Legal Feeds Blog
Columns and op-eds really resonated with canadianlawyermag.com readers in 2015, as well as the perennial favourites of the annual Top 25 Most Influential and rankings of regional and boutique law firms. Here are the most popular stories from Canadian Lawyer’s web site.
- Call out the bullies
- Quebec company hit with $1.1-million penalty under CASL
- I failed in law school and you can too
- This election is about Stephen Harper
- The Top 25 Most Influential
- Success at all levels: Canadian Lawyer's Top 10 Insurance defence, Top 5 Tax law, and Top 5 Wills, trusts, & estates boutiques
- The bâtonnière who fell from grace
- Efficiency, flexibility, and focus: Canadian Lawyer's top Ontario regional firms
- The new normal: Canadian Lawyer's top 10 personal injury boutiques, top 10 arbitration chambers, and top 5 aboriginal law boutiques
- LPP year 1
The top 10 most-read stories on lawtimesnews.com in 2015 have a distinct focus on the actions of lawyers and law firms.
- Lawyer disbarred for writing fake orders
- Merchant Law Group under fire in Ontario courts
- Heenan denies partners have gotten capital back
- Law students concerned as firm posts articling job covering a transit pass
- Court rejects attempt to blame articling student for delay
- Ontario’s e-cig law unconstitutional: prof
- Lawyers alarmed at criminal charges in family cases
- Critical rulings show risks of going paperless, lawyer says
- Lawyer convicted in $1.9M gold case
- Appointment of military judge to Superior Court a first
And don't forget to check out Law Times Top newsmakers, stories, and cases of 2015.
The closing of an 80-year-old music store in south Winnipeg opened a door for Darren Sawchuk. The longtime Winnipeg criminal lawyer with a newfound passion for old LPs just happened to be looking for a venue for a new music store.
|‘I have rediscovered what it is like to sit and relax and listen to records,’ says Darren Sawchuck.|
“LPs are coming back in style,” says Sawchuk. “People are discovering the qualitative difference in the sound of an LP as compared to digital music or iPods.”
Now it’s not that Sawchuk, a past president of the Manitoba chapter of the Criminal Defence Lawyers Association, has any plans to give up practising law after 25 years. He says he views law as a helping profession, particularly in criminal law cases. He notes that he has taken on a large number of legal aid over the years and values the relationships that he has established with his clients.
But one could describe Sawchuk as a free spirit — an individual with numerous other interests. For 16 years, for example, he filled much of his free time coaching local hockey teams.
And he has long been involved in music. While still at university, he played trumpet in a professional jazz band. While in law school, he learned to play guitar. And for the past 10 to 15 years, he has been the singer and lead guitarist for the band 59 Divide, which plays benefits and other bookings.
“We do about 10 gigs a year,” he says.
Sawchuk rediscovered the joys of vinyl last spring. He recalls that he had retired from coaching hockey and had time on his hands. He found some old records in the house and decided to play them on an old record player he still had. Impressed by what he heard, he began regularly listening to the LPs with his girlfriend, Loralie McKelvey, and collecting more.
“I started buying other people’s collections,” he says. “My collection had grown to about 1,000. Then in August, I made contact with a guy in Saskatoon who was selling his collection of 25,000 records. Loralie and her daughter and I rented an U-haul, drove to Saskatoon, and brought back all the records. That’s when I started thinking about opening a record store.”
But Vinyl Revival is more than just a record store. Sawchuk’s new enterprise also offers an open mic on Wednesdays and music lessons (guitar, bass, piano, vocals, and drums), in a rock band setting, with University of Manitoba faculty of music students as instructors.
Sawchuk reports that the response to his new venture has been tremendous.
“People who come in love the atmosphere here,” he says. “I am meeting a lot of talented musicians and I am enjoying jamming with them.
“The Beatles, the Stones, the Doors, and Led Zeppelin are among the records that are most in demand.”
