Torys LLP non-executive chairman Robert Prichard will become the next chairman of the board of BMO Financial Group.

Prichard has been an independent director of BMO since 2000 and upon shareholder approval at BMO’s annual meeting in Halifax on March 20, 2012, the company intends to appoint him to the chairman’s position to replace the retiring David A. Galloway.

“I am grateful for the board’s confidence and look forward to working with the board and management to deliver superior performance by the bank that defines great customer experience,” said Prichard in a news release.

“Under Rob’s leadership, I have every confidence that good governance will remain a source of competitive advantage for BMO,” said Galloway.

No stranger to the boardrooms of large organizations, Prichard is the head of the Greater Toronto Area transport agency Metrolinx as well as a director of George Weston Ltd. and Onex Corp. Between 1990 and 2000, he was president of the University of Toronto, where he helped boost the university’s endowment to a then-Canadian record of $1.4 billion. He is also the former president and CEO of Torstar Corp.

Bruce McCuaig, president and CEO of Metrolinx, told the Toronto Star Prichard will stay on with the the agency that operates GO Transit for the Ontario government.

The Supreme Court of Canada has quashed the decision of the Court of Appeal for Manitoba in a case where an arbitrator’s creative approach to a union/employer dispute over vacation time for an employee was ultimately deemed to be acceptable.

The decision addressed the use of estoppel in a case involving a part-time worker who was trying to obtain additional vacation time according to the collective agreement she had worked under for more than 20 years.

In Nor-Man Regional Health Authority v. Manitoba Association of Health Care Professionals, Nor-Man Regional Health Authority Inc., and the union were parties to a collective agreement that contained several provisions on casual employees and annual vacations.

In July 2008, Jacqueline Plaisier submitted a grievance, alleging she had been denied certain vacation benefits, in violation of the collective agreement. She had worked for Nor-Man both on a casual and on a part-time, indefinite term basis.

At the time of her grievance Plaisier had been employed continuously for 20 years ― although at times only on a casual basis ― by Nor-Man Regional Health Authority. According to the agreement, paid vacation entitlement was based on length of employment and it indicated that an employee was entitled to an extra week of paid vacation on the 20th anniversary of her employment.

Plaisier claimed the relevant date for calculating her vacation entitlement was July 12, 1988, when she first became employed as a casual nurse’s aide. The employer argued it was May 30, 1999, which is when she became employed in a part-time, indefinite term position, and when she started to accrue seniority under the agreement.

Nor-Man had consistently interpreted the agreement on the basis that credit for casual time was excluded, since casual employees received vacation pay with each pay cheque. Further, the union had never questioned the practice. Seniority reports were regularly produced by Nor-Man, were regularly given to the union, and posted in the workplace.

Plaisier’s seniority report showed her seniority date as May 30, 1999, and her employment date as July 12, 1988. The union’s position was that all casual time should be counted. Her employer calculated her vacation time the same way for over 20 years in a way the union should have known about, but never brought it to the attention of the employer.

The arbitrator in the case deemed it unfair to saddle the employer with the consequences of the union’s inaction, at least until the end of the collective agreement and ruled that the union was estopped, or barred, from raising the issue or asserting its rights under the collective agreement at least until the expiry of the current collective agreement.

The union took issue with that decision and challenged it in the Manitoba Court of Appeal, which ruled that the arbitrator, in using estoppel, didn’t apply all the rules correctly and set aside the estoppel imposed by the arbitrator.

However, on Dec. 2 the Supreme Court in its review of the case, referred to “arbitral creativity” saying arbitrators should respond to the unique situations before them as long as it’s within a realm of “reasonableness.”

In the decision, Justice Morris J. Fish wrote, “In my respectful view, the Court of Appeal erred in reviewing the arbitrator’s decision for correctness: reasonableness is the applicable standard.”

“This decision affirms that arbitrators are to be allowed creativity in fashioning remedies to deal with the dispute before them,” says Alan Freedman, a partner with Hicks Morley Hamilton Stewart Storie LLP. “The Supreme Court is signaling to lower courts that when you’re reviewing arbitral decisions you shouldn’t so readily interfere with them. It affirms that arbitrators should be given significant deference in how they deal with common law and equitable doctrines as long as the arbitrator is reasonably responding to the labour relations issue before them.”

