Legal Feeds Blog
New Brunswick man pleads guilty after video shows him mowing down man in parking lot, Canadian Press
Police say bad record keeping, not criminal activity, behind misplaced exhibits, Canadian Press
Appeals court will not put Trump travel ban case on hold, Reuters
Judge issues injunction against Pennsylvania district in transgender case, Reuters
Funeral held in India for engineer shot dead in Kansas, Reuters
|Lorne Sossin says reconciliation with Indigenous People and accessibility are top goals that have been identified for Osgoode Hall Law School.|
“On accessibility, we really saw it as something that is part of this outward focus of the law school, to really ensure we’re getting our financial barriers reduced to the extent we can, for ensuring our communities are inclusive, [that] no one’s pressed up against the window looking in on a great legal education if they want one and are eligible for one,” says Sossin.
The law school at York University has about 900 full-time students, 300 part-time graduate students and 100 to 150 full-time graduate students.
In the newest strategic plan unveiled last month, the school identified three goals it will continue to work on — community engagement, experiential education and research intensification. Now, the other two goals have been added, says Sossin.
“We saw accessibility and reconciliation through a really holistic lens as we added them to the list of those pillars on which we all stand,” says Sossin.
One of the ways the school is promoting accessibility is the Income Contingent Loan Program, which Sossin says is “far and away our most significant measure to counter” high debts and high tuitions.
The program is for students in the 10-year period following their graduation, and is designed so that a graduate pays back the debt in a way that reflects their income.
“[It] features students who get a loan from the law school to cover the entirety of their tuition — that’s a mixture of bursary and loan — and then the loan portion is repayable after they graduate, if their income is over $80,000 a year, and there’s some [income-measured payback] between $60,000 to $80,000, and if they make less than $60,000, the loan is forgiven in its entirety,” says Sossin.
Sossin says the program helps with addressing “career choice anxiety.”
“If [during] this debt, you can’t go and join an international human rights practise or do clinical work because you need a higher salary, this is a way in which the law school can have your back,” he says.
The program is available to five students in the graduating class of 2018 and another five in the graduating class of 2019, and was initially designed to cover 25 students in its five-year pilot. Sossin says the new strategic plan reflects hopes the program will grow.
“It’s an example of something that we felt we could do, and needed to do, to counter this status quo where tuition keeps going up, students keep going into more debt with credit lines, leads to more anxiety, more limits of career choice and limits, ultimately, who is going to come into the pool to apply for law school,” he says.
The school also has a flex-time initiative, which it describes as a way “to make the Law School more accessible to students who face barriers that make participation in the full- time Juris Doctor program difficult or impossible, such as work or care responsibilities, financial restrictions or health concerns.”
Tuition for domestic students doing their Juris Doctor was $24,995.98 in 2016-2017, and $25,820.98 for international students. Students must pay $977.42 in ancillary fees, as well.
The dean noted Osgoode is “not the most expensive law school in town.”
“[U of T] often gets a lot more of the press, negative and sometimes positive, around tuition, just because it’s at the forefront, and we’re not certainly far behind, second most expensive in the country, but it’s certainly a top of mind issue that helped drive our focus on accessibility. . .,” he says.
Police to provide update in case of TTC collector shot in neck in 2012, Canadian Press
Prison violence costs Canada about $10 million in legal fees: investigator, Canadian Press
CSIS saw 'no high privacy risks' with metadata crunching now under fire: documents, Canadian Press
Pennsylvania judge to hear arguments on moving Cosby criminal trial, Reuters
Bergdahl lawyers ask U.S. Army court to dismiss case due to Trump comments, Reuters
North Korea spy agency runs arms operation out of Malaysia, UN says, Reuters
Philippines condemns 'barbaric beheading' of German hostage, Reuters
|Daniel Bach says it is rare for judge’s to adjourn certification proceedings to allow plaintiffs to submit further evidence and even rarer for those actions to subsequently be certified on return.|
Class members say they experienced adverse side effects after having one of the devices — which are all made of the same polypropylene — surgically inserted in order to treat incontinence. The lead plaintiff, Susan Vester, claimed she suffered complications and a great deal of pain after undergoing surgery to have one of the products implanted in her.
The class action is the latest of a number of transvaginal mesh cases that have been proposed in recent years against different manufacturers.
This, however, was the first that was successfully certified on a contested motion, says Daniel Bach, one of the lawyers representing the plaintiffs.
