Legal Feeds Blog
He tells Legal Feeds: “The hires come with the right mix of academic and practical experience, and this will serve us well as we integrate the practice of law into the theory of law.”
Karen Drake, who joins the school as an assistant professor, is a lawyer at Erickson & Partners in Thunder Bay where she practises civil litigation, specializing in aboriginal law, labour and employment law, and human rights law. She is currently completing her LLM at the University of Toronto Faculty of Law, focusing on aboriginal legal issues.
Drake’s interest in aboriginal law is fitting for the new law school since the curriculum will feature a concentration in aboriginal law, natural resources law, and issues related to practising in a small firm or as a sole practitioner.
“Aboriginal law right now in rural Canada — northern Ontario and in the West — is absolutely critical, so our students need to understand that,” Stuesser told 4Students recently.
Mariette Brennan has also joined the faculty as an assistant professor. She is a fellow colleague of Stuesser’s at Bond University in Australia, where they both taught for the past four years. Brennan teaches Canadian constitutional law.
Rob Hudson, who is also a lawyer, has joined the faculty as head law librarian. He is the founding law librarian at Qatar University College of Law and also teaches legal research. Hudson is experienced in establishing law libraries.
Hiring top-quality faculty is important, but attracting the right students is also a priority, says Stuesser.
“We want students whose heart is in rural Canada,” he says. “We are committed to what I call Main Street practice. So we are looking at students who are prepared to work in small-town Canada.”
Steusser says the law school will be hiring more faculty with announcements to follow soon.
In its first year, Lakehead’s JD program is expected to enrol 55 students. Lakehead’s law school is the first one in Ontario in 44 years, and will be housed in the historic Port Arthur Collegiate Institute building.
In other Lakehead news, Derek Burney, senior strategic adviser at Norton Rose Canada LLP in Ottawa, has been named the eighth chancellor of the northern Ontario university. He starts his new role in June.
B.C. Liberal candidate, former MP in court over tax evasion charges, Vancouver Sun
Toronto to crack down on taxi drivers with criminal convictions, Toronto Star
Energy minister threatened with contempt of Parliament charge over cancelled gas plants probe, National Post
Greenlight's Einhorn sues Apple to unlock 'more value for shareholders' , Reuters
Man who plotted to bomb NY Federal Reserve to plead guilty, Reuters
ICC judges order Libya to hand over Gaddafi spy chief, Reuters
Turkey turns to jailed rebel leader to end Kurdish conflict, Reuters
|The Tax Court says charging GST for criminal law services does not impede a person’s right to counsel. (Photo: Shutterstock)|
“The appellant maintains that, by its nature, a tax on criminal defence legal fees will, at some level, be prohibitive or at the very least act as an impediment to or will interfere with the right to counsel since the additional cost of the tax to an accused will interfere with the financial resources available to mount a defence to the charges brought against him or her,” wrote Tax Court of Canada Justice Brent Paris, summing up the firm’s case.
However, Paris was not convinced, going on to find in his Jan. 28 judgment that on the facts of the case, a breach was not made.
Between 1999 and 2006, the firm’s principal, Stanley Tessmer, and two other lawyers, did not collect GST on bills for some of its arrested clients, who were either charged with a criminal offence or who had criminal charges pending.
After being slapped with an assessment for $228,000 in GST, plus interest and penalties, the firm appealed to the Tax Court of Canada. The law firm won an early minor victory when the court found it did have standing to raise the alleged Charter breaches, before Paris’ decision dismantled the case. It isn’t the first time the firm has challenged a GST assessment — a previous appeal to the Tax Court by the firm claiming a Charter breach was dismissed in 1999.
This time around, Tessmer claimed the purpose of the GST legislation was unconstitutional because of the inconsistency between the government’s dual roles as prosecutor and tax collector on the services required to defend that prosecution.
But Paris concluded the legislation was too broad, encompassing as it does an “infinite variety of transactions,” to find its purpose invalid.
In addition to the purpose of the legislation, Tessmer argued its effect was also unconstitutional. The firm had not conducted any assessments on the ability of its clients to pay its fees and the GST on them, but argued it should be allowed to rely on hypothetical situations to show the general effect of the tax was unconstitutional. But Paris again sided against the firm.
“From my review of the Supreme Court decisions on point, it appears that a party may only rely on hypotheticals to establish a factual foundation for a Charter challenge where actual facts are not available to that party. . . . Since the appellant does not take the position that evidence of the effect of the GST on the ability of its clients who were detained or arrested to afford its services is unavailable, I find that this case does not fall within the exception,” Paris wrote.
Without evidence that any of Tessmer’s clients “were unable to retain counsel as a result of the GST payable on legal services,” Paris said the facts of the case did not support the infringement claim.
