Legal Feeds Blog
A Quebec judge rejected Canadian Pacific Railway Ltd.’s challenge to a settlement for victims of the Lac-Mégantic crude-by-rail disaster on Monday, clearing the way for compensation payments
|An emergency worker stands on the site of the train wreck in Lac Megantic, July 16, 2013. (Photo: Reuters)|
Forty-seven people were killed and the downtown core of the town was destroyed following the derailment of a train carrying Bakken crude oil.
CP transported the tank cars of oil involved in the accident to Montreal before handing them over to the now insolvent Montreal Maine & Atlantic railway, which was operating the train at the time of the crash. CP has argued that it should not be held responsible for the tragedy.
Unlike other companies targeted by a Lac-Mégantic-related class action lawsuit, CP did not agree to the settlement and challenged the provincial court’s jurisdiction in approving the deal. CP also asked the Quebec court to shield it from future litigation.
In his judgment, Quebec Superior Court Justice Gaetan Dumas dismissed CP’s motion as a “not so subtle attempt” to disrupt a settlement that called for $430 million in compensation for victims of the rail tragedy.
Although CP is not part of the fund and thus would not be on the hook for any of the promised funds, it is being threatened by a separate lawsuit.
A spokesman for CP said the company is currently reviewing the judge’s decision and has no further comment at this time.
Can family lawyers include a provision in their retainer agreements giving themselves discretion to withdraw from the case for non-payment of legal fees?
That was one of the issues in a Law Society Tribunal case in which the panel made findings of professional misconduct against a Whitby, Ont., lawyer who acted for a client in her matrimonial dispute. At the very least, a lawyer must advise the client about obtaining independent legal advice, the tribunal found.
In this case, the retainer included a provision noting that the lawyer, Matys Rapoport, “in his discretion may withdraw from acting on my behalf” for reasons including non-payment of an account. “
“I expressly give Max Rapoport permission to sign a notice of change in representation on my behalf should he deem same necessary,” stated the retainer agreement signed by the client in 2010.
With the client not having paid accounts totalling $23,027.52 by September 2011, Rapoport began expressing concern about the outstanding amounts and told her that fall that he’d no longer act for her unless she began making payments, according to the tribunal’s July 7 decision.
In November 2011, the lawyer sent a letter saying he’d continue to act if she signed two consents to judgment. She signed them but with the issues over payment continuing, he sent another letter in March 2012 saying he’d remove himself as solicitor of record unless he received $34,000 towards the outstanding account within 10 days, according decision written by panel chairwoman Susan Opler.
Rapoport ended up filing a notice of a change in representation on the client’s behalf, Opler noted. The client responded with an e-mail calling the lawyer’s withdrawal as “unfair” and “unfortunate.”
For his part, Rapoport noted his reliance on the retainer agreement as a “precedent form retainer agreement that several counsel (unidentified) rely upon in his jurisdiction,” wrote Opler.
But in considering whether his actions were acceptable, Opler compared them to another case in which a family lawyer’s retainer agreement contemplated a client giving up his right to an assessment under the Solicitors Act.
The client in that case had essentially contracted out of the Solicitors Act, she found, noting Rapoport had achieved a similar result by obtaining the consents to judgment and serving a notice of a change in representation.
“This latter appropriation of the client’s right to terminate the relationship ‘at will’ meant the Lawyer effectively bypassed the procedural safeguards that apply to counsel of record established in the Family Law Court Rules, which protect the client and safeguard the process. In our view, both the assessment process and the right to end the solicitor client relationship ‘at will’ . . . are consumer protection provisions designed for the protection of the public which should not be appropriated by the Lawyer,” she wrote.
Opler highligted the power imbalance at issue and the importance of advising on the need for independent legal advice “as a lawyer treads closer and closer to the line of encroaching on existing client rights in favour of strengthening his own economic position.”
The decision continues: “Suffice to say that in this case, where no acknowledgment of the inherent conflict is included in the agreement nor is there guidance given to the client to seek independent legal advice, we find that the Lawyer was in an impermissible conflict of interest when he advised the client to hand over to him all control over service of a Notice of Change in Representation — a right that properly belonged to her pursuant to Rule 4(10).”
