Legal Feeds Blog
- Case relates to comments about expert witness in 2012 personal injury trial
A Vancouver journalist has been ordered by the Supreme Court of British Columbia to hand over his notes in relation to a law society investigation.
|Michael Feder says a recent B.C. Supreme Court decision ordering a journalist to turn over his notes was not surprising.|
Mulgrew had written in 2012 about Thomas Harding, a B.C. lawyer who ended up under investigation by the law society for his role in Walker v. Doe, a personal injury trial.
Amrit Toor, a forensic engineer specializing in accident reconstruction retained by the Insurance Corporation of British Columbia to testify at the trial, had demanded an apology from Mulgrew and Postmedia following a Vancouver Sun article that included Harding’s commentary on Toor’s skills. Toor also sued Harding and Mulgrew, Postmedia, and the newspaper’s editor-in-chief for defamation.
“The presiding judge declared a mistrial following Mr. Harding’s address to the jury. The statements attributed to Mr. Harding in the Vancouver Sun article were critical of Dr. Amrit Toor, an expert witness who testified at the trial on behalf of the defendants,” said the recent Supreme Court ruling by Justice G. Bruce Butler.
Through their counsel, Mulgrew and Postmedia argued that they should not have to fulfil production orders by the law society and turn over notes made by the journalist, because to do so would violate both s. 7 and s. 8 of the Canadian Charter of Rights and Freedoms. They also argued that section 26 of British Columbia’s Legal Profession Act — which states materials must be provided “even if it is confidential or subject to solicitor client privilege” — did not apply to them.
“The petitioners seek relief on the basis that the production provisions of s. 26 of the LPA, when considered in light of common law statutory interpretation principles and in light of provisions of the Charter, do not apply to them,” said Butler, in the ruling.
As the ruling goes on to note, this argument rests on the idea there are two categories of people who could receive production orders.
The first group is made up of “people who are either regulated by the Law Society or directly connected with lawyers.”
“The petitioners say they are part of a group of people in the second category, including the media and members of the public, who are only indirectly related to any investigation of a member of the Law Society (the “Non-Regulated Group”).
The petitioners say that s. 26(4) does not extend to members of the Non-Regulated Group and that an investigator appointed by the Law Society does not have the jurisdiction to make an order under that section against the Non-Regulated Group,” explains Butler, in the ruling.
However, Butler ruled that Mulgrew had to turn over his notes, noting “the nature of the legal profession is such that the Law Society could not investigate complaints about its members without access to privileged information.”
“I agree with the Law Society’s position. It is evident that there are many different circumstances under which the Law Society might issue a production order for records in a party’s possession which might be subject to solicitor-client privilege,” he said.
Michael Feder, a partner in the litigation group of McCarthy Tétrault LLP in Vancouver who represented the Law Society of British Columbia and its designate Kurt Wedel, says the decision was “not a surprising ruling” that was “totally in keeping with prior decisions.”
“First of all, the Supreme Court of Canada and other courts have repeatedly emphasized the crucial role the professional regulators like the law society play in protecting the public interest, and in that connection, they’ve also emphasized the need of those professional regulators to be able to compel documents and information relevant to investigations from anyone possessed of them,” says Feder.
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The Supreme Court of Canada has thrown out the appeal of 32 Quebec law firms who claimed Ontario courts did not have jurisdiction over a third-party claim brought against them by Cassels Brock & Blackwell LLP.
|Daniel Bach says an SCC decision is logical, as it will put all third party defendants in the same proceedings, limiting waste and avoiding inconsistent decisions.|
In a six-to-one decision, the Supreme Court dismissed the group’s appeal, saying the third-party claims against the Quebec law firms should be heard along with those against 118 other firms from across the country.
“Allowing the Quebec third party claims to proceed in Ontario along with the 118 other law firms, would clearly by a more efficient and effective solution,” Supreme Court Justice Rosalie Abella wrote for the majority decision.
“Because third party claims involves a significant number of parties and require the mobilization of significant judicial resources, those resources should be allocated and expended with a view to make the litigation quicker, more economical and less complicated.”
The decision involved a class action lawsuit brought against Cassels Brock by former General Motors car dealers who alleged the firm provided them with negligent legal advice when it represented them after GM announced a restructuring in 2009.
