Legal Feeds Blog
A new generation of Asian lawyers are eager to assume leadership roles, says David Namkung, newly elected president of the Federation of Asian Canadian Lawyers B.C. branch, an organization that is quickly attracting Asian legal professionals to its ranks — up to 228 members in 2016 from last year's 83 members.
Namkung says he hopes to further guide FACL BC's continued growth and provide opportunities for young Asian lawyers to hone leadership skills and build community connections to aid in advancing their careers within law firms and the legal community.
“There is a big gap in leadership in law firms and organizations,” says Namkung, as earlier waves of Asian immigrant Canadians didn't see law as a favoured profession since it required strong language skills. As a result, there is not a large legacy base of Asian lawyers in leadership roles within law firms and associations today to provide that leadership and mentorship for young lawyers.
FACL, a national organization, is playing a strong role in providing that platform and connecting students with practising lawyers with judiciary and professional association members who have Asian roots. One of the founding members of FACL, Justice Maryka Omatsu, was on hand for the FACL BC annual general meeting in Vancouver where Namkung assumed leadership from retiring president Jennifer Lau. Omatsu said the organization now numbers 1,500 strong across Canada and continues to grow. Omatsu, semi-retired, was appointed to the Ontario Court of Justice in 1993 and was the first Asian woman appointed to a Canadian court. She has been honoured as a trail-blazer in the legal profession.
An early foundation of lawyers in Canada was hampered by exclusionary legislation, with Vancouver-born Kew Dock Yip, the son of a Chinatown merchant, becoming the first Chinese-Canadian lawyer despite being unable to enter law at the University of British Columbia. After three attempts at entering Toronto's Osgoode Hall Law School he finally gained admittance and a law degree in 1945. Yip went on to have the Chinese Immigration Act of 1923 repealed by the Canadian government in 1947. It opened the doors for a second wave of Chinese immigration.
Namkung said it is the third wave of immigration from the 1980s that is on the front lines of challenging what has become known as the “bamboo ceiling.”
This third wave are children of wealthier immigrants whose families were left in B.C. to take advantage of the education system while the fathers flew between Canada and another country where they worked.
"We are now seeing more numbers in law schools," Namkung says, as these individuals consider a profession in law rather than traditional areas such as accounting, sciences, or medicine.
In his role as the new FACL BC president, Namkung, a partner in The Counsel Network, wants to ensure the organization continues attracting and supporting members in leadership development.
“We want to ensure that our growth is sustainable so we can invest in our administration,” he says.
FACL BC has hired its first staff member on a contract basis.
Another priority for Namkung is advocating for diversity in the judiciary and through professional organizations such as the Canadian Bar Association and Law Society of B.C. He also wants to see FACL BC take a higher profile and establish partnerships with other organizations both inside and outside the legal community to ensure “not just inward diversity but outward diversity.”
The new 2016-17 executive for FACL BC are: president Namkung; vice president Maria Kim, Population Data BC, University of B.C.; secretary-treasurer Louisa Winn, BC Ministry of Justice, Criminal Justice Branch; and retiring president Jennifer Lau, Allard School of Law at UBC, Career Services Office.
New board members are: Kristian Arciago, 2016 call; Sena Byun, Telus Corp.; Stephen Hsia, Fasken Martineau DuMoulin LLP; Vania Kim, Lindsay LLP; Mark Leung, Broadband TV; Jessica Lo, Lindsay Kenney LLP; Roland Luo, sole practitioner; Christopher Yan, Lawson Lundell LLP; and Linda Yang, McMillan LLP.
Existing board members are: Samson Chan, Campbell Froh May & Rice LLP; Karla Mukai, Campbell Froh May & Rice LLP; Mary Salaysay, BC Ministry of Justice, Criminal Justice Branch; Will Tao, Larlee Rosenberg; and Pablo Tseng, Gowling WLG.
