Legal Feeds Blog
The Supreme Court of Canada has a full roster of hearings this week, with five of six cases being on appeal from the Court of Appeal of British Columbia.
October 31 – New Brunswick – Oland v. R.
Criminal law: The appellant was tried for the second-degree murder of his father by a judge sitting with a jury. Oland was convicted and sentenced to life imprisonment without eligibility for parole for 10 years. He filed a Notice of Appeal against his conviction in the New Brunswick Court of Appeal as well as a motion for release pending his appeal. The motion was dismissed, and later a three-member panel of the Court of Appeal confirmed that decision. Oland’s appeal against conviction was scheduled to be heard before the New Brunswick Court of Appeal in October 2016, and in the meantime he is appealing to the SCC the release pending appeal decision only.
Read the New Brunswick appeal court decision
Related news stories:
Dennis Oland jurors fell victim to circumstantial evidence, appeal alleges, CBC
November 1 – British Columbia – Teal Cedar Products v. R.
Arbitration: The Forestry Revitalization Act, S.B.C. 2003, c. 17 permitted the Province of British Columbia to reduce by 20 per cent the land base and allowable annual cut of forest tenures held by British Columbia forestry companies, including the applicant, Teal Cedar Products Ltd. A dispute arose regarding compensation the Province must pay Teal for the “value of improvements made to Crown land” under the Act. The parties settled Teal’s compensation for the value of the lost harvesting rights but did not agree on the final compensation for the value of the related improvements. The dispute went to arbitration, and the arbitrator awarded Teal $5,150,000 in addition to the $4 million the Province had already advanced to Teal as compensation for the improvements. Both parties applied to the Supreme Court of British Columbia for leave to appeal the arbitrator’s award.
Read a summary of the British Columbia appeals court decision
Arbitration: Under s. 31 of the Arbitration Act, R.S.B.C. 1996, c. 55, the arbitrator had to determine whether the respondent BCNET Networking Society properly and validly exercised its options under the agreement between itself and the applicant Urban Communications Inc. The arbitrator ruled in favour of the respondent finding the options had been properly exercised.
The chambers judge granted leave to appeal, allowed the appeal and amended the arbitrator’s award. The Court of Appeal allowed the appeal and reinstated the arbitrator’s award.
Canadian charter (Criminal): Brendan Paterson was convicted of nine offences: two counts of possession of illicit drugs, three counts of possession of illicit drugs for the purpose of trafficking and four counts of unlawful possession of firearms. He was sentenced to four-and-a half years.
At the trial, a Charter voir dire was held to address Mr. Paterson’s objection to the admission of the evidence seized by police as a result of their entry into and search of his apartment. The trial judge dismissed the application to exclude evidence.
On appeal, the Court of Appeal found no reason to interfere with the findings of the trial judge. It dismissed the appeal from conviction.
Read the British Columbia appeal court decision
Read related news stories:
BC Court of Appeal Declines to Expand Scope of Confessions Rule: R v Paterson, thecourt.ca
November 3 – British Columbia – R. v. Bradshaw
Criminal law: Two people were shot to death five days apart. A co-accused claimed the respondent, Mr. Big, had shot one victim and assisted in killing the other. At the respondent’s trial the co-accused refused to be sworn. The trial judge admitted a recording of the co-accused’s re-enactment of the murders under the principled exception to the hearsay rule, and a jury convicted the respondent on two counts of first degree murder. The Court of Appeal held that the recording of the co-accused’s re-enactment should not have been admitted, set aside the convictions and ordered a new trial on both counts.
Read the British Columbia appeal court decision
Read related news stories:
New trial granted due to hitman’s testimony, Vancouver 24 hrs
Killer tells all to undercover cop, Langley Times
Trial in 2009 double murder underway in New Westminster court, BC Local News
November 4 – British Columbia – Douez v. Facebook
Read the British Columbia appeal court decision
Read related news stories:
Facebook wins appeal to stop B.C. class-action lawsuit over privacy, CBC
Canada’s top court to hear B.C. case against Facebook ‘sponsored stories’ policy, The Globe and Mail
Supreme Court of Canada to hear B.C. woman’s class action against Facebook, Business Vancouver
Lawyers say a $2.5 million class action lawsuit against an auto parts maker highlights the need for employers to alert the Ministry of Labour early when closing down a facility.
|Plaintiff lawyer Stephen Moreau, a partner with Cavalluzzo Shilton McIntyre Cornish LLP, says an auto parts maker neglected to inform the Ministry of Labour of a plant losing.|
Nearly 100 auto parts workers are represented on the lawsuit, which was brought against their former employer, CTS of Canada Co., after it shut down its Mississauga plant in 2015.
