Dr. K. Ansarian Dentistry Professional Corp. v. Dr. A. Mohajeri Dentistry Professional Corp., Ontario Superior Court

Two dentists who shared a space "cannot stand each other" anymore and no longer want to work together. But their business arrangement stipulates they can only renew the lease on the common premises as the "tenant," which is both of their professional corporations together. One dentist refuses to do that, meaning they'll both be out if they can't work out a deal, while neither will let the other negotiate separately with the landlord to extend the lease. As a result, they've been engaging in legal wrangling resulting in stacks of paper up to a metre in height to find some way to avoid losing their place of business.

The Ontario Court of Appeal has dealt a blow to the notion that polluters are responsible for fixing their messes. The court rejected a municipality’s bid to challenge an order putting it on the hook for someone else’s spill by calling evidence that another party was at fault.

The Ontario Court of Appeal has dealt a blow to the notion that polluters are responsible for fixing their messes. (Photo: Shutterstock)

“Evidence of the fault of others says nothing about how the environment would be protected and the legislative objective served if the director’s order were revoked,” wrote Justice Stephen Goudge in Kawartha Lakes (City) v. Ontario (Environment) on Friday.

“Indeed, by inviting the tribunal into a fault finding exercise, permitting the evidence might even impede answering the question in the timely way required by that legislative objective.”

Environmental lawyers have been closely watching the case since the Environmental Review Tribunal upheld the Ministry of the Environment’s order under the Environmental Protection Act directing the city to remediate and prevent any further discharge of furnace oil on its property. But the 2008 spill happened on the property of Wayne and Liana Gendron during a delivery of fuel oil. The oil migrated onto the city’s property and into Sturgeon Lake. While the ministry first issued an order to the Gendrons, they had run out of money to do offsite remediation by March 2009.

The city then unsuccessfully sought to challenge the ministry director’s order at the tribunal and later the Divisional Court. All parties agreed the city wasn’t at fault, a fact that made the case an important one for environmental lawyers accustomed to the notion of making polluters fix their messes.

“Just picking on someone innocent and making them pay for it . . . it’s scary,” says Toronto environmental lawyer Dianne Saxe, who notes the rulings make it more difficult to advise clients affected by a neighbouring spill who may now question whether they should report an event to the ministry.

Despite the concerns, the appeal court emphasized the overriding objective of protecting the environment.

“I agree with the tribunal and the Divisional Court that evidence that others were at fault for the spill is irrelevant to whether the order against the appellant should be revoked,” wrote Goudge. “That order is a no fault order. It is not premised on a finding of fault on the part of the appellant but on the need to serve the environmental protection objective of the legislation.

“The tribunal had to determine whether revoking the director’s order would serve that objective. Deciding whether others are at fault for the spill is of no assistance in answering that question.”

Rulings throughout the case have faulted the city for blaming other parties without offering a solution for the pollution should it succeed in getting the order revoked. But for Saxe, that’s exactly what the city was trying to do in arguing there were other parties involved that could fix the problem.

“There’s no effective right of appeal,” she says in summarizing the implications of the case.

In the end, the appeal court dismissed the city’s appeal but made no order as to costs. Of course, the ruling doesn’t stop the city from trying to recover its costs through other means. As Goudge noted, the city has made use of s. 100.1 of the act that allows a party subject to a no-fault order to seek to recover its costs.

That matter involving the Gendrons, Thompson Fuels Ltd., and the Technical Standards and Safety Authority is ongoing, according to Goudge. But according to Saxe, success in recovering costs is very rare.

“Almost always they don’t get it,” she says.

The University of Ottawa named Canadian Civil Liberties Association general counsel Nathalie Des Rosiers as the new dean of its common law program.

Nathalie Des Rosiers will join the University of Ottawa’s common law faculty as dean on July 1.

Caroline Milliard, manager of media relations at the university, confirmed Des Rosier’s appointment this morning. The five-year appointment is effective July 1, says Milliard.

“I’m very pleased and honoured by the appointment,” Des Rosiers tells Legal Feeds. “It’s a great faculty,” she adds, noting she aims to “makes sure it continues to shine as it has.”

Des Rosiers will fill the vacancy created by the upcoming departure of common law faculty dean Bruce Feldthusen.

The incoming dean, of course, is no stranger the University of Ottawa. Currently a professor in the civil law section, she was dean of the civil law program from  2004 to 2008.

After leaving that position, she moved to the CCLA to replace the departing Alan Borovoy, who retired from the organization after 40 years of leading some of Canada’s most important social battles. Since then, she has found herself taking high-profile roles in many of the current social battles, including the widespread concerns over police actions during the G20 summit in Toronto in 2010. Throughout the controversy, the CCLA pushed strongly for a single public inquiry into police actions during the summit.