While the panel made the misconduct findings, it must still reconvene to consider the penalty.
Rapoport’s counsel Ted Spong declined to comment as the case is still before the tribunal.
Man charged for assault at Calgary Stampede, Canadian Press
Some months ago, the skies over Halifax began to play host to a new visitor: a 1.2-kilogram drone equipped with a video camera that hovered over some of the city’s most popular spots: the waterfront, Citadel Hill, McNab’s Island. Its electronic eye was drinking it all in taking sweeping panaromic shots.
Was this, perhaps, the work of some shadowy intelligence-gathering organization bent on snooping on unsuspecting citizenry?
Nope. The drone belonged to David Fraser, a specialist in privacy law at McInnes Cooper and author of the Canadian Privacy Law Blog. Fraser, an avid amateur photographer, says he more recently felt a desire to photograph from a more unusual and engaging perspective. After coming across drone footage and being “blown away” by its helicopter-like views, he decided to shell out for an inexpensive (US$999) camera-equipped drone of his own.
“I’ve been having a great time with it ever since,” he says.
Fraser has posted some of his videos on YouTube, and they’ve attracted some media attention. To some, the nature of his hobby seems ironic given the area of law he’s devoted himself to. But Fraser doesn’t see his drone videography as a threat to anyone’s privacy.
With his drone’s relatively basic camera, he says, “you’re not zooming in on people, you’re not hovering off in the distance and being able to kind of peek at people or something like that, and it makes enough noise so that if you were to get close enough to somebody in order to do something creepy, they would hear it. So it’s not a covert surveillance piece of equipment by any means.”
And Fraser himself, he says, is mainly interested in capturing the landscape anyway, not people.
Given the newness of the technology, however, he does see why some people might be concerned.
“I am mindful of the fact that when people see something like this they don’t know what its capabilities are,” he says.
Amateur drone videography is not covered by privacy laws such as the Personal Information Protection and Electronic Documents Act or the Privacy Act, he says, although people who use it to invade the privacy of others or engage in voyeurism can be sued or charged under the Criminal Code just as ordinary camera-wielders can.
With drones likely to become increasingly common in the near future, Fraser says, there may be calls for legislation governing their use. But he thinks such legislation would be both unnecessary and problematic.
“Any time you have a new technology that’s introduced . . . you have what seems an automatic techno-panic that imagines all the worst-case scenarios.
“When you legislate in an environment of techno-panic, you end up going too far. I have a Charter-protected right to take photos in a public place. Any law that regulates how I can take photos in a public place has to be able to withstand Charter scrutiny.”
B.C. doctor wins appeal over privacy breach allegations, Canadian Press
Toronto man and woman face charges for road rage incident, Canadian Press
An Ontario Superior Court judge has awarded damages against law firm Cassels Brock & Blackwell LLP in the amount of $45 million for breach of fiduciary duty, breach of contract, and professional negligence.
In his 160-page decision Wednesday in Trillium Motor World Ltd. v General Motors of Canada Ltd., Justice Thomas McEwen found Cassels Brock owed contractual and fiduciary duties to some or all of the class members in the case and breached those duties. As well, he found it also owed a duty of care, which was also breached.
In a statement, Cassels Brock general counsel John Birch said it’s business as usual for the firm and it is actively pursuing an appeal. He noted the judgment “creates potentially indeterminate liability for lawyers.”
“Of course, we are disappointed,” Birch said. “But we remain confident that we conducted ourselves properly and in accordance with our professional responsibilities.”
“We feel that the findings are not justified on the evidence and that there are significant legal errors in the decision. We continue to believe that Trillium Motor World and the other automotive dealers had not become our clients in the circumstances, and they were each represented by their own independent legal counsel.”
In May 2009, about 200 General Motors dealers were eliminated during the federal auto bailout. The class action was seeking $750 million in damages on behalf of those dealers. Also named in the suit was Cassels Brock, which had been retained to represent Canadian dealers in a GM restructuring bankruptcy. The claim alleged Cassels Brock failed to disclose to dealers it was also acting for the Canadian government in the GM auto bailout and breached duties to dealers.
