In keeping with the ongoing reform to British Columbia’s justice system, the provincial government recently announced a $1.5-million plan to create a Justice Access Centre in Victoria next fall.

The new Justice Access Centre in Victoria will be in the same building as UVic’s Law Centre. (Photo: Heather Gardiner)

There are currently two other Justice Access Centres in the province; one in Vancouver and one in Nanaimo, B.C. But with this new centre, law students may be able to play a role.

The new centre will be co-located in the same building as the University of Victoria Faculty of Law’s Law Centre in downtown Victoria. The Law Centre houses the law school’s legal clinic, which provides legal assistance to individuals who can’t afford a lawyer.

“Our law students will benefit from collaboration with other legal professionals and close proximity to the courthouse. The co-location will enhance their legal education and the services they offer to the public,” said UVic law dean Donna Greschner.

Justice Access Centres help those with family or civil law matters navigate the justice system. One of its goals is to find alternative dispute resolutions for clients and reduce the number of cases that go to court.

“Justice Access Centres are part of our government’s strategy to divert disputes out of courtrooms. Our experiences with the centres in Nanaimo and Vancouver have shown us that giving families quicker, affordable legal solutions can significantly reduce the need to go to court,” said B.C. Attorney General Shirley Bond in announcing the plan.

“We know stable, safe communities rely upon strong families as their foundation. We want south Island families to know help is available if they have legal or related issues that they need to discuss with a lawyer or family justice counsellor,” she said.

Lawyers in British Columbia are taking their services to the streets.

Starting on Friday, more than 90 volunteer lawyers will be out in several B.C. communities as part of a free legal advice-a-thon, where they will provide legal advice in one-hour shifts to those who can’t afford legal services, including the homeless.

Lawyers will be stationed in Victory Park Square in Vancouver on Sept. 7 from

Last year's event in Vancouver.

10 a.m. to 5 p.m.; Hyack Square in New Westminster on Sept. 11 from 10 a.m. to 2 p.m.; Rose Garden, City Park in Kelowna on Sept. 14 from 10 a.m. to 2 p.m.; and Centennial Square in Victoria on Sept. 18 from 10 a.m. to 2 p.m.

The event — Pro Bono Going Public — was organized by the Access Pro Bono Society of B.C. So far the organization has raised almost $50,000 towards its goal of $60,000. The money raised will help fund its roster programs and legal aid clinics.

Claire Hunter, an associate at Hunter Litigation Chambers in Vancouver, has represented numerous clients through Access Pro Bono in the B.C. Supreme Court and B.C. Court of Appeal. She is one of many lawyers and law firms offering their services at no charge in Vancouver on Friday.

“I’ve been involved with other programs through Access Pro Bono for a couple of years, and I believe the organization is doing important work,” she says.

“My sense is that they have a fairly limited budget and that they could make good use of additional funds. The advice-a-thon is a good opportunity for fundraising but it’s also profile-raising for the organization.”

Hunter is seeking donations through her personal fundraising page. So far she has raised $1,700 of her goal of $2,000.

Not only does pro bono work benefit litigants who can’t afford legal services, it’s also a chance for young lawyers to get some experience, says Hunter.

“It’s a great opportunity for young lawyers to get into court on matters that they might not normally be lead counsel on,” she says.

Pro bono work is needed now more than ever in B.C. as fewer lawyers are taking on legal aid cases. Legal aid is one component of the province’s justice system that’s under scrutiny following the release of three reports last week with suggestions for reform to B.C.’s criminal justice system.

Jamie Maclaren, executive director of Access Pro Bono, tells Legal Feeds that the government needs to increase the incentive for private lawyers to take on legal aid cases.

“No matter how much we reform our family law and criminal justice systems — and heaven knows they need substantial reform — the government can’t expect [the Legal Services Society] to switch from a staff lawyer service model to a private lawyer service model without substantially incentivizing the private bar to take on legal aid files,” he said.

