|Daniel Bach says it is rare for judge’s to adjourn certification proceedings to allow plaintiffs to submit further evidence and even rarer for those actions to subsequently be certified on return.|
Class members say they experienced adverse side effects after having one of the devices — which are all made of the same polypropylene — surgically inserted in order to treat incontinence. The lead plaintiff, Susan Vester, claimed she suffered complications and a great deal of pain after undergoing surgery to have one of the products implanted in her.
The class action is the latest of a number of transvaginal mesh cases that have been proposed in recent years against different manufacturers.
This, however, was the first that was successfully certified on a contested motion, says Daniel Bach, one of the lawyers representing the plaintiffs.
“We’re really pleased with this decision,” says Bach, who is a partner at Siskinds LLP.
“We think it’s a big victory for our clients who are trying to get into court to have a judge adjudicate whether or not the products that were put in their body were safe and fit for their use and whether or not they were properly warned of any dangers in the products.”
The certification motion in the Boston Scientific case was originally heard in November 2015, but Perell adjourned the matter to give the plaintiffs another chance to submit more evidence. Perell determined the plaintiffs would have to provide more evidence in order to establish there was some basis in fact for common issues for their negligent design claim, as well as their claim that the manufacturer had failed to warn.
Bach says it is rare for judges to adjourn certification proceedings to allow plaintiffs to submit further evidence and even rarer for an action to be certified subsequently on return.
Perell used a little used subsection of the Class Proceedings Act, which gives judges the power to adjourn motions for certification to permit parties to amend their materials or pleadings, and to provide further evidence.
Boston Scientific argued that while the plaintiffs identified a common feature of all nine of its transvaginal mesh products, they had failed to establish that it was connected to their claims.
Both sides made further submissions, but on return, Perell found the evidence submitted by the plaintiffs established some basis in fact for common issues for the claim.
“This is evidence there is a common issue for all the women implanted with these devices about the safety and efficacy of the medical device in question, being these various Boston Scientific transvaginal mesh devices, all of which are made of the same polypropylene,” says Bach.
David Morritt, one of the lawyers representing Boston Scientific, did not immediately respond to a request for comment.
|Malcolm Mercer says the working group looking at the issue has not determined what the potential cap on referral fees could be.|
The working group examining the issue has found that clients of some personal injury firms do not always know about the existence of referral fees, or that they are being referred to another lawyer, even though the law society’s current rules require lawyers to disclose such information.
Convocation will decide on Thursday whether to adopt either an outright ban of referral fees or a cap limiting how much lawyers could pay each other for referrals.
“The working group thought that there were two plausible choices that Convocation should make,” says Bencher Malcolm Mercer, who is chairman of the Advertising and Fee Arrangements Issues Working Group Report.
“And when there was not consensus within the working group as to which of the two answers was the right one, the better course was to put it to convocation.”
The working group found that some referral fees have crept up to more than 20 per cent. Some who gave feedback to the working group have advocated for a 10-per-cent cap on all referral fees, while others have asked for a 30-per-cent level.
If Convocation decides to approve the cap, the working group will come up with an appropriate amount, as well as additional measures to ensure greater transparency.
Mercer says these measures could include a requirement of a formal written agreement between the referrer and the client. Another transparency measure could be a requirement that lawyers make it clear in their advertisements when some of the work will be referred out to other lawyers or firms, he says.
Mercer says the working group has not made a decision on what the cap would be, but he expects it would be “in the lower range.”
The law society is also looking to add to its rules on advertising, which currently include requirements that lawyers advertise in a way that is not misleading, is accurate, and is in the best interest of the public.
The new rules would require licensees to identify whether they are a paralegal or a lawyer in their advertisements. The law society would also look to amend the Rules of Professional Conduct to “guide licensees as to the appropriate use of awards and honours, and to protect the public from misleading use of awards and honours when necessary.”
Licensees would also be banned from advertising work that they are not permitted to do, or do not intend to do.
The working group flagged the issue in its interim report that said some firms have advertised legal services that were referred out without any intention of doing that work.
