Legal Feeds Blog
It is now more difficult for prosecutors in police disciplinary hearings to prove police officers have engaged in professional misconduct, thanks to a recent decision from the Ontario Court of Appeal.
|An Ontario appeal ruling confirms it’s more difficult for prosecutors in to prove police officers have engaged in professional misconduct. (Photo: Shutterstock)|
In a decision some lawyers are calling “troubling,” the court said the issue has already been decided by the Supreme Court of Canada, and overturned a Divisional Court ruling that declined to give police a special standard of proof in hearings at the Ontario Civilian Police Commission.
“The decision only serves to further inoculate police from appropriate scrutiny,” says Ottawa criminal lawyer Michael Spratt.
While the standard of proof in criminal law is to establish facts beyond reasonable doubt, civil courts, including administrative tribunals, rely on proving claims on balance of probabilities. But Jacobs confirms there is a third, higher standard of proof for police that requires prosecutors to prove their case on “clear and convincing evidence.”
The appeal court said it is relying on a Supreme Court of Canada decision that already acknowledged this third standard of proof for police disciplinary hearings. The Divisional Court erred in not following the SCC’s precedent in Penner v. Niagara (Regional Police Services Board), says the appeal ruling.
The respondents took the position that “clear and convincing evidence” only refers to the quality of evidence generally required to meet the balance of probabilities standard in professional discipline matters. They also argued the top court’s statements in Penner were obiter dicta, or incidental expression of opinion. The appeal court rejected those arguments.
“In my view, we are bound by the Supreme Court’s statement in Penner that the standard of proof in PSA hearings is a higher standard of clear and convincing evidence and not a balance of probabilities,” wrote Justice C. William Hourigan for the panel.
“I would grant the appeal and set aside the order of the Divisional Court dismissing the appellant’s application for judicial review to quash the decision of the Commission. The matter is remitted to the Commission for further consideration in accordance with these reasons,” he added.
According to Spratt, one of the arguments for creating this special standard of proof for police officers is they are hugely affected by negative disciplinary findings against them, and police officers have important work to do.
But “that seems to me to be a reason to more carefully examine police officers’ conduct and not a reason to insulate police from the normal standards that would apply for normal individuals,” Spratt says.
Man shot and killed near police headquarters in Hamilton, Ont., Canadian Press
Police find body in creek near Highway 401 in Whitby, Ont., Canadian Press
Sale of Conrad Black's mansion delayed after CRA places liens over unpaid taxes, The Globe and Mail
As wildfires in and around Fort McMurray begin to subside and residents are faced with the terrible aftermath, Legal Feeds asked major law firms in Alberta what they’re doing to help — which is a lot, it turns out.
|Flames rise in over Fort McMurray on May 3. (Photo: Terry Reith/CBC News/Handout via Reuters)|
“Our thoughts are with all those affected by this terrible disaster. Through our Calgary office, we have close ties to many people in these communities, and we want them to know we stand with them during this difficult time.”
Field Law managing partner James Casey says: “We all appreciate the monumental task facing families and the city of Fort McMurray to rebuild. During times of great need and challenge Albertans rally to help our neighbours and Field Law is jumping right in to do our part.”
"We are humbled and proud to join together, both as a national firm and with the Calgary legal community, to support those affected by the ravaging fires in Fort McMurray," says Osler Hoskin & Harcourt LLP Calgary managing partner Maureen Killoran. "We know there will be much more work to be done in the weeks and months ahead and our friends, colleagues and clients can count on Osler to lend a hand."
Norton Rose Fulbright Canada LLP (140 lawyers in Calgary)
• co-ordinating with other firms in the province to raise funds for Red Cross Alberta Fires Appeal
• employees selling Defeat the Heat T-shirts to raise money and visibly show solidarity
• Calgary managing partner Brad Hayden: “These people are our friends and neighbours and when a neighbour needs help, it’s the right thing to do. It’s who we are as Canadians. In the legal industry, we like the facts, and the facts are Fort McMurray and its citizens need help.”