In addition to this problem, there are many legal issues that do not fall under legal aid and if lawyers aren’t willing to take on cases pro bono, even more litigants will go unrepresented, says Hunter.

“There are many matters in British Columbia that are not covered by legal aid, in particular virtually all civil litigation,” she says.

University of Windsor law professor Emily Carasco, who accused the law school of gender and racial discrimination, suddenly withdrew her application to the Human Rights Tribunal of Ontario on Aug. 29 after reaching a settlement with the university.

Carasco launched a human rights complaint in 2010 after she lost the candidacy for the law school’s new dean to Camille Cameron, who joined the faculty in January. Carasco claimed she wasn’t handed the position because the search committee didn’t want to hire a racial minority. As a result, she asked the tribunal to order the university to fire Cameron and appoint her instead. She also sought $60,000 in compensation.

In her complaint, Carasco accused fellow law professor Richard Moon of discriminating against her when he told the dean search committee that she had plagiarized parts of an immigration and refugee law casebook that she co-authored. Carasco wanted Moon to publicly retract his allegations and sought $15,000 in damages.

Then earlier this week, after five days of hearings, the parties came to an agreement. The details of the settlement have not been released and Carasco declined to comment when reached by Legal Feeds.

In a statement, Holly Ward, spokeswoman for the University of Windsor, said: “The university has and will continue to strive for the highest standards of human rights and equity. With respect to the specific application that was before HRTO, we will be making no further statements.”

Prior to the settlement, Carasco faced two days of cross-examination where Raj Anand, counsel for the University of Windsor, and Freya Kristjanson, Moon’s lawyer, presented multiple examples of unattributed passages in her work.

Carasco maintained that it shouldn’t be considered plagiarism because she didn’t intentionally try to pass off another author’s ideas as her own.

According to The Windsor Star, Carasco told the tribunal: “Carelessness I would plead guilty to. An attempt to deceive or appropriate . . . no.”

The Star reported that Mary Eberts, Carasco’s lawyer, argued that Carasco would have been hired if she hadn’t been accused of plagiarizing.

“The plagiarism allegations unsettled or dispersed some of the support she would have had despite her minority status. The people who were against her candidacy — because they did not want her signature and methodology in the law faculty — were able to dominate the process.”

Anand defended the faculty of any wrongdoing, according to the Windsor newspaper.

“You have far-fetched allegations and no facts from which to infer discriminatory factors were at play. Nowhere in any of the massive filings will you find any evidence of any action from any of the committee members that suggest they were adverse to racial minorities,” he reportedly told the tribunal.

A real estate broker involved in a mortgage scheme gets to keep his licence following an Ontario Court of Appeal ruling.

Timothy Baxter, principal of brokerage firm T. Baxter Real Estate Ltd., was accused of acting for an individual who bought a number of properties and then relisted them at highly inflated prices soon afterwards. Two consumers complained and several mortgage lenders reported losses.

Baxter denied any “knowledge of any suspicious business activity or conduct that (he or his brokerage) knew or ought to have known was improper, unethical, or illegal,” according to the Court of Appeal’s Aug. 20 ruling in Baxter v. Ontario (Real Estate and Business Brokers Act Registrar).

In 2008, the registrar, under the Real Estate and Business Brokers Act, sought to revoke Baxter and his company’s registrations.

After a hearing, the Licence Appeal Tribunal agreed to revoke the firm’s registration but decided not to take away Baxter’s licence. The registrar appealed the decision to the Divisional Court, which upheld it, and so the registrar took the case to the Court of Appeal.

Although the tribunal made it clear it was not pleased with Baxter’s behaviour, in the end it decided that he could keep his licence. “Baxter’s failure to perform the duties expected of a registrant . . . demonstrates a serious lack of understanding of, and in some instances arguably wilful indifference to, the duties and obligations of a registrant.

“In coming to this conclusion the tribunal has given Mr. Baxter the benefit of any doubt. Although his conduct raises serious concern, in the tribunal’s opinion it is not sufficient grounds to conclude that Mr. Baxter will not carry on business with honesty and integrity and in accordance with the law,” states the decision.

