Legal Feeds Blog
The Supreme Court of Canada will hear four appeals this week, notably Deloitte’s appeal of the finding of negligence against it following Livent's bankruptcy in the late 1990s. Two appeals are companion Charter cases from Alberta involving appellants charged with securities fraud, and the last, from British Columbia, is a criminal case concerning similar fact evidence.
February 14 – Alberta – Peers v. R. (Alberta Securities Commission)
Charter of Rights: Jeremy Peers was charged with 33 offences under s. 194 of the Securities Act, including unregistered trading in securities, non-compliance with prospectus disclosure obligations, misrepresentation, and fraudulent use of investor funds. His son Robert Peers faced one count of investor fraud. Jeremy Peers sought a determination that s. 11(f) of the Charter was engaged and asked the Provincial Court to quash the information or stay the proceedings. A judge held that Peers was entitled to a trial by a jury and transferred the proceeding to the Court of Queen’s Bench. That Court allowed the appeal and transferred the matter back to the Provincial Court.
Read the Alberta appellate court decision here.
Related news stories:
Edmonton fraudster Jay Peers pleads guilty to breaching securities laws; Edmonton Journal
ASC charges father and son with securities fraud; Investment Executive
Related law firm bulletins:
SCC to Consider Whether Charges Under the Securities Act Warrant Trial by Jury; Borden Ladner Gervais LLP
February 14 – Alberta –Aitkens v. Alberta Securities Commission
Charter of Rights: Ronald Aitkens faced several charges under the Securities Act, and brought an application contending that under s. 194 of the Act he could face a more severe punishment than five years of imprisonment, and was therefore entitled to a jury trial pursuant to s. 11(f) of the Charter. He also argued that the Provincial Court of Alberta does not have the jurisdiction to conduct a jury trial and that the matter should be transferred to the Court of Queen’s Bench to determine whether it has jurisdiction to conduct a jury trial over a provincial offence. A Provincial Court judge rejected the argument that the applicant was entitled to a jury trial, a decision confirmed on appeal to the Court of Queen’s Bench and again on appeal to the Court of Appeal of Alberta.
Read the Alberta appellate court decision here.
Related news stories:
Appeal court denies jury trials for men accused under Securities Act; Calgary Herald
Related law firm bulletins:
SCC to Consider Whether Charges Under the Securities Act Warrant Trial by Jury; Borden Ladner Gervais LLP
February 15 – Ontario – Deloitte & Touche v. Livent
Law of professions: Livent Inc. was a publicly traded company. In 1998, new management discovered serious accounting irregularities in its financial records and restated its revenues and expenses. Livent’s founders were later convicted of fraud, class actions were commenced, and Livent was placed into receivership. Deloitte & Touche (now Deloitte LLP) was Livent’s auditor between 1989 and 1998. In 2001, Livent, through its receiver, commenced an action against Deloitte alleging that its audits did not meet generally accepted auditing standards, and that Deloitte’s negligence in failing to detect the fraud resulted in Livent realizing less for its assets upon liquidation. The trial judge found Deloitte negligent and awarded Livent damages. The Court of Appeal dismissed an appeal and a cross-appeal.
Read the Ontario appellate court decision here.
Related news stories:
Supreme Court to hear Deloitte's appeal of landmark Livent ruling; The Globe and Mail
Court upholds ruling on Deloitte’s negligence over Livent; The Globe and Mail
Related legal bulletins:
Curtains For Auditor’s Arguments At The Court Of Appeal In Livent Case; Affleck Greene McMurtry LLP
Livent v Deloitte: Has the Fat Lady Finally Sung? The Court, CanLII Connects
The Increasing Scope Of Auditors’ Negligence: Livent Inc. v. Deloitte & Touche LLP; Gowling WLG
February 17 – British Columbia – Clifford v. R.