The dealers claimed Cassels Brock had failed to disclose it was also acting for the federal government during the restructuring proceedings.
In that action, an Ontario Superior Court Justice ordered Cassels Brock to pay 181 former GM dealers $45 million for breach of fiduciary duty, breach of contract and professional negligence. Cassels Brock is now appealing the decision.
Cassels Brock added 150 law firms from across the country as third party defendants, 32 of which were from Quebec.
There were 83 non-Ontario firms in total who challenged the province’s jurisdiction, but the Quebec firms were the only ones that appealed, arguing that Ontario courts do not have jurisdiction over a dispute between a firm and client in Quebec.
Daniel Bach, a class action lawyer at Siskinds LLP, says the decision makes sense, as it will put all third party defendants in the same proceedings, limiting waste and avoiding inconsistent decisions.
“It does not strike me as anything other than extremely common-sensible to say that when there is a lot of litigation in one province, you can bring other related litigation in to that province,” he says.
“Making a system where our courts can deal with things once in a sensible fashion makes lots of sense,” he added.
In the SCC decision, Abella cited Club Resorts Ltd. v. Van Breda, 2012, which laid out four factors to establish requisite connection in tort claims.
The factor that Abella applied was whether the contract in the dispute was created in Ontario. Abella said that seeing as the contract connected to the dispute had been made in Ontario, the province’s courts have jurisdiction.
“It is sufficient that the dispute be connected to a contract for the wind-down agreement was made in the province or territory where jurisdiction is proposed to be assumed,” Abella wrote.
“This merely requires that a defendant’s conduct brings him or her within the scope of the contractual relationship and that the events that give rise to the claim flow from the relationship created by the contract.”
Abella added that when contracting parties are located in different jurisdictions, “the contract will be formed in the jurisdiction where the last essential act of contract formation, such as acceptance, took place.”
Justice Suzanne Côté, who was the lone dissenting voice in the decision, argued the wind-down agreements were not made in Ontario as acceptance of the contracts should be considered notified in the place they were received – Quebec.
“In this case, GM’s notice of final acceptance was transmitted to its Quebec dealers in Quebec,” she said.
“As such the relevant wind-down agreements in respect of the Quebec dealers would have been formed in Quebec.”
She added that the majority’s decision could have “negative repercussions on the practice of law itself.”
“The majority’s holding means that whenever a lawyer’s advice is required before his client can accept an offer, that lawyer may later be sued for professional negligence wherever the resulting contract is formed, regardless of where his services were provided,” she said.
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In a dramatic reversal, the Supreme Court has overturned what had been called a “game-changing” decision by the Federal Court of Appeal and ruled that non-unionized employees of federally regulated business are entitled to similar protections against dismissal as those afforded to unionized workers.
|Today’s Supreme Court decision “sets the law to what we thought it was prior to the Federal Court of Appeal decision,” says lawyer Stacey Ball.|
The decision affects half a million non-unionized employees working in banks, telecommunications, airlines and other federal enterprises.
“It sets the law to what we thought it was prior to the Federal Court of Appeal decision. We’ve gone back to what most people thought the legislation meant prior to adjudicator Wakeling [n Knopp v. Western Bulk Transport Ltd.],” says Stacey Ball of Ball Professional Corporation who was counsel for the intervener Canadian Association for Non-Organized employees. “Basically, you can’t dismiss someone on a without cause basis. The employee has a substantive right to challenge their dismissal now."
The decision was disappointing to Ronald Snyder, partner at Fogler Rubinoff LLP in Ottawa who represented Atomic Energy of Canada Ltd in the case. He calls it “unsettling” with “very significant consequences.”
“This decision will undoubtedly be regarded by all federally regulated companies across Canada as a highly disappointing and disconcerting one,” he says. “The Supreme Court is essentially taking the position that non-unionized employees of federally regulated companies enjoy the same guaranteed job protection as unionized employees. They are entitled to job security for life unless that very high threshold test of just cause can be established to dismiss them.”
Snyder says the dissenting justices used “strong language” such as “circular reasoning” and “reliance on frail evidence” to characterize the majority’s reasoning that underlies the “unsettling nature of this decision.”
Ball says when the Federal Court of Appeal decision came out in 2015 he “just thought it was so wrong.”
