Jennifer Brown is the Managing Editor of Canadian Lawyer InHouse and Law Times. She has been a business magazine writer and editor for 10 years covering the IT, occupational health and safety, and security sectors for the business-to-business press prior to arriving at InHouse. She was also a newspaper reporter for five years in the Greater Toronto Area covering health care and education before going to work at a daily news online portal reporting on the technology sector.
|Norm Keith says prosecutors at the Ministry of Labour and other government departments have not been paying attention to corporations who are in the process of being prosecuted simply because they assumed maybe that Jordan didn’t apply.|
“The defendant’s trial has clearly been unreasonably delayed whether the analysis is under the Jordan framework or that of Morin. The Crown principally due to its ongoing failure to provide timely disclosure and its overall complacency about the pace of the litigation is responsible for the vast majority of the delay with the rest accounted for by institutional time constraints,” Wilkie wrote.
Justice Wilkie also stated: “In my view it is apparent from the court’s summary of the chronology of the trial itself, that the Crown made no efforts to manage the case so as to improve the pace of litigation but in fact through lack of focus and inaction further contributed to the delay.”
While there have been a couple of other stays issued under Jordan, Fasken Martineau DuMoulin LLP lawyer Norm Keith predicts there may be more to come.
“I think prosecutors at the Ministry of Labour and other government departments have not been paying attention to corporations who are in the process of being prosecuted simply because they assumed maybe that Jordan didn’t apply, but this case definitively asks does Jordan supersede CIP [R. v. CIP Inc.], which sets a higher test for prejudice for a corporation than an individual.
“CIP basically said you can’t presume prejudice just because of a long delay under s. 11(b) — you have to prove as the corporate defendant that you have suffered irremediable prejudice,” says Keith, who represented Stephenson’s Rental in the case.
And in his decision, Wilkie states: “. . . at the heart of Jordan is the objective to change the culture of delay in the justice system as a whole and to require all trials to function as efficiently as possible. In this sense they have signaled that when section 11(b) is breached it is not just the particular defendant who is prejudiced but the justice system and by extension the community as a whole. There is no basis for concluding that this objective applies only to trials of individuals.”
The charge against Stephenson’s Rental Services, issued under the Occupational Health and Safety Act, arose from a workplace fatality that occurred at the General Motors plant in St. Catharines, Ont. on Nov. 18, 2011. The worker was an employee of Procon Niagara, contracted by GM to do work at its plant. At the time of the incident that caused his death, the person was operating an electric-powered elevated work platform also known as an articulating boom lift, which had been rented by Procon from Stephenson’s Rental Services. The allegation was that the equipment provided by Stephenson’s was mechanically defective and not in proper working order.
At the time the delay application was heard in January 2017, the case had been in the system for more than 55 months and the trial was more than two years old. But that was not the first time there had been an assertion by Keith that the proceedings breached his client’s right to trial without reasonable delay.
There was a 30-month delay from the laying of the charge in June 2012 to the beginning of trial in December 2014. Keith brought an 11(b) application returnable on the trial date.
The two-and-a-half years leading to the trial included a 19-month period involving 13 appearances before the trial was set including one, where with no explanation, no one appeared for the Crown.
Keith says the Crown was arguing it was a complicated case with expert witness material involved. However, the judge pointed out the Crown had taken too long to turn its mind to the expert witness material.
“There is no question that the expert disclosure did take the Crown by surprise, but only because they had to that point, well into the trial, at least 2 years after he had been retained by the Ministry to provide critical expert testimony, inexplicably in my view, failed to turn their mind to it,” said Wilkie.
Keith admits he himself was responsible for a about nine days of the delay in August 2015 due to a scheduling issue, but other than that, the judge said when it came to the defence, “there was no waiver and no tactic calculated to cause delay.”
It then took about a year from the time the expert first gave evidence to get him back on the witness stand.
“Even the witness himself seemed surprised that he had never been asked to produce his work product beforehand or to bring supporting documentation with him to court,” Wilkie stated in his decision. “And of course when alerted to the issue, the Crown readily agreed that the defence was entitled to disclosure of the material and conceded the case would have to be adjourned to enable the defence to receive and review it.”
The net delay was at least 60 months — 41 months above the presumptive ceiling.