“The court is also saying to arbitrators that they have a different mission than a judge in a court does. Arbitrators are dealing with collective agreements and the parties have an on-going relationship so you can be creative in responding to the issues before you — you can flex common law principles and don’t feel constrained by common law rules that may apply to judges in courts.”

Canada

Winnipeg judge to rule on Canadian Wheat Board, Reuters

Que. court rules in favour of for-sale-by-owner website, The Gazette

Bail hearing delayed for mother accused in 1993 kidnapping, CBC News

United States

Supreme Court TV debate erupts at Senate hearing, Reuters

Court rules in favour of American Airlines in security lawsuit, Reuters

International

EU court expected to rule on airline CO2 cap, Reuters

Libyan judges, lawyers protest against ex-rebel groups, Reuters

The Supreme Court of Canada will hear the following appeals this week. It’s a big week for copyright law cases:

Dec. 6 — Federal Court — Society of Composers, Authors and Music Publishers of Canada v. Bell Canada

Copyright law: Should commercial Internet websites that sell music downloads allow users to preview the works following the Copyright Board of Canada’s 2007 decision regarding royalties for communication to the public of musical works? It will address whether previews of musical works is a fair dealing for the purpose of research that doesn’t infringe copyright. There is a sealing order in the case.

Dec. 6 — Federal Court — Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada

Copyright law: At issue is whether a video game download that includes music fits under the Copyright Board of Canada’s 2007 decision regarding royalties for communication to the public of musical works.

Dec. 6 — Federal Court — Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada

Copyright law: This case also relates to the Copyright Board of Canada’s 2007 decision regarding royalties for communication to the public of musical works, involving Internet service providers.

Dec. 7 — Federal Court — Province of Alberta as represented by the Minister of Education v. Canadian Copyright Licensing Agency Operating as “Access Copyright”

Copyright law: The Copyright Board of Canada certified a tax for photocopying textbooks in Canadian schools (except for Quebec). The board determined that royalties were payable for some photocopies because they didn’t constitute a fair dealing. The Minister of Education applied for judicial review. The Federal Court of Appeal upheld the board’s ruling. The main question is whether photocopying textbooks for teaching in the classroom is a “fair dealing” under the Copyright Act.

Dec. 7 — Federal Court — Re: Sound v. Motion Picture Theatre Associations of Canada

Copyright law: This case also relates to royalties for the communication to the public of sound recordings in a movie soundtrack shown in a movie theatre or on TV.

Dec. 8 — Ontario — N.S. v. R.

Charter of Rights and Freedoms: A Muslim woman accused her cousin and uncle of sexually assaulting her. At the preliminary inquiry, she asked to testify while wearing a niqab for religious reasons but the Crown objected and the judge ordered her to remove her niqab. At issue is the Charter’s freedom of religion and right to equality versus the accused’s right to a fair trial and the value of assessing a witness’ credibility based on demeanour. There is a publication ban in the case.

Dec. 9 — British Columbia — Larry Wayne Jesse v. R.

Criminal law: Larry Wayne Jesse was convicted of sexual assaulting a woman at a party. At trial, the Crown introduced evidence from a previous sexual assault conviction that Jesse had not appealed. The judge admitted the evidence from his previous conviction and did not allow Jesse to challenge the conviction on a voir dire. The issue is whether the Crown has the right to introduce evidence from the accused’s prior conviction if it’s related to the current charge and whether the accused can challenge the validity of his previous conviction. There is a publication ban in the case.