The CCLA also made a significant mark last year with a report calling for changes in how police keep records of their interactions with people that don’t result in an arrest. Among other things, the report called for the destruction of non-conviction records given the concerns about the effect on the presumption of innocence.

Des Rosiers says there’s no replacement yet for her CCLA role yet but says she expects the organization to launch a competition for the position soon.

“It’s a great job,” she says, noting “it was a very difficult decision” to leave a “very useful, very needed” organization.

Besides the University of Ottawa and CCLA postings, Des Rosiers was president of the Law Commission of Canada from 2000 to 2004 and taught at the University of Western Ontario prior to that. During her career, she has received a number of honours, including the medal of the Law Society of Upper Canada in 1999. For the past two years, Canadian Lawyer has named her one of Canada’s 25 most influential lawyers. l

Feldthusen leaves the dean’s post after more than a decade in the role.

Smith v. Cataraqui Cemetery Co., Ontario Superior Court

Can the heirs of a family that bought a massive plot on a cemetery in the 1860s get buried there now? The cemetery said no, saying they'd first have to go through all potential heirs (thousands of them) to see who gets the plot. The court said that was ridiculous.

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One of Ontario’s most prolific judges in class actions cases is moving to the Ontario Court of Appeal.

Ontario Superior Court Justice George Strathy, one of a handful of judges to regularly tackle the complex and often drawn-out area of class actions, replaces appeal court Justice Russell Juriansz, who became a supernumerary judge on March 31.

Strathy, who joined the Superior Court bench in 2007, had a long career as a practising lawyer in civil litigation as well as transportation, insurance, environmental, and maritime law. He had earlier been a partner at Strathy & Isaacs, Fasken Campbell Godfrey, and MacKinnon McTaggart.

Moving into Strathy’s spot at the Superior Court is Stephen Firestone. As a lawyer, Firestone primarily dealt with civil litigation focusing on personal injury, accident benefits, and professional negligence. He has been a partner at Lackman Firestone since 1995 and earlier worked as a lawyer at Iacono Brown and Sommers & Roth.

Also joining the Superior Court bench is Ontario Court Justice Steve Coroza. Currently a judge in St. Catharines, Ont., Coroza will take his Superior Court position in Brampton, Ont., on July 8. He replaces Justice Nancy Mossip, who becomes a supernumerary judge on July 8. Coroza became a judge in 2009 following an 11-year stint as senior counsel with the Public Prosecution Service of Canada and an earlier position as staff duty counsel in Toronto.

The Ontario government also announced the appointment to the Ontario Court of Justice on Friday. Kathleen Baker will preside in Brantford, Ont., as of May 8. Baker, who has worked in a number of legal counsel roles for several children’s aid societies, has more recently been in private practice dealing with child protection, custody, access, support, and property issues.

Besides the Ontario appointments, the federal government named a new Quebec Court of Appeal judge on Friday. Superior Court Justice Manon Savard fills the vacancy caused by the departure of Justice Richard Wagner to the Supreme Court of Canada last year. Savard, who has been a judge since 2009, had an earlier career as a lawyer practising labour and employment, civil, and administrative law at the former Ogilvy Renault LLP.

The final appointment announced Friday was of Glennys McVeigh to the Federal Court. A senior counsel with the Public Prosecution Service of Canada in Saskatoon, McVeigh has been with the federal government since 1998. She fills a new position on the court.

The Criminal Lawyers’ Association is slamming a Law Society of Upper Canada hearing panel decision last week suspending securities lawyer Joe Groia for two months and leaving him on the hook for almost $250,000 in costs for his conduct during his defence of Bre-X Minerals Ltd. geologist John Felderhof.

Joe Groia is appealing the LSUC’s decision to suspend him and levy $250,000 in costs.

“The Ontario Criminal Lawyers’ Association is extremely concerned about this decision of the law society and the precedent it may set,” says CLA president Norm Boxall. “We are most concerned about the potential chilling effect upon defence counsel who day in and day out perform their professional duty fearlessly advocating for their clients.”

The CLA, noting Groia has appealed the decision, says it will seek to intervene in any further proceedings.

The comments follow Thursday’s decision on penalty and costs against Groia after a panel found him guilty of misconduct last year. In harsh language, the panel found Groia’s conduct in criticizing the prosecution during Felderhof’s trial “negatively impacted the administration of justice” and that he had demonstrated a “deliberate and consistent pattern of disruptive behaviour.”

“Mr. Groia cannot be said to have demonstrated any contrition or insight into his behaviour,” wrote Bencher Susan McGrath on behalf of the three-member panel. “Indeed his position in these proceedings represented an outright attack, both on the importance of civility and the legitimacy of the law society’s regulation of uncivil conduct.”

