Legal Feeds Blog
Luka Magnotta preliminary inquiry begins, Toronto Star
Shaw breaks employment contract, CBC
Calgary group takes action to protect children from predators in sport, Calgary Herald
Jury reaches verdict in Detroit corruption trial, Reuters
Manhattan judge proposes scrapping white collar sentencing guidelines, Reuters
Kenyan Supreme Court promises fair trial in election results challenge, Reuters
Lawyer suspects ‘foul play’ in death of Delhi gang rape suspect, Reuters
Photos: Heather Gardiner
Students mingle at the Pro Bono Students Canada luncheon on March 8 that featured former Supreme Court of Canada judge Claire L’Heureux-Dubé.
(l to r) McCarthy Tétrault LLP partner Matthew Kelleher, University of Toronto law student Brendan Stevens, and Osgoode Hall Law School student and 4Students columnist Rebecca Lockwood. Stevens and Lockwood are also co-ordinators of Pro Bono Students Canada.
McCarthys counsel James Farley, Claire L’Heureux-Dubé, and PBSC national director Nikki Gershbain.
Students enjoy the spread at PBSC’s luncheon, held at McCarthys’ Toronto office.
(l to r) U of T law student Emily Gilmour with McCarthys articling students Daniel Goldbloom and Meaghan McWhinnie.
Osgoode dean Lorne Sossin brought his sense of humour as moderator of the Q & A period with Claire L’Heureux-Dubé.
Former Supreme Court justice Claire L’Heureux-Dubé answers questions about her time on the top court’s bench and told students to keep in mind that “we don’t work for money, we work for justice.”
|Sources of legal aid revenue in Canada. (Source: StatsCan)|
Home to 40 per cent of Canada’s population, Ontario spends half of the total national legal aid funding. But the numbers are not necessarily proportional. Ontario is also responsible for spending more money per capita, about $28 per person, compared to the national average of $22.
Looking at the data breakdown, University of Toronto professor Anthony Doob says the statistics “implicitly describe the fact that delivery of legal aid is so different across the country.”
“Some provinces may be delivering more efficient services than others,” he says.
And despite minimizing the scope of legal aid eligibility, spending numbers continue to rise.
This year two per cent of Canadians applied for legal aid. Of those, 66 per cent were approved, a number that has been consistent over the past couple of years. Although there were more civil applications than criminal, almost 90 per cent of criminal applications were approved, compared to only half of civil applications, because provinces consider first and foremost the possibility of the client going to jail.
However, Doob says the number of applicants is not necessarily relevant since many people don’t bother applying for legal aid because of extremely low eligible-income cutoffs.
According to an e-mail from Feroneh Neil of Legal Aid Ontario, “the government of Ontario invests in more legal aid services than other provincial governments.” Specifically, “the total $156 million in direct civil expenditures includes the approximately $70 million we spend to fund 77 legal clinics in Ontario.”
Ontario is one of the few provinces that still has legal clinics. It also invests in a toll-free client service centre and provides a “robust duty counsel program.”
Doob says he’s “unsure whether Ontario is providing more legal services or if they are just more expensive.”
Income cutoffs in Ontario are among the lowest in the country, ranging from $10,800 year for a single person to $26,714 a year for a family of five, leaving the majority of people ineligible.
|Number of private versus staff lawyers providing legal aid services. (Source: StatsCan)|
British Columbia spends 10 per cent of all legal aid funding in the country, with most of the lawyers who do legal aid work in private practice. In B.C., the eligibility requirements are laid out differently. The cutoff income is $38,760 a year but this applies to one to four people in a household.
In fourth place for spending is Alberta, where again mostly private practioners do the work and use nine per cent of national legal aid funding. The cutoff income for a single person is $16,176 a year.
While spending and government funding continues to rise, contributions to legal aid from the law profession has declined steadily from $7 million to $5 million, according to StatsCan. Of the 41,022 licensed lawyers in Canada, 25 per cent provide services in legal aid. The majority of them in private practice.
Doob points out that “a substantial number of lawyers don’t do things that are covered by legal aid,” but there are many lawyers, especially in family law, who simply find it’s not worth their time to provide legal aid.