“We’re really pleased with this decision,” says Bach, who is a partner at Siskinds LLP.
“We think it’s a big victory for our clients who are trying to get into court to have a judge adjudicate whether or not the products that were put in their body were safe and fit for their use and whether or not they were properly warned of any dangers in the products.”
The certification motion in the Boston Scientific case was originally heard in November 2015, but Perell adjourned the matter to give the plaintiffs another chance to submit more evidence. Perell determined the plaintiffs would have to provide more evidence in order to establish there was some basis in fact for common issues for their negligent design claim, as well as their claim that the manufacturer had failed to warn.
Bach says it is rare for judges to adjourn certification proceedings to allow plaintiffs to submit further evidence and even rarer for an action to be certified subsequently on return.
Perell used a little used subsection of the Class Proceedings Act, which gives judges the power to adjourn motions for certification to permit parties to amend their materials or pleadings, and to provide further evidence.
Boston Scientific argued that while the plaintiffs identified a common feature of all nine of its transvaginal mesh products, they had failed to establish that it was connected to their claims.
Both sides made further submissions, but on return, Perell found the evidence submitted by the plaintiffs established some basis in fact for common issues for the claim.
“This is evidence there is a common issue for all the women implanted with these devices about the safety and efficacy of the medical device in question, being these various Boston Scientific transvaginal mesh devices, all of which are made of the same polypropylene,” says Bach.
David Morritt, one of the lawyers representing Boston Scientific, did not immediately respond to a request for comment.
Former N.L. premier to take stand in inquiry looking into fatal police shooting, Canadian Press
Verdict expected in Calgary murder trial of parents in diabetic son's death, Canadian Press
N.B. appeal court clears step-grandfather accused of child-sex crime, Canadian Press
Judge to decide if N.B. police officers to face manslaughter trial, Canadian Press
Trump attacks FBI on leakers of Russia reports, tweets 'FIND NOW', Reuters
Supreme Court case in spotlight after transgeder bathroom guidelines revoked, Reuters
Chemical weapon VX nerve agent killed Kim Jong Nam: Malaysian police, Reuters
South African police break up anti-immigrant protests, Reuters
|Meerai Cho pleaded guilty in Ontario provincial court Wednesday to one count of criminal breach of trust.|
The matter was heard before Justice Jamie Chaffe at the 1000 Finch Avenue West court.
As Law Times reported in September 2014, Cho was arrested and faced 75 charges related to fraud over $5,000, possession of property obtained by fraud and breach of trust. At that time, she said she transferred the condo purchasers’ deposit funds, which she was holding in trust, to her client who was the developer of a North York building. The transfer of the funds to the developer was contrary to the rules of the Condominium Act.
“What it came down to was a breach of trust — all the facts went into the one count as opposed to 75 counts,” Trudell says. “She didn’t set off to defraud anyone. She didn’t put any of the money in her own pocket.”
Cho claimed she transferred the money to the developer, Joseph Lee, through an “honest mistake” due to her inexperience.
Trudell says $13.5 million went through her trust account to the developer. The money came from purchasers of condo units in the Centrium condo project at 5220 Yonge Street in Toronto. The project had about 140 investors — at least 50 of them were in court on Wednesday.
“Unfortunately, she trusted him completely, unquestionably and he took off with all the money and is hiding somewhere,” Trudell told Legal Feeds.
As late as 2014, the developer would send Cho emails indicating he was sending her the money back.
“She kept feeding his demands to save the project and continued to do that because she thought he was going to send the money back and the project would work,” says Trudell.
At one point, Cho mortgaged her own home and gave $400,000 of her money to try and save the condo project.
Trudell says Cho received none of the money and that was a significant factor in the court not ordering restitution.
“If you get the fruits of the crime, then obviously restitution is appropriate, but in this case, because she got nothing, she has nothing and chances of repaying it are negligible and she was receiving a penitentiary sentence on the scale of large-scale fraud,” he says.
Cho stopped practising law and agreed to temporary suspension of her licence in 2014 and will now lose her right to practise.
Trudell described it as an “emotional day in court” as seven people read victim impact statements.
“The victim impact statements were raw and emotional,” says Trudell. “They are people who are still angry, of course, but when they realize she got not one penny, people might look at her a little differently.”