The proposed changes also include a ban on second opinion advertising, which entices a potential client that already has a lawyer to retain the advertiser instead.
The rules would also ban lawyers from referring to third party awards and rankings in their ads that are “not bona fide or are likely to be misleading, confusing or deceptive.”
The working group’s interim report from the summer also tackled issues concerning advertising in the real estate bar as well as contingency fees, but the committee has not finished its work on those issues.
|Colin Ingram says the decision follows a recent trend of the Federal Court granting lump sum costs in patent infringement cases.|
In Nova Chemicals Corporation v. the Dow Chemical Company, the Federal Court of Appeal dismissed an appeal from Nova, finding Federal Court Justice John O’Keefe had not erred in his determination to grant costs in a lump sum, rather than use a full assessment process in accordance to a tariff.
“Lump sum awards have found increasing favour with courts, and for good reason,” Justice Donald Rennie said the decision, on behalf of a three-judge panel. “They save the parties time and money… When a court can award costs on a lump sum basis, granular analyses are avoided and the costs hearing does not become an exercise in accounting.”
Colin Ingram, one of the lawyers representing Dow, says the decision demonstrates a continuing acknowledgement by the courts of the usefulness in appropriate circumstances of lump sum awards in patent infringement matters.
“Part of what I think the court has been acknowledging in this case and others is that there is usefulness — in appropriate cases where it can be done — for a lump sum to be awarded at the outset by the trial judge to avoid this further proceeding,” says Ingram, who is a partner with Smart & Biggar/Fetherstonhaugh.
The Federal Court proceedings included a 32-day trial, in which the judge found Nova had infringed a patent owned by Dow in one of its products. Both companies manufacture polyethylene film-grade copolymers used in packaging applications.
O’Keefe granted Dow the lump sum of $6.5 million, which was $2.9 million in legal fees and $3.6 million in disbursements.
O’Keefe noted that the proceedings were “extremely complex”, with written submissions exceeding 700 pages, and that both parties undertook extensive testing that were at the heart of the dispute. He found that given this the 11 per cent that was allowable under the tariff would be inadequate, and that Dow should get an amount that was 30 per cent of its legal costs.
Nova opposed the granting of a lump sum, arguing that the issue of costs should go to an assessments officer.
Nova claimed the record and evidence provided were not sufficient to substantiate a lump sum. Nova objected to “the lack of a supporting affidavit and its inability to cross-examine and test Dow’s claim for disbursement of $1.6 million,” but the judge dismissed this argument, saying he was satisfied with Dow’s submissions.
O’Keefe determined that the costs should be a fixed lump sum, saying an assessment would “serve no purpose”.
In their appeal, Nova submitted that any departures from the tariff should only be granted in exceptional circumstances. Nova also argued that O’Keefe had erred in awarding costs based on a percentage of Dow’s actual fees, alleging the judge did not analyze whether the time billed by Dow’s lawyers was reasonable.
Nova also argued the judge was not entitled to come to the conclusion he did, saying the evidence provided before the judge was insufficient, with respect to Dow’s fees and disbursements.
The Federal Court of Appeal found that the evidentiary record before a trial judge that awards a lump sum does not need to provide the same level of detail as would be required by an assessment officer, who would be unfamiliar with the case.
The court also determined that the judge had a sufficient basis on which to conclude that the disbursements claimed by Dow were reasonable.
Ingram says the Federal Court of Appeal decision is an acknowledgement for the need for a practical approach in certain circumstances to certain cost issues.
“Here it’s an acknowledgement that the trial judge is in a position to assess various issues relevant to costs including the complexity of the proceedings, the nature of the trial, including the number of experts and the testing that was involved,” he says.
Donald Affleck, a founding partner of Affleck Greene McMurtry LLP, has died.
|Donald Affleck has died at the age of 77.|
After growing up in the Ottawa Valley, Affleck graduated from the University of Toronto’s Law School in 1964 and started his law career at Fasken Calvin MacKenzie Williston & Swackhamer.