Also as part of his decision, McEwen found that General Motors of Canada Ltd. did not breach the Arthur Wishart Act (franchise disclosure), 2000. Therefore he dismissed the action against GMCL. He also dismissed the counterclaim by GMCL against each of the class members.
In his decision, McEwen wrote: “Cassels takes the position that there was only ever the potential for a conflict to arise on account of the two retainers. In other words, Cassels accepts that there was indeed a risk that immediate legal interests of Industry Canada and the GMCL dealers would be directly adverse.”
He then goes on to refer to testimony that indicated that “Cassels would have dropped the GMCL dealers if the risk became reality (‘if an adverse interest arose with respect to that retainer, it’s conceivable that we could not act for the dealers at that time’), there can be little doubt that there was a risk that Cassels’ representation of the GMCL dealers would have been materially affected.
“Thus, the issue is really whether this risk was a substantial one. In my view, the evidence supports a finding that it was,” McEwen wrote.
He then proceeds to outline that at the time of the retainer the following facts were known:
• GMCL was essentially insolvent and relying upon government money to survive;
• The current plan in place was to reduce the dealer network by 29 to 36 per cent by the end of 2014, later accelerated to 42 per cent by the end of 2010;
• Cassels, by virtue of its representation of the Saturn dealers, was aware of the fact that an argument could be raised that GMCL’s proposal may be in violation of the DSSA (dealer sales and service agreements). In fact, it advised the Saturn dealers and drafted a letter on their behalf to send to GMCL in this regard. Accordingly, it would have been aware that if the GMCL dealers were cut, it would have to take a position contrary to Canada’s desire for restructuring;
• The retainer was going to be accepted with the provision that Cassels could not take on the government in a CCAA proceeding. The interest of Canada would be aligned with GMCL on a CCAA filing. The interest of the GMCL dealers would be either to survive the rationalize or to, on the other hand, obtain as much financial compensation as possible if they were to be non-retained.
• The dealers who had received WDAs would have faced the loss of their businesses; and,
• The proposed CCAA filing would be one of, if not the, largest in Canadian history. A CCAA filing is “real time litigation” where parties have limited timeframes to act and react to the proceeding.
Read more on this story Monday on Canadian Lawyer InHouse
While provincial superior courts can decide that federal regulations are invalid, only the Federal Court of Canada can declare them invalid via judicial review — although they have broad discretion to deny such review.
|Mary-Jo Maur believes there’s little chance a challenge to wipe out the Child Support Guidelines would succeed.|
The ruling in Strickland v. Canada involves a divorce case from Alberta in which the appellant, Robert Strickland, challenged the validity of federal Child Support Guidelines under the Divorce Act.
Strickland argued that the regulations, implemented by former justice minister Allan Rock in 1997, are inconsistent with the legislation. Rock’s attempt to amend the Divorce Act (which considers the means of both parents) to correspond with the guidelines (which only considers the means of non-custodial parents) was defeated by the Senate.
It’s this inconsistency that led Strickland and two co-appellants to seek a judicial review at the Federal Court of Canada.
When the court denied application for review — arguing it had little experience in family law matters and was an inappropriate forum — the applicants turned to the Federal Court of Appeal, arguing that the lower court’s reasoning was insufficient to deny the review.
Today’s decision, written on behalf of a unanimous court by Justice Thomas Cromwell, makes clear that superior courts have overriding discretion to deny judicial review, particularly when the court deems itself to be an inappropriate or inadequate forum.
“In this case,” the decision states, “the appellants’ position that they are entitled to a ruling on the legality of the Guidelines through a judicial review is fundamentally at odds with the discretionary nature of judicial review and with the broad grounds on which that discretion may be exercised. The appellants do not have a right to have the Federal Court rule on the legality of the Guidelines; the Federal Court has discretion to do so, which it has decided not to exercise. . . .”
“The provincial superior courts deal day in and day out with disputes in the context of marital breakdown concerning the needs of children. . . . Parliament has entrusted, for practical purposes, this entire area of law to the provincial superior courts. Having done so, it would be curious, to say the least, if the legality of a central aspect of that regime were to be finally decided by the federal courts, which as a result of federal legislation have virtually no jurisdiction with respect to family law matters.”