In its reasons, the panel considered the need to provide general deterrence to the profession.

“If the law society implicitly condones the unacceptable conduct of Mr. Groia in Phase 1 of the Felderhof trial, by failing to impose a penalty, it could have an even more significant consequence on general deterrence,” wrote McGrath. “The penalty imposed must clearly indicate that such conduct will not be tolerated and that the consequences can be severe.”

The panel also looked at the appropriate range of penalty in light of previous cases involving incivility. In one such case involving Shale Steven Wagman, there were three incidents towards a mediator and a senior claims manager that resulted in 15-day suspension. But in that case, McGrath noted, there were extenuating circumstances as well as an apology.

“There are no apologies or extenuating circumstances, in this case,” she wrote.

“In the present case, rather than a thoughtful and comprehensive argument, we have found that Mr. Groia engaged in persistent unsubstantiated allegations of prosecutorial misconduct and communicated with the prosecution in a manner that was intended to be provocative and in fact was in effect offensive and inconsistent with the proper tone of professional communication,” she added.

Groia’s case has sparked an intense debate among the bar about the limits lawyers can go to in defending their clients. Groia himself has emphasized the need to vigorously defend his client and argued the law society matter would send a chill to lawyers when it comes to how they handle their cases. The panel, in fact, took Groia’s “repeated statements” during the case, including his comments on civility, into account in determining the penalty.

“These constitute the very unusual circumstances where his attitude towards his misconduct demonstrates a substantial likelihood of future misconduct,” wrote McGrath.

“In this case, the lack of remorse constitutes an aggravating factor.”

Despite Ontario judge’s complaints, Quebec officials have no duty to provide Ontario courts with presentence reports in English, the Quebec Public Security Ministry says.

According to ministry spokesman Clément Falardeau, Quebec government employees are to use French with professionals such as judges and lawyers as per provincial policy. “Therefore, there’s no obligation to provide a translation in English,” said Falardeau in response to questions stemming from a recent Law Times story detailing Ontario judges’ complaints about presentence reports from Quebec.

Nevertheless, Falardeau noted Quebec officials do their best to have reports translated upon request for one in English.

In the meantime, Ontario’s Ministry of Community Safety and Correctional Service says it’s reviewing Ontario Superior Court Justice Deena Baltman’s recent decision ordering it to fix problems she found with a recent presentence report coming from Quebec. “The Ministry is reviewing the direction from Justice Baltman and is in discussions with our counterparts in Quebec,” said ministry spokesman Brent Ross, who directed questions about Quebec’s practices to officials in the neighbouring province.

The responses shed light on some of the bureaucratic buck-passing that can lead to situations that frustrate Ontario judges who, besides complaining about the language used, receive presentence reports that arrive late and lack the required information from Quebec. In R. v. McPherson, Baltman expressed outrage about a “useless” presentence report that “made disparaging remarks about the offender’s behaviour” instead of addressing factors such as the offender’s age, maturity, character, behaviour, attitude, and willingness to make amends as required by the Criminal Code. The report, which involved an offender from Montreal, arrived so late that Baltman said she would have reduced the sentence if there was further delay.

As a result, Baltman blasted Quebec authorities for flouting requirements she noted all jurisdictions are subject to under the Criminal Code. She went on to note the Ontario government also has to ensure reports meet the requirements of the law and ordered it to address any deficiencies. But as the two ministries’ responses indicate, neither is indicating any concrete action. For Quebec’s part, Falardeau noted the government does its best to respect the timelines imposed by the courts but said delays in producing presentence reports can vary according to the complexity of the file and the number of requests made.

As for concerns expressed by Ontario Superior Court Justice Casey Hill about Quebec’s inability to produce a Gladue report for an offender in R. v. Knockwood, Falardeau said the correctional service can tap an external provider to prepare one. That, however, didn’t seem to apply to Kathleen Knockwood. Quebec officials, according to Hill, reported they didn’t do Gladue reports and wouldn’t be preparing one for Knockwood. When Knockwood moved to get one on her own in Montreal, she learned she’d have to pay for it herself, Hill noted. After significant delay, however, the Ontario ministry helped her get one through Aboriginal Legal Services of Toronto.

Lawyers at Investissement Québec have begun a five-day strike after failing to finalize a collective agreement with their employer.

The 11 lawyers working for Investissement Québec, the province’s investment arm, are unhappy with what they say is their employer’s about-face on an agreement in principle reached with its negotiators in December 2012. The lawyers are all members of the Association des juristes de l’Etat. According to association president Sébastien Rochette, Investissement Québec is demonstrating “amateurism” in collective bargaining.

