The Supreme Court of Canada will hear six appeals this week, four of which relate to an intellectual property dispute involving a Quebec artist who is suing several broadcasting companies for alleged copyright infringement.

Feb. 12 — Quebec — R. v. Bélanger

Criminal law: Frédérick Bélanger decided to pass a pickup truck along a highway despite a solid double line and he collided with an oncoming vehicle, killing the driver instantly. The Court of Quebec convicted Bélanger of two counts of dangerous driving causing bodily harm and death. The Quebec Court of Appeal acquitted him, claiming the trial judge erred in law by applying the modified objective test for the mens rea of dangerous driving.

Feb. 13 — Quebec — Cinar Corp. v. Robinson; Weinberg v. Robinson; Izard v. Robinson; Robinson v. France Animation S.A.

Intellectual property: In a slew of cases, Quebec artist Claude Robinson is suing several broadcasting companies for copyright infringement for allegedly copying his character sketches.

Feb. 15 — British Columbia — R. v. Blacklaws

Criminal law: Fredrick Owen Blacklaws was convicted of charges related to unlawful confinement and sexual assault following two separate incidents with different complainants. Blacklaws filed an appeal on the grounds that the trial judge erred in law by refusing to sever the charges of each incident. The Court of Appeal granted his appeal. There is a publication ban in the case.

The wheels are in motion for Canada’s newest law school, set to open in Thunder Bay, Ont., in September. The Lakehead University Faculty of Law Three has announced it first faculty members.

Karen Drake

“One thing is clear: Lakehead University’s ability to attract such quality people bodes well for the future of this law school,” said founding law dean Lee Stuesser in announcing the new hires earlier this week. “I’m very excited how our law school’s inaugural year is taking shape.”

He tells Legal Feeds: “The hires come with the right mix of academic and practical experience, and this will serve us well as we integrate the practice of law into the theory of law.”

Karen Drake, who joins the school as an assistant professor, is a lawyer at Erickson & Partners in Thunder Bay where she practises civil litigation, specializing in aboriginal law, labour and employment law, and human rights law. She is currently completing her LLM at the University of Toronto Faculty of Law, focusing on aboriginal legal issues.

Drake’s interest in aboriginal law is fitting for the new law school since the curriculum will feature a concentration in aboriginal law, natural resources law, and issues related to practising in a small firm or as a sole practitioner.

“Aboriginal law right now in rural Canada — northern Ontario and in the West — is absolutely critical, so our students need to understand that,” Stuesser told 4Students recently.

Mariette Brennan has also joined the faculty as an assistant professor. She is a fellow colleague of Stuesser’s at Bond University in Australia, where they both taught for the past four years. Brennan teaches Canadian constitutional law.

Rob Hudson, who is also a lawyer, has joined the faculty as head law librarian. He is the founding law librarian at Qatar University College of Law and also teaches legal research. Hudson is experienced in establishing law libraries.

Hiring top-quality faculty is important, but attracting the right students is also a priority, says Stuesser.

“We want students whose heart is in rural Canada,” he says. “We are committed to what I call Main Street practice. So we are looking at students who are prepared to work in small-town Canada.”

Steusser says the law school will be hiring more faculty with announcements to follow soon.

In its first year, Lakehead’s JD program is expected to enrol 55 students. Lakehead’s law school is the first one in Ontario in 44 years, and will be housed in the historic Port Arthur Collegiate Institute building.

In other Lakehead news, Derek Burney, senior strategic adviser at Norton Rose Canada LLP in Ottawa, has been named the eighth chancellor of the northern Ontario university. He starts his new role in June.

A study by Fasken Martineau DuMoulin LLP found that the number of proxy contests has increased drastically in recent years.

Proxy contests have gone up by 84 per cent in the past five years, and during that time there has also been a 98-per-cent increase in the number of contests that focused solely on changing the board. 

These are some of the findings of Fasken Martineau DuMoulin LLP’s “Canadian Proxy Contest Study” released today.

