University of British Columbia president and vice chancellor Stephen Toope announced yesterday he will step down from his post at the end of the 2014 academic year to pursue his interests in international law.

Toope, who has an extensive legal background, said in a release that his decision to resign is “personal and relates to my desire to work over the next few years in a role more closely connected to my academic and professional interests in international law and international relations.”

Stephen Toope says his misses writing and being in the classroom.

When asked what that international law work will entail, Toope said he isn’t quite sure yet.

“I do not know what work comes next. I only know that I miss being able to write as much as I would like in my areas of international law, and I miss being in the classroom,” he told Legal Feeds.

Toope became president of UBC in March 2006 and began his second five-year term in July 2011. From 1994 to 1999, he was dean at the McGill University Faculty of Law, where he also obtained his common law and civil law degrees.

Considered an international law scholar, Toope continues to write in the areas of international human rights, dispute resolution, and international environmental law. In addition, in 2010 he co-authored a book on international legal theory titled, Legitimacy and Legality in International Law: An Interactional Account.

Toope also represented Western Europe and North America on the UN Working Group on Enforced or Involuntary Disappearances from 2002 to 2007.

Following public outcry over the $6-million payout in the BC Rail case, Toope was asked to conduct an investigation into the B.C. government’s handling of the case. His 2011 report said it was highly unusual for the government to pay the massive legal bills of former political aides Dave Basi and Bob Virk after they pleaded guilty to breach of trust. He also made several recommendations to help prevent similar payouts from happening in the future.

“As president, I have not been able to do the kind of work that I have done in the past, including chairing the UN working group and advising government,” said Toope. “I may look for more opportunities in those fields, but not until after I finish as president in 2014.”

Juanita Westmoreland-Traoré

A scholarship in honour of trailblazer Juanita Westmoreland-Traoré has been established at the l'Université du Quebec à Montreal.

The scholarship will be awarded to a first-year law student in the faculty of political science and law at UQAM, who has “demonstrated excellence in the use of the law as a tool for social change and who has been involved in activities that promote human rights, social justice, and the right to equality of the underprivileged and racialized minorities.” The student will receive $3,000 for each year of the program.

Westmoreland-Traoré, who retired from the Court of Quebec last year, was the first black woman to become a judge in Quebec when she was appointed to the bench in 1999. Prior to her appointment, Westmoreland-Traoré practised at the law firm Mergler Melançon in Montreal and then worked as a law professor at the Université de Montréal and UQAM. In 1996, she became the first black dean of a law school at the University of Windsor.

Westmoreland-Traoré has served as a commissioner for the Canadian Human Rights Commission and the Employment Equity commissioner of Ontario. She was also made an officer of the National Order of Quebec.

She is best known for her contributions to human rights, social justice, right to equality, and her commitment to the community.

There will be a reception at UQAM today at 5:30 p.m. to launch the scholarship.

(Photo: Heather Gardiner)

The Supreme Court of Canada will hear six appeals this week, including Toronto businessman Robert Hryniak’s appeals that question the summary judgment procedure.

March 25 — Nova Scotia — Sable Offshore Energy Inc. v. Ameron International Corp.

Civil procedure: Sable Offshore Energy and others sued several defendants as a result of paint failures on their offshore and onshore facilities. Some of the defendants entered into proportionate share settlement agreements, which allowed them to withdraw from the litigation, and left the remaining defendants responsible for their share of the loss. The defendants sought disclosure of the settlement amounts but the motions judge refused. The Court of Appeal allowed the appeal and ordered the amounts to be disclosed.

Read the N.S. Court of Appeal’s decision.

Other related news articles:

Toward an Even Playing Field: The Supreme Court of Canada to Rule on Disclosure of Amounts in Pierringer Settlements Prior to Trial, Canadian Appeals Monitor
Canadian Supreme Court will rule on disclosure of settlement amounts sums in multi-party cases, Gowlings Knowledge Centre

March 26 — Ontario — Hryniak v. Mauldin and Bruno Appliance and Furniture Inc. v. Hryniak

Judgments and orders: After Rule 20 of the Ontario Rules of Civil Procedure was amended, there was controversy as to whether it’s appropriate for a motions judge to use the new powers to decide an action based on the evidence presented on a motion for summary judgment. To provide guidance to the profession, the Court of Appeal convened a panel of five judges to hear five appeals from decisions under the amended rule. It also appointed five amicus curiae to provide submissions on how the amended rule should be interpreted and applied. One of the appeals was Robert Hryniak’s motion to set aside the summary judgment ordered by the Superior Court of Justice based on the amended rule. The Court of Appeal dismissed his appeal. In the second related case, the Court of Appeal allowed the appeal and ordered a new trial.

