Legal Feeds Blog
An Alberta judge heavily criticized for remarks he made during a sexual assault trial has asked again to make oral arguments to the Canadian Judicial Council, in his fight to remain on the bench.
|Justice Robin Camp is asking to oral submissions through his lawyers to the Canadian Judicial Council. Photo: Canadian Press|
Last November, an inquiry committee for the council in charge of reviewing Camp’s conduct unanimously recommended that he be removed from the bench.
However, in a response to the committee made available on Jan. 6, Camp has asked the council “to find that his misconduct was the product of unconscious bias and remediable ignorance.”
“Justice Camp’s misconduct was the product of ignorance, not animus. His legal decision making was reasonable,” said the submission, submitted by Camp’s counsel.
“He apologized and rehabilitated himself. In the circumstances, the ultimate sanction of removal is counterproductive.”
In the submission, Camp reiterated a request to make oral submissions through his counsel.
“The notoriety, the evidentiary and policy issues, and the extent of remorse and rehabilitation make this a highly unusual case. Justice Camp is the first judge to fight for his office and his reputation since the Council amended its bylaws in 2010 to remove the express right to oral submissions,” said the submission.
The 25-page submission notes that Camp made “instant, repeated and sincere apologies” and was “quick to acknowledge that he had failed in his judicial duty.”
“He apologized as soon as he was confronted with the law professors’ complaint.
As he came to understand the depth of his error, he apologized again and more fully,” said the submission.
“His apologies developed in exactly the way one would expect from an ethical jurist confronted with an unknown personal failing, who gradually comes to understand the nature of the problem.”
However, in its findings released last fall, the committee stated “that Justice Camp’s conduct in the Wagar Trial was so manifestly and profoundly destructive of the concept of the impartiality, integrity and independence of the judicial role that public confidence is sufficiently undermined to render the Judge incapable of executing the judicial office.”
“Accordingly, the Inquiry Committee expresses the unanimous view that a recommendation by Council for Justice Camp’s removal is warranted,” said the report and recommendation of the Inquiry Committee to the Canadian Judicial Council.
Kim Stanton, legal director for the Women’s Legal Education and Action Fund, said Camp “had a fulsome opportunity to make his case before the Committee during the hearing in September.”
“The question for the Council is not whether the judge is sorry, but whether public confidence in the judge is sufficiently undermined to render him or her incapable of executing judicial office in the future in light of his or her conduct to date.”
“The test is to be considered from the perspective of a reasonable and well-informed person,” she said.
“As stated by the Coalition (of which LEAF was a member) in our submission to the CJC Committee that conducted the inquiry in this matter, the reasonable person must include the perspective of survivors of sexual assault, and marginalized women generally, as they are entitled to a judiciary that rejects sexual myths and stereotypes and understands and respects equality.”
Frank Addario, a Toronto-based lawyer acting for Camp in the matter, said he no additional comment on the matter.
In this first week of the Supreme Court of Canada’s winter session, the docket comprises three civil cases, with two involving the government: the Quebec Attorney General as appellant in the first case, concerning health law, and the Minister of Public Safety and Emergency Preparedness as the respondent in the third, on immigrant admissibility.
January 11 – Quebec – Quebec v. Guérin
Health law: Quebec’s AG is applying for leave to appeal the judgment of the Court of Appeal in October that dismissed the appeal from a Superior Court judgment allowing the motion for judicial review brought by the respondent, Dr. Ronald Guérin. Guérin had asked the council of arbitration to declare that the clinics he represented met the necessary conditions for obtaining a special fee. The issue is whether a medical specialist may submit that dispute to the council of arbitration established by s. 54 of the Health Insurance Act or whether only the medical specialist’s representative association has the interest required.
Read the Quebec appellate court decision here.