Burnett Duckworth & Palmer LLP (140 lawyers in Calgary):
• joined forces with other major firms in Calgary, including Norton Rose, Bennett Jones, Blakes, DLA Piper, Field Law, McCarthys, Osler, Stikeman Elliott and Torys
• donated $30,000 to Red Cross Alberta Fires Appeal
• launched matching program, up to $10,000, for staff and lawyers
Blake Cassels & Graydon LLP (110 lawyers in Calgary):
• donated $50,000 to the Red Cross Alberta Fires Appeal
• staff and lawyers have donated $6,750
• employee fundraising activities planned across Canada (online auction, 50/50 raffle, pizza lunch and T-shirt sales)
Borden Ladner Gervais LLP (120 lawyers in Calgary):
The smoke plume (bottom) from wildfires near Fort McMurray in a picture taken by NASA astronaut Jeff Williams from the International Space Station May 11. (Photo: NASA via Reuters)
• launched matching program for donations to Red Cross Alberta Fires Appeal
Field Law (120 lawyers in Calgary and Edmonton):
• collected donations from staff and lawyers
• organized fundraising events (bake sales, silent auction) with more planned
• launched matching program, up to $5,000, for donations to the Red Cross Alberta Fires Appeal
• established dedicated Red Cross online portal for lawyers, staff, and vendors to donate
• raised $22,000, with minimum goal of $30,000
• participating in Defeat the Heat T-shirt fundraiser
Miller Thomson LLP (90 lawyers in Calgary and Edmonton):
• lawyers reached out to victims within 24 hours, offered homes in Edmonton as refuge
• established dedicated Red Cross online portal for staff and lawyers to donate
• launched matching program for donations
• staff and lawyers donated household supplies for displaced families
Bennett Jones LLP (200 lawyers in Calgary and Edmonton):
• donated to Red Cross Alberta Fires Appeal
• providing office space in Edmonton for one Fort McMurray law firm that was displaced (with support staff set up in boardrooms)
• providing computers, phones, and office supplies for this law firm
• one partner has provided the use of a home to a displaced family
Osler Hoskin & Harcourt LLP (70 lawyers in Calgary):
• in less than three days, donated $200,000 to the Fort McMurray Fund
McCarthy Tétrault LLP (70 lawyers in Calgary):
• McCarthy Tétrault Foundation has donated $75,000 to the Red Cross Alberta Fires Appeal
Dentons Canada LLP (190 lawyers in Calgary and Edmonton):
• launched matching program for donations to the Red Cross Fires Appeal
• matching program has collected $125,000
• reaching out through the law society, social media and networks to offer office space to displaced lawyers
• some lawyers in Edmonton have opened their homes to displaced clients and lawyers
MacPherson Leslie & Tyerman LLP (40 lawyers in Calgary and Edmonton):
• launched matching program for donations to Red Cross Alberta Fires Appeal
• raised $16,500 in donations from lawyers and staff
• donated $1,500 to process several tonnes of laundry for evacuees
• donated $5,000 to Fort McKay, north of Fort McMurray, which opened its doors to evacuees and air-dropped supplies to nearby oil sands mine
• donated $1,500 to aboriginal community to assist in providing aid to evacuees
• Calgary lawyer Dean Hutchison, born and raised in Fort Mac, organized a donation drive with his children for clothing and other items
Gowling WLG (Canada) LLP (90 lawyers in Calgary):
• launched matching program for donations, up to $50,000, to Red Cross Alberta Fires Appeal (with $100,000 target)
• offered office space for displaced clients
DLA Piper (Canada) LLP (50 lawyers in Calgary):
• donated to Red Cross Alberta Fires Appeal
• launched matching program for donations from staff and lawyers
• offering emergency office and meeting spaces in Edmonton and Calgary for displaced lawyers
• allowed staff to volunteer for relief efforts during work hours
• Alberta lawyers and staff have contributed much-needed supplies like toiletries and bedding
• Toronto office has raised a significant amount of money through a matching program
• individual lawyers have offered to help evacuees with claim process and paperwork
• many individuals are hosting evacuees and their pets
Update May 15: Quote from Maureen Killoran revised. Spelling of Dean Hutchison's name corrected.
