Legal Feeds Blog
The New Brunswick Court of Appeal has ruled a criminal lawyer can keep his controversial DUI DR vanity licence plates.
|A judge has ruled that Moncton lawyer Wendell Maxwell can keep his DUI DR plates. (Photo: Wendell Maxwell)|
In a recent ruling, Justice Kathleen Quigg said the plates and their controversial message might seem like an inconsequential privilege, but “privileges such as these are connected to fundamental rights enshrined in the Charter under freedom of expression, and no matter how trivial this expression may seem to a third party, it appears to have substantial personal value to Mr. Maxwell.”
Wendell Maxwell, a 76-year-old lawyer who has been practising criminal law with a focus on impaired driving cases for 48 years, first registered his plates in 2008. The Moncton lawyer is in court almost every day around New Brunswick, Nova Scotia and Prince Edward Island, and “99 per cent” of those cases deal with impaired driving. He wanted plates that reflected what he does, he says, noting he had seen a dentist’s plate that read TOOTH DR and liked the idea.
Though the DMV did initially question the appropriateness of the message, DUI was not on the list of banned phrases at that time and when Maxwell threatened legal action, it issued the plates. Maxwell renewed them without issue until November 2014, when he was told by the registrar of Motor Vehicles via a letter to return the plates as they had been “erroneously issued.”
“That was a falsehood,” Maxwell says. He says he spoke to a deputy at the registrar, and she discussed it with her boss before issuing him the plates in 2008.
“That doesn’t sound erroneous to me,” he says.
The registrar stated it had received multiple complaints, including from the national and Fredericton chapters of Mothers Against Drunk Driving, but made no mention of this — or any other reason for its decision — in the 2014 letter to Maxwell revoking the plates.
Maxwell says he respects MADD’s viewpoint, but he reiterates that his vanity plates are simply a nod at what makes up the majority of his caseload.
“I strongly discourage drinking and driving — I sure as heck don’t promote it,” he says, pointing out he is a teetotaler himself.
In response to the letter retracting his plates, Maxwell filed an application for judicial review, which was heard at the Court of Queen’s Bench on June 24, 2015, and a decision was rendered the same day.
The registrar was ordered to reinstate Maxwell’s plates as the judge found there was a breach of procedural fairness and the registrar’s decision was unreasonable given there was no evidence presented to provide a basis for its decision. The application judge also ordered the registrar to pay costs to Maxwell in the amount of $5,000.
The registrar appealed, and Maxwell says while he was originally upset the government chose to appeal the original decision, he’s “very pleased with the ruling. They gave a strong decision.”
Along with the lack of rationale given to Maxwell in the 2014 letter, the appeal court focused on how the Department of Motor Vehicles came to its decision to revoke the plates, and ultimately upheld the initial ruling.
“Fuelling any legal doctrine are the foundational principles of natural justice and equal treatment under the law,” Quigg said in the decision.
“These principles are not diminished because the subject matter of a case may be objectionable in the community.”
Quigg noted Maxwell was given no opportunity to respond before the plates were revoked and wasn’t given the right of appeal. Ultimately, Maxwell wasn’t given “the most minimal requirement of procedural fairness.”
The judge dismissed the registrar’s appeal and ordered $3,000 in costs.
Legal Leaders for Diversity has handed out 12 more scholarships to law students with disabilities — bringing the total to 21 since the fund was launched in June 2014.
Julie Harmgardt and Julia Munk were awarded scholarships of $3,000 each at a reception held by LLD at the offices of Gowling WLG in Toronto last night.
Munk is a graduate of Osgoode Hall Law School and is attending Ryerson University’s Law Practice Program. She has been doing a work placement at ARCH Disability Law Centre in Toronto since May engaging in client advocacy.
Munk said the LLD scholarship program is important because having a disability “shapes the way you experience law school, the legal professional, articling, interviews and client interaction.”
She is one of the founders of Canada-Wide Accessibility for Post Secondary Students, and in 2002 she started Students for Barrier-free Access, an association of students with disabilities and their allies.
Harmgardt is currently articling at Stikeman Elliott LLP, having completed her JD at Queen’s University Faculty of Law. She is also the founder and executive director of InvisAbilities, a registered Canadian charity that promotes awareness, education and support to young adults living with hidden, chronic illnesses.
As someone who has suffered from arthritis from an early age, Harmgardt created the organization to help break down societal misconceptions associated with invisible illnesses such as lupus, diabetes, arthritis, Crohn’s disease and others.
