Legal Feeds Blog
Doctor’s sex abuse acquittal highlights ‘problematic’ Ontario law, The Toronto Star
B.C. judge orders prisions to fix isolating ‘enhanced supervision’ program, The Globe and Mail
Three men made millions by hacking merger lawyers, U.S. says, New York Times
Tunisian detained as a possible accomplice in Berlin attack, New York Times
Judge indicts former Argentine president in corruption case, Associated Press
Toronto corporate securities lawyer Geoffrey Taber, his wife Jacquie Gardner and their two children are believed to have perished in a tragic Christmas Eve fire at a cottage near Peterborough.
|Geoffrey Taber was a corporate securities lawyer at Osler, Hoskin & Harcourt LLP in Toronto.|
The family is said to have lived fulltime in the Riverdale area of Toronto. Taber was a partner at Osler, Hoskin & Harcourt LLP.
In a statement, Dale Ponder, managing partner and chief executive at Osler, Hoskin & Harcourt LLP said: “Geoff Taber was a generous, vibrant and wonderful person, a legal visionary and beloved partner at Osler. There are no words adequate enough to express the depth of sorrow we feel about the tragic death of Geoff and his beloved wife Jacquie and sons Scott and Andrew.”
In a message on the firm's website it states Taber was "at the forefront of understanding the importance of the technology sector to Canada and was the founder of Osler's Emerging Companies Group. He advised many of Canada’s emerging and later stage companies as well as venture capital investors. He encouraged entrepreneurship through his work with key industry initiatives such as the Rotman Business School's Creative Destruction Lab and The Next 36, Canada's Entrepreneurial Leadership Institute."
Gardner was “an exceptional corporate lawyer initially at Osler, then as general counsel & secretary at Altamira Investment Services.”
“Geoff and Jacquie were first and foremost loving parents to their two remarkable sons. We will miss them terribly,” Ponder said.
The incoming 2017 Law Society of British Columbia president Herman Van Ommen is hoping to further promote unbundling to the legal profession during his term in office.
"They haven't picked it up. They haven’t really grasped the opportunities that exist because there is still some anxiety about unbundling,” he says. “The issue is not about changing our rules and policies, it is convincing the profession it is a good thing.”
In 2008, the benchers approved 17 recommendations that would make it easier for lawyers to provide unbundled services to clients.
Some factions of the legal profession, such as family law practitioners belonging to Mediate BC, have embraced unbundling. Mediate BC offers an online tool kit on unbundling to help its members in the practice of family law.
“But unbundling can be used in every area of the law,” he says. "The key to it is being clear what the lawyer will do and what they will not do.”
During his term, Van Ommen is planning to talk more about how unbundling can increase sorely needed access to justice for the public. It can also be useful in outlying areas of B.C. where lawyers or clients may be dealing with travel challenges. The Canadian Bar Association of B.C. has also been actively promoting unbundling, he says.
Van Ommen, who assumes the mantle in January, says the current president, David Crossin, is also supporting more unbundling services and is preparing a letter aimed at encouraging lawyers in B.C. to participate in this practise.
The incoming president said that the LSBC has in place practitioner advisers who can provide lawyers with support and advice on how to carry out the service successfully.
The year 2017 will also see the new LSBC president further develop the progress made in regulating B.C. law firms. In November, Van Ommen took the interim report of the Law Firm Regulation Task Force that he headed in 2016 to the benchers.
“We would be registering the law firms, not licensing them,” he points out as the LSBC already licenses lawyers.
The LSBC's approach to regulating law firms, he says, will be proactive. There will be a focus on ensuring that law firms have the information they need as well as the help they need in resolving problems, he says.
But one of the main initiatives within the interim report (available on the LSBC website) sets out the elements of the professional infrastructure policies that law firms should have.
"We want to make sure that when lawyers work together that they are creating a professional firm that will develop a healthy culture and take responsibility for such things as accounting records, resolving conflicts, education, training of staff, confidentiality of client information and file maintenance,” he says.
The interim report includes sole practitioners, Van Ommen says, as these individuals still need to ensure that records, staff training and issues such as confidentiality are maintained or there is a means for resolving conflict. The sole practitioner category also includes groups, those individuals who practice individually but share office space and support services or group together with each lawyer having a preferred area of interest.