Glenn Solomon, the litigator at Jensen Shawa Solomon Duguid Hawkes LLP who represented the appellants, says the ruling is by no means a decisive loss for his clients.
While the SCC decision shuts the door on a Federal Court review, it leaves open the possibility that the Child Support Guidelines will be rendered inconsistent with the Divorce Act through a traditional proceeding. Indeed, Solomon says an action at the Alberta Court of Queen’s Bench, which has been pending the SCC decision, will now proceed.
“It seems to me that what the Supreme Court has said is that only the Federal Court can declare the guidelines ultra vires the Divorce Act, but the superior courts can, in a case where there are other issues, decide that the guidelines are ultra vires the act,” says Solomon.
“And so we have the distinction between what the superior courts can decide, and what only the federal courts can declare.”
If Strickland’s challenge at the Court of Queen’s Bench succeeds, an appeal on the regulation itself — versus the discretion of the courts — could still make its way back up to the Supreme Court of Canada.
“A decision at the Federal Court doesn’t bind a provincial superior court,” says Solomon. “If anybody wants a ruling once and for all on the validity of the guidelines, it’s going to have to go up through the court system to the apex of the system, to the Supreme Court, to get a decision that binds everyone.”
Mary-Jo Maur, an assistant professor and family law expert at Queen’s University, says she “admires the boldness” of the attempt to wipe out the Child Support Guidelines, but she believes there’s little chance that such a challenge could succeed given the number of divorce cases that would be caught up in the maelstrom.
“Does this mean that people can go to the provincial superior court and ask to have the Child Support Guidelines declared invalid? Theoretically, somebody could do that, in the context of their own divorce application . . . but do they have a chance of winning it?!” she laughs.
“Ask me what the odds are — they have to be into the negative numbers. I mean, think about all the cases going back to May 1, 1997. What happens to them?”
Lu Chan Khuong has served a formal notice on the directors of the Barreau du Québec demanding that they they rescind the resolution ordering her suspension as bâtonnière.
Khuong was suspended last week following a special meeting Wednesday called as a result of an article in La Presse, in which the newspaper reported its discovery of a record of the shoplifting offence, which involved two pairs of jeans.
At the meeting, the board voted unanimously to demand Lu Chan Khuong’s resignation. When she refused to resign, the board responded by suspending her indefinitely.
“I intend to stay in office and to carry out the reforms desired by the 63 per cent of lawyers who democratically elected me on May 22. I intend to put an end to wasteful expenditures, reduce the dues paid by our members and work for our citizens, who deserve a simpler and more accessible justice system. I will not let myself be distracted by certain individuals who, through illegal and immoral means, are trying to sabotage the results of the election,” said Khuong in a statement this morning.
Khuong is asking the Barreau's directors to correct their error, which she says has already done harm to the image of one the most prestigious professional associations in Quebec.
In addition, Khuong, who is being represented by lawyer Jean-François Bertrand, wants a public apology and said she reserves the right to take action for defamation.
She said she received a wave of support during the last week from the bars of Longueuil, Laval, Arthabaska, Outaouais, Richelieu and Mauricie, as well as petitions and letters from lawyers and members of the public.
The Canadian Bar Association – Québec Branch issued a release earlier today saying it is “deeply concerned by the crisis that has been gripping the Barreau du Québec.”
It says the “reasons cited and made public to date by the Board to justify its decision are in our view insufficient and contrary to the principles of fundamental justice that underlie our profession.”
At this point, Khuong has not been charged with anything and the file on the case has been closed so the CBA-Quebec points out “she is entitled to the presumption of innocence,” like any other Canadian. It’s calling on the Minister of Justice to investigate who leaked the information on Khuong from its Diversion Program’s confidential files.
“CBA-Québec accordingly insists that [Khuong]., the democratically elected President of the Québec Bar by popular vote, be immediately allowed to resume the duties of her office, and that the Québec Bar's Board of Directors collaborate fully with her in ensuring the proper operation of the professional order of Québec lawyers.