Federal Court of Canada rules in favour of U.S. war deserter, sends case back to immigration, Vancouver Sun
RCMP officer faces charges after hitting, killing teenager with speeding cruiser, Calgary Herald
Legal fees for Ashley Smith inquest have cost Ottawa at least $3.6M, sources say, Toronto Star
Top N.Y. judge calls on lawmakers to overhaul bail system as it is 'unfair to poor', Reuters
California Supreme Court tries to determine 'hazy' pot laws, Reuters
Prosecutor, ally of Iran's Ahmadinejad released from prison after two days in unexplained arrest, Reuters
Germany's education minister takes court action to fight plagiarism ruling, Reuters
|Law firms are using video to publicize a case against the makers of Accutane.|
Twamley, 33, a television producer, is suing Hoffmann-La Roche in a mass tort, one of the first in Canada involving the acne drug. The lawsuit was filed in the Ontario Superior Court of Justice.
A mass tort is a group of lawsuits involving individuals who share similar complaints as a result of their experiences with a drug or defective product. As Accutane affects each person differently, the harm suffered varies widely. By bringing a mass tort, versus a class action, the lawyers say the victims are well served as their medical damages can be assessed on an individual basis.
Mass torts are common in the United States, where Roche has already been successfully sued for millions of dollars in connection with the manufacture and sale of Accutane. Roche stopped selling Accutane in the United States in 2009 for business reasons, but the drug is still sold in Canada.
The Twamley case is being put forward as a test case for more than a dozen similar ones the lawyers are preparing to file against the company.
As demographics and means of communication evolve, how law firms get the word out about such cases is changing, says Dave Williams of Harrison Pensa.
“For a standalone single case this is a first for me,” says Williams. “I think it’s just a changed world. The other aspect of this is the demographic — the people who took this drug as teenagers and have the problems with IBD as early adults just communicate differently.”
In the past mass actions like the Accutane case were heard about largely via word of mouth. To date, some individuals have found out about the action by using search engines when researching the drug or their own symptoms.
“In this day and age it just doesn’t work that way,” says Williams. “Certainly thus far the communication has been through the web site and we’ve had well over 125 serious contacts that way. We follow up with each and every one and do a detailed briefing as if they’d walked in the office. It’s just a modern way of dealing with potential clients than we had before,” says Williams.
Court filing shows qualified Canadians passed over for foreign workers on B.C. coal project, The Globe and Mail
Man who killed Sgt. Russell with snow plow's 'state of mind' at issue in court, Calgary Herald
Cape Breton family may face charges after smoking, unruly behaviour force landing, National Post
Catholic hospital group apologizes, calls lawsuit defence 'morally wrong' , Reuters
Supreme Court justice nursing home operator's emergency stay over 'legal confusion' , Reuters
India's high profile gang-rape trial hears testimony from victim's friend, Reuters
Bangladesh war crimes tribunal sentences Islamist to life in prison, Reuters
• $137,189 for executive directors
• $115,000 for lawyers
• $78,873 for community legal workers
• $65,372 for office managers
• $46,920 for support staff
LAO is making the changes as a result of concerns about a lack of defined maximums on the current salary grid. In addition, it noted there was no policy framework on the use of other sources of funding to boost salaries and no policy governing pay-for-performance increases or bonus payments at clinics. On the last two questions, LAO said it will develop policies.
While it has set out its maximum contributions, LAO has said it will continue current funding for positions that are above the cap. But when a person currently in high-paying position leaves the clinic, LAO will decrease funding for the successor to the new maximum. In addition, it’s vowing to allow clinics to keep the savings when that happens in order to address other compensation-related pressures.
LAO maintains the new structure is revenue neutral and notes the government had directed it to implement a compensation framework as part of a 16.75-per-cent funding increase to clinics since 2009-10.
Clinics have had some questions and concerns, including the lack of annual cost-of-living increases under the new framework and the lack of discussion with them on the use of the social justice sector as a comparator for looking at salaries. In addition, they’ve noted the framework only looks at base pay rather than the bonuses, benefits, and pensions provided to, for example, government employees.
LAO has responded that the social justice sector is the most appropriate one given the work clinics do and notes the framework aligns the compensation with what it provides its own employees.
B.C. high court to hear case arguing ID laws deny homeless their right to vote, Vancouver Sun
Lawyer works pro bono to exempt Brampton man's sons from religious studies at Catholic school, Toronto Star
Tories look to change Criminal Code to make laws tougher for child predators, The Globe and Mail
Drug cartel, organized crime group suspected in 'brazen' killing of Texas prosecutor, Reuters
Wyoming passes bill to invalidate proposed federal gun laws, Reuters
Former British energy secretary pleads guilty to perverting course of justice, Reuters
Three Hamas lawmakers among 23 men arrested by Israel, called 'arbitrary arrests' by Hamas movement, Reuters
Employment law firm Rubin Thomlinson LLP celebrated its 10th anniversary with clients, colleagues, family and friends Jan. 31 at the Granite Club in Toronto.