“She has transformed the initiative from what began essentially as a university club into a registered Canadian charity now with chapters on several university campuses and is now working to add a chapter that will serve young professionals in Toronto,” said Scott Jolliffe, head of international development and past chairman and CEO of Gowling WLG, who is also a member of the LLD board of trustees.
She has also worked as a legal intern for Human Rights Law Network in New Delhi, India.
Harmgardt said for her the scholarship represents recognition from the corporate law community of the challenges faced by disabled students.
“I feel welcome in the corporate community and that’s something I might not have said a few years ago,” she said. “I would like everyone to take back to their firms and companies some thoughts about invisible disabilities. It’s something when I was at Queen’s that wasn’t really on the radar. Now I feel like we’re getting to the point where people are observing and being more knowledgeable. For example, sometimes I have a hard time with stairs. From what I look like I might not necessarily appear to have that issue, so I have had to be an advocate for myself and tell people there are impediments in everyday life that we experience.”
With the goal of advancing diversity and promoting equal access to the legal profession, the LLD Trust Fund offers annual scholarships to young people with disabilities who are pursuing undergraduate and graduate studies in law.
The scholarships provide financial assistance to students with physical, mental, intellectual or sensory impairments.
More than 42 general counsel and managing partners from law firms across Canada have committed to give $5,000 to the trust fund.
- Data scientist will help decipher firm’s internal data for greater insight
McMillan LLP has announced a plan to work with IBM on new software that will improve accuracy of price models for legal work.
|Tim Murphy says a new collaboration between McMillan LLP and IBM will help bring legal patterns and trends to light, and benefit clients.|
The initiative by the law firm and the technology company will involve the work of a data scientist who will sift through the firm’s internal data to spot legal patterns and trends, as well as boost certainty around pricing.
Tim Murphy, executive partner at McMillan LLP, says the project is focused “on using analytics to provide predictive value,” and moving away from anecdote.
“One of the big problems law firms have is that every lawyer is an independent pricer and manager of legal services,” says Murphy.
“What we’re trying to do is bring the skillset of all of them up, by virtue of providing them with reliable, objective data, not just their anecdotal personal experience as a basis for pricing, staffing and that communication with a client.”
A news release announcing the project said it will be “powered by IBM’s comprehensive predictive analytics system, SPSS, and running on IBM Cloud, the platform offers advanced algorithms and techniques that aggregate, analyze and interpret McMillan’s internal data to strengthen the decision making process.”
Internal data that will be used includes billing information, or time spent by lawyers on a file (tracked by areas such as client, matter, lawyer, partner, associate, value, time or office).
There could be further analysis on the number of documents created, how many drafts were done, and how many people participated in the process.
“All of that is buried in the technology we already have; what that reveals is what this [data scientist] is skilled in,” says Murphy.
For example, Murphy says a sample could be taken of an area of law where services are provided on a regular basis, such as the purchase and sale of a business. Lawyers may act for the seller or the buyer or one of the bidders, he says.
In the new initiative, the data scientist will use predictive software to analyze past deals the firm has participated in to “produce a set of learnings to have a richer conversation” with clients, says Murphy.
This might mean studying a number of past deals that the firm has participated in, says Murphy, to illuminate a “more informed” discussion around pricing for legal services.
“We can have a way richer conversation with our client, give them some comfort and insight into the pricing,” says Murphy.
Or, it could mean gathering intelligence to share with clients about where potential pit-falls may lie, thereby helping prevent a “busted deal.”
“You think about the power of that information both from the client perspective and from our perspective, we think it has huge potential,” says Murphy.
He says it will also assist the firm in figuring out how to staff particular files.
“[T]here is a degree to which the legal industry is still like a guild, built on the model that was almost pre-industrial, and is slowly catching up, and it’s really obviously market pressures that are driving the change,” says Murphy, who says the “drive is to be one of the most innovative firms.”
“We think one of the ways in which we can help achieve that goal is through the use of data and analytics, and so that’s why we’re excited about this collaboration,” he says.
McMillan LLP has about 280 lawyers in six offices, including in Vancouver, Calgary, Toronto, Ottawa and Montreal. It also has an office in Hong Kong.
The ambition is to have the first results of the project this fall, says Murphy.
Findings will be shared with the law firm’s lawyers, who can then share the information with clients.
Part of the drive will be to connect with in-house counsel, says Murphy.
