of commitment to its client’s cause, and its failure to advise CN of its intention to accept the Wallace retainer breached its duty of candour to its client. However, McKercher possessed no relevant confidential information that could be used to prejudice CN,” Chief Justice Beverley McLaughlin wrote on behalf of a unanimous court.
The bright line rule was established in the SCC’s landmark 2002 decision R. v. Neil, which stated that “a lawyer may not represent one client whose interests are directly adverse to the immediate interests of another current client — even if the two mandates are unrelated — unless both clients consent after receiving full disclosure (and preferably independent legal advice), and the lawyer reasonably believes that he or she is able to represent each client without adversely affecting the other.”
The rule “recognizes that it is difficult — often impossible — for a lawyer or law firm to neatly compartmentalize the interests of different clients when those interests are fundamentally adverse,” wrote McLaughlin.
She went even further to clarify the scope of the bright line rule.
“First, the bright line rule applies only where the immediate interests of clients are directly adverse in the matters on which the lawyer is acting. . . . Second, the bright line rule applies only when clients are adverse in legal interest. . . . Third, the bright line rule cannot be successfully raised by a party who seeks to abuse it,” she wrote
|Gavin MacKenzie argued the case for McKercher and Wallace at the Supreme Court.|
She also wrote the rule applies in both related and unrelated client matters.
In an e-mail to Legal Feeds, Gavin MacKenzie, a partner at Davis LPP who represented McKercher and Wallace in the case, said, “It is appropriate that the court remitted the question whether the firm should be disqualified to the Queen’s Bench in light of the court’s recasting of the legal framework, which differs from the framework that was in place in 2008 when the Wallace action was commenced.
“It is significant that one important consideration when the issue of remedy isconsidered will be the good faith of the law firm in believing that it was not reasonable for CN to expect that the firm would not act against it in an unrelated matter in light of CN’s status as a professional litigant and the importance of the western grain growers’ right to be represented by counsel of their choice.”
As interveners in the case, the Canadian Bar Association and the Federation of Law Societies of Canada presented their take on national conflict rules, but the SCC refused to “mediate the debate.”
The top court awarded costs to CN Rail and sent the case back to the Saskatchewan Court of Queen’s Bench to determine the appropriate remedy.
Update 12:43 pm: Comments added from Gavin MacKenzie
Despite facing charges, Montreal's ex-mayor allowed to leave country, The Globe and Mail
Nova Scotia politician to settle alleged assault outside of courtroom, Toronto Star
Harper to implement mandatory reporting regime for oil, gas companies similar to the U.S., Reuters
NSA says it works 'diligently and lawfully' in face of protests over Internet surveillance, Reuters
Judges will not back down on California prison crowding relief plan, Reuters
Egypt's top prosecutor resigns, Reuters
Rights groups furious over Pakistan's move to bring back death penalty, Reuters
St. Lewis sued Rancourt for defamation after he called her a “house negro” in a 2011 blog post that criticized St. Lewis’ findings about a report by the university’s Student Appeal Centre of the Student Federation regarding racism at the university.
University of Ottawa president Allan Rock had asked St. Lewis to evaluate the report. She found there was no systemic racism with the university’s procedures for academic fraud and concluded that the report’s findings were not factual.
During the court proceedings, university witnesses refused to answer certain questions or produce several documents. Rancourt challenged the refusals but the judge dismissed his motion.
Rancourt claimed the judge was biased because the university had a scholarship in honour of his late son and a boardroom named after him at Borden Ladner Gervais LLP, which represented the University of Ottawa. However, a second judge rejected his request for an order to set aside the previous decision.
Rancourt then sought to appeal both decisions, which was dismissed with costs by the Supreme Court of Canada on June 4.
Last week, a lengthy arbitration hearing to decide whether the university had the right to fire Rancourt in 2009 ended. The university’s board of governors let the tenured professor with 23 years’ experience go for reason of “academic fraud.” Rancourt reportedly awarded A+ marks to every student in an advanced physics course.
According to the Ottawa Citizen, the arbitrator’s ruling on the firing won’t be out for another few months.
|A Law Society of Upper Canada appeal panel says Gladue principles apply in disciplinary hearings.|
Terence Robinson pled guilty to an aggravated assault in 2009. He agreed that his conviction “amounted to conduct unbecoming a lawyer,” according to the law society appeal panel decision. But Robinson took issue with a hearing panel that decided his Aboriginal background was not a mitigating factor while determining the length of his suspension.