The workers recently filed a summary judgment motion against CTS to have their day in court without having to go to trial.
The claim alleged the American car parts manufacturer failed to give them proper notice when it closed down the plant to sell the land and move its operations to Mexico and China.
At issue is whether CTS filed a Form 1 with the Ministry of Labour when the company gave its employees notice the plant would be closing.
Under the Employment Standards Act, employers who lay off more than 50 employees must submit the form to the ministry in order for their notice of mass termination to come into effect.
A copy of the form must also be posted in the workplace on the first day of the notice period in addition to providing employees with individual notice.
“Form 1, even though it’s a technical requirement, it’s part of a scheme that is supposed to apply when you have group notice under the act. It’s an important part of it because it gives the Ministry of Labour notice of what’s happening,” says Landon Young, the managing partner of Stringer LLP, who is not involved in the case.
In their claim, the workers alleged CTS did not file the form, rendering their severance letters null and void.
“What we’ve alleged and I think we’ve clearly proven here is they neglected to actually inform the Ministry of Labour that this plant was closing,” says the plaintiffs’ lawyer, Stephen Moreau, a partner with Cavalluzzo Shilton McIntyre Cornish LLP.
“When you close a plant, you’re supposed to tell the Ministry of Labour so that the labour ministry can get involved and help people reintegrate into the workforce.”
CTS announced the plant would close in Feb. 2014, which was more than a year before the intended closure date. In April of that year, the company gave individual severance letters to its employees, letting them know the plant would stop manufacturing by March 2015.
In their statement of defence, CTS said that the company discovered “its error” in not submitting a Form 1 initially and did so in May 2015, informing the ministry of their plans to close the plant in June.
CTS argued that the fact that the Form 1 was not submitted at the time the severance letters were issued did not void them, as they were only required to submit a Form 1 within four weeks of closure.
“CTS denies that any of the Plaintiffs were wrongfully dismissed,” said the company’s statement of defence.
“CTS states that all of the Plaintiffs received reasonable notice of the termination of their employment and many of them received far greater than reasonable notice of the termination of their employment due to the extended length of the working notice period provided.”
Moreau says the fact that CTS was nearly 13 months late in filing its Form 1 meant that the Ministry of Labour could not conduct the proper employment services for the employees.
“The notice is not a trifling matter,” he says.
Employment lawyers say this case highlights the importance of filing a Form 1 early in the process.
“That’s an essential first step. That’s the first thing we do is we get the client to fill out that form,” says Hendrik Nieuwland, a partner at Shields O’Donnell MacKillop LLP, who is not involved in the case.
Nieuwland says that if the claim is successful, giving workers one year of advanced working notice might have all been for nothing and that the employer might end up having to pay the former employees minimum notice amounts in addition to the year of work they completed.
Kristin Taylor, of Cassels Brock & Blackwell LLP, who has represented CTS in the class action proceedings, declined to comment, as the lawsuit, which was certified in January, is ongoing.
The plaintiffs expect their summary judgment motion will be heard in July 2017.
British Columbia’s new superintendent of real estate Michael Noseworthy has made it clear that lines have now been drawn between his office and the real estate industry as he took control of the office Oct. 19 overseeing the public's interest in what has become B.C.'s most controversial industry.
“My job is to represent the public and protect the public and act for the public and their best interests,” says Noseworthy, a lawyer and government regulator, who takes on the over-sight role of the real estate industry and its regulatory body, the B.C. Real Estate Council.
Noseworthy's consumer protection stance continues the hard line taken by Premier Christy Clark when the Liberals became embroiled in real estate controversy for failing to provide the needed regulation framework to stop shadow-flipping by real estate agents. Clark responded by passing a law to prohibit it, implementing tough new financial penalties for realtors and the firms, dismissing the board members of the Council, removing the real estate industry's right to self-regulate, and creating Noseworthy's full-time position.
Noseworthy arrived in B.C. from the Yukon where he served as a senior government regulator, holding a variety of positions. He worked as a lawyer in Newfoundland and Labrador prior to his work with the Government of Yukon, in a private practice that included real estate law and administrative law. He received both his law degree and a bachelor of arts in political science from Dalhousie University.