Trudell said some victims have made applications to the Law Society of Upper Canada compensation fund and it is "anticipated the victims will be compensated."
In a statement, the LSUC said its Compensation Fund "will move as quickly as possible to provide claimants with any grants for which they may be eligible, on the basis of the lawyer’s dishonesty. The process is already underway and, if grants are approved by the Compensation Fund Committee, eligible claimants should begin receiving fund grants in the spring."
Cho’s guilty plea and the evidence provided will be used to complement the LSUC's own evidence during the law society hearing, which is currently scheduled for March 8, 2017.
There is no limit on the total number of grants paid in respect of an individual lawyer. The Compensation Fund has per claimant limit of $150,000 for losses resulting in the period between September 2010 and July 2013, when Cho transferred monies held in trust for the purchasers to the developer of the condominium project. Each claim is assessed on its own merits to ensure it conforms with the Law Society Act and the Compensation Fund Guidelines.
Cho, originally a journalist in Korea, came to Canada and became a lawyer. Trudell says many of the victim impact statements came from people who also came to Canada to invest and lost everything.
“A lot of the victims said they had no faith in Canada and the justice system and legal system because lawyers are supposed to protect them,” says Trudell. “She [Cho] stood up, apologized to them and told them not to lose faith in the legal system . . . She said there are a lot of wonderful lawyers; don’t use me as an example.”
Cho will serve the sentence in a federal institution, likely Grand Valley Institution for Women in Kitchener, Ont.
Lawyers for the victims are also pursuing civil actions.
Trinity Western University et al. v. Law Society of Upper Canada will be heard with Law Society of British Columbia v. Trinity Western University, et al.
The university won in British Columbia, where an appeal court overturned a law society refusal to accredit its graduates, but it lost in Ontario, where the law society refused accreditation. The Nova Scotia Barristers’ Society lost twice in court against Trinity Western and has said it doesn’t plan to appeal.
Read more about the Trinity Western law school proposal and the debate that has taken place in the profession around the issue in the Canadian Lawyer magazine February cover story "Dividing the bar."
Canada's black market for illicit drug fentanyl booming, Globe and Mail
Vancouver seeks judicial review of Trans Mountain pipeline expansion, Globe and Mail
Man charged with in canine deaths at Saskatoon kennel, Canadian Press
Florida man accused of Clinton Foundation hack to plead guilty, Reuters
Trump revokes Obama guidelines on transgender bathrooms, Reuters
Malaysia requests Interpol alert on four suspects in Kim Jong Nam murder, Reuters
Eight people arrested in anti-police protest at Parisian high schools, Reuters
Feb. 20-24, 2017
The Supreme Court of Canada will hear four appeals this week: one criminal concerning treatment of evidence in a sexual assault trial and the other three civil, notably Teva Canada’s appeal from the Court of Appeal for Ontario regarding banks’ liability for converting cheques in fraudulent circumstances.
Feb. 21 – Saskatchewan – Olotu v. R.
Criminal law: The appellant was convicted of sexual assault causing bodily harm. At trial, he admitted that he engaged in anal intercourse with the complainant and claimed she had consented. The complainant had no independent memory of the incident, but said she would never have consented to anal intercourse. The trial judge found the complainant did not consent because of the bruising and bodily harm she suffered which, in his view, were inconsistent with consensual sex, and that her account of the incident and what followed was credible and consistent. A majority of the Court of Appeal dismissed the appellant’s appeal.
Read the Saskatchewan appellate court decision here.
Related legal briefs:
Summary of R v Olotu; Law Society of Saskatchewan
Feb. 22 – Quebec – Pellerin Savitz v. Guindon
Civil law: The respondent, Serge Guindon, retained the professional services of the applicant law firm, Pellerin Savitz LLP, to defend him in litigation before the Superior Court. During the performance of the mandate, the applicant sent the respondent five accounts for fees between Oct. 5, 2011 and March 1, 2012. None of the accounts was paid. On March 21, 2012, the respondent informed the applicant that he was withdrawing the mandate. On March 10, 2015, the applicant brought an action against the respondent to recover claims for unpaid fees. The respondent asked that the action be dismissed because the claims arising from the unpaid accounts for professional fees were prescribed.
Read the Quebec appellate court decision here.
Related legal briefs:
Professions in Québec: Fees; Supreme Advocacy LLP
Feb. 23 – Quebec – City of Montréal v. Dorval et al.
