Ontario had the lowest rate of family violence in 2010, according to new data from Statistics Canada.

Victims of police-reported intimate and non-intimate partner violence, by age group of victim (Source: Statistics Canada)

There were 196 victims of police reported family violence per 100,000 of population in Ontario, compared with a Canada-wide rate of 294 victims per 100,000, according to the report. Prince Edward Island and Nova Scotia were the only other two provinces that came in with a rate under the national average.

At the other end of the scale, Nunavut had 3,409 victims per 100,000 followed by Northwest Territories with 2,455. Yukon and Saskatchewan were next with 842 and 644 victims per 100,000 respectively.

Statistics Canada reported 99,000 family violence victims in total nationwide, accounting for one quarter of all victims of violent crime reported to police. About half the family victims were spouses, with the other half made up of children, parents, siblings or extended family members.

For the first time, the study also drilled down to census metropolitan areas, consisting of urban centres and their surrounding areas. Overall, the rate of family violence in CMAs was 232 per 100,000. In non-CMAs, which include small cities, towns, and rural areas, the rate almost doubled to 436 per 100,000. With a rate of 98 per 100,000, the Ottawa CMA recorded the lowest rate of family violence in the country. Saint John, N.B., had the highest rate among CMAs, at 420 per 100,000, more than four time higher than Ottawa.

The report found the risk of becoming a victim of family violence was more than doubled for females compared with men, with 407 victims per 100,000 women and 180 per 100,000 men. The distinction was starkest in the 25-34 year age group, where there were 709 female victims per 100,00 compared with 216 per 100,000 males. Women accounted for 70 per cent of the victims of family violence, and 81 per cent of all spousal abuse victims, according to the report.

Not all reports result in charges, but Statistics Canada found charges were more likely in incidents involving family members. In 2010, 56 per cent of accused family members were charged, compared with a 43-per-cent rate when the accused was unrelated. Charges were also more like when the family violence victim was female, with 60 per cent of accused charged, compared with 46 per cent when the victim was male.

American companies have yet to wake up to Canada’s stringent anti-spam law, according to a report by Fasken Martineau DuMoulin LLP.

(Image: Shutterstock)

Bill C-28, or CASL, as it’s become known, received Royal assent in December 2010, but has yet to come into force. When it does — likely January 2013 — it will contain some of the toughest anti-spam provisions in the world, banning senders from delivering unsolicited commercial electronic messages without receiving express or implied consent from the recipient.

It applies to all messages sent from, or received in, Canada, which means American firms marketing in Canada fall under its jurisdiction. Yet the Faskens’ study released today, found 60 per cent of American marketing executives were completely unaware of the new law.

“The bottom line is the U.S. doesn’t really know about the law, and they should try to become more knowledgeable before it comes into force,” says Charles Lupien, a lawyer in Faskens’ Montreal office, and one of the study’s authors.

And even among those with some knowledge of the bill, around a quarter were unaware of the potentially spectacular fines that can be levied under the law.

Individuals who breach the law can face penalties of up to $1 million, while corporations are liable for as much as $10 million. Officers and directors may also be held liable if they participated in, or acquiesced to the breaches. The act also creates a private right of action for CASL violators, paving the way for potential anti-spam class actions, with remedies capped at $1 million per day.

“Once you get people that do actually know, to say they’re not happy about it is an understatement,” says Lupien.

The Canadian law is more stringent than its U.S. counterpart, 2003’s CAN-SPAM Act, meaning most U.S. firms will not be compliant when CASL comes into force. CAN-SPAM allows companies to send messages unless consumers opt-out with an unsubscribe mechanism. CASL reverses the onus, requiring recipients to opt-in by consenting up front.

Lupien says some companies are waiting to see how strong enforcement will be, especially for non-Canadian senders, but others will simply abandon Canadian marketing efforts rather than going through the hassle of purging existing mailing lists of contacts where consent can not be proved.

“They’re saying, ‘never mind, we’ll stick to sending post cards in the mail, and do telemarketing instead,’” says Lupien.

Ontario’s family law bar may finally get its wish of a province-wide unified family court system after inter-governmental discussions got underway with a view to expanding the service.