“The approach of the Federal Court of Appeal was to neuter the Canada Labour Code,” he says. “Why would parliament go through that attempt to create rights similar to what employees have in the labour unionized context where arbitral jurisprudence is applied and then just say Common Law applies? It doesn’t make sense.”
Unionized employees who are terminated have long had the ability to seek reinstatement with back pay or other forms of compensation before independent labour arbitrators. This right has now been reconfirmed for non-unionized employees as well.
"This is an extremely important judgment and confirms that employees of federally-regulated corporations and agencies cannot be terminated from their jobs except for just cause," said employment James LeNoury in a statement. LeNoury represents Wilson and argued the case before the Supreme Court.
“It overturns the Federal Court of Appeal ruling and brings the meaning of ‘unjust dismissal’ under the Canada Labour Code in line with the accepted interpretation that had been followed by the vast majority of adjudicators since the law's introduction in 1978.”
The core issue in this case was whether federally regulated employers could dismiss employees without cause.
Wilson was dismissed in 2009 after four years with federally regulated AECL. Although he’d been provided severance pay, he sought written reasons for his dismissal. Wilson suspected AECL's motive was reprisal for earlier allegations of corruption in the department where he’d worked. The company provided a letter stating Wilson was terminated on a non-cause basis and therefore refused to provide reasons. The Federal Court of Appeal upheld AECL’s decision.
The decision by Justice David Stratas in 2015 had been referred to by some lawyers as an “almost Supreme Court style level of analysis.” He had referenced many cases, in particular wrote that, “. . . I largely agree with adjudicator Wakeling in Knopp v. Western Bulk Transport Ltd.,  C.L.A.D. No. 172] supra at paragraph 77:
“In conclusion, Divisions X, XI and XIV of Part III of the Canada Labour Code do not jettison the common law principles which govern the termination of an employment relationship. Had Parliament intended to implement a drastically different legal order in which common law principles played no role, it would have said so in plain language. In enacting Division XIV of Part III of the Code, Parliament created another forum besides the courts to hear complaints of unjust dismissal and granted Code adjudicators remedial powers common law judges are without.”
“But six judges said he was wrong on the Canada Labour Code,” says Ball.
Ball says the minority opinion of the other three SCC judges was “ideologically driven” along the lines of what rights employers should have and the attempt by the Federal Court of Appeal was to interpret legislation in a manner to give employers those rights.
For more on this story see http://canadianlawyermag.com/inhouse-home.html on Monday.
As Lakehead University’s first round of law grads hit the job market this year, it seems they’re coming up against some barriers from the profession.
|Lakehead law dean Angelique EagleWoman is asking the profession for more understanding as the first round of IPC grads hit the job market.|
“We have some firms telling graduates that articling is necessary to be in the hiring pool for that firm,” Angelique EagleWoman, dean of Lakehead’s Bora Laskin Faculty of Law, says, calling it an additional obstacle that’s discouraging for the new grads.
“We also ran into this issue with crown offices and government departments — to be in the hire-back pool, only articling students are eligible, which puts our students at a disadvantage.”
The Integrated Practice Curriculum at Lakehead, approved by the Law Society of Upper Canada in 2013, was in response to a 2007 Carnegie Foundation for the Advancement of Teaching report, “Educating lawyers: Preparation for the profession of law,” which made recommendations for more experiential and skills-based opportunities within legal education.
The IPC, EagleWoman says, is “an example of how that could be done.”
With practice skills “interwoven into every first year course,” a concentration of practice skills in second year, one semester in a placement in third year, summer positions, and a legal clinic at the school, there is no requirement for Lakehead law students to article.
“When they graduate, they go right into their exams and — based on results — they are licensed, called to the bar, and ready to practice,” EagleWoman says.
The placements were rolled out for the first time last year, and the school had 84 placements available for 57 students. The local bar has been enthusiastic about this type of curriculum, EagleWoman says.
EagleWoman recognizes the IPC is new and different, but says it’s also innovative and responsive to the ongoing discussion nationally and internationally on how legal education doesn’t necessarily match with the needs of the legal profession.
“If students, in their legal education, have a majority of doctrinal, philosophical, more abstract-based courses … without any grounding in practical skills, transaction skills, what it means to be a lawyer, then we’re really doing a disservice to those going to law school.”
