Legal Feeds Blog
With the passing of the Law Society of Upper Canada’s 2016 budget on Oct. 29, Convocation has kept lawyer and paralegal annual fees at 2015’s levels.
It also debated the potential use of a $1-million contingency fund and ultimately agreed that if future projects eat up that money this year, Convocation would consider running a deficit to ensure the new initiatives move forward.
Audit and finance committee co-chairman Peter Wardle presented the 2016 budget, saying one of the main priorities was to keep fees as stable as possible. Wardle said those fees, based on budget projections for 2017-18, should remain the same for the next few years as more lawyers and paralegals begin to practise. Annual fees for 2016 will remain at $1,866 for practising lawyers and $996 for paralegals. Wardle said the law society has managed to keep fees under control, comparing them to British Columbia where the amount is $1,992 for lawyers or Alberta’s $2,620.
“Our base fees increase as the professions continue to grow and that growth, of course, also increases the demands on the law society’s resources,” said Wardle, noting the budget includes a two-per-cent provision for salary increases with the equivalent of about nine new full-time administrative staff positions created in the past year after two years of staffing reductions.
The budget projects revenue and funding of $110 million, up from a little more than $107 million in 2015, but with expenses of just under $111 million.
Benchers held a retreat earlier this summer where a number of future projects or initiatives to further such things as mentoring or access to justice were discussed. Wardle said the budget committee anticipates those initiatives would consume about $200,000 of the $1-million contingency fund in 2016 but would have a greater budget impact in 2017 and 2018.
“If any new initiatives arising out of the strategic planning initiative come forward to Convocation and are approved during 2016, the financial consequences of those initiatives during 2016 will be met by the law society out of the contingency or by running a deficit,” said Wardle.
That idea spurred some debate, with several members saying Convocation shouldn’t consider running a deficit. “It creates a dangerous precedent,” said Bradley Wright.
“I don’t think it’s wise to have a statement as part of our policy decisions today on budget to, in advance, say we will run deficit budgets,” he said. “It leaves the door open to a level of potential unaccountability and a lack of discipline in the budgeting process.”
Wardle said because those initiatives are still in the preliminary development stages and are far from coming to Convocation for approval, no firm costs could be included in this year’s budget. He added the contingency should be more than enough to ensure any initiatives that do come forward for approval will not be hindered financially in 2016.
In the end, Convocation agreed to proceed with approval of the budget as it stood, and any funds used on projects or initiatives beyond the $1-million contingency fund will be considered when they come to the table.
Four arrested after police raid alleged meth lab in Brampton, Canadian Press
|Linda Fuerst would like to see a program that encourages whistleblowers to report their concerns internally before going to the Ontario Securities Commission.|
The policy proposal, released yesterday, increases the maximum reward to $5 million from a previously proposed $1.5 million, although the higher amount can only be achieved if the information results in fines or payments worth upwards of $35 million.
While the maximum payout has been raised, it still falls short of the tens of millions paid out by the U.S. Securities and Exchange Commission and it may not be enough to encourage senior officers at large corporations, who commonly earn more than $10 million a year, to risk their careers, a lawyer suggests.
“The amounts are still low compared to the SEC program, but you know, I think it’s a step in the right direction,” says Linda Fuerst, a securities litigator at Norton Rose Fulbright Canada LLP. “If the commission is serious about providing meaningful incentives to individuals, particularly in senior positions, to be reporting serious misconduct, then they’re going to have to find another source of funding and increase the maximum award.”
Perhaps a bigger issue, says Fuerst, is that the new whistleblower policy gives companies little opportunity to look into allegations internally before being confronted with a high-profile public investigation. Under the program, employees can report misconduct directly to the OSC without going to their supervisor or internal compliance officer.
Senior officers, directors, auditors, and legal advisers are generally excluded from the program but they can take advantage of it in specific circumstances, such as situations in which they believe the organization is on the verge of engaging in misconduct that “is likely to cause substantial injury to the financial interest or property of the entity or investors.”
With no requirement by whistleblowers to report internally first, a company may be taken completely off guard by the allegations. “There’s a huge benefit to encourage individuals to report first internally to give the organization an opportunity to look at the allegations, and if necessary, conduct an appropriate internal investigation and decide whether there’s any merit to them before the regulators get involved,” says Fuerst.
Fuerst acknowledges that many employees may have reason to fear retaliation from managers who may be involved in misconduct. In those cases, however, whistleblowers should be required to explain to the commission why they didn’t report the allegations internally first.
“I think that what needs to be done is to require that a whistleblower report internally or be able to provide a reasonable explanation for why the whistleblower didn’t,” she says. “If the whistleblower says, ‘I’m in a small shop and we didn’t have any program for this,’ or, ‘I was legitimately afraid of retaliation and here is why, and I can explain that,’ then of course they should still be able to qualify.”
