Legal Feeds Blog
The new Liberal government asked the Supreme Court of Canada today for a six-month delay in applying its decision on physician-assisted suicide because of the recent federal election.
In Carter v. Canada (Attorney General), the top court had on Feb. 6 struck down a ban on doctor-assisted death and given the government 12 months to come up with replacement legislation if it chose to do so.
The government told the court that deliberations stopped during the campaign for the Oct. 19 election, in which the Liberals took power from the Conservatives. It said a parliamentary committee would study the issue but there would not be enough time before Feb. 6 to come up with a federal response.
Thursday was the first day of the newly elected Parliament.
The court's decision in February was that mentally competent, consenting adults who have intolerable physical or psychological suffering from a severe and incurable medical condition had the right to a doctor's help to die.
Although not unanimous, the Canadian Judicial Council has reviewed the recommendations of its inquiry panel on Quebec Superior Court Justice Michel Déziel and recommends he remain on the bench.
In a release from the CJC Dec. 3, the CJC states it presented its report to the Minister of Justice with three of the 20-member council dissenting.
“This case was about Mr. Déziel’s participation, before he became a judge, in the unlawful financing of a municipal election. Council agreed with Justice Déziel that this past conduct was inappropriate,” the release states. “However, with three members dissenting, Council found that the judge’s past action, when considered against a number of factors, did not undermine public confidence in his abilities to discharge the duties of his judicial office.
“For this reason, Council’s recommendation to the Minister of Justice is that Justice Déziel not be removed from office,” the CJC states.
Eugene Meehan of Supreme Advocacy LLP in Ottawa called it “a classic case of trying to balance past bad conduct versus present good conduct.”
“Except this time it’s a judge in the crosshairs; Canada’s head judges say 17-3 it’s the latter, [that] present good conduct governs,” he says.
In its report to the justice minister, the majority of the council wrote:
“In our view, it is significant to note that a lawyer is bound by the same ethical principles as a judge, when it comes to the core attribute of integrity. There may be those that disagree and would suggest that judges are bound by an even higher standard than lawyers. The point is, that at the time of the impugned conduct Me Déziel was bound by a code of conduct and a statute which he violated.
“His violation was dishonest and contrary to law. However, perfection is aspirational and ideal, not a condition precedent to maintaining one’s license as a lawyer or to maintaining the office of a judge.”
The council, chaired by Alberta Court of Queen’s Bench Chief Justice Neil Wittmann, noted while Déziel’s actions were wrong, they “cannot be objectively characterized as being on the high end of the spectrum of misconduct.” And his actions were not criminal in nature with only minimal fines of about $100 under the Municipal Elections Act.
They added that he was not acting as a lawyer, nor did he use his lawyer’s office to facilitate a transfer of funds.
The dissenting ruling, written by Newfoundland & Labrador’s Chief Justice Derek Green with Chief Justice of the Court of Queen's Bench of New Brunswick David Smith and Federal Court Justice Richard Bell concurring, concludes that the Marshall test had been satisfied and that “a conclusion that Justice Déziel has become incapacitated or disabled from the due execution of the office of judge within the meaning of s. 65(2) of the Judges Act should be reached, and a recommendation for removal from the Bench should be allowed.”
Allegations against the judge date back to the 1997 municipal election campaign in Blainville, Que., when Déziel was a lawyer and organizer for the sitting mayor. Charbonneau Commission witness Gilles Cloutier alleged Déziel gave him $30,000 with instructions to find people to pose as donors to the campaign, converting the money into contributions of $750 each.
Cloutier, who worked for an engineering firm, made the allegations in 2013 during testimony at the provincial inquiry into widespread municipal corruption in Quebec.
Déziel denied the allegations but said he acted as an intermediary in transferring the money to an engineering firm.
In June, an independent inquiry committee created in 2013 to investigate the judge’s conduct submitted a report to the CJC, also recommending he not be removed based on his displayed remorse, their opinion he would not reoffend, and because some of the events put forward in the allegations were found to be “incompatible with the facts and the credibility of certain witnesses in doubt.”
Meehan says despite the finding to keep the judge on the bench, he suspects “that for the rest of this judge’s career he’ll be under a certain juridical microscope wielded by the CJC.”