Civil liability: The respondents are members of the family of Maria Altagracia Dorval, who was murdered by her former spouse in October 2010. In October 2013, they filed a motion to institute proceedings claiming damages from the City of Montréal based on the inaction of its police force and the police officers of whom it was the principal, which had led to Ms. Dorval’s death. They claimed damages on behalf of the late Ms. Dorval’s succession for suffering, pain and inconvenience due to constant harassment by her former spouse and police inaction, and personally for solatium doloris, funeral expenses and loss of emotional support. The City of Montréal filed a motion to dismiss, alleging that the direct personal action in damages brought by the mediate or indirect victims as a result of the death was prescribed by s. 586 of the Cities and Towns Act, CQLR, c. C 19.
Read the Quebec appellate court decision here.
Related news stories:
Family of stabbing victim Maria Altagracia Dorval fights for compensation; CBC News Montreal
5 officers cleared by ethics committee in case of Maria Altagarcia Dorval's death; Montreal Gazette
Feb. 24 – Ontario – Teva Canada v. TD Canada Trust et al.
Commercial law: Teva, a major manufacturer of generic pharmaceuticals, the respondent banks fell victim to a fraudulent scheme orchestrated by a Teva employee, M, who was responsible for administering Teva’s rebate programme. From 2002 to 2006, M requisitioned 63 cheques totalling $5,483,249.40, payable to six entities to whom Teva owed no monies. M and his accomplices deposited the cheques into small business accounts they had opened at the respondent banks. Teva sued the banks for damages for conversion, and the banks raised defences under the Bills of Exchange Act, and under the Ontario Limitations Act. Each party brought motions for summary judgment. The motion judge granted summary judgment in favour of Teva, which was reversed on appeal.
Read the Ontario appellate court decision here.
Related legal briefs:
Court Rules Banks Not Liable for Converting Cheques to Non-Existing/Fictitious Payees; Borden Ladner Gervais LLP
Supreme Court of Canada to Clarify Banks’ Defences to Cheque Fraud; Aird & Berlis LLP
|Malcolm Mercer says the working group looking at the issue has not determined what the potential cap on referral fees could be.|
The working group examining the issue has found that clients of some personal injury firms do not always know about the existence of referral fees, or that they are being referred to another lawyer, even though the law society’s current rules require lawyers to disclose such information.
Convocation will decide on Thursday whether to adopt either an outright ban of referral fees or a cap limiting how much lawyers could pay each other for referrals.
“The working group thought that there were two plausible choices that Convocation should make,” says Bencher Malcolm Mercer, who is chairman of the Advertising and Fee Arrangements Issues Working Group Report.
“And when there was not consensus within the working group as to which of the two answers was the right one, the better course was to put it to convocation.”
The working group found that some referral fees have crept up to more than 20 per cent. Some who gave feedback to the working group have advocated for a 10-per-cent cap on all referral fees, while others have asked for a 30-per-cent level.
If Convocation decides to approve the cap, the working group will come up with an appropriate amount, as well as additional measures to ensure greater transparency.
Mercer says these measures could include a requirement of a formal written agreement between the referrer and the client. Another transparency measure could be a requirement that lawyers make it clear in their advertisements when some of the work will be referred out to other lawyers or firms, he says.
Mercer says the working group has not made a decision on what the cap would be, but he expects it would be “in the lower range.”
The law society is also looking to add to its rules on advertising, which currently include requirements that lawyers advertise in a way that is not misleading, is accurate, and is in the best interest of the public.
The new rules would require licensees to identify whether they are a paralegal or a lawyer in their advertisements. The law society would also look to amend the Rules of Professional Conduct to “guide licensees as to the appropriate use of awards and honours, and to protect the public from misleading use of awards and honours when necessary.”
Licensees would also be banned from advertising work that they are not permitted to do, or do not intend to do.
The working group flagged the issue in its interim report that said some firms have advertised legal services that were referred out without any intention of doing that work.
The proposed changes also include a ban on second opinion advertising, which entices a potential client that already has a lawyer to retain the advertiser instead.
The rules would also ban lawyers from referring to third party awards and rankings in their ads that are “not bona fide or are likely to be misleading, confusing or deceptive.”
The working group’s interim report from the summer also tackled issues concerning advertising in the real estate bar as well as contingency fees, but the committee has not finished its work on those issues.
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