Also speaking out against the Barreau’s board of directors is Claude Provencher, a senior federal bureaucrat and a former executive director of the Barreau. “It’s a settling of scores,” Provencher told Droit-Inc. “They were looking for a chance to act against the bâtonnière and they seized on the slightest pretext without doing any rigourous or reasonable analysis.
“It’s a vendetta,” he added, clarifying that he was speaking as an individual and not in his capacity as general counsel and regional director in Quebec for Justice Canada.
Speaking of the article in La Presse that led to the board’s decision, Provencher said, “They didn’t try to find out if it was true, because for them it was a gift fallen from heaven."
Khuong, he said, had promised major reforms at the Barreau, dealing with things ranging from the salary of directors to the number of hours of mandatory pro bono work required.
Update 2:40 pm: Comments from CBA-Quebec added.
Update 3:35 pm: Remarks from Provencher added.
Alberta appeal court upholds infanticide convictions for Calgary woman, Canadian Press
Newfoundland man in court accused of stabbing youth soccer player, Canadian Press
Tobacco companies return to court to fight settlement ruling, Canadian Press
Chicago will attempt to convince judge that pension law is constitutional, Reuters
Georgia appeals court to hear Ku Klux Klan lawsuit against state over refusal to adopt highway, Reuters
Former Italian PM Berlusconi found guilty of bribing a senator, Reuters
Former Serbian commander accused of war crimes extradited from Australia to face trial, Reuters
The Ontario Court of Appeal has upheld a defamation finding against former University of Ottawa professor Denis Rancourt, who called Joanne St. Lewis, a law professor at the same university, “a house negro” in a 2011 blog post.
|‘I think what the court did was clearly state there’s a boundary to freedom of speech; you don’t get to defame people,’ says Joanne St. Lewis.|
Speaking from Montreal, where she’s on vacation, St. Lewis says she is “very pleased” with the court of appeal’s decision.
“I feel really vindicated. The whole point is that for those of us who are racialized in our workplaces, it’s one thing to critique our work but when you choose to make false statements, defame someone, and not engage in a substantive analysis, you can’t hide behind free speech in the way that he [Rancourt] attempted to do,” says St. Lewis, who is also a bencher at the Law Society of Upper Canada.
“I think what the court did was clearly state there’s a boundary to freedom of speech; you don’t get to defame people. I think that’s a very important statement,” she adds.
Rancourt tells Legal Feeds: “I’m disappointed in the decision. I’m still reviewing it now, and I will be considering my options. In my view, the appellate court’s endorsement is wrong, on many points.”
“The Court of Appeal adopted the respondent’s theory. That theory is that in order to have evidence, you must lead evidence. My theory is that the evidence is what is in the record before the jury.”
The protracted lawsuit stemmed from Rancourt’s use of the pejorative language in a blog post in which he took issue with St. Lewis’ criticism of a 2008 student-commissioned report that found issues of systemic racism at the University of Ottawa.
The blog post, which has now been removed from Rancourt’s UofOWatch blog, was titled, “Did Professor Joanne St. Lewis act as Allan Rock’s house negro?” At the time, Rock was serving as the university’s president.
Last year, a jury found man of Rancourt's statements in the blog posts were defamatory and he exhibited actual malice. It awarded general damages of $100,000 and aggravated damages of $250,000. The trial judge endorsed the verdict and ordered substantial indemnity costs of $444,895, all inclusive, against Rancourt.
Rancourt appealed the lower court decision and sought a new trial on the basis that the trial judge erred in several ways. The judge, he argued, did not instruct the jury with respect to “fair comment,” did not consider that St. Lewis’ claim was statute barred, and failed to instruct the jury to watch a video of Malcom X speaking, which was embedded in one of the impugned blog post.
Rancourt also argued the finding that he defamed the respondent violates his right to freedom of expression. The court of appeal dismissed all his arguments and awarded St. Lewis $30,000 in costs.
Rancourt did not participate in the whole trial. He appeared in court on the second morning of the trial and read a prepared statement to the judge indicating he would not participate further, the court of appeal said.
“He left the trial and only returned to hear the jury verdict on June 5, 2014. In the result, he did not call evidence in his defence,” wrote Hoy.
Update July 9, 2015: Comments from Rancourt added and clarification on his participation in the trial.
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