Law students serving as directors for the various B.C. universities are: Alyssa Leung, University of B.C.; David Fung, University of Victoria; and Oliver Leung Thompson Rivers University.
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In a battle likened to David defeating Goliath, two provincial regulators have confirmed a junior mining exploration company in British Columbia can proceed with a $6 million private placement offering, despite a hostile takeover bid by a bigger American silver mining company.
|Fred Pletcher says a junior mining exploration company he represented in a legal battle is pleased with the finding that will allow the company to close a $ 6 million private placement offering, despite a takeover bid.|
The news comes after a two-day joint hearing last week before the British Columbia Securities Commission and the Ontario Securities Commission, pitting B.C.’s Dolly Varden Silver Corporation against Hecla Mining Company, of Idaho.
According to an Ontario Securities Commission ruling, the volleys started on June 27, when Hecla announced its goal to buy all outstanding shares of Dolly Varden not already belonging to Hecla. On July 5, Dolly Varden countered by announcing it would go after private placement financing of up to $6 million.
On July 8, Hecla filed an application with the British Columbia Securities Commission to stop the private placement, while on July 11, Dolly Varden filed with the Ontario Securities Commission, alleging problems with the insider offer.
Last week, the commissions came back with favourable results for Dolly Varden.
“It’s a great result, obviously, for our client,” says Fred Pletcher, partner with Borden Ladner Gervais LLP and chair of the firm’s national mining group, who acted for Dolly Varden.
“There’s been a lot of commentary in the financial and legal press about whether hostile takeover, whether private placements, are the new poisoned pill as a preferred defensive strategy in response to hostile takeover bids in Canada, and a lot of people were looking at this decision as an important precedent on that point.”
Pletcher says it is “particularly an important case because in May of 2016, the takeover bid rules in Canada were significantly changed and this Dolly Varden decision is the first case to address an alleged defensive tactic since the new rules came into effect.”
The new rules in question fall under National Instrument 62-104, Take-Over Bids and Issuer Bids. Pletcher says “while some may view this as suggesting that private placements can be used as a poison pill as a tactical response to hostile takeover bids, I’d say it doesn’t really go that far, and the ruling isn’t carte blanche for targets to adopt private placements in response to bids.”
“There were a number of factual circumstances in this case which were fairly unique that suggested that Dolly Varden’s private placement wasn’t an abusive defensive tactic, and those facts may not be present in other circumstances,” says Pletcher.
Those who are interested in hostile takeovers — and defending from them — can learn from the background of the case.
“The first application was an application by Hecla Mining Company, which had launched an unsolicited takeover bid for Dolly Varden Silver Company to cease trade a private placement that Dolly Varden was proposing to enter into, and the Securities Commissions ruled against the application that Hecla had made so Dolly Varden is free to conduct its private placement,” says Pletcher.
The second application was one that Dolly Varden made to the Ontario Securities Commission that the Hecla takeover bid be required to include a formal valuation. This was under the insider bid requirements of Multilateral Instrument 61-101 — Protection of Minority Security Holders in Special Transactions.
“Hecla owns over 10 per cent of Dolly Varden and securities policies in Ontario and Quebec require a greater than 10 per cent shareholder to prepare a formal valuation, that’s prepared by an independent valuator and overseen by a special committee, not of the bidder but of the target, to address concerns that shareholders may have that they aren’t on a level playing field with the insider when it comes to information about the company,” says Pletcher.
“Hecla’s takeover bid had not included that formal valuation, and they said they were relaying on an exemption, but Dolly Varden didn’t think that was available so it made the application to the Ontario Securities Commission to have the valuation required for Hecla’s bid and Ontario has sided with Dolly Varden there, so the Hecla bid is effectively cease traded until they prepare and provide that valuation to Dolly Varden shareholders.”
Hecla was represented by Cassels Brock & Blackwell LLP. A firm spokesperson said they were not able to provide comment on the matter.