Criminal law: Scott Clifford was convicted of one count of arson and one count of mischief for allegedly burning down his ex-girlfriend’s parents’ garage and girdling trees on their property. The appellant’s alibi to police was rejected by the trial judge. On appeal, Clifford argued that the trial judge erred in using the disbelieved alibi as evidence of guilt, and that the judge erred by admitting what amounted to similar fact evidence. The Court of Appeal for British Columbia dismissed the appeal, with one judge dissenting.
Read the British Columbia appellate court decision here.
Related news stories:
Alberta vet convicted of arson at home of B.C. lawyer based on cell records; Metro Vancouver
|“There are a lot of stories that, through a journalistic lens, will help us understand justice better,” says Osgoode law dean Lorne Sossin.|
“There are a lot of stories that, through a journalistic lens, will help us understand justice better,” says Lorne Sossin, dean of Osgoode Hall, who refers to recent stories in daily newspapers such as the Toronto Star and The Globe and Mail that have examined issues of access to justice and more.
The program will “help us understand better the things we care a lot about: the justice system and how it touches people’s lives,” says Sossin. “Digital journalists, bloggers, storytelling — all these dynamics we see as kindred to our project.”
The role of journalist in residence may include guest lecturing, giving media training, doing independent study and writing, and working with students on projects. Sossin says Osgoode’s journalist in residence will come with a research project they have proposed — for example, profiling key change makers in Canadian law, or examining hot-button issues — but will also engage with the students. He also envisions the journalist in residence having their work published or broadcast, “whether in the mainstream media, or as a series of video stories, podcasts, blogs,” or other.
Osgoode has had an artist-in-residence program since 2013. This year’s artist, Dan Bergeron, is working with students on a project entitled “1 in 4” that examines the practice of police carding in Toronto and the GTA from the perspective of young black men who have been subjected to carding. Sossin hopes that the journalist in residence program will help law students in a similar way.
“From a journalistic perspective, we want someone who’ll present their own work, who will have an impact, and bring students into the process, who’ll learn there are different skill sets (related to journalism) that we don’t necessarily get access to” at law schools.
Osgoode anticipates its journalists will join the school for an academic term, or possibly for a full academic year. Its program will be designed to accommodate individual journalists, and will come with a stipend to replace earnings, Sossin confirmed.
The University of Calgary Faculty of Law brought in its first journalist in residence in 2016, says Dean Ian Holloway, and has since welcomed its second. “It struck me that … Canadian law schools introduce students to lawyers, judges, but in order for a lawyer to do his or her job well, he or she needs to have communicative skills, and engage with the media,” says Holloway.
To that end, Calgary Law’s journalists in residence provide media training to students and faculty alike; they meet with students, talk in classes, and put on sessions for faculty members, “all on how to engage with the media — to give us a glimpse into how a media person would view a story, and to begin to get us to think about how, given their different lens, one could constructively engage with the media,” says Holloway. The journalists in residence also write for the Faculty website.
Holloway jokes that Calgary Law’s informal journalist-in-residence program benefited from constrictions in Canada’s newspaper business; as Postmedia Network reduced its staff at the Calgary Herald (among other papers), Dean Holloway learned in early 2016 that Herald justice/social issues reporter Jason van Rassel was now a free agent. Holloway scooped up van Rassel for an unpaid residency at Calgary Law that lasted from March to June, and this year the school landed former Calgary Herald senior environmental reporter Colette Derworiz, who began her residency in January for an unspecified duration.
“I certainly want to continue [the program]”, says Holloway, adding that the school is looking for journalists “with a lot of experience [to] help us understand the media; how does the media think? How does the media hear? And what’s the media’s role? … We have to distil raw material and package it as ordinary Canadians might understand. It’s a distillation process that we lawyers may not know as well as we might.”