“What the focus of the firm is, if we’re going to be an innovative supplier of legal services, our view is we’re going to have to have a different kind of discussion and relationship with in-house counsel, because we know they’re looking for better-informed external counsel who can provide value to them,” says Murphy.
McMillan LLP won’t be the only beneficiary, says Murphy.
“From the IBM perspective, their interest is they’ve got this platform, they’ve not seen it used in a legal context, so it’s an opportunity for them to see how it can be used and see whether it creates a market opening for them, and that was their interest in collaborating with us, so we’re quite keen on it, and we think there will be learnings in both directions,” says Murphy.
|Breana Vandebeek represented one of the appellants in a case examining when police can search a car without a warrant.|
Two recent cases heard together by the Court of Appeal examining when police can search a car without a warrant had very different outcomes.
In R. v. Dunkley and R. v. Ellis, both appellants were convicted of weapons offences based on evidence that was found in their cars after police seized them as abandoned vehicles. The appeals concerned the authority of police to conduct such inventory searches of abandoned cars, under s. 221 of the Highway Traffic Act, and how that interacts with the right to unreasonable search and seizure under s. 8 of the Charter.
At the heart of both proceedings was whether the defendants abandoned their vehicles when approached by police. The court granted Norman Dunkley’s appeal, but it dismissed that of Winston Ellis.
Lawyers say the decisions are the first two cases at the Court of Appeal that deal with the police’s power to search an abandoned vehicle under the Highway Traffic Act.
“It’s really significant in terms of the idea of when the police can seize a vehicle as being abandoned,” says Mark Halfyard, a lawyer with Rusonik O’Connor Robbins Ross Gorham & Angelini LLP, who was not involved in the cases.
Dunkley was arrested after he ran away from the police outside a gas station when they approached him, leaving his car behind. The police searched his car without a warrant and found a handgun as well as a Taser. In his trial, he applied to have the evidence excluded under s. 24 of the Charter.
The trial judge found the police had reasonable grounds to detain Dunkley and to search his car.
The Court of Appeal, however, disagreed.
In the decision, Justice William Hourigan said the trial judge “made no finding whether the police had reasonable and probable grounds to arrest the appellant at the time of the search.”
Hourigan said the police had reasonable suspicion but not the reasonable grounds required. Hourigan added that the search could not be justified under S. 221 of the Highway Traffic Act, as there was no indication that Dunkley had abandoned his car, which was parked in a the gas station parking lot.
“When the officers confronted the appellant, he took off on foot,” he said.
“This could be consistent with abandonment but, without more, it is difficult to conclude that he intended to abandon his vehicle.”
The court allowed Dunkley’s appeal, the evidence was excluded and he was given an acquittal.
“The courts are really saying it’s a fact-specific determination,” says Dunkley’s lawyer, Breana Vandebeek.
“There’s still this factual determination on a case-by-case basis as to whether or not a vehicle is going to be abandoned or not,” she adds.
In Ellis, the court dismissed the appeal of Winston Ellis who had been racing in a car when police started to follow him. He parked the car and walked away before eventually being arrested for careless driving. Police searched his pockets, found his car keys and then searched the car and discovered a loaded handgun.
Ellis applied to have the handgun excluded, arguing his rights had been breached under s. 8, 10 and 9 of the Charter. The trial judge, however, ruled that the police were authorized to search the vehicle under s. 221 of the Highway Traffic Act.
In this instance, Hourigan agreed with the trial judge and dismissed Ellis’ conviction appeal. In Dunkley, Hourigan said the main difference between the two factual scenarios was that Ellis “parked his vehicle with the intention of distancing himself from it, and that he left it on a private driveway where he knew it could not legally remain.”
In his appeal, Ellis also challenged the fact that police searched his pockets and seized his car keys, saying it violated his s. 8 rights. The court found that this was not a violation as the police had learned that Ellis was affiliated with a gang and had a previous firearm conviction.
“It’s unclear in the future how this is going be applied,” says Ellis’ lawyer, Candice Suter.
“I think it does need to be limited to situations where there is additional information.”
Toronto lawyer Sean Robichaud says the Ellis decision will make it easier for police to justify warrantless searches of vehicles when they have a suspect in custody.
“It may be argued this is for limited circumstances, but my view is that practically speaking it applies to any arrest where an individual is connected to a vehicle,” says Robichaud, who was not involved in either case.
Robichaud says s. 221 of the Highway Traffic Act should not be applied to circumstances such as the Ellis case.