Ontario’s Attorney General John Gerretsen says expanding the unified family court is key to his plans for improving the justice system.

The unified court started as a pilot project in Hamilton, Ont. 35 years ago, and currently operates at 17 sites across Ontario, about one-third of court locations in the province.

The federal government is responsible for judicial appointments to the unified court, and speaking this morning at the Law Society of Upper Canada’s Sixth Annual Family Law Summit, Ontario’s Attorney General John Gerretsen told the audience of that expanding the UFC is key to his plans for improving the justice system.

“I have started discussion with the federal minister of justice Rob Nicholson, as well as other members of the federal cabinet, and there seems to be a willingness to expand the unified family court process across this province on an incremental basis,” said Gerretsen.

Gerretsen said his own time as a sole practitioner in Kingston, Ont., where he did some family law work before he went into politics, gave him an insight into people’s troubles with the current division of powers in most locations.

The Ontario Court of Justice deals with custody, access, child and spousal support, adoption, and child protection applications, but not divorce or division of property matters. The Ontario Superior Court of Justice can decide disputes involving divorce, division of property, child and spousal support, and custody and access, but not child protection or adoption matters.

“If there was one thing people could never understand, it was why they had to go to two different courts to get their family situations dealt with,” Gerretsen said. “I must admit that when I came into the ministry, since we’ve had a unified family court in the Kingston area and most of eastern Ontario since the late 1990s, I had assumed a unified court was pretty well standard across the province.”

The UFC has been a hot topic at previous years’ summits. In 2011, then- attorney general Chris Bentley, LSUC Treasurer Laurie Pawlitza, and Chief Justice Warren Winkler all teamed up to demand its immediate expansion.

“We’ve studied the UFCs enough,” Winkler said in 2011. “We need to spread that right across the province.”

With a 35-year wait already behind them, Gerretsen warned attendees at the summit that their well-exercised patience could be tried further in the future.

“We are currently experiencing a challenging fiscal climate and given that, province-wide expansion may take longer, and may be done in incremental fashion,” he said. “There is no doubt there will be many challenges as we unify more court sites, but the important thing to remember is the unified family court system will allow us to focus on the goal of providing what’s best for the people who are using it.”

The B.C. government has unveiled plans for an online tribunal to take small civil claims and strata property disputes out of the courts.

Bill 44, the civil resolution tribunal act,  introduced in the provincial legislature earlier this week, promises a 60-day dispute resolution process, compared with the 12 to 18 months it can currently take for cases to wind their way through the province’s Small Claims Court.

The government claims the tribunal, planned for launch in 2013 or 2014, will cut legal fees and travel costs for parties.

“Both individuals and business owners will find this a convenient and affordable way of reaching agreements,” B.C. Attorney General Shirley Bond said in a statement. “Few people want to go to court to solve a legal dispute, which can be costly, intimidating and time consuming. A tribunal offers an innovative alternative to settling a dispute in a faster, more amicable way.”

The tribunal will be available for disputes worth up to $25,000 where both parties agree to participate, leaving open the alternative of going to court. However, the government has said the process could be mandatory for strata corporations in certain property disputes.

Strata property disputes covered by the new legislation include non-payment of fees or fines, unfair actions by strata corporations, arbitrary by-laws, and financial responsibility for repairs. Matters that affect land, such as those involving liens and phased strata plans, will continue to be heard in the supreme court, as well as other more serious matters, like the appointment of an administrator or liquidation.

Tony Gioventu, the executive director of the Condominium Home Owners’ Association of British Columbia, welcomed the government’s move.

“The introduction of the Civil Resolution Tribunal Act is the first of several steps forward in developing new dispute resolution alternatives for strata corporations” he said. “The next step will be developing the rules and regulations which are vital to the success of a tribunal. We look forward to continuing our partnership with government to ensure the establishment of a tribunal that benefits the strata community.”