“Mr. Baxter has operated in the industry without incident for many years. However, given his conduct in the recent events it is clear that he requires further education and guidance regarding the roles and responsibilities of a registrant and the changing issues facing the real estate industry,” said the tribunal.

In upholding the tribunal’s decision, Justice Janet Simmons wrote on behalf of the court: “The reasons indicate that the tribunal was satisfied that Mr. Baxter was wilfully blind and reckless — and therefore had imputed knowledge of the mortgage fraud; however, the tribunal was not satisfied that Mr. Baxter actually turned his mind to the fraud.

“Further, the reasons indicate that the tribunal was satisfied that the primary cause of the appellant’s misconduct was his failure to appreciate the full scope of his duties, rather than dishonesty per se.”

The inquiry committee investigating a sexual harassment and discrimination complaint against Manitoba Court of Queen’s Bench Associate Chief Justice Lori Douglas said it will not step down after Douglas’ counsel tried to disqualify the committee over an alleged apprehension of bias. It notes the panel is doing a "public duty" and will continue the hearings.

The Canadian Judicial Council panel’s ruling released Aug. 20, states that questioning by the committee’s counsel, George Macintosh, of witnesses Michael Sinclair, former managing partner of Douglas’ former law firm, and of her husband Jack King, “created a reasonable apprehension of bias on part of members of the committee.”

Douglas’ counsel Sheila Block claimed in late July that the committee, led by Alberta Chief Justice Catherine Fraser, had prejudged the matter before it was concluded and sought to have its members disqualified.

At the time, independent counsel Guy Pratte said he agreed with Block and threatened to resign if the inquiry committee continued to use Macintosh to aggressively cross-examine witnesses.

The inquiry will decide if Douglas should be removed from the bench. In September 2010, Alex Chapman, a client of the judge’s husband, launched a complaint that claimed King showed him nude web photos of Douglas performing sexual acts and pressured him to have sex with her. Douglas has been on leave from the court since the complaint was sent to the CJC.

On July 27, the committee dismissed Block’s motion for a number of reasons, including:

• When conducting an inquiry, the inquiry committee is searching for the truth.
• An inquiry is different from a trial; fairness can’t be determined by what’s normally allowed in a trial as the degree of intervention in an inquiry is greater.
• An inquiry committee has the right and duty to question witnesses through its counsel, and that questioning should take place at the end of questioning by all counsel. If the inquiry committee asks questions through its counsel, other counsel should be given the opportunity to ask follow-up questions.
• The inquiry committee has the authority to question witnesses, including asking “obvious, probing, difficult or challenging questions.”
• What is inherent in the inquiry process or allowed by legislation can’t be biased or create bias in the mind of a reasonable observer.
• In determining what is fair in an intervention, you must consider the context of the inquiry.

In conclusion, the committee stated: “[W]e are satisfied that a reasonable person properly informed and considering the matter carefully would not conclude from the questioning by committee counsel that this committee is in some way predisposed to a particular result or that our minds are closed with regard to particular issues.

“We have not prejudged any issues in this inquiry or any person’s credibility. Our minds remain open to persuasion.

“Accordingly, we are not satisfied that we are disqualified from sitting on this inquiry, and we decline to recuse ourselves. We might add that we regard the completion of our mandate to be a matter of public duty. It is crucially important that a matter of such social significance and public interest be carried out fairly to its conclusion according to law, and be seen to do so.”

The Nova Scotia Justice Department is considering a proposal to merge the provincial courts in Halifax and Dartmouth.

Built more than 160 years ago, the Spring Garden Road courthouse is not equipped for modern justice. (Photo: Ctd 2005/Flickr)

If approved, the Halifax courthouse would need to expand to accommodate both provincial courts.

“One consolidated provincial court in Halifax Regional Municipality would reduce costs to the taxpayer, reduce wait times for cases, enhance safety of all participants, and improve court access and efficiency,” said Justice Minister Ross Landry in a release.