The new superintendent said he will be working to ensure the 28 recommendations put forward by the Industry Advisory Group led by Carolyn Rogers, then CEO of the Financial Institutions Commission of B.C. and endorsed by the B.C. government are implemented. The IAG recommendations looked at what was wrong with the real estate industry and its provincial regulatory body, the Council. The advisory group included members of the legal profession including Howard Kushner (Kushner Law Group), Bruce D. Woolley, Q.C. (Stikeman Elliott LLP), and Ron Usher, general counsel, Society of Notary Public of B.C.
The 28 recommendations set out needed changes in three areas: the provincial government should make to its laws, changes to the Council and recommendations for the superintendent's office.
Amongst the amendments that impacted the BC Real Estate Services Act were increased penalties and eradicating any ability to shadow-flip properties between buyers without the seller's knowledge. Maximum fines have increased from $10,000 for agents and $20,000 for agencies to $250,000 for agents and $500,000 for agencies and $50,000 administrative fines under the Act.
The new nine-member council board appointed Oct. 12 will be chaired by lawyer Robert D. Holmes, Q.C., a trial and litigation lawyer. Only two of the nine members have real estate industry involvement.
Noseworthy said he is confident that the new Council can provide the guidance and knowledge required to make the needed IAG changes that relate to the Council's role to regulate and licence brokers.
While all 28 recommendations are important, Noseworthy there are two main concerns. He wants to ensure that shadow-flipping is halted, but also wants to address the issue of dual-agency participation, where an agent represents both buyer and seller.
The BC Real Estate Association, representing 11 regional real estate board, have responded to the 28 recommendations with a report that has been issued to Noseworthy's new office. The provincial association's concern is that not permitting dual agencies, especially in rural areas may limit agents.
As Noseworthy moves deeper into his role and watch-dogs the pieces of a reshaped regulatory system, he is expected to draw national attention. "There will be people right across Canada watching to see what we do here," says Damian Stathonikos, BCREA spokesperson.
Noseworthy remains committed. "My whole career has been about protecting the public, something I am passionate about and the reason I come to work every day,” he says.
The Supreme Court of Canada has dismissed the appeal of a Québec student who had brought a contempt charge against a spokesperson over student protests in that province in 2012; but the most interesting aspect of the case was the split in the court over the decision, says a lawyer who represented one of the interveners in the case.
|Ranjan K. Agarwal, a partner at Bennett Jones in Toronto represented an intervener in the case, the Alberta Public Interest Research Group.|
“What I can say to you is that I find it very, very interesting that the court broke on a 5/3/1, and that is really, really rare,” says Ranjan K. Agarwal, a partner at Bennett Jones in Toronto who represented an intervener in the case, the Alberta Public Interest Research Group.
In the spring of 2012 during student protests in Quebec over proposed increases to university tuition fees, Jean-François Morasse, a student at the Université Laval, obtained a provisional interlocutory injunction that mandated free access to the facilities in which Morasse’s classes were held. In a later television interview, student organizer Gabriel Nadeau-Dubois said that attempts to force students back to class (as the Superior Court had recently done at one Quebec college) never work, and that a minority of students were using the courts to circumvent the majority’s decision to “strike” and picket.
Morasse filed a motion for contempt against Nadeau-Dubois for his comments in the interview, and the latter was found guilty of contempt of court under article 50, para. 1 of the Code of Civil Procedure. The conviction was later overturned by Quebec’s appellate court.
In the majority decision, penned by Justices Rosalie Abella and Clément Gascon, the court dismissed the appeal by Morasse.
“A conviction for contempt should only be entered where it is genuinely necessary to safeguard the administration of justice,” the court wrote. “Clear, precise and unambiguous notice of the specific contempt offence must be given to the accused … The only allegations raised by M against N-D related to an alleged violation of one paragraph in an injunction order in the form of comments N-D made in an interview. N-D was not given notice as to which specific branch of art. 50 para. 1, if any, he was being charged under.”
In dissenting reasons, Justice Richard Wagner, writing also for Justices Suzanne Côté and Russell Brown, found that specific knowledge of an order is not essential for the purposes of this section of the Code; “In this case, N-D knew full well that the contempt charge he had to answer had been laid” under two applicable articles of the Code.