Photos: Jennifer Brown
Arbitration and mediation lawyer Barry Fisher with Charles Bennett, consultant with Triella Technology Transformations.
Vern Aker of Colour Productions, Chelsea Szarka, legal assistant with Mike Szarka
Christine Thomlinson and Janice Rubin celebrate with Loreta Zubas of Zubas & Associates.
Graeme Deans, Julia Deans, lawyer and Lyn Whitham, Grand Challenges Canada
Rubin Thomlinson associate Ryan Campbell (centre) with Courtney Allen listen with other attendees as Chris Thomlinson and Janice Rubin talk about their 10 years in business together.
Mike Soehner and Lori Pavely of Hallmark Canada HR with Chris Mathers of Chris Mathers Inc. and Steve Kahansky.
Peter Israel of Israel Foulon LLP, Natalie MacDonald, partner with Grosman, Grosman & Gale LLP, Malcolm MacKillop, partner at Shields O’Donnel MacKillop LLP and Stuart Rudner, partner with Miller Thomson LLP.
Jason Beeho, a partner with Rubin Thomlinson chats with his wife Jean.
On Friday, the top court granted most of the appeals by Indalex, a company that had filed for protection under the Companies Creditors Arrangement Act in 2009.
The landmark decision will have implications for all pension plans.The issue was whether Indalex should set aside assets for its pensioners while the CCAA proceedings continued.
In April 2011, the appeal court surprised insolvency lawyers when it put pensioners ahead of debtor-in-possession lenders during the restructuring process. The appeal court said the pensioners’ clams were protected under the Pension Benefits Act as “deemed trusts” and should take priority.
The Pension Benefits Act is incompatible with federal laws that rank debtor-in-possession lenders first in the contest for creditor primacy. On Friday, the Supreme Court unanimously agreed that the federal law supersedes the provincial one.
Although the deemed-trust argument applies, “the debtor-in-possession (“DIP”) super priority prevails by reason of the application of the federal paramountcy doctrine,” the court stated.
Yet, the court’s decision doesn’t dismiss the notion of a deemed trust under the Pension Benefits Act, says Ed Sellers, an insolvency and restructuring lawyer at Osler Hoskin & Harcourt LLP.
“The case also affirms a much broader view of the scope of the provincial statutory deemed trust to include the full value of all pension deficiencies on windup,” he says.
Because the top court agreed with the appeal court that a deemed trust arises in respect of the windup deficiency, the legislation “continues to exist in insolvency,” Sellers adds. “It’s just a question of, ‘Well then, how does one deal with it?’” he says. “And that question isn’t fully answered in this case.”
In Friday’s ruling, the Supreme Court also provided some guidance as to what constitutes a conflict of interest and breach of fiduciary duty in insolvency.
The top court agreed with the appeal court that Indalex was acting in a conflict of interest when it began contemplating putting itself under CCAA protection and proposing an arrangement to its creditors while still in a fiduciary relationship with the pensioners.
“Indalex not only neglected its obligations towards the beneficiaries but actually took a course of action that was actively inimical to their interests,” the top court stated.
That finding will bring procedural changes in insolvency proceedings, says Andrew Harrison, a partner at Borden Ladner Gervais LLP.
“It opened people’s eyes to the fact that where there is a pension plan involved in the bankruptcy, there are definitely some procedural steps that have to be taken,” he says.“The Supreme court has essentially endorsed the approach that you really got to be sensitive to these conflicts.”
But imposing constructive trust isn't a suitable remedy for breach of fiduciary duty, the Supreme Court ruled.
In the Ontario Court of Appeal decision, Justice Eileen Gillese had written: “Without the proprietary remedy, the plans’ beneficiaries have no meaningful remedy.”
She added: “The assets that would flow to Indalex U.S., absent the constructive trust, are directly connected to the process in which Indalex committed its breaches of fiduciary obligation.”
Lawyers for Indalex had argued that shuffling creditor priority goes against the purpose of the CCAA, which is meant to protect troubled companies from creditor pressures.
They also argued companies facing insolvency would struggle to get loans to keep them afloat if debtor-in-possession lenders aren’t sure their repayment takes precedence.
Friday’s decision “probably puts people back in the sort of practical position we were in before the Ontario Court of Appeal decision,” says Harrison.
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Gail J. Cohen