Whether or not a national legal aid strategy may help resolve some of these issues is questionable, but Doob says “the figures suggest we might try to learn from each other,” and “The next step from today’s report is to learn how to best deliver services.”
For more detailed breakdowns from Statistics Canada’s legal aid survey, click here.
A Canadian and a U.S. judge will hold a joint conference call at 2 p.m. EST to explain if they will handle the dispute over how to divide the money or whether it is a matter for international arbitration.
Their decision is also likely to determine when creditors -- ranging from tens of thousands of retirees to governments and hedge fund investors -- will get a sense of how much they will be repaid.
After Nortel sought protection from creditors in courts around the world in 2009, it sold off all of its operations and has piled up the cash in a New York escrow account.
The operations were sold as global entities. However, the various Nortel insolvency and bankruptcy proceedings in Canada, the United States and Europe never agreed how to divide the money.
Until each Nortel unit knows how much money it has, it is nearly impossible for those businesses to negotiate and settle the claims of their creditors.
The U.S. and Canadian businesses of Nortel want the matter decided jointly by U.S. Bankruptcy Court Judge Kevin Gross in Wilmington, Delaware, and Ontario Superior Court Justice Geoffrey Morawetz in Toronto. The two have been overseeing the North America cases since Nortel failed in 2009. They have already ordered three mediation sessions that failed.
"We cannot allow this to go back to closed rooms. We need to be out in the clear light of day and solve these issues," said the attorney for the U.S. business, James Bromley of Cleary Gottlieb Steen & Hamilton. He blamed Nortel's European businesses of using the privacy of mediation to avoid public scrutiny of their theories for dividing the cash.
Bromley also pushed the most aggressive schedule for deciding the matter, with the aim of ending the fighting this year.
A 2009 document lays out how to resolve disputes over the cash, but it does not use the words "arbitration" or "courts." It instead mentions a "resolver," leading to the different interpretations.
The European businesses of Nortel argued that parallel court proceedings in Canada and the United States would lead to conflicting rulings without one appeals court to bind the two.
The proceedings were carried by telecast between the courts, but were marred by tech glitches, which were seized upon by Derek Adler, a Hughes Hubbard & Reed attorney who represents the European units of Nortel. He questioned how witnesses could be cross-examined in a telecast and said it raised questions of due process.
Morawetz interrupted Adler to defend the joint hearings, but his words were mostly inaudible in the Delaware courtroom. "We couldn't hear the second part of what you said but I heard the word 'Skype'," said Gross.
“My overwhelming impression was that it’s hard to believe the law was ever not this,” she says of decisions that have become important parts of employment law and the functioning of workplaces.
Here are the firm’s chosen top 10 employment law cases for women:
1. Janzen v. Platy Enterprises Ltd. 
The Supreme Court of Canada recognizes sexual harassment as sex discrimination. The top court unanimously sided with a Dianna Janzen, a restaurant waitress who was fired after complaining about sexual harassment at the hands of a colleague. Unwelcome sexual conduct that adversely affects the work environment is sexual discrimination, the court said.
2. Brooks v. Canada Safeway Ltd. 
The Supreme Court recognizes pregnancy discrimination as sex discrimination. Sandra Brook’s employer’s benefit plan excluded pregnant women, which she alleged was sex discrimination. The court agreed in a landmark ruling that “made it impossible for employers to successfully argue that discrimination against pregnant employees was not discrimination under human rights legislation,” according to employment lawyers at Rubin Thomlinson LLP.
3. Bannister v. General Motors of Canada  and Gonsalves v. Catholic Church Extension Society 
The Ontario Court of Appeal says sexually harassing a colleague is a just cause for dismissal. In both cases, the employees alleged that their employers wrongfully dismissed them. But the court sent a clear message that employers have the duty to ensure women in the workplace are not sexually harassed and that “no female should be called upon to defend her dignity or to resist or turn away from unwanted approaches or comments which are gender or sexually oriented.”
4. Simpson v. Consumers’ Association of Canada 
The Ontario Court of Appeal broadens the definition of workplace sexual harassment. The court ruled the Consumers’ Association of Canada was justified in firing David Simpson, who was an executive director, after he sexually harassed female employees outside of the office during work-related events. As far as the law is concerned, work-related social events constitute the workplace, the court said.