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Nova Scotia’s lawyers are set to march in the Halifax Pride Parade as a profession for the first time this Saturday.
|Left to right: Chief Justice of Nova Scotia Michael MacDonald; R. Daren Baxter, president of the Nova Scotia Barristers’ Society; Amy Sakalauskas, president OF CBA-NS.|
Lawyers have marched in the annual celebration before — individually or as part of other organizations — but this year will mark the first time they will participate collectively as lawyers.
The Nova Scotia Barristers’ Society is teaming up with the Canadian Bar Association Nova Scotia Branch to organize the effort, called Legally Proud, which will see lawyers wearing rainbow-coloured tabs as they walk in the parade.
“This is a way for the profession to get out into the broader community and experience Pride but still be connected as part of our professional group,” says Amy Sakalauskas, the president of CBA-NS.
Roughly 70 lawyers are expected to march with family and friends as part of the initiative. The lawyers got permission in advance from the judiciary to wear the rainbow tabs.
Sakalauskas says the Nova Scotia lawyers drew inspiration from their CBA counterparts in British Columbia, who have marched in the Vancouver Pride Parade with their own float over the last five years.
This year’s theme at the Halifax Pride Parade is “This is why,” which seeks to highlight the reasons the event is so important. These reasons include the advances in LGBTQ rights that have happened over the decades, Nova Scotia lawyers say.
Sakalauskas says the lawyers’ presence in Pride is important, as the legal community has been a big part of advancing those rights.
“By showing that as a profession we’re open to being part of these discussions and the broader discussions outside of the courtroom, I’d like to think that it makes the justice system at least appear and hopefully be more accessible to people,” she says.
Marching in the parade will also help people realize how welcoming the legal profession is, Sakalauskas says.
“There’s a real perception of a very conservative profession that people might not realize is as welcoming as it is,” Sakalauskas says.
“It puts a public face to the profession that shows — whether inside the courtroom or outside the courtroom or the office — that we’re celebrating diversity and coming together with the broader community to do that.”
Sakalauskas says McInnes Cooper LLP walked as a firm in the parade last year and several firms have served as sponsors to the event in the past, but it was time the profession marched together.
“It was just the next step in it all,” she says.
The barristers’ society and the Sexual Orientation & Gender Identity section of CBA-NS held its 14th annual Pride reception Thursday night to show support for the LGBTQ community in the lead-up to the parade.
“It really just gives us another opportunity to celebrate,” Sakalauskas says.
“I always think of Pride, as much as it’s about advocacy and routed in protest, it’s a real celebration, for us to celebrate the triumphs along the way. A parade is a really good atmosphere to do that and to include our kids and our significant others.”
Métis groups and aboriginal lawyers are praising a report released today that makes 17 recommendations to the federal government on how to advance reconciliation with the Métis Nation.
|A report issued today by aboriginal lawyer Tom Isaac says Métis people fall under the same mandate that Inuit and First Nations people do, yet the attention they are shown is ‘utterly disproportionate’ in a negative way.|
Isaac's report, entitled, "A Matter of National and Constitutional Import” was released today. He was appointed in June 2015 to meet with Métis Nation governments, provinces, territories and other interested parties in order to assess the current state of affairs and provide independent advice and recommendations on Métis Section 35 Rights — the part of the Constitution that recognizes and affirms aboriginal rights.
“It was a tough thing to do, but it’s important work,” says Isaac. “What I was trying to get at in my report is that Métis people fall under the same mandate that Inuit and First Nations people do, yet the attention they are shown is utterly disproportionate in a negative way.”
Some of that, Isaac says, is due to lack of treaties, but when it comes to Aboriginal Peoples who hold Section 35 rights, it became apparent to him that more work needs to be done, especially in light of the fact that the Supreme Court of Canada has not indicated Métis rights should be treated any differently from a broader reconciliation approach from Inuit or First Nations.