In concurring reasons, Justice Michael J. Moldaver found himself “unable to agree with either set of reasons.” Nadeau-Dubois’s television interview comments “intended to incite students at large to breach any and all court orders,” he noted. Yet at trial, the matter hinged on whether Nadeau-Dubois had specific knowledge of a Superior Court judge’s “safeguard order” to allow students to continue attending classes.
Justice Moldaver “said he couldn’t agree with either side,” says Agarwal, “not because of the outcome, but because he thinks the case was … set up in the wrong manner right from the trial.
“For the judges to break five-three-one suggests to me that there are some interesting divisions happening around the conference table,” he adds, “and that the desire to have a consensus approach seems to have dissipated in favour of the judges staking out their unique ideological territory.”
Another intervener in the case was the Canadian Civil Liberties Association, represented by Grey, Casgrain s.e.n.c in Montréal. “The majority reiterates the basic principles of contempt of court,” said partner Julius Grey of the decision.
Like Agarwal, Grey doesn’t see this as “a revolutionary decision. … I think this case is more important for contempt of court than freedom of expression. It doesn’t touch on the right to advocate civil disobedience. It leaves that for another day."
Giuseppe Sciortino, whose firm Melançon Marceau Grenier et Sciortino in Montréal represented the respondent, noted that nine judges — five on the Supreme Court, three on the Court of Appeal for Quebec, and one at trial — had found in favour of his client.
“In future, it may be more difficult to find someone guilty of contempt of court” based on interpretation of words, such as Nadeau-Dubois’s comments in his television interview, he says. “It’s a big victory.”
After a year and a half of internal consultation, Ryerson University has taken the first steps towards opening its own JD program.
On Oct. 20, the law school originating committee released a letter of intent following initial consultations with the community. The committee, comprised of faculty members from across disciplines, used community feedback to write the letter of intent, which is the first step in the process of developing the JD program. On its website, the university states “the proposed program focuses on innovation in legal education for the benefit of graduates, their communities, and the broader society.”
Chris Bentley, executive director of the Legal Innovation Zone and Law Practice Program at Ryerson, says the law school being proposed is fundamentally different than what’s on offer currently. He says when people talk about challenges law students have securing articling and full-time positions, they forget the multiple studies talking about unmet legal need.
“If you’re in another business, you get innovative,” he says. “You say that’s a market — in Canada, and North America, it’s a market for millions and millions of dollars. There’s work out there we’re not going after as lawyers because we can’t change fast enough to get that market. If we don’t change others are going to get it.”
Bentley says the challenges law students face after graduating have to do with out-of-date legal training, not lack of need.
Ryerson also released a whitepaper entitled Training Tomorrow’s Legal Professionals that says the legal practitioners of the future need different skills than lawyers from 20 years ago. New lawyers will “need to be creative and skilled problem solvers, strategic planners, and process managers with the financial literacy, technological competency, and entrepreneurial spirit needed to serve consumers.” To achieve this, they need a “dramatically different” law school experience, which is what Ryerson says its proposed program will offer — a law school designed to specifically address issues in the legal industry.
“We don’t have a law school that’s graduating this kind of student — not yet, not until we set it up and launch it,” Bentley says.
“We all know the struggles society is facing when it comes to the law — it’s unaffordable, too complex, too slow, we haven’t involved technology as we should. If you train people in the traditional way you’re going to get more of the traditional approach.”
He adds that the entrepreneurial and innovative energy Ryerson bases its programs on is something the law desperately needs. He says Ryerson’s proposed law school offers a great opportunity to prepare lawyers to “grab a piece of the unmet legal need out there.”
One of the mandates of the new program is to incorporate the relevant elements of the Legal Innovation Zone and Law Practice Program, the latter of which is under review by the Law Society of Upper Canada. The law society recommended the LPP be cancelled after the committee’s report — which was based on surveys and focus groups with employers and candidates — said despite positive reviews, it fell short of providing a sustainable alternative to articling that was accepted by candidates and the legal profession. Bentley says the fate of the LPP is still up in the air as only a sub-committee of the law society has spoken on the issue. Full convocation still has to weigh in so nothing will be finalized until Nov. 9, Bentley says, adding that he’s still hopeful.
Ryerson has long been after its own law school, publically announcing its intention to start the internal process to develop one a year after the launch of the English LPP.
“The practical, hands-on experience Ryerson has gained in administering the Legal Innovation Zone and Law Practice Program will be utilized in developing and delivering the program’s curriculum,” states the whitepaper.
