Canada

3 youths charged in Sask. robbery, stand-off, CBC News

Crown seeks to broadcast B.C. riot proceedings, The Vancouver Sun

Court rules government's prisoner refusal unreasonable, The Gazette

United States

SEC appeals rejection of Citigroup settlement, Reuters

'Barefoot Bandit' faces sentencing for 33 charges, Reuters

International

Chinese human rights lawyer sent back to jail, Reuters

Sudanese officials continue to commit genocide: ICC, Reuters

In another case involving a dispute over employees’ vacation entitlement, the Supreme Court of Canada has once again ruled in favour of the arbitrator.

In Newfoundland and Labrador Nurses’ Union v. R., the Supreme Court dismissed the union’s appeal of an arbitrator’s decision not to include the time served as a casual employee when calculating vacation benefits. The arbitrator concluded that according to their collective agreement, the nurses could not count their time as casual employees in determining vacation time once they became permanent employees.

Upon judicial review, the arbitrator’s reasons were deemed insufficient and therefore unreasonable, and so the decision was set aside. The Court of Appeal overturned that decision, stating that the arbitrator had met the test of reasonableness. It was then taken to the Supreme Court to determine the reasonableness of the arbitrator’s decision.

In the Dec. 15 decision, Justice Rosalie Abella referenced the SCC’s 2008 ruling in Dunsmuir v. New Brunswick, which stated that in order to determine the reasonableness of a decision, the judicial review needs to assess “justification, transparency and intelligibility.”

Abella agreed with the arbitrator’s interpretation of the nurses’ collective agreement. “The arbitrator in this case was called upon to engage in a simple interpretive exercise: Were casual employees entitled, under the collective agreement, to accumulate time towards vacation entitlements?” Abella wrote. “This is classic fare for labour arbitrators. They are not writing for the courts, they are writing for the parties who have to live together for the duration of the agreement. Though not always easily realizable, the goal is to be as expeditious as possible.”

She added that it would be detrimental for arbitrators to address every argument. “Arbitration allows the parties to the agreement to resolve disputes as quickly as possible knowing that there is the relieving prospect not of judicial review, but of negotiating a new collective agreement with different terms at the end of two or three years,” she wrote. “This process would be paralyzed if arbitrators were expected to respond to every argument or line of possible analysis.”

“In this case, the reasons showed that the arbitrator was alive to the question at issue and came to a result well within the range of reasonable outcomes,” Abella concluded.

On Dec. 2, the Supreme Court also supported the arbitrator’s decision in Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, which also involved a dispute over vacation time for casual employees.

Canada

B.C. men found guilty of animal cruelty for hanging horse, The Vancouver Sun

Alta. man convicted of murder after ramming truck at crowd, CBC News

N.B. judge recuses himself due to connection with accused's family, The Daily Gleaner

United States

Occupy Wall Street protesters appear in court, Reuters

Investor loses appeal of FCPA conviction over oil deal, Reuters

International

Thai activist jailed for 15 years for insulting monarchy, Reuters

Sentence reduced for ex-colonel convicted in Rwandan genocide, Reuters

An Ontario lawyer has been ordered to personally pay $45,000 for the “irresponsible” issuance of a meritless third-party claim in a New Brunswick fraud case.

Sandra Dawe, the managing partner at Toronto and Windsor, Ont. firm Shibley Righton LLP, has until noon on Dec. 15 to pay the cash or risk enforcement proceedings.

Dawe is representing auditors being sued by Deer Island Credit Union in New Brunswick. The credit union alleges the auditors were negligent for failing to notice that a former employee at Deer Island had embezzled more than $1.8 million between 1995 and 2007.

The auditors denied the allegations, and in May 2011, issued a third-party claim against 16 directors of the credit union, arguing their negligence contributed to the loss.

On Oct. 7, New Brunswick Court of Queen’s Bench Justice Hugh McLellan struck out the third party claim, calling it “irresponsible and an abuse of the process of the court.” He said Dawe should have known about an Ontario Court of Appeal case, Piedra v. Copper Mesa Mining Corp., which sets a very high bar for actions against directors, and ordered a hearing on costs to send a message that the courts will protect directors from ill-founded litigation.

In his Nov. 30 decision on costs, McLellan said he could not accept Dawe’s claim that she had “acted in honest belief that the auditors claim against the directors had merit.”

He said the claim, which cost the directors $77,000 in legal fees to respond to, had delayed the main action by six months and that it was his duty to rule that Dawe had “acted in disregard of the interests of justice,” and “caused costs to be wasted or incurred improperly.”