“That was the fundamental message I was trying to get at,” he says.
“Because of the Constitutional element of it, it needs to be prioritized. We voluntarily amended the Constitution in 1982 to include Métis. My repeated references to ‘Section 35 Métis rights’ was very deliberate.”
In a statement, Métis Nation of Ontario president Margaret Froh offered thanks and appreciation to Isaac for the recommendations in the report.
"The MNO commends Mr. Isaac for his important work. As the home of the first and only Supreme Court of Canada decision — R. v. Powley — that has recognized Section 35 Métis Rights, this report is extremely important to the MNO who advanced this landmark Métis harvesting rights litigation on behalf of the Métis community in the Sault Ste. Marie region from 1993 to 2003. It is also gratifying that Mr. Isaac's report recognizes the MNO as a 'Métis government' and a leader on advancing Métis rights across the Métis Nation," said Froh.
Isaac was also focused on reconciliation in the report. In it, he states: “Reconciliation is more than platitudes and recognition. Reconciliation flows from the constitutionally protected rights of Métis protected by Section 35 and is inextricably tied to the honour of the Crown, and must be grounded in practical actions.”
Isaac's report makes 17 recommendations and includes key findings to help guide future federal action on Métis Section 35 Rights issues, including the need for:
• Development of a Section 35 Métis Rights Framework that will be implemented with Métis communities who meet the legal framework set out in the R. v. Powley case.
• Métis inclusion within existing federal claims processes available to other Aboriginal Peoples or the development of a new Métis-specific claims process to address unresolved Métis claims like the “Treaty 3 [Halbreed] Adhesion” and other breached Crown promises to the Métis.
• A “whole-of-government” approach for improved information and knowledge about the Métis and Métis Section 35 Rights among federal officials and indigenous and Northern Affairs Canada regional offices, including improving Crown-Métis consultation processes.
• Timely, stable and long-term federal funding to support Métis governments like the MNO, including permanent support for the MNO centralized registry.
• A comprehensive review of existing federal programs and services available to indigenous peoples as well as all future federal initiatives to ensure they deal with the Métis distinctly and equitably.
Indigenous rights lawyer Jason Madden, partner with Pape Salter Teillet LLP, says despite Powley in 2003, Manitoba Métis Federation v. Canada in 2013 and Daniels v. Canada in 2016 in which the Supreme Court has been saying reconciliation with the Métis has to happen, now an appointed independent expert has said it needs to happen, too, and here is a way to go about doing it.
“He’s being quite assertive and putting down some solid markers,” says Madden.
“The wonderful thing about Mr. Isaac’s report is he sets out a road map with practical mechanisms. Now we have the trifecta of the Métis case law: Powley that deals with Métis Section 35 rights, Manitoba Métis Federation that says Métis have outstanding land claim related claims, and Daniels that says the federal government has jurisdiction for them like all aboriginal people. You put those pieces together and there is the inevitable conclusion that reconciliation needs to happen with the Métis, negotiation of a claims process, etc.”
Madden also notes that there is also now “a government in Ottawa that is a willing party on all of this.”
On Tuesday, Isaac was also appointed ministerial special representative regarding the Akaitcho Dene First Nation and the Northwest Territory Métis Nation negotiations and overlapping interests regarding one of the last outstanding land claims in the north.
|Lawyer Jay Strosberg says the Class Proceedings Act was proclaimed and enforced in 1992 and since then, the Court of Appeal has never addressed the issue of carriage.|
Two groups of Bay Street law firms are battling for the right to represent the plaintiffs in a multi-billion-dollar securities class action against Barrick Gold Corporation.
In what’s believed to be the first carriage matter to reach the Ontario Court of Appeal, the court awarded the case to a group of firms led by Rochon Genova LLP instead of another group of law firms led by Koskie Minsky LLP. If it’s certified, the Barrick Gold case will be one of the largest securities class actions in Canada.