According to the B.C. government, the new tribunal would progress in four stages, with participants progressing to the next stage only if they were unable to reach agreement:

1. An interactive dispute resolution guide, with information, tips and templates to help the parties reach a settlement.
2. Party-to-party negotiations, using online tools to make contact and exchange information, with the tribunal monitoring discussions and intervening if necessary.
3. Case manager contacts the parties by phone or online to discuss the issues and attempt a facilitated settlement.
4. Tribunal hearing, with a tribunal member discussing the issues with parties online, by phone, videoconference or occasionally in person, and giving a binding decision on the dispute.

A group of federal lawyers has hit out at the government after 95 of its members were put on notice that their jobs could be cut.

The Association of Justice Counsel represents 2,700 government employed lawyers,

(Photo: Shutterstock)

including the 95 who received letters notifying them that they may be deemed surplus to requirements because “of a lack of work or discontinuance of a function.”

The AJC’s president, Marco Mendicino, says the notices have come as a result of “short-sighted” cuts to the Department of justice. By 2014, he says the department is scheduled to lose 15 per cent of its operating budget compared with 2009 levels.

“These are highly trained legal professionals who advise the government on key priorities and strategies day in and day out. I’m incredulous at the suggestion they don’t have enough work for these people, especially in light of the government’s law-and-order agenda,” says Mendicino.

“Our Government is committed to saving taxpayers’ dollars by modernizing how we do business. Resources are being re-focused to the Department of Justice’s core mandate of keeping Canada’s streets and communities safe,” Justice Minister Rob Nicholson tells Legal Feeds.

The DOJ has yet to make a decision on how many jobs will ultimately go. In the meantime, Mendicino says his members are “devastated by the news.”

“It creates a cloud of uncertainty over their careers and their personal lives. We are going to do as much as we can to help and support them as they make their way through workforce adjustment process,” he says.

The lawyers affected by the notices work in aboriginal affairs, regulatory law, and legislative services.

“These are obviously high-priority areas, so the impact is not just in uncertainty for our members, but also in services that Canadians require. We’ll learn the full impact there in the years to come,” says Mendicino.

According to Mendicino, the department’s bijural group, which drafts laws to function in both the common law and civil law, has been hit particularly hard by the notices.

“When we lose people’s expertise in that area, we run the risk legislation will not work, and will not carry out [its] intended effect in Quebec, both from a linguistic and a legal perspective,” he says.

At the same time, the province of Manitoba announced today that it is bulking up the number of Crowns and adding support staff and court clerks to its system with an infusion of $2.5 million in annual funding.

“The new staff we are adding in critical areas across the justice system will enhance life in our communities and make the justice system function better,” says Justice Minister Andrew Swan.  

New additions to the Manitoba justice system include:

• 11 Crown prosecutors,
• 6 support staff to assist prosecutors,
• 7.5 court clerk positions, and
• 6 sheriffs.

Update: 4:28 p.m. with comments from Justice Minister.

The Quebec government is under fire from lawyers’ groups after refusing to sign a tentative deal reached last summer with government lawyers in the province.

The Association des Juristes de l’État has launched a bad-faith bargaining complaint against the province. (Photo: abdallahh/Flickr)

The 825-member Association des Juristes de l’État, which represents Quebec government lawyers and notaries who draft laws and defend them in court, has launched a bad-faith bargaining complaint against the province at Quebec’s labour relations commission. They claim the government has reneged on a clause in the agreement that promised to put the civil lawyers’ pay on par with criminal prosecutors.

the AJE is a member, accused the government of “holding the entire negotiated settlement hostage and threatening to return this part of the administration of justice in Quebec to the state of crisis that existed prior to the settlement.”

“Sadly, it would appear that the Quebec government has returned to its practice of negotiating in bad faith,” Chaffe said in a statement.

Louis Masson, the president of the Barreau du Quebec, also backed the AJE, urging the government to stop underfunding the justice system and calling the civil lawyers “essential to the proper functioning of our democratic society.”

The civil lawyers and prosecutors both went out on strike in early 2011 before controversial legislation sent them back to work two weeks later. In July 2011, the AJE and the government agreed a settlement that included a parity clause that would match civil lawyer compensation to their criminal prosecutor counterparts.

When the prosecutors reached their own deal in September 2011, the AJE claimed eight changes to their agreement based on the parity clause, which, according to Le Devoir could cost the government up to $10 million.