The SCC will also release its ruling in:

Dec. 8 — Quebec — Attorney General of Quebec v. Department of Human Resources and Social Development Canada

Canada

Family honour more important than life, Shafia trial told, Ottawa Citizen

Woman accused of abducting daughter could face additional charges: police, Montreal Gazette

Jean James appeals murder verdict; confession video released, Vancouver Sun

United States

U.S. gov't asks Supreme Court to rule for generic drugmaker, Reuters

U.S. court tests 'responsible corporate officer' doctrine, Reuters

International

Chinese court rejects lawsuit by Apple over iPad name, Reuters

Imperial Tobacco challenges Australia's new plain packaging law, Reuters

Regina-based Merchant Law Group LLP has settled a class action with Facebook over changes to the social media giant’s privacy settings, but any users hoping for a windfall will be sorely disappointed.

As part of the no-admission deal, Merchant Law Group gets $75,000 to cover its legal fees, while representative plaintiff Patrice St. Arnaud gets $1,000 “for his time and effort in his capacity,” according to the settlement agreement. Facebook has also agreed to keep its updated privacy policy in place for three years.

The suit, launched in July 2010, alleged Facebook left user’s information exposed to third parties such as advertisers after changing its default settings. Users were asked to review their privacy settings at the time of the changes, which happened between November 2009 and January 2010, but the new defaults made information such as friend lists and profile pictures public unless altered by members.

At the time of the launch, Merchant Law Group’s Tony Merchant told Sun Media Facebook’s move was a “bait and switch.”

“The bait is that they wanted to be able to do demographic sales targeting, and the switch is that to do that, they needed to get into people’s personal information,” said Merchant.

The action sought unspecified damages because it was unknown how much Facebook had profited from the changes. But in April this year, it suffered a setback when a Quebec judge refused certification for the class action and dismissed the case.

Merchant’s firm will be back in Quebec Superior Court on Feb. 9, 2012 to ask another judge to approve the settlement. A 45-day opt-out period for class members, which the firm has estimated includes half of all Canadians, began ticking when the settlement was published on Dec. 5.

Anyone who wishes to oppose the settlement needs to get written notice to Merchant Law Group by Jan. 10, 2012 outlining their reasons for opposition, and if more than 20,000 people decide to opt out, then the settlement agreement will be rendered null and void.

An Ontario judge has ruled against a lawyer involved in an estates dispute who’s seeking to enforce a provision in the settlement agreement that would see a woman withdraw her complaint against him to the Law Society of Upper Canada.

The woman was Sandi Thompson, one of the beneficiaries of her mother’s estate. The beneficiaries delivered notice of objection after the trustees, including lawyer William Martin, began an application to pass their accounts. The parties settled following a pretrial conference on June 14.

Thompson, however, had filed a complaint with the LSUC against Martin two years earlier. The agreement had a term that the beneficiaries would provide the trustees with a full release, including all pending and future actions filed with the law society.

According to last week’s Ontario Superior Court ruling in Thompson (Family Trust), Thompson argued that the provision couldn’t stand. Martin, however, said the agreement was valid and enforceable and noted he wasn’t prepared to be bound by the remaining terms of the settlement unless the withdrawal provision stood.

“As consideration for the withdrawal, the trustees agreed to a reduction in their claim for compensation and agreed to be responsible for certain legal fees,” Justice Thomas Lederer said in reference to Martin’s position.

In dealing with the matter, Lederer approached it from the perspective of public policy. “It is improper for a person, subject to regulation, to require that a complaint about his or her conduct be released or withdrawn in exchange for payment or a benefit, as part of a private settlement in a related civil matter,” he wrote.

For his part, Martin’s lawyer argued that despite the provision, his client couldn’t bind the law society, which would still be free to continue any investigation. Lederer, however, rejected that notion.

“In a theoretical world, this might be possible,” he wrote. “In the practical world, it is not. It is not just that complaints raise matters that have a broader public interest. It is that, by their nature, these matters are important and the way we treat them is demonstrative of the significance we give them. Anything that limits the complainant from willingly and openly taking part would signal a lack of concern for the broader public interest.”

As a result, Lederer dismissed Martin’s motion for an order directing Thompson to comply with the minutes of the settlement.