He later went on to co-found Kelly Affleck Greene with other partners that left Fasken together in 1992, and later formed Affleck Greene McMurtry in 2003.
Peter Greene, a fellow founding partner and friend of Affleck, described him as a deliberate and thorough lawyer who would dive into the details of a case even in his later years as a senior partner. He would sift through boxes of documents and make notes when others might have left such tasks to paralegals or more junior lawyers.
Greene says this made Affleck a great mentor for younger lawyers.
“Don would dig into the documents, get the facts and he’d know them. He was a teacher from that perspective for our younger people,” he says.
Greene says he would warn younger lawyers who worked with Affleck on cases to know their facts.
Greene met Affleck at Fasken in the late 1970s and says the firm taught them to make sure to know the facts of a case above all else.
“It was ingrained in us that facts win cases. Law doesn’t,” he says.
While clients might demand an opinion on their case immediately, Greene says Affleck was extremely analytical and would often take a few days to give his opinion on a case if it was going to lead to litigation.
Affleck appeared before trial and appellate courts and was an arbitrator on the softwood lumber anti-dumping case under the North American Free Trade Agreement.
He also was counsel to the standing committee of the House of Commons on Finance, Trade and Economic Affairs when the federal government was considering amendments to competition and banking legislation in the 1970s, and later served as chief counsel to the Royal Commission on Newspapers from 1980 to 1982.
He co-wrote Canadian Competition Law — a widely referred to resource in the area — with Wayne McCracken.
Greene says Affleck was a “class act” that would rarely use profanity.
“I don’t think anybody could dislike him. He just got along with people,” he says. “He was just a likeable guy.”
The Church of the Redeemer will hold a memorial service for Affleck at 162 Bloor Street West in Toronto on Saturday from 3 p.m. to 5 p.m.
A judge has awarded a Saskatchewan law firm just $21,000 after it asked for $321,000 from the government for work it did representing residential school survivors in the settlement of a class action lawsuit.
In Fontaine v. Canada (Attorney General), Saskatchewan Queen’s Bench Justice Neil Gabrielson found the firm billed the government too much for work related to the Indian Residential Schools Settlement Agreement, a country-wide class action settlement which was approved about 10 years ago.
MacDermid Lamarsh brought a request for direction in 2016 after accounts submitted to the federal government went unpaid. The firm, which was one of 90 firms that represented class members, claimed $321,644 for work done relating to the IRSSA dating back to 2005.
The federal government disputed all of MacDermid Lamarsh's claim except $22,476 in fees for work done under s. 13.02 of the IRSSA, which held that the government agreed to pay lawyers who attended the negotiations for time spent up to the settlement at their normal hourly rate.
On top of the $22,476 it claimed under s. 13.02, the firm also sought $158,766 for work it conducted as counsel that it said was owed under section 13.03. This section held that the government must pay lawyers for work in respect of finalizing the agreement at their hourly rate.
The government argued that the fees the firm sought were excessive and that some of them pertained to work that was done outside of the time that was covered under s. 13.03.
The government also noted that if s. 13.03 actually covered the work the firm had claimed, the government potentially could be billed $13.5 million, if each of the 90 firms that were signatories in the settlement claimed $150,000.
“An obligation to pay each of the IRSSA’s legal counsel or law firm signatories what ML invoiced cannot be reconciled with the intention to confine finalization costs to a modest level,” the decision said.
Gabrielson found that s. 13.03 of the agreement was intended to compensate lawyers for the negotiations leading up to the settlement of the agreement.
“On the evidence, ML was not actively engaged in the negotiations, but has submitted accounts for work that consisted virtually entirely of receiving and reviewing documents,” he said in the decision.
MacDermid Lamarsh also sought $66,161 for costs incurred as a result of executing a 2006 order. The firm argued that the order obliged it to send notices to potential claimants letting them know about the order and of the settlement application, which the firm said the government is obliged to pay for.
Only two other firms had invoiced Canada for expense incurred in sending the notices, according to the decision. One of those firms was not paid, and the other was only paid $400 by the government for postage.