January 12 – Quebec – Uniprix v. Gestion Gosselin et Bérubé
Contract law: The parties had been bound by a contract of affiliation since 1998. A clause in the contract provided that the contract would be renewed automatically every five years unless the respondents gave notice to the contrary. Six months before the contract term expired, the applicant sent a notice of non-renewal. The respondents, the beneficiaries of the renewal clause in the contract, refused to allow the applicant to terminate the contract in that way and brought a motion before the courts for a declaratory judgment and permanent injunction.
Read the Quebec appellate court decision here.
Related law firm bulletins:
Can you be contractually bound to another party forever? McCarthy Tétrault LLP
To the end of the term and beyond: perpetual renewal clauses considered legal; Lapointe Rosenstein Marchand Melançon LLP
Automatic renewal provisions and perpetuity; Osler, Hoskin & Harcourt LLP
January 13 – Federal – Tran v. Minister of Public Safety and Emergency Preparedness
Immigration law: On January 18, 2013, Thanh Tam Tran, a permanent resident in Canada, was convicted of operating a large marijuana grow operation. Under the Immigration and Refugee Protection Act, permanent residents are inadmissible to Canada if they have been convicted of acts of “serious criminality” carrying maximum prison terms of at least 10 years. The maximum sentence for the marijuana offence was seven years at the time of the offence but 14 years at the time of Tran’s conviction, and he received a conditional sentence. In 2013 Tran was referred by the respondent to the Immigration and Refugee Board to determine whether he should be removed from Canada for serious criminality.
Read the Federal Court of Appeal decision here.
Related law firm bulletins:
Conditional Sentence is not Imprisonment in Inadmissibility for Serious Criminality; Legally Canadian Immigration Law Firm
Inadmissible and Removable Classes: Conditional sentence did not represent term of imprisonment; Law Times
PMO held talks with Trump team to avert trade war, Globe and Mail
Supreme Court ruling opens door to more B.C. teaching jobs, Globe and Mail
- Saskatchewan lawyer brought suit in response to blog posts
The Ontario Court of Appeal has upheld an $80,000 libel judgment against conservative provocateur and former lawyer Ezra Levant.
|Gil Zvulony says the decision highlights how important context and motivation are in defamation cases.|
The blog posts concerned hearings at the B.C. Human Rights Commission that came out of a dispute between Maclean’s magazine and Awan when he was a law student at Osgoode Hall Law School.
Awan and three other students filed a complaint at the Ontario Human Rights Commission, as well as the Canadian Human Rights Commission, over a 2006 Maclean’s cover story they said was Islamophobic.
Mohamed Elmasry, the president of the Canadian Islamic Congress at the time, filed a third complaint in B.C., and Awan testified at hearings in that matter. The complaint was later dismissed.
Levant live-blogged the first two days of the hearing, and he subsequently published nine blogs that spurred Awan to launch his libel suit.
Levant had frequently written about Elmasry, a controversial figure, who had made a statement in 2004 “suggesting that all adult Israelis were valid targets of violence,” according to the decision.
In blog posts, Levant called Awan a “serial liar.” He also said Awan, who used to be the youth president of the Canadian Islamic Congress, was an anti-Semite. He called Elmasry an “anti-Semite-in-chief” and said Awan was Elmasry’s protégé.
Levant argued that his words were not defamatory because of his reputation “as someone who is provocative and controversial.” He also tried to defend his statements under fair comment, contending they were not intended as statement of fact but as opinion.
Matheson found Levant’s statements accusing Awan of being a liar and an anti-Semite were defamatory. She found some of his other statements could come under fair comment but that Levant was motivated by malice, and as such, the fair comment defence would not apply.
Matheson also determined that Levant had made little or no effort to fact-check his statements.
She ordered Levant to take down the defamatory posts and awarded $50,000 in general damages, as well as $30,000 in aggravated damages, to Awan.
Levant appealed the damages, as well as the judge’s finding that the posts were libellous.
The Court of Appeal disagreed with Matheson’s characterization of Levant’s statements that Awan was an anti-Semite as statement of fact, saying they were opinion. But the court upheld Matheson’s finding that Levant was motivated by malice, defeating the fair comment defence.