Fuerst also points out that anonymity can only be guaranteed at the reporting stage. In the event that allegations lead to charges and subsequent proceedings, the defendant will have a right to disclosure. Without the identity of the whistleblower, the case may fall apart along with any potential reward.
“It’s going to be inevitable in many of these cases that the identity of the whistleblower is going to end up being part of that disclosure that has to be made to the respondents in order for them to have an opportunity to defend the allegations appropriately,” says Fuerst. “So that’s why the OSC can’t give any ironclad guarantee of anonymity.”
Masturbating in a public space doesn’t necessarily constitute a wilful indecent act if the person doing it never intended for others to notice, an Ontario Superior Court Judge has found.
On Monday, Justice Kenneth Campbell set aside the conviction of a Toronto man found guilty of wilfully committing an indecent act because a lower court judge had assumed that just because others witnessed the act it meant the man had intended for people to see him or to offend them.
Counsel for the appellant argued his client, Paolo Novello, had tried to cover himself when undercover police officers spotted him masturbating in public places near schools, parks, and playgrounds.
“First, there is no legal presumption that, where an accused is engaged in some indecent act and is, in fact, observed by another person while engaged in that indecent act, the accused must, therefore, have wilfully engaged in the indecent act in the presence of the other person,” wrote Campbell, who noted a person might not know someone else is around.
“For example, an accused may engage in an indecent act in circumstances where he or she is not aware of the presence of another, and is not aware that he or she is being observed by another. In such circumstances, it would be illogical for a court to presume that, having been surreptitiously observed by another while engaged in an indecent act, the accused must have wilfully performed the indecent act in the presence of another person.”
Criminal lawyer Daniel Brown says cases of indecent exposure don’t arise often and that when they do, it seems like there has been confusion over what the jurisprudence says about the presumption of wilfulness.
“This decision by Justice Campbell clarifies any confusion that might have otherwise existed,” says Brown.
“If you are being seen, maybe a judge can conclude that was your intention, but it isn’t something that should necessarily flow from being seen,” he adds.
In R. v. Novello, the trial judge concluded the appellant “positioned himself in a somewhat clandestine manner and was observed to place both hands in his front pants pockets close to the groin area and vigorously move his hands back and forth continuously as the front of his pants tented and he paced back and forth in an excited state.”
Campbell, however, ordered a new trial in the case after setting aside Novello’s conviction.
“Instead of carefully reviewing the evidence in the case in order to determine whether or not the Crown had, in fact, established that the appellant possessed the specific intent of wilfulness required by s. 173(1) of the Criminal Code, the trial judge erroneously convicted the appellant based upon a perceived (but non-existent) legal presumption that the necessary wilfulness was established by the fact that his acts of masturbation were in fact witnessed by another,” he wrote.
Patrick Brazeau to be sentenced on assault, cocaine charges, Canadian Press
Verdict expected for Calgary man who stabbed neighbour to death, Canadian Press
ICBC blames highway bike death on cyclist negligence, Canadian Press
An online poll suggests 54 per cent of Canadians would consider taking legal action for violations of Canada’s anti-spam legislation.
|Martin Kratz predicts there will be “opportunistic litigation” around the anti-spam act.|
Although the Canadian Radio-television and Telecommunications Commission has issued fines to a number of companies for violations, Canadians will be able to file lawsuits against businesses for violations when the transition period ends on July 1, 2017.
Conducted by Google Consumer Surveys in August for Toronto-based itracMARKET, a software company that provides compliance tools for businesses, the poll is based on 1,000 responses from across the country.
“We clearly do expect there will be opportunistic litigation and we expect it will be in the form of class action lawsuits,” says Martin Kratz, a partner at Bennett Jones LLP in Calgary.
Kratz says part of the problem for companies is the “considerable ambiguity” about how the law works because of the complex interaction between the exemptions in place, the regulations, and the act itself.
“The law itself is horribly complex to operate within,” he says.
In the CRTC enforcement actions so far, where there was no consent to the messages and where large volumes of messages were blasted out and unsubscribe requests were ignored, Compu-Finder faced a $1.1-million fine. The CRTC has also gone after technical violations by Porter Airlines, which faced a fine of $150,000 for failing to have an unsubscribe mechanism in place. In addition, online dating site Plenty of Fish faced a $48,000 fine for failing for the lack of prominence of its unsubscribe mechanism.
“It’s going to take some litigation to explore what all the boundaries are,” says Kratz.
Having a solid compliance program is important to help combat legal action, he says. Before pressing send, prudent marketers should make sure their systems are checking outgoing message recipients against their permissions list.