Final arguments today for suspect in deaths of Calgary couple, grandson, The Canadian Press
Universities moving away from allowing students to judge sex assaults, The Canadian Press
RCMP say 21 people arrested for illegally crossing border at Emerson, Manitoba, The Canadian Press
Courts likely to probe Trump's intent in issuing travel ban, Reuters
Turkish hacker behind cyber heists gets 8 years in U.S. prison, Reuters
Germany's AfD votes to expel lawmaker who criticized Holocaust memorial, Reuters
Rights group says Pakistan has 'forced' mass Afghan refugee returns, Reuters
|Colin Ingram says the decision follows a recent trend of the Federal Court granting lump sum costs in patent infringement cases.|
In Nova Chemicals Corporation v. the Dow Chemical Company, the Federal Court of Appeal dismissed an appeal from Nova, finding Federal Court Justice John O’Keefe had not erred in his determination to grant costs in a lump sum, rather than use a full assessment process in accordance to a tariff.
“Lump sum awards have found increasing favour with courts, and for good reason,” Justice Donald Rennie said the decision, on behalf of a three-judge panel. “They save the parties time and money… When a court can award costs on a lump sum basis, granular analyses are avoided and the costs hearing does not become an exercise in accounting.”
Colin Ingram, one of the lawyers representing Dow, says the decision demonstrates a continuing acknowledgement by the courts of the usefulness in appropriate circumstances of lump sum awards in patent infringement matters.
“Part of what I think the court has been acknowledging in this case and others is that there is usefulness — in appropriate cases where it can be done — for a lump sum to be awarded at the outset by the trial judge to avoid this further proceeding,” says Ingram, who is a partner with Smart & Biggar/Fetherstonhaugh.
The Federal Court proceedings included a 32-day trial, in which the judge found Nova had infringed a patent owned by Dow in one of its products. Both companies manufacture polyethylene film-grade copolymers used in packaging applications.
O’Keefe granted Dow the lump sum of $6.5 million, which was $2.9 million in legal fees and $3.6 million in disbursements.
O’Keefe noted that the proceedings were “extremely complex”, with written submissions exceeding 700 pages, and that both parties undertook extensive testing that were at the heart of the dispute. He found that given this the 11 per cent that was allowable under the tariff would be inadequate, and that Dow should get an amount that was 30 per cent of its legal costs.
Nova opposed the granting of a lump sum, arguing that the issue of costs should go to an assessments officer.
Nova claimed the record and evidence provided were not sufficient to substantiate a lump sum. Nova objected to “the lack of a supporting affidavit and its inability to cross-examine and test Dow’s claim for disbursement of $1.6 million,” but the judge dismissed this argument, saying he was satisfied with Dow’s submissions.
O’Keefe determined that the costs should be a fixed lump sum, saying an assessment would “serve no purpose”.
In their appeal, Nova submitted that any departures from the tariff should only be granted in exceptional circumstances. Nova also argued that O’Keefe had erred in awarding costs based on a percentage of Dow’s actual fees, alleging the judge did not analyze whether the time billed by Dow’s lawyers was reasonable.
Nova also argued the judge was not entitled to come to the conclusion he did, saying the evidence provided before the judge was insufficient, with respect to Dow’s fees and disbursements.
The Federal Court of Appeal found that the evidentiary record before a trial judge that awards a lump sum does not need to provide the same level of detail as would be required by an assessment officer, who would be unfamiliar with the case.
The court also determined that the judge had a sufficient basis on which to conclude that the disbursements claimed by Dow were reasonable.
Ingram says the Federal Court of Appeal decision is an acknowledgement for the need for a practical approach in certain circumstances to certain cost issues.
“Here it’s an acknowledgement that the trial judge is in a position to assess various issues relevant to costs including the complexity of the proceedings, the nature of the trial, including the number of experts and the testing that was involved,” he says.
One person dead, five in hospital after fire at Toronto Community Housing building, Canadian Press
Toronto police won't march in Pride parade: Chief Mark Saunders, Canadian Press
Ghomeshi's lawyer to speak to universities despite some opposition, Canadian Press
Trump border 'wall' to cost $21.6 billion, take 3.5 years to build: report, Reuters
Trump travel ban challenges abound in courts across U.S., Reuters
Hundreds of thousands rally in Iran against Trump, chant 'Death to America': TV, Reuters
Families of victims of Philippines drug crackdown win legal challenge, Reuters
|Roy Heenan, co-founder of Heenan Blaikie LLP, passed away Feb. 3. (Photo credit: Toronto Star)|
Norm Bacal, who was national co-managing partner for 16 years at Heenan Blaikie, was first a student in Heenan’s labour law class at McGill Law.