As Jordan was decided the first week of July 2016 and the Stephenson’s case started in December 2014, the Crown had argued the Jordan 18-month rule didn’t apply.
But the judge disagreed, even noting that the Region of Niagara was not one where a culture of long delays was the norm.
“Ultimately, the right to trial within a reasonable period of time of the accused, be it individual or corporate, is superseding the social interest of a trial going to final decision,” says Keith.
The Crown for the Ministry of Labour was contacted for comment but a response was not received by time of posting.
|Jordan Furlong says future advances by international firms into Canada are more likely to be the kind of expansion Freshfields is exploring as opposed to involving international mergers with Canadian firms.|
Last week, both The Lawyer online and Legal Week reported that London-based Freshfields Bruckhaus Deringer LLP might be looking at Toronto, not Vancouver, for a future services centre.
Reports of a Freshfields location in Canada first surfaced a year ago when one of the firm’s executive partners hinted a plan was in the works to open a second “legal services centre” in Vancouver at the end of 2016. The centre would largely be staffed initially by paralegals. The firm has a similar kind of centre in Manchester employing 250 people.
But Freshfields still isn’t officially tipping its hat one way or the other.
“We haven’t made any final decisions about a second centre and are continuing to investigate a number of options,” said Nick Bell, a spokesman for Freshfields, via email.
Freshfields has more than 2,500 lawyers in offices around the world.
Jordan Furlong, an analyst of the legal market, says there has been talk for a long time of “the Magic Circle sniffing around Canada” — in the past, it has typically been Allen & Overy LLP.
“It’s interesting for a couple of reasons — for one, they’re clearly not looking for the cheapest location,” says Furlong. “If you’re looking for competent legal personnel, Calgary is great, Halifax is great. So far, they have hinted at the two most expensive cities in the country.”
Past reports have always tied a Canadian expansion to the firm’s Manchester services centre. It has 40,000 square feet on four floors of a major office building with plans to hire up to 700 people.
“It suggests Freshfields is serious about taking the functions that can be moved into that kind of centre — HR, IT, marketing and business development — it’s like they want the people doing legal work in one location and everything else the firm does in another,” says Furlong who recently published a new book: Law Is a Buyer’s Market.
He notes that because Ontario has a full-fledged paralegal licensing and training program that might be why Freshfields may have its sights set on Toronto for staffing the centres.
Future advances by international firms into Canada are more likely to be the kind of expansion Freshfields is exploring as opposed to involving international mergers with Canadian firms, he says.
“There aren’t necessarily that many attractive large law firms — at this point, it’s either firms that are top of the grade that are not going to be open to a merger in which they lose their brand and firms that don’t have as much attractiveness for the global market,” he says.
“Expansions in the future will be less about huge link-ups of major firms and more about looking for qualified legal support personnel and technology.”
Peter Carayiannis, partner at Deloitte Conduit Law, says if Freshfields is looking at Canada again, it could have a negative impact on certain levels of the Canadian legal market.
“The big get bigger, the small get focused and the middle get squeezed,” he says. “This is where you see the truly global players in the market will continue to grow and expand and extend capabilities and grow to better serve clients and not just grow for the sake of growth. If that’s the case, it will be a winning strategy.”
Creating competition in the market will create a net benefit for those needing services in the market, he says.
Carayiannis says Toronto has also started to develop a reputation internationally as a hub for legal innovation.
Ryerson University’s Legal Innovation Zone and Legal X are viewed as attractive centres of technology innovation that may also be appealing to firms outside Canada.
Furlong’s book talks about productivity engines and traditionally law firms have only had one engine and that is a lawyer — now it will be people, machines or systems to amplify the expertise their lawyers provide.
“That to me feels like the direction the big firms are starting to move towards and maybe Freshfields is a sign of that,” Furlong says.
While still early days, use of technology is increasingly how firms are adding revenue-generating tools to their portfolios.
U.S. labour and employment firms Littler Mendelson PC and Ogletree Deakins Nash Smoak & Stewart PC, which recently set up shop in Toronto, are very focused on cost containment, efficiency and especially automation technology.
“I think future advances into Canada might be more along those lines,” says Furlong.