The government contended that once the firm wrote one letter of advice, it should not have needed to spend more time drafting additional letters.
MacDermid Lamarsh also claimed $74,239 for carrying out another 2006 order from later that year, which involved sending opt-out notices to potential claimants.
The judge determined that the firm should not be compensated for its correspondences with potential claimants, and that it should only receive payment for postage, which amounted to $636 for the letters after the first order and $726 for the second round. Gabrielson said the firm had sent out the second round of notices voluntarily without letting the government know it was being done.
The judge ruled MacDermin Lamarsh was entitled to fees claimed pursuant to s. 13.02, plus interest at a rate of five per cent a year, which brought the cost award to $21,534.
This was not the first time the fees law firms have charged in relation to the settlement have come into question. As Legal Feeds reported in 2014, a Manitoba judge ruled a number of lawyers had been overcharging residential school survivors for work related to collecting settlements from the government.
Nolan Courteau, a lawyer with MacDermid Lamarsh, did not immediately respond to a request for comment.
The Ontario Court of Appeal has upheld an $80,000 libel judgment against conservative provocateur and former lawyer Ezra Levant.
|Gil Zvulony says the decision highlights how important context and motivation are in defamation cases.|
The blog posts concerned hearings at the B.C. Human Rights Commission that came out of a dispute between Maclean’s magazine and Awan when he was a law student at Osgoode Hall Law School.
Awan and three other students filed a complaint at the Ontario Human Rights Commission, as well as the Canadian Human Rights Commission, over a 2006 Maclean’s cover story they said was Islamophobic.
Mohamed Elmasry, the president of the Canadian Islamic Congress at the time, filed a third complaint in B.C., and Awan testified at hearings in that matter. The complaint was later dismissed.
Levant live-blogged the first two days of the hearing, and he subsequently published nine blogs that spurred Awan to launch his libel suit.
Levant had frequently written about Elmasry, a controversial figure, who had made a statement in 2004 “suggesting that all adult Israelis were valid targets of violence,” according to the decision.
In blog posts, Levant called Awan a “serial liar.” He also said Awan, who used to be the youth president of the Canadian Islamic Congress, was an anti-Semite. He called Elmasry an “anti-Semite-in-chief” and said Awan was Elmasry’s protégé.
Levant argued that his words were not defamatory because of his reputation “as someone who is provocative and controversial.” He also tried to defend his statements under fair comment, contending they were not intended as statement of fact but as opinion.
Matheson found Levant’s statements accusing Awan of being a liar and an anti-Semite were defamatory. She found some of his other statements could come under fair comment but that Levant was motivated by malice, and as such, the fair comment defence would not apply.
Matheson also determined that Levant had made little or no effort to fact-check his statements.
She ordered Levant to take down the defamatory posts and awarded $50,000 in general damages, as well as $30,000 in aggravated damages, to Awan.
Levant appealed the damages, as well as the judge’s finding that the posts were libellous.
The Court of Appeal disagreed with Matheson’s characterization of Levant’s statements that Awan was an anti-Semite as statement of fact, saying they were opinion. But the court upheld Matheson’s finding that Levant was motivated by malice, defeating the fair comment defence.
“Although the trial judge erred in her characterization of the appellant’s blog statement that the respondent was an anti-Semite as a statement of fact rather than opinion, the defence of fair comment cannot apply if the statement was made, as the trial judge found, with malice,” Justice Kathryn Feldman wrote in the decision.
Brian Shiller, the lawyer representing Awan, says the decision is further confirmation that what Levant said about his client was false and defamatory.
“The most important result you can achieve in a defamation case for a plaintiff is vindication of their good name,” he says.
The Court of Appeal also upheld the damages Matheson awarded.
Gil Zvulony, a Toronto defamation lawyer, says the decision highlights how important context and motivation are in defamation cases, as the claim could have been defeated if there was not a finding of malice.
“The words at issue in a defamation case don’t stand alone,” he says.
“You have to look at the context in which they were written and you also have to look at the motivation of the speaker.”