Vinyl Revival doesn’t interfere with Sawchuk’s day job as the place is open from 5 p.m. to 9 p.m. on weekdays.
“The place almost runs by itself,” he says. “I may be the face of Vinyl Records, but my girlfriend and my son [Jordan] basically manage things.
“I have rediscovered what it is like to sit and relax and listen to records,” he says.
Police investigate discovery of two bodies in Labrador home, Canadian Press
- Saskatchewan, Alberta, and Manitoba have launched a consultation paper on regulating legal service providers
Law societies in Canada’s Prairie provinces are joining hands to charge ahead toward entity regulation in 2016.
|Alberta, Manitoba, and Saskatchewan are working together on entity regulation consultations.|
“We are a large geographic country with a small population and, compared to other jurisdictions where regulatory reform is occurring, we have relatively few lawyers. This reality means that our resources are limited and it is strategically wise to share them,” the law societies said in the consultation paper.
They added: “It is also our view that a diversity of perspectives from different jurisdictions will achieve better, more effective outcomes. For these reasons, the law societies of Alberta, Manitoba and Saskatchewan are doing this work together. We are also keeping a close eye on developments across the country, particularly in Nova Scotia, Ontario and British Columbia where work is ongoing.”
Law societies across Canada are considering a shift from a regulatory system that focuses on individual lawyers to one that looks at the collective lawyers work in, whether that’s a law firm, an in-house legal department, or a legal aid organization Unlike the current regulatory model, which takes reactionary steps whenever lawyers engage in wrongdoing, regulators are considering a more proactive model that should help prevent transgressions in the first place.
If approved, the new approach would be goal-driven — the regulator would set of a set of desired outcomes and organizations can devise their own way to get there.
“We’re throwing it out there to the public and the profession and we’re looking for input from them,” says Schonhoffer.
Part of the reason for the collaboration between the Prairie provinces is also to harmonize whatever changes may come, he adds.
Schonhoffer says law societies feel emboldened by the Canadian Bar Association’s Futures report, which encouraged legal regulators to reimagine how the profession is governed in hopes of improving access to justice.
“They made these recommendations to the law societies and said, ‘You ought to have a look at this’ and so we take that very seriously,” Schonhoffer says.
In the consultation paper, the Prairie law societies say there are numerous benefits of compliance-based regulation, including an incentive to be innovative in the delivery of legal services. But there are also some concerns.
“The principal concern is that as compliance-based regulation is focused on outcomes rather than rules, there is more ambiguity and less certainty for firms as to what they must actually do to achieve compliance,” says the consultation report. “Generally, lawyers prefer to know exactly what they are required to do rather than figuring it out by themselves.”
Want to know more about entity regulation and what it means? Check out Canadian Lawyer’s “Entity regulation — whaaaat?” cover story from October.
Marijuana crimes up as Liberals prepare to legalize, Canadian Press
Assault charges dropped against former MP Julian Fantino, Canadian Press
Lac-Mégantic disaster settlement is fully funded, Canadian Press
- Open enjoyment and continuous use win out over statutory limits
One Toronto neighbourhood may be able to find some peace this holiday season after the Ontario Court of Appeal finally settled its property dispute — and along the way created some novel legal interpretation.
|The lane between homes on Brock Street and Cunningham Avenue. (Photo: Google Earth)|
The laneway, however, was being used by the owners of at least three homes sitting adjacent to the land on Brock Street. The Brock homes were situated near a rail overpass, so cars were unable to stop outside. Their only access to their homes was via the laneway.
This unfortunate example of poor city planning led to the nasty neighbour spat. In 2013, the Cunningham owners — having found no explicit right of way in their deed for at least 40 years (the statutory limit for title investigations) — decided that they were within their rights to block access. They erected a pole in the middle of the lane.
The Brock owners, left without access to their homes, applied for an injunction against the Cunningham owners. As it happened, the deeds for the Brock homes did refer to a right of way created prior to 1960, even though the stipulation had vanished from the Cunningham chain of title. The application was granted, leading eventually to last week’s showdown at the Court of Appeal.