Law Society of Upper Canada spokeswoman Susan Tonkin says the main goal is to provide the public with competent and professional lawyers, licensed through requirements that are fair and accessible.
The options available to satisfy the experiential requirement of the licensing process enable law students to choose the “most appropriate experiential training path for them.”
But on the flip side of that coin, it’s also up to law firms to decide what’s right for their purposes.
“Needs of law firms may differ, and the experiences they offer to licensing candidates and new lawyers also varies. When hiring, it is for law firms to determine how their needs can best be met and how licensing candidates and new lawyers can have a fulfilling experience,” Tonkin says.
Gina Alexandris, senior program director of Ryerson University’s Law Practice Program, knows the push back EagleWoman is getting only too well.
“In a profession where a lot is based on evidence, it’s interesting how quickly some of our colleagues are prepared to make judgments without actually looking at evidence or looking at information really closely,” she says.
Alexandris’ advice for Lakehead is to act on feedback from all stakeholders and to keep educating people.
“We’re out there constantly speaking to people, letting them know what the program is and what it isn’t, and who the candidates are and who they’re not. It’s a constant challenge but we keep fighting back with excellence in the programming.”
EagleWoman plans to continue meeting with local practitioners, and says the overwhelming response has been very positive from those who have collaborated with the program so far. She is hoping for more understanding of “what the IPC is and what we’re doing here at Lakehead.”
“It’s exciting times in the legal profession. As a profession we continue to improve and put in place better systems. We have to continue to grow and develop with the world around us.”
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|Steven Barrett is representing three Ontario Legal Aid lawyers who have filed a pay equity complaint.|
The complaint, filed on Monday, says legal aid must conduct a job evaluation review to ensure staff lawyers’ pay is line with male lawyers doing similar work.
According to the Pay Equity Act, a position is deemed “female job class” when 60 per cent or more of employees hired in that position are female. According to Steven Barrett of Goldblatt Partners LLP, a lawyer for the complainants, the act also requires employers to maintain pay equity.
“Given that the class is now confirmed to be predominately female, [LAO] has to do a gender-neutral job evaluation...to make sure that the predominantly female lawyers working as duty counsel at LAO are not being underpaid relative to their male comparators,” Barrett says.
Barrett says a similar complaint was previously rejected on the basis that the complainants did not have sufficient evidence to suggest that the staff lawyer position at LAO can be deemed “a female job class” for the purpose of the Pay Equity Act.
“If the staff were unionized, they’d be entitled to disclose of that information but because LAO has refused to recognize the Society [of Energy Professionals] as their bargaining agent, they weren’t able to get the information they needed,” Barrett tells Legal Feeds.
But the information they needed has since come from an interesting place, the complainants say. When, in 2015, LAO lawyers launched a Charter challenge in regards to their bargaining rights, former legal aid CEO Bob Ward submitted a sworn affidavit in which he “bragged” that by the end of 2015, two-thirds of LAO lawyers were women, says Barrett.
“They’ve now conceded whatever the pay equity process had earlier determined there wasn’t sufficient evidence [to support],” he adds.
In an e-mail to Legal Feeds, LAO spokeswoman Feroneh Neil said the figure cited in Ward’s affidavit is accurate. But she added that depending on their call, staff lawyers are paid between $76,000 – $115,000 “irrespective of [their] gender.”
“In 2015, the Pay Equity Commission confirmed that the staff lawyer job class is a gender neutral job class, and found that there was no contravention of the Pay Equity Act,” Neil also said.
LAO staff lawyer Linh Le, who is one of the three complainants, says pay equity legislations are “meaningless” if they’re not enforceable.
“It’s known that women often face pay discrimination and it’s often even worse for women of colour,” Le says, adding her colleagues are mostly women and people of colour. “We feel that there’s possibly some discrimination happening there and we just want to make sure that they’re upholding their duties,” she adds.
The pay equity complaint comes as LAO lawyers continue to mount a campaign to unionize after LAO rejected their bid to be represented by the Society of Energy Professionals in 2013. Their Charter application against LAO and the Ontario government is scheduled for hearing on Dec. 5.
Under labour laws, lawyers must get voluntary recognition from their employers in order to join a union because the Labour Relations Act excludes lawyers. But others who fall into that exception, such as police officers and government lawyers, have received voluntary recognition from their employers to join unions.