5. Public Service Employee Relations Commission v. British Columbia Government and Service Employees’ Union 
For Rubin, this case in particular was “a game changer.” A female forest firefighter was dismissed for failing the aerobics part of her job requirement. She alleged it was a case of sex discrimination as women generally have a lower aerobic capacity than their male counterparts. The court ruled that before employers rely on the occupational requirement defence, they must first prove the requirement is rationally connected to the job, was adopted in good faith, and is least discriminatory. The ruling means “employers really had to look into the specifics of each [accommodation] case,” says Rubin.
6. Canadian Telecommunications Employees’ Association v. Bell Canada,  and Public Service Alliance of Canada v. Canada Post Corp. 
Class actions become methods of combating systemic discrimination against women employees. Women employees fought unequal pay in these two important cases. The settlement in the first case cost Bell Canada $178 million and Canada Post was ordered to compensate 2,300 women it discriminated against between 1983 and 2002.
7. Stamos v. Annuity Research & Marketing Service Ltd. 
The Ontario Superior Court rules sexual harassment can constitute constructive dismissal. Sophia Stamos suffered on-going and serious sexual harassment by a colleague. The court found the employer constructively dismissed Stamos as the work environment made her continued employment intolerable.
8. Sulz v. Attorney General, 
The British Columbia Supreme Court awards large damage for prolonged harassment. Former RCMP officer Nancy Sulz brought a case against the RCMP for not taking action when her direct supervisors harassed her for over two years. The harassment led Sulz to take a leave of absence and eventually accept a medical discharge. She won $950,000 in damages, which included compensation for the emotional impact of the abuse as well as future wage loss.
9. Dupont Inquest  and Bill 168 
The murder of female employees brings change to occupational health and safety laws. A colleague and former lover who had been threatening Lori Dupont, a registered nurse at Hotel-Dieu Grace Hospital in Windsor, Ont., killed her in 2005. A coroner’s jury identified 16 risk factors of violence and several missed opportunities of intervention by the employer. This case and the 1996 murder of Theresa Vince by her supervisor were precursors to Bill 168, An Act to Amend the Occupational Health and Safety Act.
10. Hoyt v. Canadian National Railway  and Canada (Attorney General) v. Johnstone 
Two courts recognize family status protection includes childcare responsibilities. In both cases, the employers denied the women employees’ request for accommodation in order to take care of their children. Instead, the employers forced the women to accept part-time employment. The courts ruled that the cases constituted discrimination on the basis of family status.
SCC to rule on land claim appeal brought by Manitoba Metis, Vancouver Sun
'Error' in government's legislation allows new avenue for appeal for refugees, Toronto Star
Verdict important for expropriation cases as SCC sides with truck stop in key case, The Globe and Mail
Lawyer for Gupta in insider trading case unsure of negotiation strategy, Reuters
California bid rigging sweep sees two plead guilty to charges, Reuters
Court ruling throws Egypt's polling system into confusion, vote dates cancelled, Reuters
Bin Laden's son-in-law charged with conspiracy, arrested in Turkey, Reuters
In McCormick v. Fasken Martineau Dumoulin LLP, former Fasken’s equity partner McCormick was asked to retire from the firm when he turned 65 in 2010, and to begin the transition to retirement when he turned 62. Like many large law firms in Canada, Fasken’s requires partners to retire at 65 as stated in their equity partnership agreement.
However, British Columbia no longer enforces mandatory retirement and since McCormick wasn’t ready to retire, he took the firm to the B.C. Human Rights Tribunal alleging age discrimination.
The tribunal accepted McCormick’s argument that being an employee extended beyond the common law definition.
“The present state of the law is that if a firm organizes itself as a Canadian partnership, it need not concern itself about the human rights of its partners,” says McCormick’s counsel Murray Tevlin.
“We argued that this relationship [between McCormick and Fasken] looks and sounds just like employment and should be treated as employment just for the purposes of human rights,” he tells Legal Feeds.
When Fasken appealed the tribunal’s decision to the B.C. Supreme Court, Justice Catherine Bruce stated that an equity partner in a law firm can be considered an employee and therefore McCormick was justified to bring the case before the tribunal for alleged human rights violations.
When the case went to the B.C. Court of Appeal, however, the court sided with the law firm by stating that equity partners are not considered employees and therefore McCormick could not be protected by human rights legislation from age discrimination.
