A Winnipeg lawyer has been suspended by the Law Society of Manitoba until he can face a hearing on allegations that he took more money in fees from residential school survivors than he was entitled to.

Residential school at Cross Lake, Man., circa 1925. (photo: Archives of Manitoba)

Howard Tennenhouse, who had well over 100 former residential school clients, was suspended on Jan. 11. The allegations relate to around 50 clients.

Payouts to victims, which average around $100,000, are administered by the Indian Residential Schools Independent Assessment Process. Lawyers typically receive a 15-per-cent fee from the federal government on top of the award made, but they can apply to increase fees by up to an additional 15 per cent, which comes out of the client’s money.

“This lawyer would make an application in some of these cases for a higher payment, and the allegation is that, regardless of whether or not he was successful, he would take the higher payment anyway,” says Allan Fineblit, the law society’s CEO.

Finebilt says Tennenhouse was charged in early 2011, and had restrictions placed on his practice. The law society moved to suspend him when he stopped paying back the money to victims, a condition on his right to continue practising. Finebilt says the law society’s compensation fund will cover any shortfall.

“No clients will be out any money,” he says.

A hearing on the charges, which have not been proved, is due the third week of February.

It’s not the first time Tennenhouse, a 1980 call, has been in trouble at the law society. In 2010, he received a 70-day suspension after pleading guilty to eight charges of misconduct related to trust accounting breaches.

Tennenhouse is just one of number of lawyers involved in residential school cases whose conduct is being examined. See “Lawyers’ fees under scrutiny.”

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If you were given a blank sheet of paper and asked to design your in-house legal department from scratch, what would it look like?

That’s a question posed by futurist and author Richard Susskind, to a group of about 50 in-house counsel during a Canadian Corporate Counsel Association Master Class yesterday in Toronto.

Futurist tells in-house to rethink service delivery.

Susskind, who wrote The End of Lawyers? Rethinking the Nature of Legal Services in 2008, told the group if they feel they’re getting inefficient service from their outside law firms, they should sit down and look internally first and decide how they can collaborate internally and externally to deliver more legal services for less cost.

“What I find remarkable is that you all agree that in an ideal world you would do XYZ, but what are you actually doing? If you agree there’s a better way of delivering legal services, the challenge is how do we get there from here? What’s your strategy for the future and how do you have that strategy discussion with your department?”

Susskind says in-house counsel need an “collaboration strategy” that will take in to consideration how they will source all manner of legal services and use technology to prepare for the next five years — a period he predicts will bring significant change to the profession.

In-house lawyers face a dilemma in three parts, says Susskind: pressure to reduce internal head count; pressure to reduce what goes to outside firms; and dealing with more matters of increased complexity than ever before.

“It’s the more-for-less challenge,” he says. “It will define the next generation of legal services.”

While some general counsel claim they are upping their in-house head count because they feel they are farming out too much work at higher cost, Susskind says he doesn’t see that as the solution. Instead, there needs to be a better assessment of staffing levels for legal tasks that may include more hiring of paralegals rather than adding more lawyers, and better use of technology.

He also spoke about the commoditization of legal services and an argument that many matters shouldn’t fall under the category of specialized services.

“A lot of us regard legal work as bespoke but there are more efficient ways of dealing with standard legal matters and I believe a lot of legal work is going this way,” he says, pointing to tasks such as document review and drafting of contracts. “The truth is there is a lot of routine and repetitive work going on by lawyers at unnecessary expense at high hourly rates.”

He sees certain matters becoming standardized, systemized, packaged, and commoditized. Where work is considered routine the competition is going to be strong and that is where in-house counsel need to look closely for the best vehicles for delivering those legal services.

Technology may play a role in terms of online dispute resolution, automated drafting, electronic legal marketplaces, and price-comparison systems.

By the end of this year, Susskind says the legal profession must move into what he sees as phase two of a progression towards more re-sourcing and computerization of legal services.

The period from 2007 to this year was “phase one” — denial — as the economy “fell off a cliff.”

“Most mainstream law firms want it to be 2006 again and hope that what we’re seeing now is an unfortunate blip. I don’t see it that way. From 2013 to 2015, it will be the phase of re-sourcing. From 2016 to 2017, it will be a stage of mass computerization,” he says.