“That’s how far back we go,” says Bacal. “But I only got a ‘C’. The running joke in the firm for years after I was hired into the tax department was that I would never have to do any labour work and Roy would never have me.”
While he had only spoken with Heenan once in the last couple of years, Bacal says when he heard the news about his death he felt a “great sense of loss” for the person who had been a major influence on his life.
“Roy and Peter changed my life and sent it in a particular direction,” he says.
Montreal lawyer Karen Rogers also started her career with Heenan, working with him from 1990 to 2014.
“In one word, he was a passionate person and his passion was in the law, in advocacy, for his clients, the firm — and you could feel it,” says Rogers, now a partner at Langlois LLP and chairwoman of that firm’s litigation group. “As a young lawyer and even growing up with him, there was this enthusiasm and need to do the best of your ability. What he built at Heenan, he believed a lot in people and working as a team with respect and not only the lawyers but the support staff and to appreciate the value of the whole team.”
Rogers recalls Heenan giving speeches at the firm emphasizing that it was the “kindler, gentler firm.”
“That was very important to him,” she says.
Bacal, who also “grew up” at Heenan Blaikie, recalls Roy Heenan as another kind of teacher, saying he learned a lot from him about how to approach people.
“He cast a giant shadow because he was a big personality, but on top of everything else, he was a real gentleman, always. There are so many aspects to him as an individual and so many lessons that he taught that I think he did without meaning to teach.
“Part of what Roy taught I’m not sure he was even aware he teaching,” Bacal says. “He was charming and it didn’t matter who you were — whether it was the receptionists, the hostesses, Fidel Castro, he treated you the same way,” he says.
Heenan Blaikie became known as a firm that offered a different climate for lawyers to practise law and be treated differently. It rose to fame as having one of the top labour and employment practices in the country.
“He was a brilliant jurist and will always be remembered as such in the labour community,” says Bacal.
Rogers also worked with co-founding partners Peter Blaikie and Don Johnston. She recalls the firm having a mandate to not just work for big clients but do smaller files and help less fortunate clients — something that mattered to Heenan.
“I think he could have worked anywhere and he didn’t want to do law for money, he did it because he enjoyed it,” she says. “When you’d go to court, you’d see him running down the hallway in his gown — he was a passionate person who didn’t necessarily do things the way lawyers generally do things. He felt if you did well and excelled at what you did, the rest would fall into place.”
When the firm collapsed in 2014, it was “extremely hard” for Heenan, Rogers says, adding that for her even today it’s “difficult to understand.”
“The firm folding was not about the majority but the minority who did not necessarily get along, which caused the whole thing to happen. It wasn’t a financial issue. I was a partner at Heenan and I didn’t anticipate it, to be quite frank, and I’m pretty sure Roy didn’t anticipate it either,” she says. “It was probably one of the biggest deceptions of his life.”
Heenan will also be remembered for his role in the Canadian arts world. Rogers remembers the art in the Montreal office and how Heenan decided where each painting would go.
“He built, possibly single-handedly, the reputation of a number of Canadian artists, simply by the volume of Canadian art he bought over the years,” says Bacal. “He found many unknown artists and held on to their works until they became known.”
Bacal has written a book about the fall of Heenan Blaikie called Breakdown: The Inside Story of the Rise and Fall of Heenan Blaikie, which will be released Feb. 28.
As a leader, he was described as unique. “Even his detractors loved him,” says Bacal.
Visitation for Heenan is today at the Kane & Fetterly Funeral Home in Montreal. A funeral service will be held tomorrow, Friday Feb. 10, at 1 p.m. at St. George Anglican, 1101 Stanley Street in Church in Montreal.