“Although the trial judge erred in her characterization of the appellant’s blog statement that the respondent was an anti-Semite as a statement of fact rather than opinion, the defence of fair comment cannot apply if the statement was made, as the trial judge found, with malice,” Justice Kathryn Feldman wrote in the decision.
Brian Shiller, the lawyer representing Awan, says the decision is further confirmation that what Levant said about his client was false and defamatory.
“The most important result you can achieve in a defamation case for a plaintiff is vindication of their good name,” he says.
The Court of Appeal also upheld the damages Matheson awarded.
Gil Zvulony, a Toronto defamation lawyer, says the decision highlights how important context and motivation are in defamation cases, as the claim could have been defeated if there was not a finding of malice.
“The words at issue in a defamation case don’t stand alone,” he says.
“You have to look at the context in which they were written and you also have to look at the motivation of the speaker.”
In an email, Levant said he intends to apply for leave to appeal the decision to the Supreme Court of Canada.
On one of his websites, Levant said the Court of Appeal ruling has implications for freedom of expression.
“I’m worried that this ruling sets a precedent, and it is now legally dangerous to call out an anti-Semite as anti-Semitic,” he wrote.
Shiller, however, says that is not the case, as Levant could not factually support his assertion that Awan was an anti-Semite.
“Mr. Levant is a very clever wordsmith and I don’t believe the decision stands for that,” he says of Levant’s comment.
Former nurse accused of killing seniors to appear in court today, Canadian Press
After years of litigation, the Superior Court of Quebec has ruled in favour of the Jean Coutu Group in a lawsuit with a franchisee over franchise, or royalty, payments. The legality of these fees, paid by pharmacists who are franchisees, has been on the table for years.
The question in Quesnel v. Groupe Jean Coutu was whether a contractual clause providing for a pharmacist-owner in the Jean Coutu chain of drugstores to pay a franchise fee on revenues from the sale of medicines contravened public policy and s. 49 of the Code of Ethics of pharmacists in Quebec. This section of the Code prohibits pharmacists from sharing profits from the sale of medications, or from their fees, with a non-pharmacist.
In 2008, Gatineau pharmacy owner Michel Quesnel was charged by the Ordre des Pharmaciens du Quebec with violating the regulator’s code of ethics by sharing profits with the Jean Coutu Group, which operates a network of 418 franchised stores in Quebec, New Brunswick and Ontario. Quesnel was a franchisee of the Jean Coutu Group. Quesnel pleaded guilty to the charge, but in turn sued the Jean Coutu Group for all the franchise fees he had paid over the nearly 30 years he had done business with Jean Coutu through the six pharmacies he then owned.
Justice Michèle Monast ruled that Jean Coutu’s franchise agreements with pharmacist-owners were not in violation of the Code of Ethics. Jean Coutu Group franchisees pay royalties corresponding to the fair value of the rights granted to them and the goods and services provided in return, Justice Monast found, including support services and benefits obtained through the use of the Jean Coutu Group name and trademarks for the operation of their establishments.
The franchise, or royalty, fee is a percentage of gross revenues of a business paid by a franchisee to the franchisor. Judge Monast found that it was legal for Quebec pharmacists who are franchisees to pay royalty fees to their franchisor, and that it did not constitute a profit-sharing agreement.
Identifying Cadrin c. Pharmaciens (Ordre professionnel des), 2015 QCTP 104 as a precedent, the judge looked at whether the independence of the pharmacist as a professional was put at risk by its payments to Jean Coutu, the franchisor, and found that it was not.
Justice Monast also found that the value of the consideration received by pharmacists working within the Jean Coutu organization was worth the franchise fees that they paid. She also determined that the franchisee agreement did not fit the definition of sharing of profits, because profit represents a bottom line, whereas franchise payments to the Jean Coutu Group are made as a percentage of the gross sales of the franchisee. This does not constitute a sharing of profits, the judge determined, but a payment made by pharmacists for goods and services received from the franchisor. In this case, these services include planning and operation of the pharmacy premises, group-purchase or volume discounts, and benefits related to the reputation of the Jean Coutu trademarks and its advertising.