In an email, Levant said he intends to apply for leave to appeal the decision to the Supreme Court of Canada.
On one of his websites, Levant said the Court of Appeal ruling has implications for freedom of expression.
“I’m worried that this ruling sets a precedent, and it is now legally dangerous to call out an anti-Semite as anti-Semitic,” he wrote.
Shiller, however, says that is not the case, as Levant could not factually support his assertion that Awan was an anti-Semite.
“Mr. Levant is a very clever wordsmith and I don’t believe the decision stands for that,” he says of Levant’s comment.
An Alberta court has ordered a journalist to disclose the identity of a confidential source to a law firm that is suing him for defamation.
W. Scott Schlosser, a Master of the Court of Queen’s Bench of Alberta, has ruled Fort McMurray Today columnist Kevin Thornton must provide information about a source who provided him documents for columns he wrote about the Alberta-based firm Stringam Denecky LLP.
The firm is suing Sun Media Corporation, which owns Fort McMurray Today, over three columns Thornton wrote about a dispute the firm had with one of its clients over costs.
Alberta media lawyer Matthew Woodley says the decision, if not overturned on appeal, could have a chilling effect on whether potential sources will come forward with information in the future.
“The risk is that it will have an impact on how sources or potential sources, more importantly, in the future will view the protections that are available to them and their willingness to come forward to provide information in the public interest,” says Woodley, who was not involved in the case.
Thornton’s columns addressed a dispute involving a client in a family law matter who was charged around $70,000 in bills by Stringam Denecky. The client appealed the fees to an assessment officer.
In the meantime, the client’s affidavit in the matter, which was a public document, was given to Thornton, who then used it to write columns about the high cost of legal representation in family law cases.
When Stringam Denecky brought legal action against Thornton, Sun Media refused to produce the identity of the source in the early stages of the proceedings, citing journalistic source privilege.
The source had requested confidentiality at the time they provided the documents, which Thornton granted. In his affidavit, Thornton said confidentiality was essential to his relationship with the source and to his ability to obtain the court document that led to the columns.
Lawyers representing Sun Media Corporation argued that the lawsuit is mainly about Thornton’s opinion in the pieces and not the underlying facts.
Schlosser, however, found that the identity of the source should be disclosed as it could be central to Stringam Denecky’s case against Sun Media, as it could prove or disprove the firm’s claim of malice, recklessness or improper purpose.
Dean Jobb, a journalism professor at the University of King’s College, says the decision shows the limits on what journalists can hold back in terms of their sources. He says one of the places journalists cannot protect sources is when the journalist and media organization are subject to litigation.
“It’s a reminder to journalists that they haven’t been granted any kind of blanket or carte blanche right to protect sources,” says Jobb, who wrote Media Law for Canadian Journalists.
In making his determination, Schlosser analyzed the “Four Wigmore Factors” and found that while Thornton’s communication with the source originated in confidence, and that anonymity was essential to the relationship, the public interest in disclosing the name of the source outweighed that of protecting their identity.
“Counsel should be permitted to explore the identity and the situation of the source, given the centrality of the issue to their case and the circumstances of the promised confidentiality,” he wrote in the decision.
Schlosser noted that the affidavit provided were public and that it is not clear how confidentiality is central to the production of the documents.
“It is not difficult to see why someone might want to keep their name out of the paper, but there is a gap between this request and blanket protection claimed,” he said.
Woodley says the case is unusual, as the source simply provided a publically available document. In a traditional confidential source case, the reason that plaintiffs typically want to get the identity of a source is that the journalist relied upon information the source told them, says Woodley.
“It requires a judge to find that even if the source really did have an axe to grind, that malice or motive translates into what the journalist did, and I think that’s a step that is not necessarily based on logic,” he says.
“So it does make it a less probative or relevant information than it would be in other traditional source cases.”
Edmonton lawyer Sara Hart, who is representing Sun Media, says her client is appealing the decision, but she declined to comment further on the decision.
James Heelan, the lawyer representing the law firm, also declined comment.