Federal parole board considers two-tier pardon fees, Canadian Press
Trucking company and driver charged in fatal Ontario crash, Canadian Press
'I didn't kill Mr. Bosma,' Mark Smich testifies in murder trial, Canadian Press
A number of Canadian law firms are mentioned in the Panama Papers, the massive leak from a Panamanian law firm showing the offshore financial dealings of prominent figures worldwide.
The documents, which became available for wider public scrutiny this week, list Bennett Jones LLP, Aird & Berlis LLP,, and Macleod Dixon LLP as intermediaries for various offshore companies and trusts.
The law firms are listed as intermediaries for trust accounts incorporated as far back as the 1980s. Aird & Berlis is listed as an intermediary for Blue Trust, The Merril International Trust, Harrison Trust, Chavid Trust, Coppi Trust, and two other accounts with details that have been temporarily withheld.
Bennett Jones is listed as an intermediary for FROBISHER S.A., which was incorporated in 1982 and struck off in 2013, according to the documents.
Meanwhile, Macleod Dixon, which merged with the Norton Rose Group to open its first Latin America offices in 2012, is listed as an intermediary for Continental-GeoPetro (Yapen) Ltd., a company engaged in oil and gas exploration in Indonesia.
Vitaly Timokhov, a tax lawyer at Tax Chambers LLP, says the law firms could have been involved to incorporate the Canadian side of these companies, act as advisers for beneficiaries, or settlors of trusts, or help set up an offshore financial structure for companies to create “tax efficiencies.”
When law firms create foreign financial structures, it’s usually after the structures have been approved by Canada Revenue Agency, says Timokhov.
“Usually, these kind of structures, they’re all vetted by Canada Revenue Agency as part of the setup,” he says.
Asked about the impact of the revelations, Aird & Berlis’ managing partner Steven Zakem said, as acknowledged by the International Consortium of Investigative Journalists, which made the documents available on its web site, there are legitimate uses of for offshore companies and trusts.
“. . . Off shore companies and trusts are legitimate tax planning vehicles which are recognized by Canada and many other jurisdictions,” Zakem said in an e-mail to Legal Feeds.
“Aird & Berlis LLP does not respond to outside enquiries concerning the identity of its clients or legal advice it may or may not have provided to its clients. As such, we must decline to answer the questions posed,” Zakem also said.
Recently, RBC was forced to hand over its clients’ records to the CRA after names of the bank’s clients turned up in the Panama Papers. If tax auditors similarly ask Canadian law firms to surrender their records, Timokhov says it’s debatable whether the law firms can argue the information is protected by solicitor-client privilege.
The extent to which tax advice is privileged is “an extremely complex” question, he says.
“The CRA position is . . . that all information which is relevant in the computation of income tax liability is not privileged. It’s confidential, but not privileged,” he says. “Canada Revenue Agency can, under the Income Tax Act, request information from all third parties including lawyers in respect of all information relevant to income tax computation.”
Surrey, B.C. fire that left one man dead under investigation, Canadian Press
Controversial French comic Dieudonne arrives in Montreal, Canadian Press
A class action launched by land surveyors who claimed copyright infringement against Teranet — the private sector company that manages Ontario’s land registry system — has been dismissed.
|The Ontario Superior Court has ruled the Crown has copyright over plans of survey. (Photo: Shutterstock)|
The class action in Keatley Surveying v. Teranet was filed in 2007, and was certified on appeal in 2015. Both sides moved for summary judgment on the common issues and the decision was issued May 6 in Ontario’s Superior Court.
Keatley Surveying brought the action on behalf of about 350 land surveyors in private practice in Ontario whose surveys were scanned and copied into Teranet’s digital database and made available online. By copying and selling their plans online, the surveyors claimed Teranet was breaching their copyright and unlawfully appropriating for itself the benefit of the class members’ professional land survey work.