On Friday, the homeowners on Brock Street secured their laneway, with the OCA ruling that historical right-of-way claims that had fallen off the registry were exempted from a 40-year expiration date, as long as the right way was being used and enjoyed continuously.
“Fairness suggests that a right of way that was once registered and continues to be openly enjoyed and used should be exempted from the operation of the 40-year rules set out in Part III [of the Registry Act],” wrote Justice Janet Simmons on behalf of the court. “This must have been what the Legislature intended — and is what a proper interpretation of [the act] requires.”
“In my view, however, to . . . qualify for the exception . . . a claimant must show open enjoyment and use continuously from the expiration of the 40-year expiry period . . . “
James Morton, who represented the appellant Cunningham owners, says the court’s pronouncement on historical, unregistered rights of way will have significant bearing on land disputes in urban centres in Ontario.
“It does suggest that land title is not as absolute and fixed as I would have thought,” says Morton, “and it certainly suggests that the 40-year search rule is not as fixed, which is problematic to some degree for lawyers because,” he sighs, “it means you cannot rely completely on the . . . search documents.
“It’s certainly going to pose a problem for land title insurers who are going to have to somehow recognize that there can be these unregistered and effectively unfindable interests in land.”
Asked whether the court has conflated the concept of a land “claim” (which until now had to be explicit) and a “right” (which is implicit), Morton acknowledges that it may very well have done so — although not without due consideration.
“I do think it’s fair to say that they conflated the two,” he says, “but they conflated them intentionally. To my thinking, it creates some uncertainty in the land title system, but the court is balancing uncertainty with fairness, and they came down with the view that fairness required a little bit of uncertainty.”
Quebec can implement Canada’s first law permitting physician-assisted dying, while the federal government decides on a framework for how to handle the tricky ethical issue, the Quebec Court of Appeal ruled on Tuesday.
|The Quebec Court of Appeal ruling means the province can implement Canada’s first law permitting physician-assisted dying.|
But contradictory legislation on the books leaves open the possibility that Quebec doctors who help patients die could be guilty federally while innocent provincially.
In February, the Supreme Court of Canada overturned a ban on euthanasia but suspended the application of its decision for a year to let Parliament draft new rules for when assisted suicide would be allowed, meaning the current federal law remains in force for now.
In Quebec (Attorney General) v. D’Amico, the Quebec appeal court overturned a lower-court decision that had left the provincial law in legal limbo. Quebec’s legislation was supposed to take effect on Dec. 10 but euthanasia opponents had contested it, saying it conflicts with Canada’s Criminal Code.
A spokesman for the federal government said it was reviewing Tuesday’s decision.
Pronovost said she was not concerned about Quebec doctors being sued or threatened with prosecution by performing euthanasia. Quebec has argued that euthanasia is a form of medical care, which falls under provincial jurisdiction.
The new Liberal government has asked the Supreme Court for a six-month extension on enacting legislation, saying last year’s election and the change of government set back drafting of replacement rules. The SCC will be hearing oral arguments on the extension Jan. 11, 2016.
Paul Saba, a Montreal family doctor who challenged the Quebec law in the lower court, said he would return to that court next year in a new legal bid to stop legalized euthanasia.
Saba and handicapped Quebecer Lisa D’Amico first sought legal action in that court in May 2014 to stop the provincial law.
“Euthanasia is a cheap and fast way to end suffering,” he said. “We are fighting for patients’ lives.”
Saba said he would argue that euthanasia is not a form of health care and Quebecers are not able to make a free choice when asking for assisted suicide because of errors by doctors in prognosis and diagnosing patients’ condition, along with inadequate palliative care.
Quebec Health Minister Gaetan Barrette, an advocate of the provincial law, told CBC television that while there will never be unanimity of views on such a topic, “there was a very, very large consensus.”
The first self-identified transgender judge has been appointed in Manitoba.