But the government has refused to sign the deal unless the AJE accepts its narrower interpretation of the parity clause. In a vote last week, two-thirds of the AJE’s members rejected the government proposal, paving the way for the labour commission complaint.

Another strike is out of the question, since the AJE members are still bound by the controversial back-to-work legislation enacted last year.

“Front-line government lawyers are the institutional safeguard that ensures that your provincial government acts lawfully. They play an essential constitutional role, often behind closed doors, speaking truth to power. They have the support of the CACC and they deserve the support of the public,” Chaffe said.

A former lawyer who resigned from practice during his articling and was later disbarred after his conviction for fraud has been denied a third shot at the profession after a hearing panel of the Law Society of Upper Canada decided he was not of good character.

Dennis-Gwyn Gross told a hearing panel he had turned his life around since serving a five-month jail term in 2000 for defrauding various members of the public.

His younger girlfriend left him after his arrest and he had been working as a material handler at a Niagara Falls Value Village since his release. He also looked after his mother in the home they shared until her death at the age of 98 in 2011.

Gross told the panel his low wages had prevented him from paying restitution to his victims or obtaining a pardon for his conviction, but aimed to remedy both if allowed to return to practice in the area of criminal law.

“I believe I can be a lawyer again and contribute meaningfully to society,” Gross said at his hearing in November.

Gross first ran into trouble with the law society in the mid-1980s when he was given permission to resign his student membership during his articling year after being found guilty of misconduct for attempting to remove a file from his articling firm for himself and providing legal services without supervision.

In 1987, a new panel decided he could be called to the bar as long as he promised not to practise as a sole practitioner for at least a year afterwards.

Then in July 2000, Gross pleaded guilty to five counts of fraud, including against clients. He received an eight-month conditional sentence in addition to the five months he had spent in jail awaiting trial. He was also disbarred in that year, after the law society found he had misappropriated almost $10,000 from the trust funds of 13 clients.

A more lucrative scam involved transferring the title of his mother’s home to himself and then registering a series of mortgages and forged discharges on the property. Mortgagees claimed more than $400,000 in civil actions against Gross, while the judge in his criminal trial ordered him to pay restitution of $300,000. Gross managed to raise $200,000 of that total from the sale of the house and other property.

Gross then made his application for readmission in 2007, admitting that he hadn’t been able to afford any formal continuing legal education in the intervening years. According to the panel’s decision, he told them he “occasionally read the Ontario Reports and some legal decisions on the Internet.” Gross admitted he was not competent to practise criminal law without some more CLE, but said he was willing to work under a mentorship agreement.

The panel was impressed by Gross’ “emphatic and heart felt remorse,” but expressed concerns about his rehabilitation. He only began treatment in June 2011 after the death of his mother, and his doctor was unable to provide assurances on how Gross might react if faced with future temptation. The panel also noted Gross’ lack of effort to repay the money he still owes to the financial institutions he defrauded.

“While we are of course sympathetic to his financial situation since his disbarment . . . the fact remains that there is no evidence of any effort to repay even nominal or small amounts of the debts that were created by the applicant’s fraudulent conduct,” reads the decision.

“While a sufficient time span has elapsed to justify a reassessment of his character, and indeed he has expressed genuine remorse for his earlier actions, we have balanced those factors against the nature and extent of his previous misconduct and what we conclude is insufficient evidence at the hearing before us of rehabilitative steps and other actions on his part to satisfy us of his present good character. It may be that he will be able to make a stronger case at a later date.”

A Nova Scotia lawyer is on the hook for $28,000 owed to a former client after the province’s court of appeal overturned a lower court ruling that found paid accounts were not subject to assessment.

In a 3-0 decision in Mor-Town Developments Ltd. v. MacDonald, the Nova Scotia Court of Appeal ruled that the lower court judge’s narrow interpretation would not adequately protect the public when it comes to assessment, or taxation as it is known in the province.

“The fact that accounts were rendered to be paid by a client, and then were paid by a client, cannot mean that they no longer qualify as ‘accounts’ under the legislation. Such an interpretation would effectively gut any realistic opportunity for the client to ever challenge a bill,” wrote Appeal Court Justice Jamie Saunders, noting that clients are often unable to assess the reasonableness of a lawyer’s fees until consulting with other lawyers or people receiving similar services.