Read the Ontario Court of Appeal’s decision in Mauldin v. Hryniak.
Read the Ontario Court of Appeal’s decision in Mauldin v. Cassels Brock & Blackwell LLP. 

Other related news articles:

Supreme Court of Canada to hear Robert Hryniak appeals, Financial Post
Ontario Court of Appeal appreciates the power of summary judgment, Financial Post 
Fraud ruling a legal first; Ontario judge awards US$2M damages at preliminary stage, Financial Post 

March 27 — British Columbia — Vu v. R.

Charter of Rights and Freedoms: Thanh Long Vu was charged with production of marijuana and possession for the purpose of trafficking after the police obtained a search warrant to enter a location on the suspicion of hydro theft and discovered a grow-op in the basement. Vu was acquitted after the trial judge determined that evidence obtained from the search of a laptop and cell phone was inadmissible due to an unreasonable search and seizure. The Court of Appeal allowed the Crown’s appeal and ordered a new trial.

Read the B.C. Court of Appeal’s decision. 
Read the B.C. Supreme Court’s decision. 

Other related news articles:

Top court to rule on search, seizure of electronic devices, Advocate Daily 
Police search of Langley grow-op upheld, Langley Times 

March 27 — Quebec — Buzizi v. R.

Criminal law: Didier Buzizi was convicted of second-degree murder after stabbing a man to death in a Montreal club. He was sentenced to life in prison with no chance of parole for 12 years.

Read the Quebec Court of Appeal’s decision.

Other related news articles:

Child actor-turned-rapper Buzizi gets life sentence for murder, CTV News
Procès de l'ex-acteur Buzizi: ‘Je n'ai pas voulu le tuer,’ La Presse

March 28 — Nova Scotia — Amaratunga v. Northwest Atlantic Fisheries Organization

Public international law: Tissa Amaratunga worked for the Northwest Atlantic Fisheries Organization from 1988 until 2005 when he was dismissed. Amaratunga sued Northwest for wrongful dismissal. Northwest claimed immunity as an international organization. The Supreme Court of Nova Scotia dismissed Northwest’s motion and determined that the matter could go to trial. The Court of Appeal allowed the appeal, stating that the Supreme Court had no jurisdiction to adjudicate this matter.

Read the N.S. Court of Appeal’s decision.

Law students across the country are speaking out against Trinity Western University’s application for a law school.

Law students say the private Christian university’s admission policies are clearly discriminatory.

Students are not happy with the private Christian university’s covenant, which requires students to abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.”

“It’s very clear in this policy that LGBTQ individuals are not welcome at Trinity Western University,” says Douglas Judson, a second-year JD/MBA student and co-chairman of the Osgoode OUTlaws.

“The policy directly targets LGBTQ individuals and we think that the type of environment that creates for legal study is not necessarily suitable for inspiring young lawyers,” he tells Legal Feeds.

Student groups from various law schools — including Osgoode Hall Law School, University of Victoria, University of Saskatchewan, Dalhousie University, University of Alberta, University of British Columbia, University of Ottawa, and Université du Québec à Montréal — wrote letters to the Federation of Law Societies of Canada, asking the federation to consider their concerns when deciding TWU’s fate.

Judson says law schools should propagate the values of the Canadian Charter of Rights and Freedoms and Canadian legal values.

“There has to be an added duty on a law school to reflect the spirit of the law and give the law itself a fair hearing in the classroom. We don’t see how [TWU] could do that when their policies inherently discriminate at risk of expulsion,” he says.

“How do you have open discussions about contemporary issues? How does a student become fluent in dealing with clients from various walks of life with various personal legal problems?”

Students aren’t the only ones speaking out against TWU’s application.