Closing arguments in Dennis Oland trial set for Dec. 14, Canadian Press
Jurors at Guy Turcotte trial ask to hear some testimony again, Canadian Press
Defence calls accused in Edmonton couple's deaths a 'victim', Canadian Press
A British Columbia Supreme Court judge refused to disqualify a lawyer from a case this week even though the lawyer was previously in-house counsel for the company his current client is suing.
|It’s unusual for Canadian companies to request the removal of their former in-house counsel from a case on the basis of ‘playbook information,' says Malcolm Mercer.|
Although Fishman worked at Manulife for 10 years, the company did not argue he had anything to do with the plaintiff’s case during his time there. In fact, the plaintiff did not submit an application for long-term disability benefits until 13 months after Fishman’s departure from Manulife.
“Manulife’s application hinges on Mr. Fishman having insight into the personalities and practices of the company. Whether confidential or otherwise, some or all of them would not be known by someone who had not worked at Manulife. The case therefore depends on a nuanced analysis of the potential use of confidential information,” Justice Elliott Myers said in McMyn v. The Manufacturers Life Insurance Co.
After analyzing the facts, Myers said the lawyer’s time at Manulife might give him a “minor” advantage, but it’s not a particularly distinct advantage than one an experienced lawyer in his field might have.
“Knowledge of how Manulife personnel perform in examinations for discovery might provide a minor advantage. But any lawyer who had previously done an examination for discovery or cross-examination in trial of that witness would also have that insight,” said the judge.
“It is to be borne in mind that Manulife as a major [long-term disability] insurer in Canada is an institutional litigator. This is not a one-off claim being made against it. Any lawyer specialising in LTD claims would be expected to act against Manulife multiple times and most likely come up against the same Manulife personnel,” Myers noted.
In the U.S., the kind of information Manulife alleged Fishman had in this case is called “playbook information,” says Malcolm Mercer, a partner at McCarthy Tétrault LLP and member of the Canadian Bar Association’s taskforce on conflicts of interest.
Rather than knowledge of specific information, the allegation in these cases is that “you know how your adversary plays the game,” he said.
It’s highly unusual for companies in Canada to request the removal of their former in-house counsel from a case on such basis, Mercer added.
The ruling in this case was both “thoughtful” and “well-reasoned,” according to Mercer.
“What the judge did was look first at the nature of the information, which was an issue, and he rightly considered whether or not the lawyer had any information that was factually relevant to the case.”
In the majority of cases where lawyers have been successfully disqualified, it was because they had information that’s factually related to the case at hand, Mercer said. A bank, for example, may successfully argue that its former counsel has prejudicial knowledge of when the bank will settle in enforcement matters and when it won’t.
In the Manulife case, the judge did not find any evidence of Fishman having specific insider knowledge. Myers said it was up to Fishman’s client to show that she fell within the terms of a policy, which is public.
“The terms of the policy are certainly not secret. It cannot be argued or assumed that Manulife has some secret interpretation of the policy that Mr. Fishman has knowledge of,” said Myers. “It is hard to see that knowledge of the claims people would have any effect on Mr. Fishman’s train of inquiry on that issue, including the handling of examinations for discovery.”
Mercer says this area of law is a balancing act of three factors:
• protecting clients from misuse of confidential information,
• making sure clients are not unnecessarily deprived of their choice of counsel, and
• permitting reasonable mobility for lawyers.
If you’re going to remove a lawyer, you’ll need “a fair presentation of a real problem,” he adds.
Most stolen vehicles in Canada are pickup trucks: IBC, Canadian Press
Saskatchewan man guilty of defrauding workers compensation, Canadian Press
The dean of Western Law says he was “disappointed” to learn a group of law students were playing intramural hockey under an offensive name and has called an end to the existence of “Dixon Cider” and issued disciplinary measures to those involved.
|Western Law dean Iain Scott says he was 'dismayed' at use of offensive name for law student rec hockey team.|
“I was dismayed,” says Scott. “Once I had the name explained — you have to say it to get it and obviously it’s totally unacceptable and doesn’t reflect our values and what we’re trying to instill in what we expect in our students.”
As reported in the London Free Press yesterday, the team had been using the name for at least two years. The sweaters featured a picture of a man carrying a box.
“This was out of the blue — these intramural games are played late at night in empty arenas somewhere and I’ve never been to one,” says Scott.
He adds the team was contacted the same day he was notified by the student and informed their hockey sweaters with the Dixon Cider name on them should not be worn. The team name has since been changed to the Crash Test Domi’s.
Scott says he’s dealt with the issue as a code of conduct matter and it is being addressed in terms of “how we should treat and regard one another.”