Proxy contests have come into the spotlight in recent years, especially with last year’s high-profile Canadian Pacific Railway dispute. Telus Inc., Agrium Inc., and Rona Inc. were also involved in proxy fights in 2012.

Aaron Atkinson, a partner at Faskens and one of the authors of the study, says it was conducted to gather empirical data on proxy contests — something you don’t see very often in Canada.

“There has been a lot written about proxy contests in recent years . . . and so I think there was a lot of speculation about how shareholders were doing in the fights and so forth, but from what we could tell there was limited actual empirical data on what were the actual outcomes, what were the tactics people were employing, and what kind of success might they be having in employing those tactics,” Atkinson tells Legal Feeds.

The study lists five main findings:

1. It’s true: proxy contests are on the rise.
A total of 101 contests were completed during the 2008-12 study period, representing an 84-per-cent increase over the preceding five-year period. The last five years also witnessed a 98-per-cent increase in the number of contests focused on change in the boardroom.

2. Dissidents achieved success well over half of the time.
In 54 per cent of all board-related contests, dissidents were successful in their public campaign for board change.

3. No one is immune.
Issuers of all sizes and in all industries were the targets of board-related contests. Indeed, the composition of companies targeted in board-related contests almost mirrored the composition of Canadian-listed issuers by size and industry sector.

4. Dissidents often benefit from a high-stakes game.
A high-stakes approach appeared to benefit the dissident in board-related contests. Higher success rates were associated with:
• having more "skin in the game" with a significant equity stake; 
• employing "winner takes all" tactics, including by seeking a clean sweep of the boardroom; 
• waging a lengthier public campaign despite the added costs.

5. True settlement is elusive. 
Once a board-related contest was publicly initiated, it almost always went the distance. Fewer than one in five board-related contests during the study period ended with an announced settlement. Moreover, a quarter of these settlements may have been less motivated by compromise than by a desire to ensure an orderly outcome to a foregone conclusion.

The fact that shareholders seeking change were successful more than half the time, “you wonder whether there’s in part a snowball effect because obviously if there’s some success in the market you might have others thinking this is a useful tool,” says Atkinson. 

The big question is whether proxy contests are going to be a permanent trend in the Canadian economy, he says.

“If you look at the market returns in the preceding year, a higher number of proxy contests tend to happen in years following poor market returns. So you’ve got disgruntled shareholders who are looking for change because the stock price is falling,” says Atkinson. 

“So the question is if the economy does improve — as people seem to be hinting at — and therefore stock market returns improve, do shareholders maybe have a less compelling case for change because happy shareholders are less likely to vote out the board? So if the markets turn around maybe you’ll see fewer [proxy contests], but at the same time, if in fact proxy contests are more motivated by this larger shareholder democracy trend then maybe they will be here to stay.”

In a long-simmering court battle over a racial reference in a blog post, the Ontario Superior Court of Justice has ruled against a law graduate who sought to intervene in the case, ordering her to pay costs.

University of Ottawa law professor Joanne St. Lewis sued former Ottawa physics professor Denis Rancourt for $1 million for libel after he called her a “house negro” on his U of O Watch blog.

Their dispute dates back to November 2008 when the Student Appeal Centre of the Student Federation of the University of Ottawa released a report entitled, “Mistreatment of Students, Unfair Practices and Systemic Racism at the University of Ottawa.”

The report found unfair practices and systemic racism at the university in relation to its procedures for plagiarism and academic fraud. It was written by Mireille Gervais, who has now graduated from the law school. University of Ottawa president Allan Rock asked St. Lewis to evaluate the report. She found there was no systemic racism with the university’s procedures for academic fraud and concluded that Gervais’ findings were not factual.

Rancourt was critical of St. Lewis’ report in a 2011 blog post, calling her a “house negro.”

During the court proceedings, Gervais was called as a witness for Rancourt but refused to answer some of the questions asked by St. Lewis’ lawyer. St. Lewis wanted to cross-examine Gervais to test her credibility and claims Gervais is a partisan supporter of Rancourt. Rancourt argues the questions Gervais refused to answer were irrelevant. St. Lewis then brought a motion to compel Gervais to answer the questions, which Justice Robert Smith accepted.