“There is increasing pressure on the two courts to meet the demand of the justice system. Over the past five years, there has been a substantial increase in the number and complexity of court hearings at both locations. Without changes, these two courthouses will have difficulty continuing to meet this demand.”

Josh Arnold, a Halifax criminal lawyer and president of the Nova Scotia Criminal Lawyers Association, says a new, modern facility is needed for Nova Scotia’s provincial courts.

“The provincial court in Halifax is very dated, and, among other things, security is an issue, the size of the courthouse is an issue, facilities for barristers is an issue — it’s quite antiquated,” Arnold tells Legal Feeds.

He says the Dartmouth building wasn’t originally intended to be a courthouse, therefore security and other elements are lacking, causing the facility to be inefficient at times.

The Halifax courthouse on Spring Garden Road was built 160 years ago and houses six courtrooms. The courthouse in Dartmouth has five courtrooms. A 1996 study revealed that it would be feasible for the province to renovate the Halifax courthouse and build a new accompanying building.

Another issue with the current courthouses, says Arnold, is that oftentimes matters are scheduled at the same time at both locations, making it tricky for clients and lawyers to attend.

“[I]t can be very difficult trying to juggle travelling from one courthouse to the other because they’re not in the same part of the city. So if matters were all in one location, just pragmatically speaking, it would be much easier,” he says.

Arnold also says the security at the courthouses could use an update.

“Security and prisoner transport . . . the buildings that the two courthouses are in right now really were never made with those things in mind,” he says. “So I think that there’s a lot that they can improve on if they start at square one.”

Landry said the process of determining whether to consolidate the provincial courts is still in its early stages as the proposal has yet to be approved.

Longtime Vaughan, Ont., MPP Greg Sorbara is stepping down from his post, likely triggering a provincial byelection this fall.

Sorbara told Legal Feeds he plans to devote more time to his family, which includes six children and 12 grandchildren, and his business interests. He said he also plans to re-engage himself in his family’s businesses, “which have suffered benign neglect on my part for the past nine years.”

Although he says he doesn’t foresee himself returning to the practice of law, as Ontario Premier Dalton McGuinty’s confidant, Sorbara won’t be leaving the political sphere completely.

“I’m hoping to devote more of my time to the politics of our party in preparation for the next election and that’s work that I’ve been doing constantly since 1999,” he says.

Sorbara is referring to his dual roles as chairman of the Liberal party's campaign and the Ontario Liberal Fund.  

“[I]f I can find a new recruit to take on [the role of MPP], that will free up time for me to deal with the major political issues of the party and help prepare for the next election, which, given that we’re a minority, could happen at any time,” he says.

Sorbara obtained his law degree from Osgoode Hall Law School in 1981. He worked for Stikeman Elliott LLP and Tanzola & Sorbara Professional Corp. before he was elected to Queen’s Park in 1985. He served as MPP for York North and York Centre for 10 years and then returned to the private sector, becoming principal at The Sorbara Group in 1995.

He re-entered the political ring in 1999 as president of the Ontario Liberal Party. Over the years, he served as Ontario’s minister of Colleges and Universities; Skills Development; Labour; Women’s Issues; Consumer and Commercial Relations; and Finance, as well as chairman of the Treasury Board and the Management Board of Cabinet.

Earlier this year, Kitchener-Waterloo Conservative MPP Elizabeth Witmer resigned to become chairwoman of the Workplace Safety Insurance Board, and so a byelection is also expected in that riding.

Lawyer Eric Davis is the Liberal candidate vying for that position.

A jury in Prince George, B.C., has awarded a plaintiff approximately $809,000 in damages over a wrongful dismissal. Included in that amount is the largest punitive damages award in an employment law case in Canadian history.

Larry Higginson worked at a sawmill in Burns Lake, B.C., for 34 years until October 2009, when he was fired without severance pay. Hampton Lumber Mills Inc., based in Portland, Ore., had acquired the sawmill from Babine Forest Products Inc. in November 2006.