LAO, for its part, has said it respects the employee right to associate and is willing to consider associations other than the union the employees want to join. Ward previously expressed concerns about the fact that the employees’ choice of union, the Society of Energy Professionals, is a trade union.
The lawyers say they’ve chosen that union because it is an “experienced and well-resourced association/union to mount an effective campaign.”
The Society of Energy Professionals’ executive vice-president Michelle Johnston, says, “It’s the lawyers who came to us and that’s their right.”
“It’s been three years of turmoil where the government doesn’t want to engage with us in a conversation but they’re doing a lot of work behind the scenes to make sure it doesn’t happen,” Johnston says.
The union, Ontario Federation of Labour President Chris Buckley, and organizers with the Fight for $15 and Fairness campaign have announced they’ll join picketing LAO lawyers tonight outside of a Liberal fundraiser in Toronto.
With files from Glenn Kauth
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The West Coast Women’s Legal Education and Action Fund has been granted intervener status in the inquiry into the conduct of Justice Robin Camp.
|Raji Mangat of West Coast LEAF says it is “heartening” to know that the Canadian Judicial Council saw the issue with a wider lens of public interest.|
Camp presided over a sexual assault trial in Alberta in 2014 and asked the complainant, an indigenous woman who was 19 years old and homeless at the time of the alleged assault, “Why couldn't you just keep your knees together?”
He also referred to the woman repeatedly as “the accused,” and remarked that “sex and pain sometimes go together […] that’s not necessarily a bad thing” and that “young wom[e]n want to have sex, particularly if they are drunk.”
The Canadian Judicial Council is investigating a complaint brought by the Attorney General of Alberta that calls for Justice Camp’s removal from the office of Federal Court judge, a position to which he was later appointed.
It is unusual for interveners to be part of a disciplinary proceeding.
“It was heartening to know the Canadian Judicial Council saw the issue with the wider public interest lens such that they invited interveners — that doesn’t always happen,” says Raji Mangat, director of litigation for West Coast LEAF.
In fact, a coalition is intervening with LEAF and involves organizations with specialization in the law of sexual assault and the protections of the Criminal Code that allow for survivors of sexual assault and complainants in criminal trials to not be susceptible to the myths that somehow their prior sexual conduct or experience reflects on their credibility.
West Coast LEAF is intervening in the inquiry in collaboration with the Avalon Sexual Assault Centre, Ending Violence Association of British Columbia, the Institute for the Advancement of Aboriginal Women, and Metropolitan Action Committee on Violence Against Women and Children.
The coalition will make arguments about the impact of Justice Camp’s behaviour on survivors and on public attitudes about sexual assault, and about the legal protections for sexual assault complainants that Justice Camp allegedly ignored.
Mangat says the opportunity is “ripe for a public conversation” on the issue after the Jian Ghomeshi trial and events in the United States such as the Stanford rape case.
“At this moment in Canadian history, the public has little faith that the criminal justice system will treat complainants in sexual assault trials fairly. Justice Camp’s conduct adds to this distrust and worsens the chilling effect on survivors,” she says. “What faith can we have in a system where a judge — the person whose responsibility is to oversee the process impartially — suggests that the complainant is to blame for the attack, that she consented because she didn’t fight hard enough, or that she is less credible because of her sexual history?”
Mangat says she hopes the Canadian Judicial Council will really look at the conduct of the judge in the case “with a wider lens” of what does it mean for women and other sexual assault complainants.
“What sort of chilling effect does this have on individuals who survive sexual assault and sexual misconduct and are now getting a message from someone who is supposed to be an independent, impartial arbiter of their case — comments that are very, very troubling?” she says. “I think judges really need to recognize that they have a very high role and responsibility in our criminal justice system.”
Justice Camp’s treatment of the complainant turns the clock back on the law of sexual assault, adds Kasari Govender, executive director of West Coast LEAF. “We are here to protect survivors’ right to fair treatment by the courts and equal protection of the law. We know that the vast majority of sexual assaults are never prosecuted, in large part because women do not report for fear of unfair treatment within the justice system. Women will not be safe unless we address this treatment head on.”
The hearing into Justice Camp’s conduct will take place in Calgary Sept. 6-9.
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