As a result, Gervais hired lawyer Yavar Hameed to seek intervener status. Hameed requested a copy of St. Lewis’ motion materials, but was told to obtain a copy from the court because Gervais was not an interested party.

But Hameed argues that Gervais was an interested party. “One of the fundamental issues was whether [Gervais] should have gotten notice as an interested party,” he tells Legal Feeds.

In a motion for refusals, where you’re compelling a witness to give evidence and answer questions, the witness will have no choice, he says. “So in that sense . . . [Gervais’] rights are engaged. There’s no question that her s. 7 [Charter] rights are engaged because she will be an interested and affected party,” he says.

In his ruling, Smith described Gervais’ situation as unusual.

“Gervais filed a brief factum in support of her position. The issue of when a witness, who voluntarily files an affidavit in a legal proceeding, may intervene and be represented by separate legal counsel during her questioning is somewhat unusual,” he wrote.

“The difficulty in the judge’s reasoning is that he does not address the issue of her being an interested party,” says Hameed. “Well, actually everything turns on that because the other party never served her with their materials. That — in the lead-up to all of this — could’ve changed the whole progression of how the parties interacted with each other.”

St. Lewis claims Gervais wasted the court’s time by seeking intervener status, so sought costs of $12,768. Gervais claims the costs sought are excessive, but Smith ruled Gervais should have reasonably expected to pay $6,000 in costs if her motion was unsuccessful. So in the end, he ordered her to pay $5,000 plus HST and disbursements of $300 inclusive of HST.

“I find that Gervais’ motion did not raise a point of unsettled law because Gervais failed to identify how her Charter right to free speech would be affected if she was required to answer relevant questions related to her affidavit in a legal proceeding,” wrote Smith.

“If every witness in any legal proceedings was entitled to have separate counsel intervene on their behalf without identifying how a Charter right was being affected, then the whole legal system would grind to a halt.

“I find that Gervais’ rights were not affected by being cross-examined on her affidavit that she voluntarily filed in the legal proceeding because statements made by a witness in a legal proceeding are privileged and a witness cannot be sued for statements made as a witness. Gervais was a voluntary witness in the proceeding and as a result was required to answer relevant questions related to her affidavit.”

At this point, Hameed says he’s unsure if he’s going to appeal the costs award because it will entail more costs.

For more on this story, read the Law Times article “U of O law prof suing colleague over ‘house negro’ remark.”

The Supreme Court of Canada will hear five appeals this week, including the highly anticipated conflict of interest case Canadian National Railway v. McKercher LLP on Thursday.

Jan. 21 — Newfoundland and Labrador — R. v. W.H.

Criminal law: W.H. was convicted of sexually assaulting a child. On appeal, the Court of Appeal found there were unexplained inconsistencies and improbabilities in the child’s testimony and acquitted W.H.

Jan. 22 — Nova Scotia — Chehil v. R.

Charter of Rights and Freedoms: Mandeep Singh Chehil was arrested after a police sniffer dog found a large quantity of cocaine in his suitcase at the Halifax airport. At trial, the drugs were excluded as evidence and Chehil was acquitted after the judge held that the search violated his Charter rights.

Jan. 22 — Saskatchewan — MacKenzie v. R.

Charter of Rights and Freedoms: After stopping him for speeding, police officers became suspicious that Benjamin Cain MacKenzie possessed a controlled substance. They had their sniffer dog conduct a search of his vehicle and found a large quantity of marijuana. The judge held the search was unreasonable and excluded the evidence. The Court of Appeal overturned the decision and remitted the case to the Court of Queen’s bench for a trial on evidence.

Jan. 23 — Quebec — Payette v. Guay Inc.