The association is accusing Investissement Québec of having reneged on the deal agreed to in December on the basis that its senior management hadn’t authorized it. The association says the Investissement Québec lawyers are the only members of the organization representing Quebec public sector lawyers without a new collective agreement in place. The agreement in principle reached in December would cover the 2010-15 period.

Investissement Québec is a public body whose goal is to promote investment and employment around the province. Its activities include financial support and investment, such as last week’s announcement of $1 billion in loans for purchases of Bombardier Inc.’s C series aircraft assembled in Quebec.

The association represents more than 1,000 legal professionals working for various Quebec government bodies.

In a statement, Rochette noted he’s concerned with the “way the organization is managing an issue as simple as its labour relations with 12 of its employees.” The lawyers will be on the streets picketing until Friday this week in both Quebec City and Montreal.

Whether it was legal aid or changes to auto insurance, Peter Kormos always viewed the issue through the lens of the average person, says former Ontario NDP leader Howard Hampton.

‘I liked the way he did politics and he liked the way I did politics,’ Howard Hampton says of Peter Kormos who passed away on the weekend.

“That’s how he approached almost all issues,” says Hampton, now counsel at Fasken Martineau DuMoulin LLP, of his former caucus mate and friend as well as fellow lawyer.

Kormos, the colourful former MPP for Welland, Ont., who died this weekend at the age of 60, played many roles during his time in the NDP caucus, including critic for the attorney general. Family law was among his key concerns, says Hampton.

“He was very concerned about the number of people going into the family court unrepresented,” says Hampton, adding Kormos would sometimes use the term “legal aid washing” to refer to the inadequacy of legal aid funding in both the criminal and family law systems.

But while Kormos had a gift for political theatrics, he was also an extremely hardworking representative, according to Hampton.

“The great thing about Peter was he could take on four or five different roles,” he says, noting Kormos could present extensive legal and parliamentary research that could stop his opponents in their tracks. This despite the fact he didn’t have an assistant at Queen’s Park and instead chose to channel his budgetary resources to his local constituency office. “He loved the work.”

Kormos, of course, had a reputation for challenging authority and had notable disagreements with the government while serving in the cabinet and caucus of former NDP premier Bob Rae. Hampton, however, says the two remained good friends during his time as leader and following their departures from politics despite the fact they were rivals in the 1996 NDP leadership contest.

“I’d never tell you it was all sweetness and light,” says Hampton, who notes the two could eventually find common ground after debating the issue.

“Peter liked a good argument,” he says.

“I liked the way he did politics and he liked the way I did politics.”

An Ontario judge has cast doubt on the common practice of determining estate trustee compensation and legal fees on the basis of fixed percentages.

An Ontario judge found it’s not always proper to follow fixed percentages. (Photo: Shutterstock)

In Hooke Estate, a beneficiary challenged the amounts claimed by lawyer William George Jeffery for his work as estate trustee and solicitor. After handling the estate of Mary Hooke according to her wishes, Jeffery sought compensation of almost $22,000 and applied to pass the accounts.

Jeffery later reduced his claim for executor’s compensation to about $10,300, but beneficiary Lynne Johnson objected nevertheless. In particular, she argued against his claims for 2.5 per cent of the capital receipts and capital disbursements. She also objected to his claim for legal fees of $6,000 given the estate matter was a fairly simple one involving a primary asset valued at $425,000.

According to Superior Court Justice Irving André’s endorsement in Hooke this week, a practice has developed in Ontario of awarding compensation on the basis of 2.5 per cent of the capital receipts, capital disbursements, revenue receipts, and revenue disbursements. Jeffery, in fact, justified his amounts based on fee recommendations by the York Law Association, André noted. But the judge found it’s not always proper to follow fixed percentages.

“In my view, given the quantum and nature of the work involved in fulfilling his work either as trustee or counsel, reliance on these 2.5 percentages in this case is unwarranted,” wrote André.

“Such reliance results in compensation that is unfair and unreasonable. They cannot be applied just because, as Mr. Jeffery asserts, they have been the York Law Association’s recommended percentages for trustees and lawyers involved in this type of work. In certain cases, they may well be justified but not in every case as Mr. Jeffery seems to suggest.”

Jeffery also used the association’s recommendations for fixed percentages when it came to his legal fees of about $6,000, according to André, who found the amount “cannot be held to constitute fair and reasonable compensation.”

In the ruling, the judge cut the executor’s compensation to almost $9,000 and the legal fees to about $4,100. “This was, by all accounts, a relatively uncomplicated estate to administer,” he wrote, noting the matter wasn’t one that required great skill and ability.