The hearing panel imposed a two-year suspension, which was reduced to 12 months on appeal.
The initial suspension was imposed after the hearing panel dismissed evidence that Robinson was discriminated against as a lawyer because of his Aboriginal background. He could have been mistreated for a number of other reasons, the panel concluded.
“Perhaps the lawyer was difficult counsel. Perhaps he refused to grant indulgences or to extend courtesies. We will never know because the lawyer chose not to testify, which is his right,” the hearing panel had said.
Disagreeing with this finding, the appeal panel said the available evidence suggests Robinson is in fact a well-mannered lawyer who could not have been mistreated because of his character alone.
“In our respectful view, the hearing panel erred in concluding that the appellant’s Aboriginal background was not a mitigating factor,” said Mark Sandler, who wrote on the behalf of appeal panel.
Sandler added: “In our view, it was unreasonable to conclude that there was no evidence that the appellant had been treated differently as a result of his Aboriginal heritage and/or his defence work.”
The hearing panel had also lamented the lack of “case-specific evidence” when it comes to how Robinson’s racial background affected him.
“We disagree,” Sandler said. “Here, there was case-specific information, presented by unchallenged witnesses, that the appellant had been subject to differential treatment based on his Aboriginal heritage and/or his defence work on behalf of Aboriginal clients.
“With respect, the hearing panel misapprehended or failed to appreciate the evidence on point,” Sandler added, citing evidence of Robinson’s history of racial profiling by police.
In addition to the finding on discrimination, the appeal panel also disagreed with the hearing panel that Robinson had to prove being adversely affected by his mother and grandmother’s history of residential school.
“We were also told that the lawyer’s mother and grandmother were sent to residential schools,” the hearing panel had said. “There is absolutely no evidence that the lawyer was adversely affected because of his mother and grandmother having been sent away to residential schools as children.”
Although it did not affect its ultimate disposition, the appeal panel said Robinson should not have to prove that the residential school legacy affected him.
“The Supreme Court of Canada has noted the intergenerational impact of the residential school system and other manifestations of racism and discrimination, and cautioned against placing an impossible burden on Aboriginal people to demonstrate such impact,” Sandler added.
The altered sentencing means Robinson has now concluded his suspension.
Roman Catholic organization to pay 'landmark' $18 million settlement to victims of sexual abuse, The Globe and Mail
Man launches $3.2 million lawsuit against TTC over death of his wife, Toronto Star
Former Mountie who killed wife 30 years ago loses appeal to National Parole Board, Vancouver Sun
Leader of Supreme Court's liberal wing vows to 'resist pressure to retire', Reuters
Witness says Zimmerman 'studied' Florida's 'Stand Your Ground' law, Reuters
Egyptian judge due to be sworn in as interim president takes oath of office as head of constitutional court, Reuters
Egypt prosecutor orders top Brotherhood leader's arrest, Reuters
Marc Ribeiro pitched a board game, called Pick N Choose, in which players guess a word described through mime, facial expressions, drawings, or by using modeling clay.
The short segment aired on the CBC program showed the dragons guessing the word “penis.” One of the dragons, Arlene Dickinson, told Ribeiro his product might be successful “if you turn it into an adult game.”
The CBC program was introduced by a statement of the host of the program saying: “The dragons never pull punches when they spot a money-losing venture. Unfortunately, these next few ideas hit the mat … immediately”. It showed the dragons guessing the word “penis.” One of the dragons, Arlene Dickinson, told Ribeiro his product might be successful “if you turn it into an adult game.”
An Ontario Superior Court decision released June 28 says Ribeiro believed the segment was a “complete misrepresentation” of the original recording, and that CBC’s actions amounted to “gross and reckless negligence, intentional misconduct, malice and bad faith.”However, CBC applied for a summary judgment to dismiss the claims, pointing to the consent and release form signed by Ribeiro on two occasions.
Justice David Aston said: “Ribeiro is himself a lawyer. He does not dispute the fact that he had ample opportunity to read and consider the consent and release before signing it. That document speaks for itself. There are no material facts in dispute except those to be drawn inferentially.”