The New Year could bring a steady increase in hiring for Canada’s legal landscape, according to a new survey.
|Sara Lutecki, division director of Robert Half Legal, says in-house legal departments are looking to take on more work themselves.|
“In-house legal departments especially are looking to take on more of the work themselves as opposed to outsourcing. Because of that law firms have to be more competitive to offer more,” says Sara Lutecki, division director of Robert Half Legal.
“So they want the top talent with each… it’s a lot harder for them to retain that top talent. So that’s why they have to add a little bit more.”
The survey canvassed 150 lawyers in hiring positions, half of which are employed at law firms with 20 or more employees and the other half are in-house lawyers at companies with more than 1,000 employees.
Of those surveyed, 48 per cent said they expect their organizations will maintain and fill vacated positions. Only 12 per cent said they expected a freeze on hiring and three per cent said they expect a reduction in positions.
The survey also found most new job opportunities are expected to come from litigation. When asked which practice area lawyers think the most new jobs will come from, 31 per cent of respondents said litigation and 26 per cent said corporate law.
The survey found respondents expected 14 per cent of the new legal jobs would be in real estate.
Lutecki says a rise in in-house legal departments taking on their own insurance defense likely accounts for some of the increase.
Warren Bongard, president and co-founder of ZSA Legal Recruitment, says the survey is fairly consistent with what he expects to see in the coming year, but he does not think the rise in litigation positions will come at big firms.
“I see more alternative options to getting litigation done,” he says.
Both Lutecki and Bongard say they expect a higher increase of real estate jobs than is reflected in the survey because of the ever-booming real estate industry.
“There’s been a shortage of well trained real estate lawyers in the country,” Bongard says.
The survey also found that 55 per cent of lawyers said finding skilled legal professionals is somewhat or very challenging. A further 33 per cent said they were concerned about losing lawyers to other opportunities in the next six months.
This may sound like welcome news to young lawyers looking for a job, but Lutecki says they have found most firms hiring are looking for highly skilled lawyers with at least five years of experience in areas such as commercial litigation and insurance defense.
“The one trend that we have seen firms do is hire on a project basis and that is to see what needs they have and if they do have an opening for a permanent position. I have had a lot of more junior lawyers start out in roles like that,” she says.
The Standing Senate Committee on Legal and Constitutional Affairs has asked for the Supreme Court of Canada to clarify a decision that set caps on court delays.
|Lawyer Dan Stein says senators are ‘jumping the gun.'|
In the decision, the Supreme Court set limits on the amount of time a case could take from the time a person is charged until trial. The decision implemented a limit of 30 months in superior courts and 18 months in provincial courts.
Charges must be stayed in cases that have delays that exceed these limits, except for certain exceptions. There have now been two murder charges stayed under the framework recently, prompting the senate committee’s demand for clarity.
“Although the court said the transitional provisions were intended to prevent thousands of cases already before the courts from being thrown out by applying a new standard, rather than the law that existed at the time, there have been numerous cases halted in recent weeks, including at least two murders,” the committee said in a press release.
In a recent Ontario Superior Court decision that stayed a murder charge, R. v. Picard, Justice Julianne Parfett says the transitional provisions allow for the new framework “to be applied contextually and flexibly” to older cases.
“While the new framework is relatively simple to apply, the transitional guidelines are not,” she said in the decision.
Dan Stein, a Toronto defense lawyer, says the senate committee is “jumping the gun” in its request and that it should give the higher courts a chance to clarify the law.
He says the Picard decision will likely be heard in the Ontario Court of Appeal, and could make its way up to the Supreme Court.
“The senate should give a chance to the court of appeal to analyze this and perhaps as well for the Supreme Court to revisit,” Stein says.
In an interim report on the delays in the justice system released this summer, the senate committee called on the federal government to immediately fill all judicial vacancies and to work with its provincial counterparts to develop better case management and invest in court technology.
Ontario’s provincial government recently took its own crack at tackling backlogs, by announcing a number of measures such as appointing more judges and hiring new Crown attorneys.
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