Between 2008 and 2009, the lawyer, David MacDonald, delivered two accounts totaling around $67,000 for his work on a real estate transaction on behalf of Mor-Town Developments Ltd. The first bill, for $60,000, was paid when the land sale closed, but the company later disputed both.

In August 2010, a Small Claims adjudicator reduced the two accounts to $32,000 and ordered MacDonald to refund the difference to Mor-Town. MacDonald successfully appealed to the Nova Scotia Supreme Court, where Justice Arthur LeBlanc sent the matter back to another adjudicator after finding that the first one had no jurisdiction to act on the paid $60,000 account.

In addition, LeBlanc found Mor-Town should have had the onus on proving the account was unreasonable because it had initiated the taxation. He also ruled that the adjudicator had breached his duty of fairness to MacDonald by making negative credibility findings without giving him an opportunity to address his concerns.

According to the appeal court, LeBlanc was wrong on both counts. The onus on proving the reasonableness of a lawyer’s account “should always rest with the lawyer,” regardless of who initiated the assessment, wrote Saunders.

“The lawyer knows what was done, by whom and when. The lawyer knows how long it took to complete the task(s) and what fee was charged to do it. The lawyer will also know why the task or particular action was necessary. Rarely would a client be possessed of such information. To expect the client to ‘prove’ the unreasonableness of the work done by the lawyer would neither be practical nor fair,” reads the decision.

Assuming a duty of fairness was owed by the adjudicator, the appeal court found that the lawyer must have known that the reasonableness of his accounts and his explanations for them would be a central issue in the taxation hearing.

“In plain language the validity of the account(s) was in issue. In order to decide that issue the adjudicator was bound to assess the evidence given by both the appellant and the respondent who sought to attack or justify the account(s), respectively. Such inquiries were sure to engage issues of credibility. It can hardly be suggested that the adjudicator owed a duty to Mr. MacDonald to remind him of the obvious,” Saunders wrote.

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

(Photo: Shutterstock)

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

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

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

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

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

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

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

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

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

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

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

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

The number of divorces initiated in Canada last year fell for the second year running, according to Statistics Canada.

Around 54,000 divorces were filed in 2010-11 in seven reporting provinces and territories (Nova Scotia, Ontario, Alberta, British Columbia, Yukon, Northwest Territories and Nunavut, representing 66 per cent of Canada’s population), two-per-cent fewer than the previous year, when about 55,000 divorce files were opened. In 2008/2009 there were more than 56,000 initiations. This year’s number marks an estimated eight per cent fall in new cases since 2006/2007.

The steady decline mirrors a fall in the number of couples tying the knot over the last two decades. Whereas in 1989, about 190,000 marriages were recorded, by 2008, the last year data are available, that number had fallen to just 150,000. According to StatsCan, it expects about 60,000 of those couples to divorce before they reach their 30th anniversaries in 2038.

And when they do make the decision to dissolve their unions, there are ways to speed up the process, according to the report. The median length of uncontested divorces was just 120 days, compared with 490 days for contested ones. Couples in B.C. were most likely to have contested divorces in 2010-11, accounting for 23 per cent of active files. Nunavut had the smallest proportion of contested divorces, at 10 per cent of active files last year.

Still, an extremely small number of cases end up requiring a trial. The report notes that just one per cent of open cases had a trial during the last year, and only two per cent had ever reached trial at any stage.

Most divorces (61 per cent) are actually granted within six months of initiation in court, according to the report. Ontario is one of the quicker jurisdictions, managing to get 41 per cent of all its divorces done and dusted within three months.

However, 21 per cent drag on for more than a year in court nationwide, with wide variations by jurisdiction. A divorce in the Northwest Territories is least likely to cross the one-year threshold, with 13 per cent of cases lasting longer than 12 months, closely followed by Ontario at 14 per cent. Cases in Alberta are most likely to take more than a year, with 38 per cent in that category, while 37 per cent of Nova Scotia cases also take more than a year to get a judgment.