Ribeiro, who represented himself, argued there was an implied duty to edit the show reasonably and in good faith.
He contended that where there was contractual ambiguity, the contra proferentem principle dictated that contractual clauses should be interpreted against the author – in this case CBC.
However, Aston said: “The express terms provide exceptionally broad protection for the CBC against any liability to a participant on the program. That protection is not hidden in fine print. It is crystal clear.”
The motion for summary judgment was granted and the action dismissed. Ribeiro was told to pay costs, fixed at $7,500.
In an emailed statement, Ribeiro told Legal Feeds he had no issue with what the dragons said during the show. He said one dragon made an offer, which MHR turned down. Other dragons expressed an interest or considered making an offer, he said.
But, he added: "The broadcast segment resulted in a significant misrepresentation of how the original recording occurred, and conveyed the idea that the presentation was not taken seriously by the dragons, which was not the case."
MHR plans to appeal the decision.
Update July 8: Clarification and comments from Ribeiro
Lululemon faces class action lawsuit from U.S. investors, Chronicle Herald
Parts of CRTC's new wireless code to be challenged in court by some carriers, The Globe and Mail
Tennis pro sues Mississauga racquet club for $5 million for wrongful dismissal, Toronto Star
WikiLeaks court-martial case sees prosecution wrap up case, Reuters
Former Tiffany executive charged with theft of over $1 million in jewelry, Reuters
Judge orders grandson to exhume Mandela's children, Reuters
Russian prosecutor asks court to close case against dead whistleblower, charge boss instead, Reuters
Aecon, a Canadian construction and infrastructure development company, received the award June 20 at the International Legal Alliance Summit & Awards in New York.
The awards recognize the best corporate and IP law firms in their domestic markets for their “excellent annual results and lasting performance in management and leadership.” The award winners were elected by specialist jury panels of more than 120 in-house lawyers.
Aecon’s vice president of legal and business affairs, Yonni Fushman, who has been with the company eight years, travelled to New York to accept the award on behalf of the legal department and Brian Swartz, chief legal officer and executive vice president, legal and commercial services, who has been with the organization 15 years.
“When I started there were three of us here and the company was about $1 billion in revenue,” says Fushman. “We’ve since tripled to about $3 billion in revenue and tripled our department size to nine lawyers and expanded the admin staff as well.
“We started off being much more public company focused doing securities work, and now we have two dedicated corporate lawyers and everyone else is very operational focused,” he says.
Lawyers in the Aecon department are aligned to business segments within the company and participate in all levels of management consultation.
“They’re very entrenched. Part of their objective is to spend 20 per cent of their time at project sites and offices to really embed them in the business. I think that’s why we felt comfortable accepting the award because we’re proud of embedding ourselves in the business and blurring the line between business adviser and lawyer,” Fushman says.
The recruitment process for the legal team at Aecon includes a special focus on finding lawyers who come with the knowledge they must be enablers of the business.
“We run really quickly away from your classic law firm person. We like breaking the mold,” he says. “We’ve done enough of a good job selecting people that we don’t get that shock on people’s faces when they realize ‘Wow, you’re not part of the problem.’ People just assume we’re going to help them find the ‘yes.’”
Aecon was nominated by a third party and the nomination was then evaluated by seven jury members including in-house counsel from other Canadian and international companies.
Bombardier and BlackBerry were co-winners in the category recognizing Best Canadian IP Department.
In the International Law Firm categories, Smart & Biggar/Fetherstonhaugh were named for Best Canadian IP Firm (with Bereskin & Parr receiving special distinction) and Best Canadian Law Firm was Davies Ward Phillips & Vineberg LLP.
Leaders League, the organizer of the event, is based in Paris
Former Conservative cabinet minister's lawsuit against Harper nixed by court, Vancouver Sun
Fertility consultant continues with business despite criminal charges against her, The National Post
Melanoma survivor claims stalled bill barring teens from tanning salon will 'heighten cancer risk' of young women, Toronto Star
Two men avoud jail in insider trading cases by cooperating with government, Reuters
Pennsylvania lawmakers out off controversial pension reform decision, Reuters
French far-right chief loses legal immunity, exposing her to prosecution over racism charge, Reuters
Ruling to remove Mursi's prosecutor general upheld by Egypt's top court, Reuters
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Gail J. Cohen