The Canadian Bar Association also weighed in on the issue earlier this week in a letter to the FLSC. "In our view, the federation and the committee charged with approving new Canadian law degree programs must strike a balance between freedom of religion and equality, and give full consideration to its public interest mandate and to the values embodied in Canadian human rights laws," wrote CBA president Robert Brun.

"Based on the delegations of power from its constituent law societies, the federation has a duty to go beyond a strict determination of a proposed law school’s compliance with the national standards. It must assess whether the institution and its program complies with Canadian law, including the protections afforded by the Canadian Charter of Rights and Freedoms and the human rights legislation in B.C., and in every province and territory where a proposed law degree may be recognized by the law societies for admission to bar."

At the bi-annual meeting of the Canadian Council of Law Deans on Nov. 9, there was also quite a buzz about this very issue. The CCLD expressed its concerns in a letter to the FLSC shortly after.

“As law schools we’re committed to non-discrimination and equal treatment of our students, and we certainly would not purport to discipline students who engage in extra-marital activities or same-sex activities,” Bill Flanagan, Queen’s University law dean and CCLD president, told 4Students.

In response, the FLSC wrote: “The national requirement, approved by law societies, does not contemplate or authorize an inquiry into the admission philosophy of a law school program, either existing or new, or an investigation into whether the admission policies of an educational institution are consistent with federal or provincial law.”

Trinity Western was previously challenged on this issue when it tried to establish its teachers’ college. The British Columbia College of Teachers refused to accredit the program because the school’s standards “embodied discrimination against homosexuals.” That dispute went all the way to the Supreme Court of Canada, which ruled the BCCT was required to approve the program.

The Supreme Court of Canada will hear five appeals this week.

March 18 — British Columbia — Nagle v. R.

(Photo: Heather Gardiner)

Charter of Rights and Freedoms: Jennifer Nicole Nagle was randomly chosen for questioning before boarding an international flight in Vancouver. The Canadian Border Services Agency officer suspected her of exporting drugs so she was detained. A search of her luggage revealed a large amount of methamphetamine and other evidence that could potentially link to her an individual known to be involved with criminal gangs. Nagle was arrested for attempted smuggling and informed again of her right to counsel. She claims her Charter rights were violated.

Read the B.C. Court of Appeal’s decision.
Read the B.C. Provincial Court’s decision.

Other related news articles:

Canada’s top court will hear oral arguments in Vancouver drugs case, The Province
New trial ordered in airport-search case, The Province

March 19 — Federal Court — Envision Credit Union v. R.

Tax law: Two B.C. credit unions amalgamated on Jan. 1, 2001, becoming Envision Credit Union. In its tax returns from 2001 to 2004, Envision claimed a capital cost allowance on the depreciable assets it owned by virtue of the amalgamation based on a starting undepreciated capital cost of the capital cost of the depreciable assets when the predecessors acquired them. In its reassessment, the minister reduced the capital cost allowance to reflect a starting undepreciated capital cost of the amount of the predecessors’ undepreciated capital cost balances right before the merger. Envision appealed the reassessments to the Tax Court of Canada. The appeal was allowed for 2001 but dismissed for 2002, 2003, and 2004. The Federal Court of Appeal rejected Envision’s appeal.

Read the Federal Court of Appeal’s decision.
Read the Tax Court of Canada’s rulings: first and second.  

March 19 — Quebec — Mailhot v. R.

Criminal law: Jean-Philippe Mailhot admitted to stabbing his wife 33 times before she died. Only one stab wound was potentially fatal and was inflicted after a first potentially fatal stab wound had been inflicted either by the wife herself, who had allegedly wanted to commit suicide, or by Mailhot. A jury convicted him of second-degree murder. The Court of Appeal dismissed the appeal.

Read the Quebec Court of Appeal’s decision.
Read the Quebec Superior Court’s decision.

Other related news articles:

Un homme condamné pour meurtre sera entendu par la Cour suprême, La Presse
Wife’s slaying left more than one victim, The Gazette

March 20 — Quebec — The Sovereign General Insurance Co. v. Autorité des marchés financiers

Insurance law: In order to act as an insurance company in Quebec, registration with the Autorité des marchés financiers is required. Sovereign General Insurance Co. was authorized to offer insurance in Quebec but instead issued policies through brokers in Winnipeg and Toronto. One of the broker’s rivals filed complaints against the brokers, alleging that one of them was acting as an insurance broker in Quebec without a licence. The Autorité des marchés financiers conducted an inquiry and issued 56 statements of offence against Sovereign for consenting to or authorizing the issue of an insurance policy by a broker not registered in Quebec.