Canada

B.C. teen accused of luring boys via Facebook: RCMP, Globe and Mail

Conrad Black's son charged with breaking probation conditions, The Province

Woman charged in stabbing death of boyfriend, Toronto Star

United States

U.S. judge rejects Apple's bid to halt Samsung device sales, Reuters

U.S. appeals court rules bone marrow donors can be paid, Reuters

International

Julian Assange to fight extradition in UK Supreme Court, Reuters

Ivory Coast ex-PM appears before ICC, Reuters

The former lawyers for the insolvent companies of a New Brunswick potato farmer jailed in Lebanon have had their fees slashed by a judge who found they would bankrupt the companies if they were paid in full.

St. John firm Gilbert McGloan Gillis billed more than $500,000 in fees, disbursements and taxes between June and September for their work on a restructuring plan for the holdings of Hank Tepper under the Companies’ Creditor Arrangement Act. Twenty different people at GMG billed to the account, including nine individuals who could not be identified as lawyers, paralegals or articling students.

Tepper has been held without charge in Lebanon since March over the alleged export of potatoes by his company to Algeria that were found to have ring rot.  

In an Oct. 18 decision, Court of Queen’s Bench Justice Lucie LaVigne said GMG had devoted about half its billed time to efforts to repatriate Tepper himself: “I have no reason to doubt that the solicitors worked very hard on trying to bring Mr. Tepper back home, and I realize that Mr. Mockler’s going to Lebanon was anything but a holiday. However, GMG’s role as counsel for the purpose of the CCAA was to represent the Corporations in its efforts to restructure,” she wrote.

But even a 50 per cent discount was not enough, she said, cutting the fees to $150,000 including disbursements and taxes.

“There has to be some assurance and money available to pay the professionals to do this work. However, these professional fees should not bankrupt the corporation. If at the end of the day, the professional fees are what threatens the viability of any proposal and sinks the debtor corporation, the integrity of these proceedings and the judicial system will be brought into question,” LaVigne said.

Tepper’s companies have assets of around $8 million, but debts stand at $11 million, including $8 million owed to BMO alone.

A court-appointed monitor reported on July 11 that the total legal fees projected for the proceedings were $130,000 including the monitor’s old fees. But an invoice submitted by GMG revealed they’d already run up a bill of $184,000 by July 7. LaVigne said the firm should have warned the monitor as soon as they were aware of the escalation in fees.

BMO eventually moved to cap the legal fees in mid-September and GMG agreed to withdraw in early October after initially refusing to until an agreement was reached over their accounts.

At the hearing on Oct. 5 to determine the fees, BMO’s lawyer Josh McElman laid into GMG, criticizing the firm for a lack of detail on expenses, including a $700 parking expense on one day in September and a $6,500 entry for “Travel miscellaneous” on July 7. “Where did they go?” asked McElman.

“And then the July 18th hearing, we had Mr. Stoyanov, Mr. Faloon and Mr. Mockler and that day we had $12,000 for attending that hearing. But the beauty of their account is it’s just not the hearing dates that everybody’s working on the same thing, it’s every single day…We’ve seen how over the first 18 days, there’s an average of $10,000 a day,” he went on, asking the court to cut the accounts to $60,000 or less.

GMG’s representative, a member of the firm, did not call any evidence to answer the concerns of the court, BMO and the monitor, saying he did not have the information to do so.

In setting the fees at less than a third of what GMG wanted, LaVigne said she had taken into account the lack of progress towards a plan of arrangement, the relatively routine nature of the CCAA proceedings, superfluous motions filed by GMG, as well as over-lawyering on the matter.

“The level of duplication of experienced counsel set out in the Legal Accounts cannot be endorsed by this Court without additional explanation,” she wrote.

Earlier this week, Tepper’s family criticized the RCMP for its role in the saga after the police force admitted they provided Algerian officials with details about Tepper’s business ahead of his arrest.

Canada

MPPs seek to overturn pit bull ban, CBC News

Sask. provincial court judges seek pay increase, The StarPhoenix

SCC to hear case on alleged corn syrup price-fixing, Reuters

United States

Supreme Court urged to allow Texas election maps, Reuters

Court allows bone marrow donors to receive compensation, Reuters

International

Israeli court chief confronts government allies, Reuters

Former South African police chief loses corruption appeal, Reuters