In-house counsel also need to be more vocal about what they want from their law firms, suggesting they don’t just need reactive help but legal risk management services.

“General counsel tend to underestimate the power they have over the legal market,” he says.

“One of the running themes I hear from general counsel about their law firms is: ‘Our external law firms are good, they’re aggressive but they are a little too reactive — they simply respond to questions we put to them — they aren’t proactive. We don’t want dispute resolution we want dispute avoidance, and we don’t want legal problem solving, we want legal risk management. We want defence at the top of the cliff, not at the bottom of the cliff.’”

Susskind suggests in-house counsel approach their outside law firms with a technique to start to change the discussion around the way service is delivered.

He suggests asking law firms to show how they would resource a series of cases that have already been completed and compare the proposals with what actually happened.

When it comes to alternative free arrangements he offered this advice: “When a law firm comes to you with alternative pricing ask them 1) Will it be less profitable for you? and 2) Will you be working differently? If the answer is no to both, then you should see it as just a different form of packaging. None of these firms wants to be less profitable.”

Research, he says, shows that going to alternative fee arrangement can trim 10 per cent off a legal spend.

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Incidents like last week’s jury scoop in London, Ont., will likely happen again, a Toronto criminal defence lawyer is warning.

The problem, says Marcy Segal, is the prevailing attitude towards jury duty. “Unfortunately, in this day and age, most citizens are tied to their jobs in order to pay their mortgages or bills. So I have seen a number of citizens either not appearing for jury duty or asking to be excused for work reasons or serious health issues.”

For justice to work, citizens have to respect the system, says lawyer Marcy Segal.

The result, she says, is that people don’t want to be jurors. “We are losing jurors for all of these reasons. Therefore, it may become more common for a judge to ask the deputy to find potential jurors.”

The comments come as Ontario Superior Court Justice Kelly Gorman raised eyebrows last week when she ordered the sheriff to round up potential jurors off the street. According to the London Free Press, Gorman took advantage of a rarely used provision in the Criminal Code in order to fill a jury seat after coming up one person short of the panel needed to hear a case against three men charged with assault, threats, and forcible confinement.

The sheriff went out to find 20 people, including Scott Johnston, chief information officer at Harrison Pensa LLP in London, Ont. Most of them appeared the next day, and the court was able to assemble the full panel, the Free Press reported. But after the accused pleaded guilty, the court no longer needed the jurors’ services.

For Segal, the incident highlights the challenges of the current system as well as the public’s sometimes contradictory attitudes given people’s reluctance to serve as jurors.

“Quite frankly, the citizens demand that the justice system work,” she says. “Their participation is crucial and there needs to be more respect for the process by the citizens. I think that being a juror is one of the most important functions as a citizen. They should welcome it.”

Johnston, however, in commentary in the Free Press on the weekend, expressed concerns about the way officials handled last week’s roundup. Noting he had a train ticket to go to Toronto the next day for important work, he likened the officers’ treatment of him to bullying. “It was a darkened street corner, it was a stranger who approached me, the person pointed something at me and told me not to leave, a second person moved in closer in what I interpreted as further intimidation, I was stripped of my privacy and freedom on the spot and I was left feeling cheated, angered, and confused,” he wrote.

Johnston said that while he supports the jury system, he would prefer that the sheriff take the person’s hardship into consideration or have the right to do so. He also said the sheriff should provide an explanation for the sudden roundup, something he said didn’t happen in his case.

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The Ontario Court of Appeal has opened a Pandora’s box by recognizing a privacy tort of “intrusion upon seclusion,” says one intellectual property lawyer.

The Ontario Court of Appeal has created a new tort relating to personal privacy. (photo: Shutterstock)

In Jones v. Tsige, Sandra Jones and Winnie Tsige worked at different branches of the Bank of Montréal but did not know each other. Tsige began a relationship with Jones’ former husband and over a period of four years, Tsige accessed Jones’ personal bank accounts 174 times. Jones sued Tsige for invasion of privacy and breach of fiduciary duty, and sought $20,000 in damages.

The Ontario Superior Court dismissed Jones’ claim because there was no law in Ontario that recognized a tort of invasion of privacy prior to the Court of Appeal’s ruling.