Dawe must pay $40,000 to the law firm representing the directors, plus another $5,000 for HST by noon Dec. 15. If she fails, McLellan said he would hear counsel about enforcing the order the following day. If that hearing is needed, he ordered Dawe to attend in person before him in St. John, N.B.

Canada

Que. heads to court to keep long-gun registry, The Gazette

Ex-Que. mayor to be charged in partner's death, The Gazette

Air Canada loses appeal over Toronto Island airport, CBC News

United States

JPMorgan lawsuit against insurers dismissed, Reuters

Appeals court revives Oracle overtime class action, Reuters

International

Murder charge against ex-Ukraine president quashed, Reuters

EU lawmakers reject extension of Morocco fisheries pact, Reuters

Mark Adams has been appointed senior vice president, general counsel and corporate secretary at AGF Management Ltd., stepping into the role previously held by Judy Goldring, who will continue in her role as executive vice president and chief operating officer.

Mark Adams has been appointed as senior vice president, general counsel, and corporate secretary at AGF Management Ltd.

In his new role, Adams is responsible for all legal, corporate governance, and compliance matters in Canada and abroad. Goldring will focus on the long-term growth and strategy of investment management company AGF.

Adams has been with the investment management company since he joined the it as legal counsel in April 2004. He went to AGF from McMillan LLP, where he spent five years as a securities lawyer. He moved in-house, he says, because he wanted to become more involved in the day-to-day business strategy within the scope of the Canadian capital markets.

“The diversity of what happens day-to-day in-house was what appealed to me. Securities law can be a lot of paper, especially on the transaction deal side, which is what I did. I saw an opportunity at a company that was a key player in the capital markets and I saw a great opportunity to transfer some skills and get involved in a publicly traded company,” he says.

Since Adams joined AGF the in-house legal department has grown.

“We were a pretty small group on the legal side. Judy was the GC and it was basically her, myself, and one other lawyer,” says Adams. “Companies over the last 10 years have realized the benefit of building an in-house team as opposed to continually outsourcing things you don’t really have control over. When I joined there were three of us and over the next four years we went from three lawyers to five.”

As the business has evolved at AGF so has the complexity of the work Adams finds himself involved in. In 2007, he was vice president legal counsel when he was approached to become corporate secretary, something he had never done but corporate governance was becoming an important area.

“We’re a highly regulated industry so being in-house you really get to know your sector and regulations quite well and you have a real advantage because you know your business partners and what the business plans are,” he says. “The one area that is newer for me is that as general counsel the compliance group now reports to me, so I always worked side-by-side with compliance before but now it reports directly to the GC’s office.”

Adams views his biggest challenge as managing the requirements of cross-border work and understanding regulatory issues in international jurisdictions.

“We have an international footprint and from a challenge perspective it’s making sure we’re cost effective in going to these new jurisdictions, but also making sure our business operations and processes are compliant and adhering to the various local requirements that can change depending on what country you’re in,” he says.

“I think a key role for a GC in this field is making sure that your partners at the senior management table are well aware — you don’t have to use scare tactics — but build a common sense approach to what needs to be at the top of their radar screen from a regulatory or compliance perspective, but not stop business.”

Canada

Ottawa, U.S. Steel settle legal battle, Reuters

N.B. seeks SCC ruling on language laws, National Post

Niqabs, burkas banned from citizenship ceremonies, National Post

United States

Lee newspaper group files for bankruptcy, Reuters

WaMu settles dispute, prepares for bankruptcy exit, Reuters

International

Turkish officer convicted in Nigerian man's death, Reuters

Gambia's Fatou Bensouda next ICC chief prosecutor, Reuters

Lawyers in Rainy River, Ont., are decrying the loss of their local judge.

“We have been reduced to a whistle stop for justice,” says Barbara Morgan, president of the District of Rainy River Law Association, in quoting from another local lawyer on the matter.

According to the association, in May the Ontario Court of Justice is relocating the judicial appointment to Kenora, Ont., some 225 kilometres away. Morgan notes the situation has been going on for some time with the resident judge, Justice Thomas McKay, having instead chosen to live in Dryden, Ont., since his appointment. But with his request to relocate to London, Ont., the court has decided to make that situation permanent. The move will leave Kenora with four presiding judges, Thunder Bay with six, and the Rainy River district with none, says Morgan.

“It ultimately subordinates the needs of the entire south end of the district,” she says.

The Rainy River court district also includes Fort Frances and Atikokan, Ont., all of which have seen declining numbers of court days with the decreasing availability of judicial resources in recent years, says Morgan. She notes Rainy River now has just five sittings a year.

Morgan believes the change will exacerbate the problem of the greying of the bar in her area since younger lawyers will be reluctant to move to a place without a resident judge. The result, according to Morgan, will be more self-represented litigants.