Labour and employment: Guay Inc. bought the assets of Yannick Payette’s companies. The contract of sale stated that Payette would still be employed by Guay and be bound by a non-competition clause and companion non-solicitation clause for five years after the end of his employment. Payette was dismissed in 2009 and in 2010 he started working for competitor Mammoet. Guay applied for an injunction. The Superior Court found that the dismissal was wrongful and wouldn’t apply the non-competition clause. The Court of Appeal reversed that decision.

Jan. 24 — Saskatchewan — Canadian National Railway v. McKercher LLP

This highly anticipated appeal involves Saskatchewan law firm McKercher LLP. In 2008, Gordon Wallace retained McKercher to represent him as the leading plaintiff in a class action lawsuit on behalf of Prairie farmers against Canadian National Railway, Canadian Pacific Railway, and others for allegedly overcharging them for grain transportation over 25 years. When the class action was launched, McKercher was also acting for CN Rail in a number of other unrelated matters. As a result, CN Rail sought to have McKercher removed from the class action. The central issue is whether it’s a conflict of interest for a law firm to accept a retainer to sue a current client on an unrelated matter without first obtaining their consent.

A new report from the Office of the Fairness Commissioner says Ontario’s regulated professions have made some great improvements over the past five years, but there’s still more work to be done.

“There are lots of people who join us in this province and they are qualified, but the difficulties are in getting the credentials assessed and then getting themselves back into their profession,” says Ontario Fairness Commissioner Jean Augustine.

“In general, we want the conversation to move beyond just this is what each [profession] is doing and this is how long it’s taking them to do this,” she tells Legal Feeds. “We want everyone who is internationally educated to be able to practise their profession.”

In regards to the legal profession, Augustine says she was pleased to see the changes made by the National Committee on Accreditation, which have increased the number of internationally trained lawyers seeking to practise in Ontario. Specifically, the NCA now requires fewer compulsory courses for international applicants, some applicants are being exempted from the articling requirement, and the University of Toronto Faculty of Law now offers a bridging program for lawyers trained abroad.

Augustine also says she is pleased to see the Law Society of Upper Canada’s creation of a pilot project for a Law Practice Program as an alternative path to licensing, especially since it has become increasingly difficult for internationally trained lawyers to find articling positions in Ontario.

With the Federation of Law Societies of Canada’s ongoing initiative on the establishment of national admission standards, Augustine says this is a good move as her office has been asking regulatory bodies to look at things like applicants’ scope of practice and competencies rather than just education, paper documentation, country of origin, etc.

She also says we need to keep in mind that the world is becoming a smaller place.

“There are indicators that a number of the regulators have to look at their practices to ensure not only their membership, but also to ensure that new people are bringing new ideas. We are now in a very global, competitive world and it’s important for us to recognize that,” she says.

The report, “A Fair Way to Go: Access to Ontario’s Regulated Professions and the Need to Embrace Newcomers in the Global Economy,” sets out the following key areas that still need improvement from all regulatory bodies and government:

•    Provide clear rationales for requirements.
•    Recognize acceptable alternatives for meeting registration requirements.
•    Identify exemptible requirements.
•    Strengthen assessment criteria and methods.
•    Improve information for applicants.
•    Address the burden of fees.
•    Ensure reasonable and transparent timelines.
•    Facilitate opportunities to start the registration process outside Canada.
•    Increase focus and rigour of training for decision-makers.
•    Provide anti-discrimination training.
•    Offer better information about reviews and appeals.
•    Enhance access to records.

The Supreme Court of Canada starts its winter session today. Here are the scheduled appeals for this week, including the refugee appeal of alleged war criminal Rachidi Ekanza Ezokola from the Democratic Republic of Congo:

Jan. 15 — Newfoundland and Labrador — Marine Services International Ltd. v. Estate of Joseph Ryan

Constitutional law: Joseph and David Ryan drowned after their fishing boat capsized. Their estates and families sued a number of defendants for negligence in the design, construction, and inspection of the boat. The defendants applied to the Workplace Health Safety and Compensation Commission, which determined the action was statute-barred. Upon judicial review, that decision was set aside and the majority of the Court of Appeal upheld the reviewing judge’s decision. There are several constitutional issues raised in this case.