In Canada, Freshfields has advised clients such as Bank of Montreal, Canada Pension Plan Investment Board, Province of British Columbia and Ontario Teachers’ Pension Plan.
|Kevin Dane says growing in-house capabilities with large corporations is leaving law firms to do more niche work and that requires firms to be more innovative in the way they seek clients.|
Wildeboer Dellelce is a corporate business finance transactional firm based in Toronto while Moodys Gartner Tax is based in Calgary but has offices across Canada and Buffalo, N.Y.
“We have a number of law firms we refer business to that are also not full-service firms, but this is more structured in that they [Moodys] are making a commitment to be in Toronto on a regular basis and we’re making a commitment to be in Calgary on a regular basis,” says Kevin Dane, chief operating officer with Wildeboer Dellelce LLP.
Moodys Gartner provides tax advisory, planning, dispute resolution and compliance services for individuals and businesses with interests in Canada, the U.S. or both.
“We’ve agreed to introduce our clients to their lawyers and accountants and likewise they’ve agreed to do the same,” says Dane. “They deal with a lot of high-net-worth individuals who need cross-border tax advice, and behind those types of individuals are generally corporations and companies, so we see a natural opportunity to be introduced to some of their clients and vice versa.”
In early January, Moodys Gartner announced it was also entering a “collaborative agreement” with Andersen Tax. That relationship is a two-way referral agreement in which Moodys Gartner will join numerous other global tax practitioners as part of Andersen Tax’s international association of member firms, Andersen Global.
Dane says the arrangement with Moodys is a way of responding to the way the business of the profession is evolving and how firms can retain specialized work.
“The legal profession is undergoing significant change,” he says. “Growing in-house capabilities with large corporations are leaving law firms to do what I would say is more niche and novel work and that requires us to be more innovative in the way we seek clients that can get value from our service,” says Dane. “This is a way of doing that.”
The two firms will continue operating as separate entities and Dane says there is no intent to go further than the alliance they announced March 8.
“We’re both very happy with the state of our business, but we feel that together we can do more than we can apart,” says Dane.
“We have been servicing our clients in Toronto for a long time and this alliance with Wildeboer Dellelce will only strengthen our ability to serve those clients. Our firms offer quite different, yet complementary, services and we look forward to a long-lasting and fruitful relationship with Wildeboer Dellelce,” said Kim Moody, director, Canadian Tax Advisory at Moodys Gartner, in a statement.
“Our alliance with Moodys Gartner helps to reinforce our strong tax foundation by adding another layer of private client and U.S. and cross-border tax expertise. It also represents a significant milestone in our goal to be a service leader in Calgary, one of Canada's largest financial centres. The alliance also allows our firm to extend its services into Western Canada generally and Edmonton and Vancouver specifically. We are very excited to work with Moodys Gartner and to connect with existing and new contacts in these very important geographical markets,” said Perry Dellelce, managing partner of Wildeboer Dellelce, in a statement.
|Meerai Cho pleaded guilty in Ontario provincial court Wednesday to one count of criminal breach of trust.|
The matter was heard before Justice Jamie Chaffe at the 1000 Finch Avenue West court.
As Law Times reported in September 2014, Cho was arrested and faced 75 charges related to fraud over $5,000, possession of property obtained by fraud and breach of trust. At that time, she said she transferred the condo purchasers’ deposit funds, which she was holding in trust, to her client who was the developer of a North York building. The transfer of the funds to the developer was contrary to the rules of the Condominium Act.
“What it came down to was a breach of trust — all the facts went into the one count as opposed to 75 counts,” Trudell says. “She didn’t set off to defraud anyone. She didn’t put any of the money in her own pocket.”
Cho claimed she transferred the money to the developer, Joseph Lee, through an “honest mistake” due to her inexperience.
Trudell says $13.5 million went through her trust account to the developer. The money came from purchasers of condo units in the Centrium condo project at 5220 Yonge Street in Toronto. The project had about 140 investors — at least 50 of them were in court on Wednesday.
“Unfortunately, she trusted him completely, unquestionably and he took off with all the money and is hiding somewhere,” Trudell told Legal Feeds.
As late as 2014, the developer would send Cho emails indicating he was sending her the money back.