“Behind your mechanism for collecting permissions, you need to have a robust customer relationship management system,” he says.
Companies that may have taken an expedited compliance approach might want to take a harder look at their electronic communications activities as due diligence is a defence, Kratz adds.
“It’s important to address technical compliance requirements as well as the business elements of a compliance program.”
When it comes to why Canadian continue to see so much spam, it could be some people are confusing international and U.S.-based spam as many American companies may still be unaware that Canada has a strict regime. In the United States, the law is that the first message is allowed but the company has to identify itself and honour an unsubscribe action from a consumer. In Canada, the first improper message is a violation.
When asked what legitimate industries are the worst spam e-mail offenders, most survey participants said retailers were at the top at 38.1 per cent, followed by group-buy sites at 34.1 per cent, and travel sites at 30.3 per cent. Restaurants were the lowest at 8.9 per cent.
Kratz says his impression is that retailers are “highly aware of the law” and want to be fully compliant.
In some cases, however, retailers may not know what those administering their e-mail campaigns are doing.
“I have a sense a lot of companies are still doing nothing or they’re doing things wrong,” says Steve Szentesi of Steve Szentesi Law PC, a competition and advertising lawyer in Toronto.
He says some clients he has spoken to still want to take the chance on not being compliant or he sees that retailers are outsourcing their e-mail marketing to agencies that aren’t producing compliant programs.
“From a lawyer’s perspective, it’s surprising,” he says.
Advertising agencies that work with many brands are in some cases drafting terms and conditions for promotions and the compliance they came up with was “completely wrong.”
“The message is that companies are aware of it but in some cases don’t want to do anything or they are aware but are doing things wrong,” says Szentesi. “A lot of [ad] agencies field the legal advice for their clients.”
Once the private action regime is in force in July 2017, it could be open season on companies that have failed to comply.
“I think plaintiff’s counsel are essentially building cases against companies that are clearly doing it wrong,” says Szentesi.
Szentesi predicts there will be a significant amount of private enforcement.
“The damages are $200 per infraction, so $200 per e-mail up to $1 million a day. It’s just too easy to bring the cases after 2017. They may have a sense it’s theoretically severe, but we haven’t seen the CRTC do a lot in the first year and a half. I think the plaintiff’s counsel are going to be much more aggressive.”
Dispute over residential school records in court today, Canadian Press
Officer's lawyer to question streetcar driver in Sammy Yatim trial, Canadian Press
While the Ontario government is promising to fix errors on the juror questionnaire, the Ministry of the Attorney General has confirmed it’s too late to do it for next year.
|‘You can still ask them questions about their criminal record, I would think, to ensure that they still qualify,’ says Scott Bergman.|
While most people with a criminal record wouldn’t be eligible to sit on a jury, the forms provide for 20 exceptions. However, three of those listed acceptable offences do in fact bar potential candidates from serving, so people who have been correctly filling out the form since 2010 amendments to the Juries Act may have incorrectly served as jurors. Those amendments prohibited those convicted of hybrid offences from serving but in the meantime, at least three of the offences that don’t automatically disqualify someone have become hybrid offences: impersonating a police officer, committing an indecent act, and making indecent or repeated phone calls.
“The ministry will be taking steps to amend the questionnaire to remove these three offences,” said Crawley.
“It’s not surprising they can’t change the form. I think it just went out this month,” says Scott Bergman, a criminal defence lawyer at Cooper Sandler Shime & Bergman LLP.
The error means some people who have been filling out the form correctly since the 2010 amendments to the Juries Act may have wrongfully served as jurors.
“If I didn’t realize that I wasn’t properly allowed to be part of a jury pool, I could end up on a jury [and] I never should have been on a jury,” says Bergman.
The Ontario government, however, has noted that the jury roll form is only one of the steps taken in the jury selection process. Once a jury is selected, an officer is authorized to randomly conduct criminal record checks on jury panel members and remove those who are ineligible.
As a result, Bergman says the process limits the potential for problems. “You can still ask them questions about their criminal record, I would think, to ensure that they still qualify,” he says.
While the government is unable to amend the forms right away, Crawley noted it’s working on notifying prospective jurors.
“So for as long as this issue or that wording in the questionnaire remains, I think what they would have to do is alert each of the actual individuals who are brought into the courthouse that there are certain offences that they may have answered one way [but] in fact it wasn’t accurate or was incorrect,” says Bergman.
“They need to find a way to do that in a fair and also a discreet way.”
Valeant director to head review of allegations of wrongdoing, Canadian Press
B.C. pimp who lured teens in court today for sentencing hearing, Canadian Press
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