In 2016, task force members toured B.C. listening to concerns regarding regulation. During 2017, Van Ommen says, task force members will meet with focus groups, including sole practitioners and individuals who share space.
The other focus groups will consist of firms that have two to 10 lawyers, medium-sized firms with 11 to 25 individuals and large firms with more than 26 lawyers.The findings from the focus groups along with the interim report recommendations will all contribute to the final report, which Van Ommen is hoping to complete by the end of 2017 along with bencher approval for the recommendations. The regulations on registering as a law firm and what regulatory guidelines need to be in place will begin in 2018.
"We want to take a proactive approach. Once we decide to get more specific rules in place, there will be a period of time where we tell firms start developing your [in-house] policies and procedures and call us if we can help or if you want to know if this is good enough," he says. "It will take a year or so to implement these things. Even after that, if issues arise, we will be asking do they just need help to do things better with a policy or is it a problem with not willing or wanting to take this seriously,” he says.
Lawyers throughout B.C. will have the opportunity to talk with Van Ommen over the next year as he plans to spend more time connecting with the various regional bar associations.
- Alberta court orders journalist to disclose confidential source
An Alberta court has ordered a journalist to disclose the identity of a confidential source to a law firm that is suing him for defamation.
W. Scott Schlosser, a Master of the Court of Queen’s Bench of Alberta, has ruled Fort McMurray Today columnist Kevin Thornton must provide information about a source who provided him documents for columns he wrote about the Alberta-based firm Stringam Denecky LLP.
The firm is suing Sun Media Corporation, which owns Fort McMurray Today, over three columns Thornton wrote about a dispute the firm had with one of its clients over costs.
Alberta media lawyer Matthew Woodley says the decision, if not overturned on appeal, could have a chilling effect on whether potential sources will come forward with information in the future.
“The risk is that it will have an impact on how sources or potential sources, more importantly, in the future will view the protections that are available to them and their willingness to come forward to provide information in the public interest,” says Woodley, who was not involved in the case.
Thornton’s columns addressed a dispute involving a client in a family law matter who was charged around $70,000 in bills by Stringam Denecky. The client appealed the fees to an assessment officer.
In the meantime, the client’s affidavit in the matter, which was a public document, was given to Thornton, who then used it to write columns about the high cost of legal representation in family law cases.
When Stringam Denecky brought legal action against Thornton, Sun Media refused to produce the identity of the source in the early stages of the proceedings, citing journalistic source privilege.
The source had requested confidentiality at the time they provided the documents, which Thornton granted. In his affidavit, Thornton said confidentiality was essential to his relationship with the source and to his ability to obtain the court document that led to the columns.
Lawyers representing Sun Media Corporation argued that the lawsuit is mainly about Thornton’s opinion in the pieces and not the underlying facts.
Schlosser, however, found that the identity of the source should be disclosed as it could be central to Stringam Denecky’s case against Sun Media, as it could prove or disprove the firm’s claim of malice, recklessness or improper purpose.
Dean Jobb, a journalism professor at the University of King’s College, says the decision shows the limits on what journalists can hold back in terms of their sources. He says one of the places journalists cannot protect sources is when the journalist and media organization are subject to litigation.
“It’s a reminder to journalists that they haven’t been granted any kind of blanket or carte blanche right to protect sources,” says Jobb, who wrote Media Law for Canadian Journalists.
In making his determination, Schlosser analyzed the “Four Wigmore Factors” and found that while Thornton’s communication with the source originated in confidence, and that anonymity was essential to the relationship, the public interest in disclosing the name of the source outweighed that of protecting their identity.
“Counsel should be permitted to explore the identity and the situation of the source, given the centrality of the issue to their case and the circumstances of the promised confidentiality,” he wrote in the decision.
Schlosser noted that the affidavit provided were public and that it is not clear how confidentiality is central to the production of the documents.
“It is not difficult to see why someone might want to keep their name out of the paper, but there is a gap between this request and blanket protection claimed,” he said.
Woodley says the case is unusual, as the source simply provided a publically available document. In a traditional confidential source case, the reason that plaintiffs typically want to get the identity of a source is that the journalist relied upon information the source told them, says Woodley.
“It requires a judge to find that even if the source really did have an axe to grind, that malice or motive translates into what the journalist did, and I think that’s a step that is not necessarily based on logic,” he says.