Dunphy family lawyer quizzes RCMP investigator on response to shooting, Canadian Press
Dutch prosecutors seek maximum sentence for cyberbully suspect, wanted in Canada, Canadian Press
Assault case involving N.S. immigration minister's husband due in Halifax court, Canadian Press
Supreme Court nominee says president's tweets 'demoralizing', Reuters
First trial set to begin over 2014 armed standoff at Nevada ranch, Reuters
Trump adviser pitches Ivanka's goods from White House, Reuters
British PM May says Trump's immigration order was wrong, Reuters
Pope says he's 'at peace' confronting Vatican corruption, sex abuse, Reuters
Are law firms really innovating or is it all talk? That is a common debate in the profession these days and Blake Cassels & Graydon LLP has just launched a new challenge to move beyond the noise to what they hope will be real measurable innovation.
|Carla Swansburg’s team at Blakes is working with Law Made to develop a new product that they hope can be used by Blakes, clients and possibly other law firms.|
“There is a lot of … talk about how law firms aren’t really doing anything,” says Carla Swansburg, who is the director of practice innovation, pricing & knowledge at Blakes. “I think this is a really good example [of how] some law firms are actually … taking the steps to do stuff that is a little bit different, and a little innovative, but haven’t necessarily historically talked about it a lot.”
Swansburg’s team at Blakes is working with Law Made, a legal incubator in Toronto, to develop a new product that they hope can be used by Blakes, clients, and possibly licensed to other law firms.
Blakes went through an extensive internal discussion about what kind of end product they wanted to see with the challenge, to avoid the endless brainstorming with no tangible results that can occur in “hackathons” and other initiatives meant to spur innovation.
“We are kind of bypassing that route and saying we are going to go out there, we are going to frame the problem, invite solutions and then actually, hands on, roll up our sleeves, and work with the people who are building the tool, to create something that is not necessarily marketable but really gives us a tangible solution that we have helped design,” says Swansburg.
Blakes provides applicants with business requirements to ensure they know what is expected. Swansburg says the solution needs to be “…taking a pre-defined set of legislative provisions, so on a topic for example like consumer credit, and finding a way to automate the creation of reports around changes.”
The reports would need to track relationships between regulations and keep up to date by using a technology solution like machine learning, artificial intelligence or natural language processing to collect this information and provide clear, structured and actionable reporting on regulatory changes.
Blakes and Law Made will provide the winning entry with free legal advice from Blakes, mentoring from Law Made and a paid internship that includes work space and a stipend for up to six months.
Swansburg says she expects entries to come from the startup community, and that some initial applications have already come from Canada and the U.K., with some expressions of interest from the U.S., including a law school centre for law and technology.
There will be a two-step process, with the first round of applicants whittled down to around two to five finalists by a jury from Blakes, Law Made and client and industry participants.
Once the finalists are selected, they will make their pitch to a different jury and this will likely involve a beta test of the interface and an evaluation of the user experience.
They expect the winner to be notified in the late fall of 2017.
While Blakes will not necessarily have equity in the final product, Swansburg says that will depend on “what others come up with.”
Brazil challenges Canada at WTO over Bombardier aid, Globe and Mail
Police investigate after two men found dead in Barrie, Ont., Canadian Press
Newfoundland home where girl's remains found being torn down, Canadian Press
Federal appeals court expected to rule on Trump's travel ban, Reuters
Silenced in Senate, Democrat Warren speaks louder against Sessions, Reuters
There should not be a second Scottish independence vote: May spokesman, Reuters
Islamic State suspected of killing six Afghan Red Cross workers: officials, Reuters
B.C.’s Civil Resolution Tribunal, which handles strata disputes online, is poised to launch a second online system for settling disputes between small claims litigants.
|Civil Resolution Tribunal chair Shannon Salter sees a growing trend towards providing Internet-based delivery of dispute resolution systems and legal advice.|
“We will likely start with a smaller amount and gradually increase in time,” she says, which will also permit the tribunal to ramp up staff as the case volumes increase. Small claims courts in B.C. handle up to 11,000 cases annually.