“This includes the incorporation of the entrepreneurial aspects of legal education, the use of simulated online legal files and in-class role-playing, the formalization of mentorship relationships, and employment of the most recent electronic tools. All represent key pillars of the new program and will form the basis of Ryerson’s distinctive approach to legal education.”
In an email, Law Society of Upper Canada spokeswoman Susan Tonkin said the law society is “interested in and following Ryerson’s proposal, but it’s still very early days in the process.”
Ryerson, which hosted the first of two town halls for students, faculty and staff on Oct. 25, is offering the second town hall on Oct. 27 and asking for input from the community before Nov. 17.
The letter of intent is the formal step needed for getting internal Senate approval at Ryerson, Bentley says, and after all consultations are held a final proposal will be sent to the Federation of Law Societies of Canada and the LSUC for approval, as well as to the Ontario government for funding.
Man killed in multi-vehicle accident in Pickering, Ont., Canadian Press
Scott Morgan is one of a few “legal ops” professionals working in-house in Canada these days, but expect to see more like him as larger corporate legal teams realize the value someone with a financial background can bring to managing a legal team.
|Scott Morgan, director, legal operations, law branch with Air Canada in Montreal, says his role is to improve processes and efficiency with the legal team.|
About 18 months ago, Morgan, who is director, legal operations, law branch with Air Canada in Montreal, joined the airline’s legal department after 25 years working in large law firms such as Stikeman Elliott LLP and Norton Rose Fulbright Canada LLP where he was chief operating officer for six years. A chartered professional accountant by training, Morgan was focused on the finance and operations aspects at those firms.
“There aren’t many people in my position in the U.S who have the law firm background, but they very often have a financial background,” he says.
Morgan says leaders of in-house departments are finding themselves where big law firms were 30 years ago — they see themselves handling a lot of important administrative work such as information technology matters and negotiating financial contracts — taking them away from their day jobs. They’re starting to see that it could be managed better if someone was focused full time on those tasks.
In a report released last week — “Thomson Reuters 2016 Legal Department In-Sourcing and Efficiency Report: The Keys to a More Effective Legal Department” — more than 40 per cent of legal departments indicated the top benefit of increasing efficiency is being able to focus on more strategic work, and many are turning to legal department operations professionals like Morgan to enable them to be more strategic in how they advise the business.
The report, conducted for a second year, surveyed 429 lawyers and operational professionals working in corporate legal departments and examines how in-house teams are managing internal and external resources to achieve greater efficiency and productivity.
“As expected, we continued to hear that corporate legal departments are doing more with less,” said Mark Haddad, vice president of the corporate segment for Thomson Reuters.
The report reveals a rise in employing legal department operations professionals. Many departments reported being besieged by the operational activities that come with being part of a corporation. Among the ways general counsel are addressing this is by employing legal department operations to foster change.
“LDOs are managing outside counsel and employing legal managed services providers, as well as identifying and deploying new technologies across the legal department,” said Haddad. “It’s an encouraging development in the legal profession. General counsel indicated a strong need to work more strategically, and bringing in LDO professionals to concentrate on business operations allows corporate counsel to focus on legal work and be more proactive and strategic in how they advise the business.”
In Morgan’s case, he deals with external counsel at the beginning of an RFP and in helping negotiate alternative fee arrangements.
“That comes from my vendor side experience and my financial administration and purchasing experience,” he says.
When he was hired, Morgan says, David Shapiro, senior vice president and chief legal officer for Air Canada, had a vision of someone who would step in on the financial side as well as handling operations such as the renovation of the legal team’s premises to create a more efficient space for a legal practice.
“We’re also in the middle of a big enterprise legal management software project,” he says. “Those are the kinds of things that were part of his vision to improve processes and efficiency with our group.”
While Canada’s big banks are also employing legal operations personnel, it is still more prevalent south of the border to see such legal opps positions in corporate legal departments.
The report found that by allowing corporate counsel to dedicate more time to the practice of law, less work has to go to outside counsel.
The report analyzes how legal departments are keeping work in-house, particularly with certain tasks related to contracts, intellectual property, mergers and acquisitions and litigation. The report also explores which matters and tasks in-house counsel still turn to outside counsel for, and the reasons driving the work to law firms, including legal complexity and jurisdictional reasons.
“By changing how legal departments partner with outside counsel, hiring LDOs and implementing new technologies, legal departments are finding more ways to adapt to cost pressures and see a greater return on total legal spend,” added Haddad.
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