The class members’ complaint was that a for-profit third party inserted itself between the government and users of land registration services and “reaps substantial profits at the expense of class members.”
Justice Edward Belobaba decided in favour of Teranet and the class action was dismissed on common issue two, which asked whether the copyright in the plans of survey belongs to the Province of Ontario under s. 12 of the Copyright Act, as a result of the registration or deposit of the plans of survey in the land registry office.
Teranet argued the plans of survey in question were “prepared or published by or under the direction or control” of the province and therefore copyright belongs to the Crown.
Belobaba said in his view “ . . . statutory provisions make clear that when plans of survey are registered or deposited at the land registry office, the province takes ownership of the property in these works which includes the right to make copies.”
“In my view, s. 12 of the Copyright Act, primarily a ‘term of copyright’ provision, clarifies Crown copyright but does so ‘without prejudice to any rights or privileges of the [provincial] Crown.’ Thus, the provincial ‘property of the Crown’ provisions already discussed, and s. 12 of the federal Copyright Act, can live together and operate concurrently,” wrote Belobaba.
“In any event, the answer to Common Issue 2 is ‘yes.’”
As both sides agreed that was the determinative issue then there is no copyright infringement “and that is the end of the class action.”
The next step could be an appeal to the Court of Appeal, but plaintiff lawyer Garth Myers would not comment on whether an appeal will be pursued.
“We were successful on a couple of the common issues and we’re quite pleased we succeed on the Crown copyright issue and assignment issue. We got caught on the second part of common issue two, which was determinative. We don’t agree with the judge’s finding on that issue. The issue that remains is whether the provincial statutes provide for copying that takes away copyright of land surveyors,” said Myers, an associate with Koskie Minsky LLP.
Belobaba decided Teranet was entitled to costs and while it would have sought $200,000, he indicated a reasonable costs award is “probably around $125,000.”
Myers said there will be submissions on costs.
Legal Feeds could not reach counsel for Teranet before publication.
Lawyers propose $50-million deal for former residential school students, The Globe and Mail
Proposed amendments to assisted-dying bill rejected, Canadian Press
A new report from TGO Consulting says in-house counsel will avoid difficult fee negotiations with law firms with whom they’ve had long-running relationships. Instead, they’ll move the work in-house, or send it to a lower-tier firm or an alternative service provider in order to meet budgetary needs.
|Instead of negotiating price, in-house counsel will ‘vote with their feet’ by finding less expensive options, says new report.|
“[I]nstead of hard negotiation on price with their lawyers, the in-house department has found an easier and far less confronting way to realize savings on the budget; instead of negotiating they push work down. In effect they ‘vote with their feet’. Work that is deemed too expensive is simply taken from one law firm and given to another that is less expensive to start with,” says the report, called The Trend is Clear, the Blow is Yet to Come.
The report is based on face-to-face interviews with 15 general counsel or people in charge of managing outside legal services for international companies spanning a broad range of sectors, from the financial sector to heavy industry. TGO Consulting focuses specifically on the legal sector and its ownership structure.
Some of the findings of the report may be hard to confront, especially for law firms that see their work as bespoke.
“From the client’s perspective, for the vast majority of legal matters there are multiple law firms and numerous lawyers that can perform the same task equally well,” said the report, which focuses on the increasing “commoditization” of legal services. The report later said: “When judging if a service is a commodity or not, is the opinion of the client that counts.”
So, how does this pull by the client to pull down costs manifest?
The report says that “surprisingly” the biggest savings haven’t happened thanks to “negotiating special rates, whether during a panel appointment round or on ad-hoc basis.” Lawyers feel it’s important to have a good relationship with their “incumbent” law firms, so a pattern of avoidance emerges.
“Instead of confronting the trusted outside legal advisors they work with, nearly every single general counsel speak of ‘pushing work down.’ The same work that a client would hand to a firm in Tier 1 of its panel is increasingly being given to a firm from one tier below,” said the report.
Law firms are not feeling the pain, said the report.