“She kept feeding his demands to save the project and continued to do that because she thought he was going to send the money back and the project would work,” says Trudell.
At one point, Cho mortgaged her own home and gave $400,000 of her money to try and save the condo project.
Trudell says Cho received none of the money and that was a significant factor in the court not ordering restitution.
“If you get the fruits of the crime, then obviously restitution is appropriate, but in this case, because she got nothing, she has nothing and chances of repaying it are negligible and she was receiving a penitentiary sentence on the scale of large-scale fraud,” he says.
Cho stopped practising law and agreed to temporary suspension of her licence in 2014 and will now lose her right to practise.
Trudell described it as an “emotional day in court” as seven people read victim impact statements.
“The victim impact statements were raw and emotional,” says Trudell. “They are people who are still angry, of course, but when they realize she got not one penny, people might look at her a little differently.”
Trudell said some victims have made applications to the Law Society of Upper Canada compensation fund and it is "anticipated the victims will be compensated."
In a statement, the LSUC said its Compensation Fund "will move as quickly as possible to provide claimants with any grants for which they may be eligible, on the basis of the lawyer’s dishonesty. The process is already underway and, if grants are approved by the Compensation Fund Committee, eligible claimants should begin receiving fund grants in the spring."
Cho’s guilty plea and the evidence provided will be used to complement the LSUC's own evidence during the law society hearing, which is currently scheduled for March 8, 2017.
There is no limit on the total number of grants paid in respect of an individual lawyer. The Compensation Fund has per claimant limit of $150,000 for losses resulting in the period between September 2010 and July 2013, when Cho transferred monies held in trust for the purchasers to the developer of the condominium project. Each claim is assessed on its own merits to ensure it conforms with the Law Society Act and the Compensation Fund Guidelines.
Cho, originally a journalist in Korea, came to Canada and became a lawyer. Trudell says many of the victim impact statements came from people who also came to Canada to invest and lost everything.
“A lot of the victims said they had no faith in Canada and the justice system and legal system because lawyers are supposed to protect them,” says Trudell. “She [Cho] stood up, apologized to them and told them not to lose faith in the legal system . . . She said there are a lot of wonderful lawyers; don’t use me as an example.”
Cho will serve the sentence in a federal institution, likely Grand Valley Institution for Women in Kitchener, Ont.
Lawyers for the victims are also pursuing civil actions.
Trinity Western University et al. v. Law Society of Upper Canada will be heard with Law Society of British Columbia v. Trinity Western University, et al.
The university won in British Columbia, where an appeal court overturned a law society refusal to accredit its graduates, but it lost in Ontario, where the law society refused accreditation. The Nova Scotia Barristers’ Society lost twice in court against Trinity Western and has said it doesn’t plan to appeal.
Read more about the Trinity Western law school proposal and the debate that has taken place in the profession around the issue in the Canadian Lawyer magazine February cover story "Dividing the bar."
|Caravel Law co-founder Joe Milstone says law firms in the U.S. have been making common, basic precedents available for quite some time.|
Recently, Caravel Law, formerly Cognition LLP, launched Caravel Law Compass — a platform to assist startups and investors in generating free first-draft documents and expedite the financing process.
“The idea is about making basic information and documents ubiquitous and available to everybody,” says Caravel co-founder Joe Milstone, who notes it may also be a tool used by in-house counsel.
“There is really no reason why this couldn’t be incredibly valuable to corporate counsel as well, in terms of doing financing and in-sourcing — it’s one of those areas often considered not a core area of expertise and so they flip it outside,” he says.
Using technology and automation, Caravel took documents important to small to mid-size companies to create early drafts of what tend to be common financing documents.
“More than making the templates available, we’ve created a way to provide free access to this portal and tool so companies plug in information and develop their own initial drafts, which can save them a lot of money,” says Milstone.
When the company decides it needs further legal advice, it can go to outside lawyers, but in between, it has saved some money as opposed to paying for a precedent that has been created over and over again.
“There’s no reason why it can’t be valuable to corporate counsel as well in terms of how they are doing financing and in-sourcing more than they traditionally have. You’re often paying a lot of money for what is likely pulling a precedent off the shelf in many cases,” says Milstone.
