After much speculation as to where he would land, former Supreme Court of Canada Justice Ian Binnie will be joining Toronto litigation boutique of Lenczner Slaght Royce Smith Griffin LLP as counsel. Binnie will provide strategic and practical advice, as well as dispute resolution expertise, to his colleagues and the firm’s clients.

Former SCC justice Ian Binnie is joining Toronto litigation firm Lenczner Slaght. (Photo: Glenn Kauth)

“Lenczner Slaght has great people and great work,” said Binnie, “and for me there is the added bonus of being able to practise again with many of the same talented people I worked with before going on the bench.”

Binnie, who in 1998 was appointed to the SCC bench directly from the bar, was a top commercial litigator before joining the court.

“Ian Binnie was widely recognized as one of Canada’s leading litigators while in practice and after that one of our finest judges,” said Peter Griffin, managing partner of Lenczner Slaght. “We are delighted to have him join us. We, and our clients, look forward to benefiting from his unique expertise.”

In nearly 14 years on the bench, Binnie authored 170 opinions, many in significant cases involving intellectual property, defamation, and constitutional and administrative law. His landmark judgments enlarged the fair comment defence in defamation cases, established privilege for journalists’ confidential sources and led to a framework for the courts to use in analyzing when to override liability-limitation clauses in contracts.

Binnie practised for three decades in courtrooms across the country and in the mid-1980s, served for four years as Canada’s Associate Deputy Minister of Justice. He was later appointed special parliamentary counsel to the joint committee of the Senate and the House of Commons on the Meech Lake Accord. He has an LLB and LLM from the University of Cambridge and an LLB from the University of Toronto Faculty of Law. He was called to the bar of England in 1966, the Ontario bar in 1967, and the Yukon Bar in 1985.

In addition to acting as counsel at Lenczner Slaght, Mr. Binnie will be a resident arbitrator at newly formed Arbitration Place in Toronto.

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Some big names are joining the newest player in Toronto’s arbitration scene.

On April 18, Arbitration Place in Toronto’s financial district will hold its official opening at the Bay Adelaide Centre. Among its resident arbitrators are Yves Fortier, former chairman of Ogilvy Renault LLP who recently left its successor firm Norton Rose Canada; Thomas Heintzman, counsel at McCarthy Tétrault LLP and, like Fortier, a former president of the Canadian Bar Association; alternative dispute resolution practitioner Stan Fisher; and former Ontario associate chief justice and integrity commissioner Coulter Osborne.

The new firm’s member arbitrators include Earl Cherniak of Lerners LLP; John Judge; Barry Leon, head of the international arbitration group at Perley-Robertson Hill & McDougall LLP; John McDougall, partner emeritus and counsel at Fraser Milner Casgrain LLP; Goodmans LLP’s Harry Radomski; and Osgoode Hall Law School professor Janet Walker. The in-house counsel at Arbitration Place is Be-Nazeer Damji.

Kimberley Stewart, CEO and founder of Arbitration Place, says the new firm will have a global focus given its partnerships with the London Court of International Arbitration and the International Court of Arbitration.

“It’s putting Toronto on the map for the international community,” she says, noting she hopes those drafting international arbitration clauses will be more likely to think of Toronto as a seat of arbitration as a result. In addition, the firm has expansive space in the Bay Adelaide Centre as well as translation and interpretation services that Stewart says make it “very conducive to international work.”

To celebrate the opening of the new firm, Arbitration Place's official launch features a debate between former Supreme Court justice Ian Binnie and litigator Will McDowell. Binnie’s former colleague on the Supreme Court bench, justice Frank Iacobucci, will wield the gavel.

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The Supreme Court of Canada starts its spring session tomorrow. Here are the scheduled appeals for this week.

April 11 — Quebec — Personne désignée B v. R.

Criminal law: This case is central to the crackdown of an organized crime ring in Quebec. Ten people were arrested based on information from the applicant. In question is whether the applicant had police informer status. There is a publication ban and sealing order in the case.

April 12 — Manitoba — Robert Joseph Kociuk v. R.

Criminal law: Robert Joseph Kociuk was convicted of first-degree murder while committing a sexual assault. DNA profiling was used to convict him in this 1984 “cold case” murder. On appeal, Kociuk claimed that the trial judge did not adequately put the theory of the defence to the jury. The majority of the Court of Appeal dismissed the appeal.

April 13 — Alberta — Adrian John Walle v. R.

Criminal law: Adrian John Walle was convicted of second-degree murder. On appeal, he argued he should have been convicted of manslaughter, and his developmental delays and alcohol consumption should have been considered. The Court of Appeal dismissed the appeal.

Retired Vancouver criminal lawyer Jay Clarke, who has written 14 crime thrillers under the pen name Michael Slade, will hold a one-day writing session at Simon Fraser University. The six-hour workshop on “How to Write a Mystery Thriller” will be held at the Southbank Surrey campus on Saturday, July 14.

Clarke said in an e-mail that 2012 is shaping up as a busy year for Slade as all the 14 books from Headhunter (1984) through to Red Snow (2010) are being put into digital format for e-publishing later this year under the brand name “Mountie Noir.”