Kael McKenzie is Manitoba’s newest provincial court judge, officially appointed on Thursday. According to his former professors at the University of Manitoba where he studied law — the first transgender judge in Manitoba and possibly Canada — is unequivocally an excellent choice.
“I’m just one example of many of my colleagues and people who are attaining certain levels of notoriety that can show people we are just people,” McKenzie told the CBC. “We are just doing what everyone else does and we can achieve whatever we want to do with hard work and dedication.”
Reacting to the call, McKenzie told CBC: “I had to ask them to clarify: ‘What do you mean I’ve been appointed?’ It was surreal for me.”
“Of course he is thrilled,” says Lorna A. Turnbull, the dean and McKenzie’s former professor and research partner at University of Manitoba’s Robson Hall Faculty of Law. “He is really modest which is true and so he was surprised, the rest of us weren’t surprised. It is a perfect appointment.”
While McKenzie, a former Crown, took much of the spotlight, the province also appointed Margaret Wiebe as chief judge of the Provincial Court last week.
“Judge Wiebe’s experience in handling complex matters as a lawyer and most recently as a judge, have demonstrated her expertise and commitment to the principles of justice that we all share,” said attorney general Gord Mackintosh in the press release.
Manitoba is a leader when it comes to provincial court appointments “in the last 15 years, in terms of appointing a very diverse bench,” says Debra Parkes, associate dean at Robson Hall.
In 2003, Tim Preston was appointed to the provincial court of Manitoba, “and he is an ‘out’ gay man, and at that time there wasn’t very many gays or lesbians who are ‘out on the bench,’” she notes.
For Turnbull, the news of McKenzie’s appointment came during a bencher meeting at the Law Society of Manitoba where she sits as faculty bencher. She says applause broke out and reaction over the course of the day was, “unequivocally, across the board, everybody thinks this is a fantastic appointment.”
And is McKenzie the first self-identified transgender judge in the province?
“I think it is true. There may well be other transgendered judges that we don’t know, because sometimes people make a transition without [publicly speaking out] . . . and earlier in their career so it isn’t something that is known,” she notes.
“I am not aware of anybody who has been appointed . . . who is a transgender person,” says Parkes.
The Canadian Bar Association says it cannot verify whether McKenzie is the first transgender judge, because it does not keep records of judicial appointments. It does address needs and concerns of lesbian, gay, bisexual, transgendered and “two-spirited people” within the CBA according to its website, but that is done strictly on a volunteer basis.
McKenzie’s transition was a very public affair, because he transitioned following law school and during the beginning of his legal career says Turnbull.
After receiving his law degree from the University of Manitoba in 2006, McKenzie practised family, commercial and civil law with Chapman Goddard Kagan in Manitoba. He has been a Crown attorney in the province for five years. Previously, McKenzie served in the Canadian Forces and managed on-campus security services at a local university.
The way the Manitoba community accepted the gender change was particularly remarkable says Turnbull.
“It was simply a non-issue in this community when he made that transition,” his colleagues, the profession, politicians and the judges accepted it seamlessly. “We know you, you are one of us,” was the gist, she says.
Turnbull says he has a good range of experience and is someone “who understands the average person.”
The real story — she says — is about what a great judge he will make.
Parkes agrees. “The point is that Kael is very well qualified, [an] incredibly competent lawyer, bright, all of that, so you don’t want that to overshadow, or have people somehow think that . . . it wasn’t an appointment based on merit, of course it was.”
"I think the bench should be representative of Manitobans, and I think my legal qualifications are probably the biggest part of what has gotten me here today," McKenzie told the Winnipeg Free Press.
During his third year in law school — as president of the law student association — McKenzie was really able to position the students and faculty as “co-creators of the learning environment,” there had been a spell prior to that where the student government was really all about parties says Turnbull.
He worked with student groups making sure that the bursary and financial support system really was accessible. McKenzie was always “really thinking deeply about what a law school should be from a student point of view, but with that longer term perspective” she says.
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