Salter said the ability to resolve small claims disputes online extends the mediation efforts B.C. initiated for small claims and family disputes as an alternative to costly and time-consuming court litigation. “We have the opportunity to build upon the Court Mediation Program,” she says, as an online initiative will reach throughout B.C. Currently, the small claims mediation program only has five registries (Vancouver, North Vancouver, Surrey, Nanaimo and Victoria) and handles only claims of up to $10,000 except for Vancouver.
Salter said that only two mediation program registries are outside the Lower Mainland, making it difficult for rural residents to access the program’s mediation. The online tool can be accessed from any B.C. point that has Internet and is especially useful for individuals living in remote or rural areas, as individuals do not have to commute long distances, miss work, and arrange child care.
The online tool provides other benefits such as providing self-represented litigants, who cannot afford a lawyer, with legal information lessening confusion over the issues and process. Also, in many outlying areas of B.C. a lawyer shortage exists and finding legal advice can be challenging.
The small claims dispute tool is riding on the success of the CRT’s strata dispute system launched in July 2016 on its website becoming Canada’s first such online site. The strata tool has had 4,000 hits since its launch with users running the gambit from the curious to individuals seeking legal information to solve their own disputes to the 230 cases that have moved forward to mediation or adjudication.
“The model is about bringing the justice system to where people are and to make it simple to understand,” says Salter, who used three language experts to design a style guide that ensures all legal information is rendered to a grade six reading level. As well, the government forms have also been stylized to be easy to understand and fill out.
Salter said the strata software tool has been designed as a “a guided pathway” that takes individuals with a complaint through bite-sized pieces of legal information that can help determine whether their issue is a legal complaint, what are their rights and provides some help in how to settle the dispute (pamphlets and letters are available online). The process is geared towards self-resolution of disputes. If the individual is not able to resolve the issue, CRT can provide the mediation and adjudication.
The payback of a tool that is user-friendly and informative, says Slater, has been office staff spend less time answering questions or searching for more information and can spend more time dealing with individuals who may be illiterate or have language issues.
She said the Internet delivery model is geared to be user-friendly for both strata and small claims users. “We know that 92 per cent of people are on-line every day in B.C.,” she said. “People email, text and Google and so we are not asking them to do anything that is more difficult.”
The CRT’s first six months of operation has shown only two requests for non-email communications, fewrequests for hard-copy forms and individuals using the strata tool after work. “We found that 45 per cent were filling out their applications outside of work, typically on weekends or in the evenings,” she says, adding it is reflective of how the on-line tool is adaptable to user needs.
Salter said the small claims tool will be more complex than that which serves strata users as only a few statutes pertain to strata disputes. Small claims can affect a breadth of statutes and as case volumes increase, more information will be detailed on the website as legal expert opinions and information is added.
The CRT staff form an interdisciplinary team, with several lawyers. The CRT’s executive director and registrar is lawyer Richard Rogers. There are seven resolution support clerks who assist individuals attempting to resolve their own disputes. Five facilitators or case managers mediate disputes and are led by lawyer Kandis McCall, director of case management.
“In addition, there are 16 part-time tribunal members who are also lawyers from throughout the province,” she says, adding that these members, writing adjudication decision have gone through sessions to ensure decisions are written in “plain language — which can be a challenge for lawyers.” As well, facilitators have been briefed on how to collect information in disputes that have to go forward to adjudication. “Administrative law principals kick in,” she says as parties have the opportunity to exchange information and cross examine via conference calls.
Salter believes that the model of online tribunals and the Internet to provide access to justice and legal information will be a deepening trend. “MyLawBC offers solutions for separation agreements (using a Dialogue Tool) and help with a will,” she says. While not a tribunal, the Legal Services Society website does offer legal help for those unable to afford or access a lawyer. The B.C. Residential Tenancies Branch, she said, is also using the Solution Explorer software to field and resolve landlord and tenant disputes.
“We have to find creative new ways to connect people to the services they need and one way is to provide access justice on line,” she says.
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