Higginson sued for wrongful dismissal, claiming he was terminated as an attempt to avoid paying severance to long-term employees. The companies, joint defendants in Higginson v. Babine Forest Products Ltd., argued they had just cause for dismissal.

Murray Tevlin, a senior lawyer at Vancouver employment law firm TevlinGleadle, which represented Higginson in the case, says, “Instead of just firing him after 34 years of faithful service, [the companies] made up a false allegation of cause for dismissal, [which] means that the employee has committed a fundamental breach of the employment contract by doing some outrageous act.”

Tevlin also says that before this “bogus allegation of cause,” the companies tried to make Higginson’s job miserable in order to cause him to quit.

“We were able to produce evidence that [the companies] were doing this because it’s a small town and people talk to each other . . . and certain admissions were made,” says Tevlin.

The firm also gave evidence that the companies were implementing an institutional scheme to avoid paying severance to other employees, he says.

Following a three-week trial, the jury decided that there was no cause for dismissal and awarded Higginson $236,000 in compensatory damages for wrongful dismissal and $573,000 in punitive damages for the companies’ conduct in terminating him.

Since Prince George is a mill town, Tevlin says members of the jury were probably able to relate to Higginson’s situation.

“People know what it’s like to lose your job when you’re in the management at a mill,” he says.

Also, the fact that the companies said Higginson gave them cause for dismissal could destroy his whole social standing in the community, he adds.

This case will affect the way other companies treat their employees and help drive more reasonable settlements and hopefully keep actions out of court, predicts Tevlin.

“Punitive damages are not compensatory, they are intended to punish the defendant hoping that it will cause the defendant to change its behaviour in the future and hoping that other similarly situated defendants will also not follow this course of conduct,” he says.

The defendants have not filed an appeal as of yet, but Tevlin says it’s not uncommon for companies to do so.

The Supreme Court of Canada has ruled that in a multi-issue jury trial, it’s rare for an acquittal to ground issue estoppel.

(Photo: Reuters)

The issue facing the top court in R. v. Punko was whether the Crown could seek to prove that the East End Chapter of the Hells Angels is a criminal organization even though the issue had been decided in a previous trial. The Supreme Court ruled it could not.

The cases in question arose from British Columbia, where Randall Potts and John Punko were charged with various offences allegedly committed in connection with the Hells Angels, which was deemed a criminal organization. However, the jury in the B.C. Supreme Court trial acquitted them on all criminal organization charges.

Meanwhile, Potts and Punko were also charged with federal drug-related offences, which the Crown alleged were also committed for the Hells Angels. The accused argued that the Crown should be barred from trying to prove that the Hells Angels is a criminal organization since the jury had already decided on the issue at the previous trial. The judge granted the motions.

The B.C. Court of Appeal then allowed the appeals and ordered a new trial, stating that it can’t be determined that the only rational explanation for their acquittals was that the jury decided that the Hells Angels wasn’t a criminal organization.

In its ruling, the SCC referenced its previous decision in R. v. Mahalingan: “In light of Mahalingan, however, the question is whether a finding that the Hells Angels is not a criminal organization is the only logical inference a judge can draw from the jury’s verdict. A review of the relevant portions of the transcript of the jury trial reveals that it is not,” Justice Marie Deschamps wrote on behalf of the bench.

In his charge to the jury, the trial judge said that the Crown had to prove each of the following five elements beyond a reasonable doubt:

“(i) that the accused committed the substantive offence;
(ii) that during the period specified in the count, the Hells Angels was a criminal organization;
(iii) that the accused knew that the characteristics of the Hells Angels were those of a criminal organization during the time period specified in the count;
(iv) that the accused committed the offence for the benefit of, at the direction of, or in association with the Hells Angels; and
(v) that the accused committed the offence with the intent to do so for the benefit of, at the direction of, or in association with the Hells Angels.”

The judge instructed the members of the jury that if they weren’t satisfied with each element beyond a reasonable doubt, they had to deliver a verdict of not guilty.