Read the Quebec Court of Appeal’s decision.
Read the Quebec Superior Court’s decision.

Other related news articles:

What to expect when you’re expecting… An answer from a regulator: SCC to discuss the reasonable diligence defense in cases or strict liability offenses, Canadian Appeals Monitor

March 21 — British Columbia — McLean v. Executive Director of the British Columbia Securities Commission

Legislation: In 2008, Patricia McLean entered into a settlement agreement with the Ontario Securities Commission regarding allegations of acts contrary to the public interest between 2000 and 2011. In 2010, the executive director of the B.C. Securities Commission gave McLean notice of an application for an order in the public interest. Section 159 of the Securities Act states that an action can’t begin more than six years after the date of events, so McLean challenged the application. The B.C. Securities Commission issued a public interest order placing restrictions on McLean.

Read the B.C. Court of Appeal’s decision.
Read the British Columbia Securities Commission’s order and decision.

Other related news articles:

Securities Commissions and the “Public Interest” at the SCC: Court to Rule on Inter-Provincial Reciprocal Orders and Limitation Periods, Canadian Appeals Monitor
The Extra-Territorial Effect of Orders in the Public Interest, Litigator

The Supreme Court of Canada has granted a convicted drug dealer a reduction in his sentence so that can appeal his deportation from Canada.

The Supreme Court of Canada has granted a convicted drug dealer a reduction in his sentence so he can appeal his deportation order. (Photo: Heather Gardiner)

In his first written decision since joining the top court’s bench in October, Justice Richard Wagner ruled a court may change a sentence if the sentencing judge was not made aware of the accused’s immigration consequences.

“An appellate court has the authority to intervene if the sentencing judge was not aware of the collateral immigration consequences of the sentence for the offender, or if counsel had failed to advise the judge on this issue. In such circumstances, the court’s intervention is justified because the sentencing judge decided on the fitness of the sentence without considering a relevant factor,” Wagner wrote in Pham v. R.

In Pham, non-Canadian citizen Hoang Anh Pham was convicted of of producing marijuana and possessing it for the purpose of trafficking and sentenced to two years in prison. Under the Immigration and Refugee Protection Act, a non-citizen loses the right to appeal a deportation order if he or she receives a sentence of at least two years. The Vietnamese man wanted his sentence reduced by a day.

Janet Dench, executive director of the Canadian Council for Refugees, says this is going to become increasingly difficult with the looming bill C-43, which will amend the Immigration and Refugee Act.

“The situation is going to become much, much worse for people being convicted of a crime because bill C-43, which is before the Senate, would reduce the maximum sentence that allows you to get access to the appeal to six months,” she says. “So it’s going to be a much larger group of people who are denied access to the appeal.”

As the sentencing judge was not made aware of Pham’s immigration situation, the SCC ruled it was appropriate to reduce the sentence, but cases must be considered on an individual basis. Wagner noted proportionality, parity, and individualization are fundamental principles of sentencing.

“[A] sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender,” he wrote.

“Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation. However, the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence.”

Dench says it’s important for everyone involved in the case — including the sentencing judge, but also the lawyers representing the accused — to be made aware of the consequences of the accused’s immigration status.

“We often hear of people who are not citizens who are represented by a criminal lawyer who may know their field very well but they are not aware of the immigration consequences. And so, they don’t pay attention to that and sometimes they will advise their client to accept or negotiate a deal that actually has devastating consequences in terms of their immigration status,” Dench tells Legal Feeds.

“So hopefully this will also serve as a reminder to criminal lawyers to make sure that they are looking into those consequences for any of their clients that are not citizens,” she says.

Pro Bono Students Canada hosted a luncheon with former Supreme Court of Canada judge Claire L’Heureux-Dubé at McCarthy Tétrault LLP in Toronto on March 8. L’Heureux-Dubé spoke about her experience on the bench and how the profession can improve access to justice.