Citing privacy reasons, the dean would not speak to the specifics of the discipline being handed out to the 12 players on the team.
“This is something the university has a process to deal with and it’s within that context I’ve dealt with it,” he says
The matter was also reported to the university’s associate vice president of student experience.
“We dealt with it the moment we heard of it and as soon as I got the students together they were both ashamed and apologetic and understand why perceived jokes like this are not jokes. It doesn’t reflect our culture or our values and they know that and were quick to reaffirm that,” says Scott.
The revelation comes about a year after a Facebook group for men enrolled in Dalhousie University’s dentistry school was found to contain misogynistic and homophobic posts about female classmates and women generally.
But Scott says the incident at Western is different because it was dealt with swiftly and has served to prompt the students involved and some other student groups and campus leadership to get together to work on an education plan to launch in the New Year.
“I think it’s a broader thing and goes beyond what we’re trying to instill in people as professionals,” says Scott. “The students have been very enthusiastic about embracing that approach.”
Western Law students aren’t alone in their use of Dixon Cider as a team name — it is used by several other intramural teams at universities in Canada.
Guy Turcotte jury weighs four possible verdicts, Canadian Press
Winnipeg man pleads guilty to two violent sexual assaults, Canadian Press
As my first blog, I thought about writing a piece on some interesting court decision, such as the Nov. 25 ruling in Anderson v. Attorney General of Canada, where the Supreme Court of Newfoundland Trial Division found the federal government committed an abuse of process in a class action involving five schools, dormitories, and orphanages in Newfoundland and Labrador. After all, it’s not often that the federal government is found to have committed an abuse of process.
The actions, being prosecuted by a group of firms, including Ches Crosbie Barristers and Kirk Baert, of the Ontario firm Koskie Minsky LLP, are based on negligence and breach of fiduciary duty.
The feds got their knuckles wrapped by Justice Robert Stack after counsel for the attorney general sought to make a claim apportioning damages for any fiduciary duty among various parties. However, Stack took great exception to that, noting that the Crown raised the matter in an earlier decision in the case involving Justice Gillian Butler and lost.
He called the Crown’s position nothing more than a “collateral attack” on Butler’s ruling, and an attempt to re-litigate the matter, which amounted to an abuse of process.
“The ship of apportionment of fault for breach of fiduciary duty set sail two years ago. It is not returning,” he wrote when ruling that the federal government pay for the costs of the portion of the application dealing with the apportionment question.
Then I thought, I could also write about one of the many upcoming cases before the Ontario Court of Appeal or the Supreme Court of Canada, which lawyers would find interesting, such as CIBC Mortgages Inc. v. Computershare Trust Co. of Canada, an important mortgage fraud cause dealing with priorities, which is currently before the Ontario Court of Appeal.
Of course there is also pending legislation, like bill 5, the Ontario respect for municipalities act (City of Toronto), which if it ever saw the light of day — it likely won’t, as least in the current form — would shake up municipal planning in Toronto.
Or there are the growing number of legal initiatives at the federal level following the election of a new government, from dismantling the Harper’s tough-on-crime agenda to climate change.
But instead it struck me as I was scrambling looking for topics, that very little has changed in the way that news is generated since I first sat in the Law Times editor chair in January 1990, when the publication launched.
This January marks the paper’s 26th birthday. At the time, Ian Scott was the attorney general, Charles Dubin was the chief justice, and a typical Bay Street law firm was a few hundred lawyers. The news of the day was regulation of paralegals and the Patti Starr affair — or Pattigate — involving a Queen’s Park Liberal operative who was charged and convicted over political donations dominated headlines. National firms were still a few years off, following the Black v. Law Society of Alberta ruling from the Supreme Court of Canada in 1989.
Fast forward to 2015 and we have the Duffy Affair, paralegal regulation is still relatively in its infancy, and the chief justice is now George Strathy and attorneys’ general of different stripes continue to do their thing. Law firms are bigger than ever and growing.
News, however, is still generated by following rulings, watching legal developments, and talking to lawyers for their insights and gossip, which, fortunately, is still plentiful.
What has changed tremendously, during the past 25 year however, has been the business of both law and journalism.
Law firms get bigger, yet access to justice seems more remote now than in the past. Small- and mid-sized firms struggle with increasing rules and regulations impacting governance. Billable hours are getting squeezed and the public can barely afford lawyer’s services.