In creating the tool, Milstone says Caravel looked at the “best of breed” of various documents and using Contract Express (a product developed by a U.K-based company prior to it being acquired by Thomson Reuters in October 2015) created the appropriate questions to self-generate documents at the early stages of a matter.
Caravel has a partnership with National Angel Capital Organization to provide the service for its members and small to medium-size companies. Caravel used the tool to create automation for basic incorporation, but it had not taken it a step further for the financing process.
“The thinking is that there is no inherent IP value in just a document or a precedent,” says Milstone. “We hope to, and we feel we can play a valuable role in terms of customizing and tailoring and negotiating those documents. But if we can’t add that value, then, frankly, we’re happy to make that IP available to everybody on a free basis. Our value comes in with what we can do with it afterwards.”
The next step for Caravel, says Milstone, is creating similar frameworks and templates for regular business documents such as non-disclosure agreements, supplier, vendor and sales agreements.
This kind of service has been offered by some firms in the United States for quite a while, including Cooley LLP, an international law firm based in Palo Alto, Calif. It is a firm often pointed to as a primary example of how firms are making precedents available to clients for free.
“It’s been done in the States by larger firms long ago and long-awaited in Canada but has been frustratingly not available for companies,” says Milstone.
|Nathaniel Lipkus and Bradley White represented Mylan Pharmaceutical in the case involving a commonly used anti-inflamatory drug.|
AstraZeneca Canada Inc v. Mylan Pharmaceuticals ULC. It is the first ruling on the validity of the Vimovo formulation patent anywhere in the world.
The naproxen-esomeprazole combined drug is used for patients with arthritis who might have some risk of side effects with their stomach.
The drug is used for osteoarthritis, rheumatoid arthritis and ankylosing spondylitis — a form of spinal arthritis. It is one of the most heavily prescribed class of drugs on the market.
While separately naproxen and esomeprazole were already generically available, some patients might be prescribed two pills to take but not always follow through to take them together. Now they can get what they need in one pill and for less cost. The generic version should be on the market imminently.
Similar patents are currently being litigated in the United States.
Although naproxen and esomeprazole are both generic drugs in Canada, the Vimovo patent enabled AstraZeneca to charge a higher price for its combination product.
Mylan was arguing that the formulation patent was obvious in view of the prior art and what was out there, while AstraZeneca was saying the formulation was inventive.
The court found the combination formulation to be obvious given prior art and common general knowledge.
Bradley White, partner at Osler Hoskin & Harcourt LLP who led the case for Mylan, says the two components of the drug — naproxen and esomeprazole — were already genericized products.
“What the patent in this particular case covered was a formulation that combined these two products together into a single dosage and it was that formulation they asserted was inventive,” he says.
“The fact these two components were already generically available, it really seemed like a formulation patent that had been put in place that would permit the brand company to charge brand prices for something that to some extent was already being done.”
The case turned specifically on the expert evidence filed in this case, says White.
In the decision, Justice Alan Diner wrote: “I agree with Mylan that this combination was an example of illustrating the prior art.”
“Overall, it’s clear the courts favoured our evidence,” says White. “We were saying all these various elements of this particular formulation were known in the prior art and, therefore, it would have been obvious to the person to bring the various pieces of the prior art together along with common general knowledge to arrive at the invention.”
It is common for patent holders to try to combine their drug with another drug and see if there is a way to extend their patent protection.
“In this case, we had a very decorated clinician who said these drugs are being combined in the clinic all the time and there isn’t really anything special about putting them together,” says Nathaniel Lipkus, partner at Osler who was on the team with White for Mylan.
AstraZeneca argued the way it formulates the drug is special, but through the evidence, Mylan was able to demonstrate the way AstraZeneca did it was something that had already been done before.
“When you added it all up, there wasn’t an inventive contribution,” says Lipkus.
He says one of the things judges have a difficult time doing is stepping into the shoes of the scientist confronted with this problem.
“Our formulators did a great job helping the judge step into those shoes and explain that ‘we know how to formulate these drugs together and there are pre-existing formulations that look exactly like this, just with different drugs’ and the judge was clearly persuaded by that evidence,” says Lipkus.