Also referring to the decision in Cadrin, the judge noted that professionals make other payments, such as rent for premises, which may likewise be calculated at least in part on gross revenues, but do not constitute a sharing of profits nor compromise the independence of the professionals. And referring to Lebeuf c. Groupe S.N.C. Lavalin Inc., she noted the Quebec Court of Appeal’s comments on the relationship of S.N.C. Lavalin, an engineering firm that is a publicly traded company, to its shareholders. The fact that S.N.C. Lavalin pays dividends to its shareholders does not put at risk the independence of the company’s engineers doing their work.
McCarthy Tétrault LLP has acquired e-discovery law firm Wortzmans in an arrangement that will see Susan Wortzman join the firm as an equity partner.
|McCarthy Tétrault LLP CEO Dave Leonard and Susan Wortzman who is now an equity partner at McCarthy's.|
“It’s a little unusual for law firms to do deals like this, but we saw it was a great opportunity for us and we think it’s going to be a great fit,” says McCarthy Tétrault CEO Dave Leonard.
Wortzman says it’s an opportunity for her firm to further develop its platform.
“We’d been thinking about this for some time and the reason we decided to do this now was because the fit was so good with McCarthy’s,” she says.
Wortzmans employs a large group of contract lawyers but in terms of permanent lawyers three will be going over to McCarthy’s.
“We’re a very multi-disciplinary team. We have lawyers, project managers and a forensic engineer and support staff,” she says.
Leonard says the parties are still figuring out “exactly what the structure is going to look like,” but he notes that as Wortzman’s has a “tremendous brand” in the e-discovery area the firm wants to leverage that but must also work through all the potential conflicts.
“For the time being and perhaps for the foreseeable future, we will keep them as separate entities. As of right now, we are keeping them completely separate — both have their own physical space and only Susan’s people will have access to the matters she is working on and vice versa with the firm,” Leonard says. “We will see how that plays out and how our clients react and how Susan’s clients react. So far, the reaction has been positive.”
Ultimately, Leonard says he is hopeful the strength of Wortzmans will be “so strong” that other law firms will continue to engage Wortzmans for managed document review.
“We’ll be having some discussions with some of those firms in the not too distant future about that,” he adds.
Wortzman says it’s currently “business as usual” for Wortzmans as it is dealing with clients to see who will go with them to McCarthy’s.
“For clients it will be seamless because they will have the same pricing and the same team working on their matters,” she says. “No question, it will be challenging for some but for corporate clients and public sector agencies it probably doesn’t matter as much.”
It was two years ago that Deloitte LLP acquired ATD Legal Services PC, launched in 2010 by former Davies Ward Phillips & Vineberg LLP partner Shelby Austin.
Wortzman, who founded the firm in 2007, said she was looking at other options but in the end McCarthy’s was the “best model for me.”
Other important factors to her include the fact McCarthy’s wanted to keep the Wortzman brand alive and that it wants to leverage technology to manage data more for legal analytics.
“It’s an interesting time and some of the accounting firms are interested in this space and in our business and so we’re seeing this as an opportunity to have a good offering for our clients going forward,” Leonard says.
While McCarthy’s has had an e-discovery and information management practice, over time, Leonard says, it became “more of a challenge” to do it in the traditional law firm model as people like Austin and Wortzman started their businesses.
“We think this is going to be a great addition to our ability to deliver services in a more innovative, cost-effective way to clients but with the McCarthy’s quality and Wortzman quality,” he says. “Without having to outsource to a third-party vendor, we’ve now brought it in-house.”
Leonard acknowledges that in a competitive legal market firms like McCarthy’s are competing with the big four accounting firms and e-discovery is one where there will be more competition in the document review/information governance area.