Photos: Heather Gardiner

The Supreme Court of Canada has agreed to hear the appeal in an age discrimination case involving B.C. lawyer John Michael (Mitch) McCormick.

In McCormick v. Fasken Martineau Dumoulin LLP, former Fasken’s equity partner McCormick was asked to retire from the firm when he turned 65 in 2010, and to begin the transition to retirement when he turned 62. Like many large law firms in Canada, Fasken’s requires partners to retire at 65 as stated in their equity partnership agreement.

However, British Columbia no longer enforces mandatory retirement and since McCormick wasn’t ready to retire, he took the firm to the B.C. Human Rights Tribunal alleging age discrimination.

The tribunal accepted McCormick’s argument that being an employee extended beyond the common law definition.

“The present state of the law is that if a firm organizes itself as a Canadian partnership, it need not concern itself about the human rights of its partners,” says McCormick’s counsel Murray Tevlin.

“We argued that this relationship [between McCormick and Fasken] looks and sounds just like employment and should be treated as employment just for the purposes of human rights,” he tells Legal Feeds.

When Fasken appealed the tribunal’s decision to the B.C. Supreme Court, Justice Catherine Bruce stated that an equity partner in a law firm can be considered an employee and therefore McCormick was justified to bring the case before the tribunal for alleged human rights violations.

When the case went to the B.C. Court of Appeal, however, the court sided with the law firm by stating that equity partners are not considered employees and therefore McCormick could not be protected by human rights legislation from age discrimination.

“[A] partner cannot be an employee of the partnership of which he or she is a member, because he or she cannot employ him or herself. . . .” wrote Justice Risa Levine in the appeal court ruling.

Tevlin says this case has implications for all Canadian employees, not just lawyers, calling it an issue of “national importance.”

“You see an aging workforce deciding that it has to work longer than maybe it had once planned,” he says.

The University of Toronto Faculty of Law has launched a new think tank to address ethical issues faced by Bay Street lawyers.

The program will look at ethical legal issues that arise in the capital markets, says professor Anita Anand.

The program on ethics in law and business will be run by the law school’s Centre for the Legal Profession, which works to advance professionalism, ethics, and public service in the legal community.

“Falling from the global financial crisis and the fall of Enron at the turn of the century, the number of issues that affect lawyers are innumerable. And so, the types of issues that we’ll be looking at really stem from issues that arise in the capital markets,” says Anita Anand, U of T law professor and academic director of the Centre for the Legal Profession.

Anand says the need for this kind of initiative has existed for some time.

“As markets unfold, it’s always the case that there are issues affecting lawyers and the communities they serve. What we want to do is begin a public discussion of these issues so that there’s heightened public awareness and awareness in the legal community of what these issues are and how to think about them,” she says.

According to Anand, those issues include ethical obligations lawyers and business people face in corporate transactions; issues relating to market stability and systemic risk; international issues including foreign corrupt practices and legislation; the efficacy of regulatory models; and the barriers and drivers of change.

The program’s advisory board will consist of legal leaders in the field of ethics, and is chaired by former Supreme Court of Canada justice Frank Iacobucci, who is now senior counsel at Torys LLP.

“We really want to make sure that we have all of our stakeholders around the table when we’re thinking about not just the Rules of Professional Conduct, but also what lawyers’ responsibilities are in any one circumstance,” says Anand.

The law faculty hosted a panel discussion on March 5 with Ontario Superior Court Justice Michael Code; Lawrence Ritchie, executive vice president and senior policy adviser at the Canadian Securities Transition Office; Torys LLP counsel Julia Holland; Osler Hoskin & Harcourt LLP partner Jeremy Fraiberg; and Alexander Dyck, a professor at the Rotman School of Management.

Canada

Euthanasia case back in B.C. court, CBC News

Luka Magnotta's lawyer wants public barred from preliminary hearing, Calgary Herald

Man accused of stabbing passenger on Toronto subway returns to court, CBC News

United States

N.J. to appeal sports betting ban, Reuters

Federal courts prepare for sequestration cuts, Reuters

International

EU to create unified patent court system, Reuters

Bahrain rights activist jailed for 3 months, Reuters