Meanwhile, on the journalism side, the business model is essentially broken and publications around the globe are scrambling. Trade publication like ours, I would argue, are in better shape than much of the mass media.
We cater to an audience that needs our information and has the means to pay for it. However, one need only look at the rash of layoffs in the media to see the carnage. Hundreds of journalists in Canada and thousands in the U.S. have been canned from daily papers, television, and radio as companies cope with the shifting advertisement climate. Skinny issues, thin sections are the rule, not the exception. Some publications, such as La Presse, are cashing out of their weekly paper versions on which they founded their operations. Others will follow suit.
The biggest change, then, in the past 25 year for me has been technological, and technology is at the root of much of the change we see sweeping both professions. For example, this blog platform in which I write. It didn’t exist. Today, it is the future, like it or not.
It’s certainly liberating. We can deliver information quicker, faster, and more precisely than we could in the past. For a profession that relies heavily on information flow and knowledge, that is a positive. However, in a profession that is slow to change, there are growing pains, as an older generation of lawyers adapt to new methods of conducting business.
By the same token, digitization of information has created enormous legal opportunities.
Privacy law was embryonic in 1990, and today drives the growth of some practice areas. Technology companies are the darling of Bay and Wall streets, and the investment banks and law firms that serve them. Crowdfunding presents business challenges and opportunities to clients and law firms. Social media law is growing by leaps and bounds. The Internet has also spawned much litigation, as the criminal justice system comes to grip with the darker elements such as online pornography and drug dealing.
In fact, I read an Ontario Court of Appeal case earlier this week, R. v. D’Souza, where police busted a young man who posted an ad for drugs on Craigslist, a popular online marketplace, similar to classified advertisements that used be the bread and butter of many newspapers. Selling drugs through an online classified ad sounds crazy, but this is how youth conduct business in 2015.
Incidently, the appeal court agreed that the youthful offender didn’t deserve a criminal record and set aside the conviction and $750 fine, imposing, instead, a conditional discharge.
As Bob Dylan sang, “Times they are a changin’.” I’m just trying to keep up.
This week, the Supreme Court of Canada will hear three appeals, including a jurisdictional appeal in the Cassels Brock auto dealership case and a sexual assault case that pits individual Charter rights against the public interest.
Dec. 1 – Alberta – Saeed v. R.
Charter of Rights: Upon arrest for sexual assault, the appellant was compelled by police to provide a swab from his penis. The swab contained DNA of the victim in the incident, leading to a conviction on sexual assault and sexual interference. Alberta’s appeal court, citing precedents, upheld the conviction despite acknowledging a breach of the appellant’s Charter rights. The SCC will review whether the appeal court mischaracterized the magnitude of the Charter breach. A publication ban is in place.
Read the Alberta appeal court decision
Related news stories:
SCC zeroes in on penile swabs, Law Times
Dec. 2 – British Columbia – K.R.J. v. R.
Charter of Rights: The appellant pleaded guilty to charges relating to incest and child pornography committed before 2012. In August 2012, s. 161 of the Criminal Code was amended to include community supervision provisions for such offenders upon release. The appeal court ruled that these amendments apply retroactively. The SCC will review whether additional community supervision measures amount to additional punishment. A publication ban and a sealing order is in place.
Read the British Columbia Court of Appeal decision
Dec. 3 – Ontario – Lapointe Rosenstein Marchand Melançon v. Cassels Brock & Blackwell
Choice of forum: Auto dealerships across Quebec launched a class action against Cassels Brock & Blackwell LLP claiming the firm, which had represented the Canadian Automobile Dealers’ Association, had been negligent in legal advice relating to the closure of numerous dealerships by General Motors. The law firm countered that it only had the mandate to represent the association, and thus added 150 lawyers and law firms across Canada as third-party defendants. The applicants are law firms and lawyers in Quebec seeking an order that Ontario’s courts do not have jurisdiction to hear the proceeding.
Read the Ontario Court of Appeal decision
Related news stories:
Cassels Brock hit with $45 million in damages in GM dealers class action, Canadian Lawyer
Also this morning, the court granted leave to appeal in BC Freedom of Information and Privacy Association v. Attorney General of British Columbia and Teal Cedar Products Ltd. v. Her Majesty the Queen in Right of the Province of British Columbia.
Man dead after being shot in car in Toronto, Canadian Press
Jury to get final instructions in Guy Turcotte murder trial, Canadian Press
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