“I think the whole area of information management — wherever you have large buckets of information that needs to be captured, analyzed and reviewed — we want to be one of the choices for our clients for doing that work,” he says. “We’re doubling down in that business because we see it as an area that is synergistic in the rest of the offerings we have for our clients.”
Leonard would not disclose what the investment was in acquiring Wortzmans into the firm, but he says there was “significant scrutiny” on both sides and the McCarthy’s board of partners unanimously endorsed the recommendation to proceed with the transaction. It was rolled out to equity partners of the firm just before Christmas.
“I’ve got nothing but enthusiastic responses. It’s a tough market and we’re all looking for growth and this is an area where we think we can make some gains,” he says.
As Wortzmans is a law firm, the deal is similar to two law firms merging, and while there are rules of professional responsibility that have to be upheld and conflict issues that have to be managed, the transaction did not require law society approval.
Updated on Jan. 5, 2017 to include comments from Susan Wortzman.
Five lawyers were appointed to the Order of Canada last week, in a milestone year marking Canada’s 150th birthday and the order’s 50th anniversary.
|Retired Supreme Court justice Morris Fish was appointed a Companion of the Order of Canada for his “eminent service” as a jurist.|
Retired Supreme Court justice Morris Fish was appointed a Companion of the Order of Canada for his “eminent service” as a jurist, particularly on the SCC bench from 2003-13. A law graduate from McGill University, Fish practiced mostly in Quebec — though he was called to the bars of Prince Edward Island and Alberta as well — and also lectured at various Canadian law schools including holding the post of adjunct professor at his alma mater and teaching at the University of Ottawa and the Université de Montréal. His focus in practice and in his teaching was criminal law.
Appointed to Officers of the Order of Canada are Ellen Irene Picard and Paul Cronin Weiler.
Picard was appointed for her contributions as a judge at the Court of Queen’s Bench and her further elevation to the Court of Appeal. She is forefront in the field of health law in Canada, having helped to establish it through her work as a legal scholar. She co-authored Legal Liability of Doctors and Hospitals in Canada, a book widely regarded as the most comprehensive text on the subject.
A graduate of Osgoode Law School in Toronto, Weiler went on to become a professor of law at his alma mater as well as visiting professor of Canadian studies at Harvard Law School, where he got his Masters of Laws years earlier. He was appointed for “his contributions to reforming labour and employment standards as one of North America’s foremost legal scholars,” including serving as a panelist in the United States/Canada Free Trade Agreement softwood lumber arbitration in 1992.
Benoît Pelletier, for “his efforts to bring about interprovincial-territorial co-operation and for his advocacy on behalf of Francophone communities,” and Alfred Popp, for his “contributions to maritime law” in various positions, were named Members of the Order.
Pelletier, currently a law professor at the University of Ottawa where he also earned his Masters Degree in law, was an active political figure between posts at the university, as well as the author of many books, articles and opinion pieces. A supporter of the federalist cause in Quebec, Pelletier departed from traditional policy by also seeking to help Francophone minority groups from other parts of the country resist assimilating with the English-speaking majority. He is still called upon to comment on constitutional matters.
Following a legal education in South Africa, Popp completed his Masters Degree in law at the University of Ottawa. A member of the Canadian delegation to the Legal Committee of the International Maritime Organization — where he eventually became president — Popp was a driving force in developing major international agreements in the field of maritime law. Retiring from the committee in 2005, Popp was appointed administrator of the Ship-source Oil Pollution Fund two years later.
The Order of Canada, one of Canada’s highest civilian honours, was established in 1967, during Canada’s centennial year, to recognize outstanding achievement, dedication to the community and service to the nation. More than 6,000 Canadians have been invested into the Order since its creation. To celebrate its 50th anniversary, there will be multiple special initiatives and partnerships announced throughout the year.
This year’s recipients will be invited to accept their insignia at a ceremony to be held at a later date.
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