“In sum, there are at least two logical explanations for the not guilty verdict on each of the criminal organization counts. This means that a judge cannot infer from the jury verdict, as required by Mahalingan, that the jurors necessarily found that the Hells Angels was not a criminal organization,” ruled the Supreme Court.

“In my view, if an issue of unfairness does arise from the positions of the federal and provincial Crowns, it cannot be resolved on the basis of the narrow doctrine of issue estoppel,” Deschamps wrote. “In Canadian criminal law, issue estoppel merely ensures that an accused will not be required to answer questions that have already been determined in his or her favour.”

In her conclusion, Deschamps reiterated the point made in Mahalingan: “that, in a multi-issue jury trial, it will be rare for an acquittal to ground issue estoppel, because such an acquittal will often have more than one possible basis and different jurors may have reached a unanimous verdict by different routes. These appeals are an illustration of that point.”

The Supreme Court of Canada handed down its highly anticipated decisions in five copyright cases today, which in effect scrapped some of the existing copyright fees and clarified the copyright rules for the Internet. It’s a rare day that the court releases so many decisions in one area of law on the same day.

Barry Sookman, a partner at McCarthy Tétrault LLP and co-chairman of the firm’s technology law group, says, “The court takes a very pragmatic approach to looking at copyright and the Internet.”

The Copyright Board had approved taxes for downloading but they were appealed by large Canadian telecommunications companies like Rogers Communications, Bell Canada, Telus Communications, and Shaw Cablesystems.

In Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada and Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, the SCC was tasked with determining what qualifies as a communication to the public.

In Rogers, the court found that on-demand services have to pay for uses of music, says Sookman. Rogers argued that it could have on-demand services like pay-per-view for free, which was not considered communicating to the public.

“The court rejected [Rogers’ argument], taking a very pragmatic approach, saying, ‘Look, in effect, copies of music are being made available to the public and so it doesn’t make a difference whether it’s one at a time or over time, significant works are made available to the public and so that’s a communication which is to the public,” he says.

On behalf of the majority in Rogers, Justice Marshall Rothstein wrote: “In these circumstances, the transmission of any file containing a musical work, starting with the first, from the online service’s website to the customer’s computer, at the customer’s request, constitutes ‘communicat(ing)’ the work to the public by telecommunication.”

In Entertainment Software Association, the court found that a download was not a communication to the public.

“[The court] rejects an approach that would treat the Internet in a completely different way than a traditional distribution,” says Sookman.

SOCAN argued that buying a video game in a store is not a communication to the public, but when sold over the Internet it is considered as such.

“The court rejected this artificial distinction based on the principle of technological neutrality,” he says.

In Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, the court determined that music previews are considered a fair dealing. As such, previews on iTunes, for instance, do not merit the payment of royalties.

“Because of their short duration and degraded quality, it can hardly be said that previews are in competition with downloads of the work itself. And since the effect of previews is to increase the sale and therefore the dissemination of copyrighted musical works thereby generating remuneration to their creators, it cannot be said that they have a negative impact on the work,” wrote Justice Rosalie Abella in the decision.

With its ruling in Province of Alberta v. Canadian Copyright Licensing Agency, which involved a dispute over copyright rules for photocopying textbooks at schools, Sookman says the top court clarified the framework for fair dealing.

“Under fair dealing, there has to be two steps. The first step looks to see if it’s an allowable purpose and the second step looks to see if the dealing is a fair one,” he says. “The court said you could look at the purpose of the user rather than the purpose of the copier. . . . That is a radical departure from previous cases.”

Now everything comes into the mix when determining if a particular deal is fair or not, he adds. The SCC sent this case back to the Copyright Board for further review.

Sookman says these rulings have a wide-ranging impact.

“This goes beyond just music because it applies to everything that contains music. . . . This is very significant because it means that when the Internet is now used as a delivery mechanism — whether it’s for e-books, movies, video games, or music — SOCAN doesn’t get paid,” he says.

The songwriters still get paid under the reproduction rights, but they won’t get paid twice as SOCAN was seeking to achieve, he says.