For all those who enjoy the legal history and the inside working of the Vancouver legal community that Clarke brings to the Slade series, there is another book destined to hit the stands by year end or early 2013. Much of the backgrounder to how Clarke derived his topics and collaborated with individuals can be found on the official Michael Slade web site. 

The Supreme Court of Canada has agreed to hear the appeal in R. v. Criminal Lawyers’ Association of Ontario.

The case involves three separate criminal trials where the judges appointed amici curiae for the unrepresented accused, set their rate of pay, and ordered the Ministry of the Attorney General to pay them from public funds. The Crown argued the courts do not have the authority to set an amicus curiae’s rate of pay and only Parliament can decide how public money is spent.

The Criminal Lawyers’ Association, which originally intervened in the case and is now the respondent, argues that the courts should be able to determine the compensation for amicus curiae and they should receive fair payment.

“It’s our members who end up being appointed as amicus curiae in criminal trials and obviously our members have an interest in making sure we’re paid at a fair and reasonable rate,” says Andras Schreck, the CLA’s counsel in the case. “[T]he legal aid rate is not a fair and reasonable rate, it’s a grossly inadequate rate.”

For example, says Schreck, if the Crown retained him to prosecute a case, he would be paid $192/hour. However, the Crown argues that if the judge asks him to be on the case to assist the court, then he should be paid $106/hour. “That’s not reasonable,” he says.

A year ago, the Ontario Court of Appeal dismissed the appeal in R. v. Russel, ruling that the courts do have jurisdiction to appoint an amicus curiae and determine his or her compensation.

“Where the court concludes that it is necessary to appoint amicus, it is for the court, not the Attorney General or Crown counsel to set the terms of the appointment. . . . The jurisdiction to appoint amicus must necessarily include the power to set the terms under which amicus will function, including the rate of compensation,” wrote justices Marc Rosenberg, Stephen Goudge, and Robert P. Armstrong in the decision.

“The court could not fulfil its function to administer justice according to law if it could create the role of amicus where that was necessary, but had no power to ensure that the role was filled because it could say nothing about the rate of compensation. We therefore conclude that the jurisdiction to appoint amicus necessarily extends to fixing the rate of compensation,” the judges added.

Adds Schreck: “There are other problems with the Crown being able to unilaterally decide how much amicus curiae gets paid. This is someone appointed by the court to assist the court and the court should be able to determine who that is and what they get paid.”

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A Vancouver law firm has been ordered to turn over some of its trust account ledgers after a split B.C. Court of Appeal decided that lawyers’ financial records are not presumptively subject to solicitor-client privilege.

(Photo: Shutterstock)

Writing for the 2-1 majority in Donell v. GJB Enterprises Inc., B.C. Court of Appeal Justice Edward Chiasson acknowledged that the Supreme Court of Canada’s 2003 decision Maranda v. Richer conferred a presumptive privilege to a lawyer’s bills in the criminal context, but said that it could not be extended to “other financial records.”

“This case does not concern lawyers’ bills; it concerns trust account ledgers which involve money management,” Chiasson wrote in the decision released last week, adding that they could only be regarded as presumptively privileged “insofar as this management reflects the solicitor-client relationship and what transpires within it.”

The court ordered four trust ledger entries to be turned over to Stephen Donnell, the receiver for GJB Enterprises, related to a real estate transaction involving the company’s former principal.

Donnell was appointed receiver over the company and its principal Gerald Berke by a California court in 2010 after allegations that GJB was a Ponzi scheme. In August that year, Donnell discovered that Berke had received more than $500,000 from Vancouver Farris Vaughan Wills & Murphy LLP the previous month, and asked the law firm to turn over documents belonging to GJB to Berke so he could trace the source of the funds, which he suspected may be proceeds of the alleged Ponzi scheme.

Farris denied the request, claiming privilege, and prompting Donnell to apply for a declaration that the privilege did not exist due to the allegedly unlawful conduct of GJB. The Supreme Court of B.C. dismissed the application last year.

The majority of the appeal court found that some of the trust ledgers, ones that “relate to communications to obtain legal advice” or that “could be used to deduce or otherwise acquire communications protected by solicitor-client privilege,” should not be produced.

The four exceptions, Chiasson wrote, were related to a real estate transaction that was known to others, and to the movement of money in and out of investment vehicles.

“They do not relate to communications to obtain legal advice. They are not subject to solicitor-client privilege,” Chiasson wrote.

But in a dissenting opinion, Justice Kenneth Smith said the presumptive privilege should go beyond lawyers’ bills.

“Maranda held that in cases in which the facts alleged to be outside the ambit of the privilege are such that their disclosure might indirectly disclose privileged information, protection of the privilege requires that they be presumptively regarded as privileged until the judge is satisfied otherwise. This general rule applies to all information arising out of solicitor-client relationships whatever may be their legal context,” he wrote.

In the Donell case, he said the trust ledger disclosure would “undermine the solicitor-client privilege.”

“In my view, an assiduous examination of the ledgers, which can be expected if they are disclosed, would result in the disclosure of privileged information even if they were to be edited as proposed by my colleague,” Smith wrote.

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