Morgan notes that during McKay’s tenure in the Rainy River, local lawyers simply found ways to deal with what they thought was a temporary situation.

 “Everybody works sort of co-operatively to accommodate the fact that there have been reduced court sittings,” she says, adding that won’t work in the long term. “The lawyers are saying look, ‘We need a resident judge here.’”

Update: 

Justice Marc Bode, the senior judge for the northwest region, couldn’t be reached for comment by press time, but in a letter to Morgan last week, he said the court bases its decision on factors such as the number of charges and the percentage of matters requiring a trial in any one district. But Morgan argues those numbers are misleading since they don’t include proceedings that now take place by video link and in other locations due to the lack of sitting days. Further, she says those alternatives are problematic since litigants can’t necessarily afford to travel elsewhere for court.

Bode justified the change in his letter. “I am sure you are very conscious of the need to manage judicial resources carefully,” he wrote. “As things currently stand, the judge whose base court is located in Fort Frances is currently required to sit outside the district of Rainy River far more than 50 per cent of his total sitting time. As a court, we need to minimize the judicial time consumed in travelling and spread the responsibility for judicial travel among the judiciary. By identifying either Dryden or Kenora as the next judge’s base court, we are putting the next judge closer to where the greatest current need for judicial services exists.”

Bode also denied the change would affect the amount of judicial sittings in the Rainy River area. “I want to stress once again that it will be the need for judicial services in the district of Rainy River and not the location of any judge’s base court that will determine judicial sitting time in the district,” he wrote.

Canada

Obese travellers launch class action against Air Canada, CBC News

Parental abductors should face harsh consequences: lawyer, The Globe and Mail

Man charged in fatal Mississauga crash to make court appearance, CityNews

United States

Pa. priest accused of possessing child porn, Reuters

Harrisburg council to appeal bankruptcy ruling, Reuters

International

Court orders reinstatement of ex-Papua New Guinea PM, Reuters

Philippine Congress impeaches Supreme Court chief justice, Reuters

The Supreme Court of Canada will hear the following appeals this week. These are the last of the hearings scheduled for this year.

Photo: REUTERS/Jim Young

Dec. 12 — Federal Court — Halifax Regional Municipality v. R. in Right of Canada, as represented by the Minister of Public Works and Government Services

Administrative law: The Halifax Citadel is a national historic site and zoned as a regional park. The main dispute arose when the Halifax Regional Municipality and the minister of Public Works and Government Services disagreed on the Citadel’s value, which needs to be determined for federal tax purposes.

Dec. 13 — Manitoba — Manitoba Métis Federation Inc. v. Attorney General of Canada

Aboriginal law: Manitoba Métis Federation Inc. claims Canada didn’t meet the standard for a fiduciary when it implemented grants that dealt with land issues in accordance with the Manitoba Act. The trial judge ruled the case was statute-barred. The Court of Appeal applied the doctrine of mootness and would not address the issue of constitutionality.

Dec. 14 — Ontario — Linda Dale Gibbons v. R.

Criminal law: Linda Dale Gibbons is accused of displaying a protest sign within 60 feet of a clinic, which is in breach of an injunction restraining her from specific protest activities. She was charged with disobeying a court order, which she tried to quash by claiming that two of the Rules of Civil Procedure make it impossible to apply that section of the Criminal Code.

Dec. 14 — British Columbia — Damon William Knott v. R.

Criminal law: Damon William Knott was serving concurrent sentences in prison when he was given another six-month consecutive term and then an eight-month concurrent sentence plus probation. Another man, identified as D.A.P., was serving two years when he was sentenced to another three-year concurrent sentence. The issue is whether the Corrections and Conditional Release Act merges sentences for the purpose of s. 731(1) of the Criminal Code and if that section can be applied to more than one sentence. There is a publication ban in the case.

Dec. 15 — British Columbia — Matthew Leslie Maybin v. R.

Criminal law: A bar fight resulted in a man’s death. It’s alleged that two men and the bar’s doorman carried out separate assaults on the man and left him to die on the walkway outside the bar. At trial, the men were acquitted of manslaughter. The Crown appealed and the Court of Appeal ordered a new trial. In question is the doorman’s involvement in the man’s death.

Dec. 16 — Quebec — R. v. R.P.

Criminal law: A man is accused of committing sexual acts against his teenage sister-in-law between 1974 and 1979. The main issue is whether the trial judge made errors that led to an unreasonable verdict. There is a publication ban in the case.

The SCC will also release its ruling in:

Dec. 14 — Alberta — Information and Privacy Commissioner v. Alberta Teachers’ Association