“[A] partner cannot be an employee of the partnership of which he or she is a member, because he or she cannot employ him or herself. . . .” wrote Justice Risa Levine in the appeal court ruling.
Tevlin says this case has implications for all Canadian employees, not just lawyers, calling it an issue of “national importance.”
“You see an aging workforce deciding that it has to work longer than maybe it had once planned,” he says.
Historic SCC decision on value of Citadel Hill 9 months old, Ottawa still owes Halifax Regional Municipality millions, Chronicle Herald
Court acquits woman fined for hosting Catholic mass in municipal building in Montreal, The National Post
Case thrown out after 38 months prompts better case tracking system to cut court delays in Alberta, Calgary Herald
Appeals court overturns liability award, class certification, citing Wal-Mart decision, Reuters
Failed mediation has Nortel heading to court over $9B last asset, Reuters
Apple wins patent suit in the UK, Reuters
Microsoft fined by EU over broken browser promise, Reuters
|The program will look at ethical legal issues that arise in the capital markets, says professor Anita Anand.|
“Falling from the global financial crisis and the fall of Enron at the turn of the century, the number of issues that affect lawyers are innumerable. And so, the types of issues that we’ll be looking at really stem from issues that arise in the capital markets,” says Anita Anand, U of T law professor and academic director of the Centre for the Legal Profession.
Anand says the need for this kind of initiative has existed for some time.
“As markets unfold, it’s always the case that there are issues affecting lawyers and the communities they serve. What we want to do is begin a public discussion of these issues so that there’s heightened public awareness and awareness in the legal community of what these issues are and how to think about them,” she says.
According to Anand, those issues include ethical obligations lawyers and business people face in corporate transactions; issues relating to market stability and systemic risk; international issues including foreign corrupt practices and legislation; the efficacy of regulatory models; and the barriers and drivers of change.
The program’s advisory board will consist of legal leaders in the field of ethics, and is chaired by former Supreme Court of Canada justice Frank Iacobucci, who is now senior counsel at Torys LLP.
“We really want to make sure that we have all of our stakeholders around the table when we’re thinking about not just the Rules of Professional Conduct, but also what lawyers’ responsibilities are in any one circumstance,” says Anand.
The law faculty hosted a panel discussion on March 5 with Ontario Superior Court Justice Michael Code; Lawrence Ritchie, executive vice president and senior policy adviser at the Canadian Securities Transition Office; Torys LLP counsel Julia Holland; Osler Hoskin & Harcourt LLP partner Jeremy Fraiberg; and Alexander Dyck, a professor at the Rotman School of Management.
The March 1 ruling, which considered a grievance by the Ontario Public Service Employees Union against the provincial government’s treatment of court reporters as independent contractors when it comes to their transcription work, noted the new plan aimed at responding to an earlier finding that the province’s approach was in violation of the collective agreement.
“The employer has made it known to the union as well as the board that its intention is to exercise its management rights to contract out the work of producing transcripts,” wrote vice chairman Nimal Dissanayake.
The ruling follows a 2006 decision that the work court reporters do in typing and certifying transcripts of court proceedings was bargaining unit work rather than additional freelance-type duties beyond their regular courtroom activities.
Under the Ministry of the Attorney General’s framework, court reporters got a per-page fee for transcription work often done outside of regular hours. The union, however, argued transcription work was a key function performed by court reporters that should be subject to the provisions of the collective agreement and the associated remuneration for things like overtime and holiday pay.
Despite the 2006 ruling, the parties have struggled to agree on how to implement it and, as such, the government has maintained the existing regime that essentially treats court reporters as employees for their regular courtroom duties and independent contractors for transcription work. As a result, parties have been back before the board repeatedly since 2010 in a bid to resolve the issue.
Despite the government’s imminent plans to contract out the work and its argument that the board lacked jurisdiction to force it apply the collective agreement, Dissanayake ordered the province to change its approach right away.
“The employer shall forthwith cease its violation of the collective agreement by failing to apply the collective agreement to court reporters, who the board had declared to be employees performing bargaining work when producing transcripts,” wrote Dissanayake.
Subscribe to Legal Feeds
Gail J. Cohen