There is still an opportunity for AstraZeneca to commence an infringement proceeding against Mylan upon launch of the generic version of the drug.
|Justice Frank Newbould|
According to a statement from Newbould’s lawyer Brian Gover of Stockwoods LLP, the Indigenous Bar Association filed a complaint with the CJC related to a proposed land claim settlement that was discussed in 2014 at a public meeting called by the Mayor of Sauble Beach.
The land claim was to part of Sauble Beach. At the meeting, comments about the proposed settlement were requested. Newbould’s family has a cottage in the area and has owned it for nearly 100 years. He spoke briefly at the meeting.
He also wrote a letter to the town council in his “personal capacity” about the issue. Feedback had been invited before the council was to formally consider the proposal.
Newbould was notified by the CJC of seven complaints that followed, questioning whether a judge who owns property that may be affected is entitled to comment on such issues.
The complaints were dismissed by the CJC including one from the Indigenous Bar Association in January 2015 on the basis that “no further measures need to be taken by the Council pursuant to its mandate under the Judges Act.”
“The Chairperson of the CJC’s Judicial Conduct Committee expressly found that it was not in the public interest to request additional information from the complainant, or to seek Justice Newbould’s comments and those of his chief justice. Nor did the Chairperson consider it to be in the public interest to refer the matter to a Review Panel,” according to the statement from Gover.
In June 2015, the IBA requested the CJC reconsider its decision.
“It has been the position of Justice Newbould that after the complaints were dismissed, the CJC has no jurisdiction to reconsider a closed complaint. However, yesterday, February 13, 2017, the CJC notified Justice Newbould of its Review Panel’s view that this power does exist and of its decision to constitute an Inquiry Committee. This was done despite the fact that Justice Newbould had previously notified the Minister of Justice of his retirement, effective June 1 of this year, for unrelated personal reasons.
“The situation raises an issue involving perception,” the statement says. “It is one for which Justice Newbould apologized in 2014 due to the perception caused by the fact he is a judge. Throughout the entirety of his distinguished judicial career, Justice Newbould has carried out his duties effectively and without bias.”
Newbould, team lead of the Commercial Court List in Toronto, is perhaps best known for overseeing the lengthy cross-border Nortel trial.
The decision to go ahead with the inquiry was made by a Judicial Conduct Review Panel of five members, which, in accordance with Council’s 2015 procedures, brought in additional transparency and public participation to the process. The panel was comprised of three members of Council, one puisne judge and one layperson.
Members of the panel reviewed allegations relating to the judge’s participation in the debate on the proposed settlement to a boundary dispute that was the subject of a land claim involving a First Nation in Ontario.
The CJC has confirmed the issue is related to a claim in Sauble Beach involving the Saugeen First Nation.
After review of the matter, the panel agreed that, if proven, the allegations surrounding the intervention of Newbould in the context of a court case could be so serious that they may warrant the judge’s removal from office.
Nuri Frame of Pape Salter Teillet LLP, a firm that represents the Saugeen First Nation, told Legal Feeds his client did not file the complaint against Newbould despite its “deep concern about his conduct” and that his involvement had “impaired its interest and impaired the ability of all parties to arrive at a successful resolution to the issue outside of trial.”
“It is my understanding that Justice Newbould participated in a community meeting in the fall of 2014 and that Justice Newbould subsequently wrote one and perhaps more than one letter to the municipal council up there with respect to Saugeen First Nation claim regarding Sauble Beach, which is obviously a litigation going back to the middle of the nineteenth century with respect to the improper delineation of where Saugeen’s reserve ends and the failure to recognize the entirety of Saugeen’s reserve pursuant to their treaty of 1854,” says Frame.
In its statement, the CJC noted that “it is important to note that all allegations regarding the judge have not been proven. The Inquiry Committee will have the responsibility of establishing the facts about this case and of presenting a report to the Council.”
In accordance with the CJC’s Inquiries and Investigations By-laws, the inquiry committee will be comprised of an uneven number of members, the majority of which will be council members. The Minister of Justice will be invited to designate one or more members of the Bar.
|Roy Heenan, co-founder of Heenan Blaikie LLP, passed away Feb. 3. (Photo credit: Toronto Star)|
Norm Bacal, who was national co-managing partner for 16 years at Heenan Blaikie, was first a student in Heenan’s labour law class at McGill Law.