Jan. 16 — British Columbia — Nishi v. Rascal Trucking Ltd.

Property law: Hans Heringa owned Rascal Trucking Ltd. and developed property with Cidalia Plavetic, who was a realtor and principal of Kismet Enterprises Ltd. In 1996, Rascal Trucking signed a five-year lease to use part of the property for a topsoil processing plant. After some complaints, the City of Nanaimo ordered the topsoil be removed. The order was not complied with so the city removed the topsoil at a cost of $110,679, which was lodged against the property as tax arrears. Plavetic stopped making mortgage payments. The CIBC foreclosed on the property in 1997 and paid the money to redeem the property from a tax sale. In 2001, a vesting order was granted with title being transferred to Edward Nishi for $237,500. Heringa helped him with the financing by advancing $110,679 and signing as covenantor. Nishi refused Heringa’s request for an ownership interest in the property. Nishi and Plavetic have lived on the property as a common law couple since 1997. Years later, Rascal Trucking sued Nishi to acquire a 50-per-cent interest in the property and a caveat was filed against the property.

Jan. 17 — Federal Court — Ezokola v. Minister of Citizenship and Immigration

Immigration law: Rachidi Ekanza Ezokola was the economic adviser and second counsellor of embassy to the Permanent Mission of the Democratic Republic of Congo to the United Nations before seeking refugee protection in Canada for him, his wife, and their eight children. The Refugee Protection Division of the Immigration and Refugee Board denied his application for refugee protection on the basis of complicity by association in war crimes and crimes against humanity that were committed by the DRC. The Federal Court allowed Ezokola’s application for judicial review and the Federal Court of Appeal allowed the appeal. The main question in this case is what is the correct legal standard for culpable complicity in international crimes?

Jan. 18 — Alberta — Pham v. R.

Criminal law: Hoang Anh Pham is a Vietnamese citizen who came to Canada under his father’s sponsorship. He was convicted of producing and possessing marijuana for the purposes of trafficking and sentenced to two years in jail. He appealed his sentence, arguing that the consequences of the sentence with respect to the Immigration and Refugee Protection Act should have resulted in a reduced sentence. The Crown consented to the reduction. The Court of Appeal dismissed the appeal. The central question in this case is how should a criminal or appellate court consider the unintended or collateral consequences of a criminal sentence, particularly consequences relating to the immigration status of an offender?

Got a legal question but not sure who to ask? If you’re a teenager in Ontario, you’re in luck because a new legal helpline will soon be available. Early next week, Teen Legal Helpline, a free, confidential service that connects teenagers to lawyers, is launching.

The Teen Legal Helpline launches in Ontario next week.

How it works is if you’ve got a question, go to Teen Legal Helpline’s web site, submit your question, and a lawyer will provide an answer. You can also ask the lawyer follow-up questions and he or she can guide you through the justice system.

The helpline’s main purpose is to assist teens who don’t know where to turn for legal help.

“Teens have legal questions that don’t always call for full representation,” says Matt Boulos, executive director and one of the founders of Teen Legal Helpline.

“Sometimes you just need an answer to your question so you can understand your problem and so that you can make the right decision. And that decision might be to get more help but at the very least if you don’t get that first answer, you’ll never know.”

At first, the helpline will be limited to questions in the areas of criminal, family, and immigration law, with labour and employment and housing law to be added at a later date.

Boulos says they decided to focus on those areas of law based on research they conducted with teens in Ontario, specifically in Toronto’s St. James Town and Regent Park neighbourhoods.

Boulos created the helpline after being involved in a legal situation with a teen in his youth group.

“I grew up in Scarborough, [Ont.,] I mentored kids in the same youth group that I grew up in. One of my boys had been accused of a sexual assault and he had come up to me asking me for my advice. I knew a criminal lawyer, and had the two chat. What struck me was it was an incredibly brief conversation but then [the boy] knew what he needed to do in terms of how to carry himself and understanding the process with the police and the investigation,” Boulos tells Legal Feeds.