“A pattern clearly emerges from this survey: the erosion of work for upper mid-market firms. By being able to shift work down when they need to cut cost, without having to compromise on the results, general counsel can reach their budget taregts. But for most lawyers this has been done in stealth,” said the report.
David Felicissimo, general counsel for Valnet Inc., says the legal industry is ripe for disruption.
He says negotiation around price is a careful area for in house counsel with law firms where they have an established relationship. For example, he points to section of the report that said “in-house lawyers also typically have an excellent working relationship with their outside counsel. A relationship they do not want to spoil by breaking bad news on the pricing and the hourly rates.”
“That I find absolutely true,” says Felicissimo.
Felicissimo says in terms if negotiation, he does not negotiate with his external law firm as much as he negotiates with “everybody else."
“I’m sure that has to do with or it does have to do with, the personal relationship you have with them, the excellent service they provided — obviously if you’re still with them for many years it means they’ve provided excellent service in return. When you have a history with a certain firm, and you’ve been through a lot of battles with them, they’ve done a lot of great work, excellent advice, it kind-of feels like you’re watering down their services when you’re trying to negotiate a rate. That’s how I feel,” he says.
Helen Fotinos, national co-chairwoman of McCarthy Tétrault LLP’s franchise and distribution group, says she challenges “clients to leverage their position by selecting firms they can truly partner with.”
Price should not be the only focus, she says.
“I agree with the report’s findings that clients have the upper hand, but I would also challenge clients to leverage their position by selecting firms they can truly partner with, and not focusing on price alone, they would be doing themselves and their companies a disservice if that’s the only metric,” she says in an e-mail to Legal Feeds.
Using many firms to do many things costs time and money, not to mention how cumbersome it is to manage, says Fotinos.
“The majority of in-house legal departments are lean, with resource challenges of their own. Given the option, why wouldn’t a client invest with a single service provider, who similarly invests in the client’s business, and who could work as an ally to manage portfolio risk and control legal spend?”
Update 2:30 p.m.: Comments from David Felicissimo updated.
Traditionally, if a person wanted to sue someone in Ontario and that amount fell under $25,000, he or she would have to prepare all the necessary documents and then take the time to go to small claims court to file them.
As of last week, the court has finally entered the Internet era, as the Ontario Ministry of the Attorney General announced all small claims can now be filed online.
Brendan Crawley, a spokesperson for the AG, explained that since small claims court online applications were piloted online in 2014, more than "20,000 small claims have been filed online, and over 15 per cent of those claims were filed outside regular court hours.”
Crawley adds that the process is made secure by requiring “users to create and use a One-key ID and password, a unique electronic credential that allows users to communicate securely with online Government services.”
Why is the Ministry of Attorney General doing this now?
Crawley said that this was done to make “court services easier, faster and more accessible by delivering them online”.
“The intention has always been to expand it [the e-filing system],” adding that “filing online is really an advanced feature and it’s overdue, it should be expanded beyond small claims to all courts," says Toronto commercial and franchise litigator Ben Hanuka, of Law Works PC.
There will also be actual cost savings to clients if a lawyer or paralegal represents them, because they can now save on having to use a process server.
While Hanuka acknowledges, “It’s a good step . . . this saving of time for the consumer is good,” he also cautions that just because the filing is made easier, doesn’t mean the rest of the claim will be easy to handle.
“I think it will help them [consumers] with the logistics of filing it but it won’t do anything about helping them draft the claim and the drafting is the hard part," he says.
Before individuals begin filing, there are a few things they will need, including a ServiceOntario account, a credit card, a summary of why they are making the claim, and documents that support the claim.
What about people who are not exactly technologically savvy? Are they able to navigate the murky waters of online filing?
Crawley says the process is actually quite simple.
“The online filing wizard makes the process of completing and filing a small claim and receiving a judgment faster and more accessible by breaking it down into a series of easy-to-follow steps," he says.
The takeaway from the government’s announcement is that Canadian governments and courts are recognizing that they have to move with the times and many are now moving towards filing claims online.
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