By accepting this new “intrusion upon seclusion” tort into Ontario law, Mark Hayes, of Hayes eLaw LLP, says the court has opened the floodgates for all kinds of invasion of privacy cases that were not previously recognized.

The court set several restrictions on the extent of this new tort. “The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish,” Justice Robert Sharpe wrote in the ruling.

But Hayes says the court didn’t set any parameters for what constitutes reckless behaviour. “There isn’t any really good guidance as to what reckless behaviour is going to mean within this context,” he says. “You can be sure that for a period of time — and it could be a couple of years, it could be a couple of decades —there’s going to be uncertainty about the extent of the recklessness that is required.”

Outlining another limitation, Sharpe wrote: “A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.”

This is also a contentious issue, says Hayes, as sensitivity is usually determined on a case-by-case basis. “In the privacy area, we’ve been trying to work with this concept of sensitive information for well over a decade because it’s used in all of the information privacy statutes in Canada. What we’ve found is that it’s a very pliable concept, and so, sensitivity of information can change depending on the individual, depending on the context.”

The court also placed a $20,000 limit on the damages to be awarded to any individual under this new tort. In this case, Jones was awarded damages of $10,000.

Although a $20,000 cap seems relatively low, Hayes says it opens the floodgates for privacy class actions seeking a much higher amount. “What’s going to happen is you’re going to have claims that are being brought in respect of organizations or individuals who are alleged to have committed this tort against hundreds, thousands, tens of thousands, millions of people through data breaches, through investigations, through other things, and class action lawyers will be then asserting claims on the basis of $20,000 for each of those people.”

Overall, Hayes says the limits set by the court aren’t clearly definitive. “The difficulty is that the limits that the court tried to put on [the tort] I think ask more questions than they answer.”

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A controversial loophole in the Occupational Therapy Act has allowed the Ontario Superior Court to apply discretionary jurisdiction in the assessment of future care costs for the first time striking down a London, Ont. man’s argument for a stricter interpretation of the act.

Randall Scott Cook was ordered to undergo an in-home occupational therapy assessment within the next two weeks by Justice Dougald McDermid Jan. 16.

Cook had previously sought a “substantial” amount in future care costs in 2010, according to Cook v. Glanville and The City of London.

He also argued that an order by the City of London requiring him to complete an in-home therapy assessment to determine the future care costs he originally sought wasn’t necessary.

Cook also argued the city’s order couldn’t be granted by the Superior Court solely on the issue of trial fairness, particularly when there was no evidence that the assessment was necessary for the diagnosis of a health practitioner in determining his physical limitations. He also produced an affidavit from Dr. Michael Devlin, a Toronto doctor who specializes in physical rehabilitation, to help determine future care costs.

But, in an unusual move, McDermid ruled the assessment was in fact necessary, writing in Cook, that it was necessary “not for . . . any diagnosis that he [Devlin] might make but that taken with his diagnosis it is required to permit the preparation of a future care cost report. . . .

McDermid cited Superior Court Justice Thomas Granger’s comments from the 2010 Vanderidder v. Aviva Canada Inc. decision: “The jurisdiction to order non-medical expert assessments is an area of controversy in Ontario courts. The decisions on this topic divide into two streams at the Superior Court of Justice level, and there does not appear to be a Court of Appeal decision settling the matter. In the first set of cases, courts generally interpret s. 105 and r. 33 narrowly, allowing non-medical assessments only if required as diagnostic aids for medical practitioners. The divergent stream invokes the discretionary inherent jurisdiction of the court to ensure justice is done in any particular case. In these cases, a non-medical expert assessment is usually ordered in the interests of fairness and justice.”

But McDermid went on to note that because no decision existed from the Court of Appeal regarding non-medical expert assessment in cases specifically involving future care costs, he was required to refer to the Divisional Court for the first time, which leaned toward the latter stream.

“In the absence of any decision from the Court of Appeal, I am persuaded to follow the decision of the Divisional Court in Desbiens [v. Mordini] as enunciating the proper approach to this issue,” wrote McDermid.

As a result, the judge ruled Cook must attend the in-home assessment within the next two weeks, with submissions on costs to be filed in the next 30 days.

If the matter goes to trial, the health practitioner who conducted the assessment could be called as an expert witness, according to Cook.

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