“I just couldn’t really abide by the idea that there were going to be teens out there who were going to be in a similar position but not have the good fortune to show up at a youth group that just happened to have lawyers and people connected to the law hanging around,” he adds.

The lawyers who have signed up to volunteer for the helpline are mainly solo practitioners and lawyers from small firms, says Boulos. However, bigger law firms, including Torys LLP and Blake Cassels & Graydon LLP, have provided other legal services pro bono to help Teen Legal Helpline get started.

The helpline has also been funded through a grant from the Law Foundation of Ontario and private donations, and they are in the midst of a major fundraising drive.

Boulos hopes to get the word out to teens through their relationships with community organizations and social workers. They also have youth ambassadors — teens who have started a social media campaign to spread the word to other teens.

Canada

Case of Que. mother accused of killing children returns to court, CBC News

Windsor dodges $20M liability after SCC refuses to hear case, The Windsor Star

Fines for garbage pickup delays should be disclosed: privacy lawyer, Winnipeg Free Press

United States

U.S. regulators end Google investigation, Reuters

Pa. antitrust lawsuit against NCAA a long shot: experts, Reuters

International

Ex-Haiti president's court hearing delayed, Reuters

Voter registration reforms unconstitutional: Hungary court, Reuters

Atlantic regional firm Cox & Palmer has grown by 14 new lawyers in the wake of the dissolution of New Brunswick’s Barry Spalding firm on Dec. 31, 2012.

The majority of former Barry Spalding’s lawyers — partners John P. Barry, Hélène L. Beaulieu, Bruce M. Logan, Duane M. McAfee, Brenda G. Noble, David G. O’Brien, Howard A. Spalding, Deirdre L. Wade, and Peter T. Zed; associates Jack M. Blackier, Talia C. Profit, Colin A. Fraser, and Patrick Dunn; and counsel Richard E. DeBow — moved over to Cox & Palmer’s Moncton, N.B., and Saint John, N.B., offices.

Most are commercial and insurance litigators while others joined the firm’s corporate transaction group. These new additions bring Cox & Palmer’s total number of lawyers to just under 200.

However, not everyone made the move to Cox & Palmer. Former Barry Spalding partners Michael D. Brenton, William C. Kean, Maria G. Henheffer, and Donald V. Keenan, along with three associates, launched a new law firm called BrentonKean.

Brenton says it was early last year that several partners at Barry Spalding expressed an interest in moving to a regional firm and Cox & Palmer was a good fit. Although the offer to join the firm was extended to everyone, Brenton says some lawyers were concerned about conflicts issues.

“In this small province, as you can imagine there are only a limited number of larger firms and if everybody gets together then we have real conflict problems,” says Brenton. “So we thanked [Cox & Palmer] . . . declined their offer, and went our own way, primarily to serve our long-standing clients who would’ve been conflicted in a significant way had we joined Cox & Palmer.”

Brenton adds that the firm did not break up over money.

“We were a thriving firm, a very successful firm, and that continued right up until it was dissolved,” he tells Legal Feeds.

George Cooper, Cox & Palmer’s New Brunswick managing partner, says the move adds strength, depth, and expertise to the firm.

“[A]s the consolidation in the legal market in Canada and Atlantic Canada has continued, this is a really good fit for both the lawyers joining and for Cox & Palmer,” he tells Legal Feeds.

Cooper says this change wasn’t a result of the economic climate.

“We’re both financially very strong organizations and we were pleased to marry strength to strength,” he says.

Cooper argues that there have been waves of consolidation. “This is part of a trend that I think is driven by client needs for greater specialization and enhanced levels of service, which larger platforms are generally able to provide,” he says.

John Ohnjec, division director at Robert Half Legal, told Law Times last month that firms have been re-evaluating since the economic downturn to see which practice areas are in demand and then try to reshape their businesses accordingly.

“While I don’t think that necessarily downsizing is the trend, I think the definite trend is to look inward as to what their model is and what’s working and what isn’t working and in some cases that will entail the need to downsize, to become leaner while still being able to service their clients,” he said.