“The Class Proceedings Act was proclaimed and enforced in 1992 and since then, the Court of Appeal has never addressed the issue of carriage,” says Jay Strosberg, partner at Sutts Strosberg LLP, which is part of the Koskie Minsky group.
In Mancinelli v. Barrick Gold Corporation, the Court of Appeal said the lower court judge was correct to give carriage to Rochon Genova, which presented a broader claim than Koskie Minsky and had done “more extensive preparation” on the file.
Koskie Minsky had argued its claim was more “workable” than Rochon Genova’s and that “less is more” when it comes to the scope of an action. But in choosing Rochon Genova’s action, the court said the term “workability” is not found anywhere in the authorities.
“While some cases have given preference to ‘lean’ actions over more comprehensive ones, I would reject any firm rule that ‘less is more’ or, indeed, that ‘more is better,’” said appeal court Justice George Strathy, who wrote on behalf of the court. “The ultimate question is whether the proposed strategy is reasonable and defensible.”
Joel Rochon, partner at Rochon Genova, says Strathy carefully reviewed the factors to be considered. “He has also taken pains to emphasize that the list of factors is not exhaustive and there may be other factors to be considered depending on the unique circumstances of the case.”
Meanwhile, Paul Pape, who represented Koskie Minsky, said his clients are considering an appeal to the Supreme Court of Canada.
“I am unable to comment on the reasons as the Koskie Minsky group is considering an application for leave to appeal to the Supreme Court of Canada,” Pape said in an e-mail to Legal Feeds.
To Strosberg, this case was a missed chance for the Court of Appeal to clarify a confusing and inconsistent area of the law. Rather than highlighting the important factors to consider when it comes to awarding carriage, the Court of Appeal simply deferred to the lower court judges’ opinion on which factors were important in this case, Strosberg adds.
“We now have close to a 20-part test on a carriage motion. That test, at best, is applied inconsistently,” Strosberg continues. “From the perspective of a class action plaintiffs’ lawyer, preparing for these cases has become somewhat of a moving target in that you have so many factors but...there is no one test that’s consistently applied.
“The Court of Appeal had an opportunity to establish a coherent framework to resolving carriage disputes and in my view, it did not do so,” Strosberg adds.
Koskie Minsky argued that in its attempt to win carriage, Rochon Genova disclosed its preliminary expert reports against the interest of the class. According to Strosberg, the court of appeal should have weighed in on this issue. He says disclosing an expert report so early in the case is “a tactical mistake” that prejudices the class.
“What happens is you’ve effectively given the defendants a draft expert report, which they’re not entitled to see,” he says. “You have to understand that a carriage motion is a very early procedural motion that has nothing to do with the defendants.”
Strosberg says in every single carriage dispute going forward, plaintiffs’ counsel will be forced to reveal their draft expert report in an attempt to show the extent of their preparation.
But Rochon says preliminary expert reports provide an important glimpse into a considerable preparation. It shows the court that “you’re on top of this and you’ve done your homework,” he says.
“My view is that this is an important yardstick to apply when considering which firm should get carriage,” Rochon adds. “It may not be appropriate in every case but in a significant, complex securities case such as this, the degree of preparation and understanding the overall case was at the heart of the carriage decision.”
In this dispute, Koskie Minsky said the court shouldn’t award Rochon Genova the case because of the history of judicial criticism of the Merchant Law Group, one of the members of the Rochon consortium. The Merchant Law Group has gotten a lot of flak from the courts for its fee-sharing arrangements.
“The appellants’ position with respect to Merchant is hypocritical, Rochon says, given that members of the Koskie consortium had their own history of co-counsel agreements with Merchant,” Strathy said.
“The motion judge was clearly aware of these duties and of Merchant’s history and I am not prepared to say that he erred in the exercise of his discretion in awarding carriage to Rochon in spite of Merchant’s participation in that consortium,” Strathy also said.
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