He added that it’s meant to give police the power to seize abandoned vehicles at the side of the road and “not to circumvent constitutional rights protected under s. 8 by warrantless searches pertaining to a criminal investigation.”
Halfyard says the differing decisions ultimately came down to a difference in the factual scenarios of the two cases.
“The two cases and remedies came down to a factual distinction as to how far along the investigative process the police were before they came across the accused in the vehicle and the actual circumstances of the abandonment,” he says.
“In one it was obviously much more clearly abandoned than the other.”
That being said, Halfyard says there is still a valid concern that the police could overstep their authority and attempt to use the Highway Traffic Act to try to justify warrantless arrests.
“There’s always a worry that the police use an inventory search as a pretext to not get a judicial authorization like a warrant.”
Man dead after vehicle slams into tree in Brantford, Ont., Canadian Press
FIFA president cleared of possible ethics violations, The Guardian
|James Morton often represents lawyers before the Law Society Tribunal. He says in this case the tribunal got it right.|
Foreign judgments against an Ontario lawyer will be considered in his discipline proceeding at the Law Society of Upper Canada, the Law Society Tribunal has found.
Jussi Kivisto, who is licensed to practise law in Ontario, was disbarred from the bars of both Florida and Illinois for charging “excessive fees” in estate matters. A Florida default judgment against Kivisto in particular brings his conduct and behaviour into question. The judgment describes Kivisto, who refused to participate in the Florida proceedings, as “just plain mean, nasty, and rude.”
“Through a series of acts, as set forth hereinafter, respondent has shown and continues to show a willful, deliberate, bad faith and contumacious disregard to the order of the court through his own words and through the nature of these proceedings,” the default Florida judgment reads. “The acts he has voluntarily committed to perpetrate on the court were solely designed to delay, confuse, and somehow bring to a halt the disciplinary proceeding.”
The Law Society of Upper Canada now wants to rely on those findings as part of its case against Kivisto for conduct unbecoming a lawyer. The three-person law society tribunal panel said this is the first time the question of whether foreign judgments could be used to prevent a lawyer from re-litigating issues or challenging facts was brought before it.
“The purpose for which the parties seek to have this panel recognize the judgments is not to enforce the judgments but rather to have this panel give them preclusive effect, prevent re-litigation, and accept the facts and findings giving rise to those judgments,” said the tribunal, which was chaired by John Callaghan. “In this regard, this case is the first time the issue of recognition of a foreign judgment has been fully presented in a Law Society of Upper Canada discipline proceeding.”
The tribunal went on to unanimously conclude that the American rulings were fair game, given the findings followed a process considered fair by Canadian standards. It rejected Kivisto’s argument that the judgments were a result of a fraudulent process.
“Provided that the process followed in a foreign disbarment proceeding meets the requirements for recognition and enforcement in Canada, there is no principled reason why a law society hearing panel ought not to be able to recognize foreign discipline orders from Florida and Illinois,” the tribunal said. “Each of those jurisdictions has a process that allows lawyers to know the case they must meet, permits them to call evidence, and allows for an adjudication before a neutral adjudicator.”
Still, the tribunal said it has discretion to determine what weight, if any, will be given to the specific findings the law society wants to rely upon. “Obviously, the weight will depend upon the use to be made of any fact or finding and the nexus of that fact or finding to the matters in issue in this proceeding,” the panel said. “These issues will be determined on the hearing of the merits of this matter.”
Kivisto did not respond to an e-mail request for comments, and he could not be reached at a number the Florida bar lists for him.
James Morton, civil litigator at Morton Karrass LLP, often represents lawyers before the Law Society Tribunal. He says in this case the tribunal got it right.
“Certainly, it’s appropriate to look at the conduct of a lawyer outside of the jurisdiction because if somebody is doing something utterly terrible in another jurisdiction, it makes sense to ensure that that kind of conduct doesn’t repeat itself in Ontario,” Morton says.
In the civil context, Morton says judgment obtained in Florida would generally be binding in Ontario unless there’s evidence that the judgment was obtained improperly. “I would say that that should be the test for law society matters as well,” he adds.
Missing Calgary girl found safe and sound in B.C., Canadian Press
Subscribe to Legal Feeds
- Mallory Hendry
- Patricia Cancilla
- Jennifer Brown
- Gabrielle Giroday
- Alex Robinson
- Tim Wilbur
- David Dias
- Karen Lorimer