“So it does make it a less probative or relevant information than it would be in other traditional source cases.”
Edmonton lawyer Sara Hart, who is representing Sun Media, says her client is appealing the decision, but she declined to comment further on the decision.
James Heelan, the lawyer representing the law firm, also declined comment.
A mistaken impression on the part of a Fairmont Hotel Inc. executive in 2007 will see a large tax payment to the Canada Revenue Agency, the result of a recent judgment by the Supreme Court of Canada that will influence future rectification cases.
In Canada (Attorney General) v. Fairmont Hotels Inc., the majority of the Supreme Court found that two Ontario courts had erred in holding that the respondent’s intention of tax neutrality could support a grant of rectification.
“A common continuing intention does not suffice,” Justice Russell Brown wrote for the majority. “It is limited to cases where a written instrument has incorrectly recorded the parties’ antecedent agreement. In other words, rectification is not available where the basis for seeking it is that one or both of the parties wish to amend not the instrument recording their agreement, but the agreement itself.”
Fairmont Hotels Inc. had been involved in financing the purchase of two U.S. hotels, in U.S. currency, by Legacy Hotels REIT, in which Fairmont held a minority interest; the hotels were accordingly purchased in 2003. The financing arrangement was intended to operate on a tax-neutral basis. But when Fairmont was later acquired, in 2006, that intention was frustrated, as the acquisition would cause Fairmont and its subsidiaries to realize a deemed foreign exchange loss.
Legacy Hotels later asked Fairmont to terminate their financing agreement in order to allow for the sale of the two hotels it had purchased. Fairmont subsequently redeemed its shares in its subsidiaries, which resulted in an unanticipated tax liability that Fairmont then sought to avoid by rectification of the directors’ resolutions. (Fairmont’s vice president of tax had been under the mistaken assumption that the subsidiaries’ foreign exchange tax neutrality had been secured, and so had instructed the directors of Fairmont’s subsidiaries to pass resolutions that would unwind the reciprocal loan structure with a share redemption.)
At issue for the majority was that “Fairmont has not demonstrated how its intention, held in common and on a continuing basis with its subsidiaries, was to be achieved in definite and ascertainable terms while unwinding the financing arrangement,” Justice Brown wrote. “Fairmont refers to a plan to protect its subsidiaries from foreign exchange tax liability, but that plan was not only imprecise. It really was not a plan at all, being at best an inchoate wish to protect the subsidiaries, by unspecified means.”
In dissenting reasons, Justice Rosalie Abella, also writing for Justice Suzanne Côté, found that a “common, continuing, definite and ascertainable intention to pursue a transaction in a tax-neutral manner has usually satisfied the threshold for granting rectification.
“Allowing the tax authorities, a third party, to profit from legitimate tax planning errors, when its own rights have not been prejudiced in any way, amounts to unjust enrichment,” Justice Abella wrote.
The majority of the court took a restrictive approach to rectification in reaching its conclusion, Scott Rollwagen, the research partner at Lenczner Slaght in Toronto, told Legal Feeds. (A companion decision, Jean Coutu Group (PJC) Inc v Canada (Attorney General), considered the corresponding principles under Quebec law, and took the same approach.)
“A tax-efficient result will often form the motivation for entering into an agreement, but the question of intention is much more specific than that,” Rollwagen says of the court’s decision. “The only common intention that will support rectification is proof that the parties actually had a prior intention of entering into a transaction having a definable structure.
“Intention is the thing that you actually want to do,” he says. “The motive is why you want to accomplish it. You can get rectification when you can clearly show that there was an intention that the written agreement doesn’t effect. . . . What was really a problem in Fairmont was not the intention but the motive.”
Fairmont executed some directors’ resolutions to redeem some shares, which wasn’t what they would have done if they knew what the tax consequence would be, he says. “The motive was to avoid tax, but [Fairmont] mistakenly formed the wrong intention in effecting that motive.” The result of the Fairmont Hotels decision is “that you can’t rectify for motive.”
One implication of the decision will be increased transaction costs for corporations, Rollwagen predicts, to “make sure they get it right.” Mistakes such as occurred in Fairmont often occur when dealing with real-time commercial decisions. “Some things may need to be slowed down.
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