“That’s how far back we go,” says Bacal. “But I only got a ‘C’. The running joke in the firm for years after I was hired into the tax department was that I would never have to do any labour work and Roy would never have me.”
While he had only spoken with Heenan once in the last couple of years, Bacal says when he heard the news about his death he felt a “great sense of loss” for the person who had been a major influence on his life.
“Roy and Peter changed my life and sent it in a particular direction,” he says.
Montreal lawyer Karen Rogers also started her career with Heenan, working with him from 1990 to 2014.
“In one word, he was a passionate person and his passion was in the law, in advocacy, for his clients, the firm — and you could feel it,” says Rogers, now a partner at Langlois LLP and chairwoman of that firm’s litigation group. “As a young lawyer and even growing up with him, there was this enthusiasm and need to do the best of your ability. What he built at Heenan, he believed a lot in people and working as a team with respect and not only the lawyers but the support staff and to appreciate the value of the whole team.”
Rogers recalls Heenan giving speeches at the firm emphasizing that it was the “kindler, gentler firm.”
“That was very important to him,” she says.
Bacal, who also “grew up” at Heenan Blaikie, recalls Roy Heenan as another kind of teacher, saying he learned a lot from him about how to approach people.
“He cast a giant shadow because he was a big personality, but on top of everything else, he was a real gentleman, always. There are so many aspects to him as an individual and so many lessons that he taught that I think he did without meaning to teach.
“Part of what Roy taught I’m not sure he was even aware he teaching,” Bacal says. “He was charming and it didn’t matter who you were — whether it was the receptionists, the hostesses, Fidel Castro, he treated you the same way,” he says.
Heenan Blaikie became known as a firm that offered a different climate for lawyers to practise law and be treated differently. It rose to fame as having one of the top labour and employment practices in the country.
“He was a brilliant jurist and will always be remembered as such in the labour community,” says Bacal.
Rogers also worked with co-founding partners Peter Blaikie and Don Johnston. She recalls the firm having a mandate to not just work for big clients but do smaller files and help less fortunate clients — something that mattered to Heenan.
“I think he could have worked anywhere and he didn’t want to do law for money, he did it because he enjoyed it,” she says. “When you’d go to court, you’d see him running down the hallway in his gown — he was a passionate person who didn’t necessarily do things the way lawyers generally do things. He felt if you did well and excelled at what you did, the rest would fall into place.”
When the firm collapsed in 2014, it was “extremely hard” for Heenan, Rogers says, adding that for her even today it’s “difficult to understand.”
“The firm folding was not about the majority but the minority who did not necessarily get along, which caused the whole thing to happen. It wasn’t a financial issue. I was a partner at Heenan and I didn’t anticipate it, to be quite frank, and I’m pretty sure Roy didn’t anticipate it either,” she says. “It was probably one of the biggest deceptions of his life.”
Heenan will also be remembered for his role in the Canadian arts world. Rogers remembers the art in the Montreal office and how Heenan decided where each painting would go.
“He built, possibly single-handedly, the reputation of a number of Canadian artists, simply by the volume of Canadian art he bought over the years,” says Bacal. “He found many unknown artists and held on to their works until they became known.”
Bacal has written a book about the fall of Heenan Blaikie called Breakdown: The Inside Story of the Rise and Fall of Heenan Blaikie, which will be released Feb. 28.
As a leader, he was described as unique. “Even his detractors loved him,” says Bacal.
Visitation for Heenan is today at the Kane & Fetterly Funeral Home in Montreal. A funeral service will be held tomorrow, Friday Feb. 10, at 1 p.m. at St. George Anglican, 1101 Stanley Street in Church in Montreal.
NEW YORK — While tech disruption and innovation in the legal market is causing law firms and in-house departments a lot of pain as they try to adapt, no other one trend has been quite so vexing as recent political challenges including the new administration in Washington and the Brexit vote.
|ALM analyst Daniella Isaacson says political and economic disruption is number one issue for legal leaders.|
“What we consistently hear is that the impact of political and economic disruption is their single biggest concern,” said Daniella Isaacson, senior analyst with ALM Intelligence, who speaks regularly with managing partners, general counsel, vendors and consultants in the legal sphere.
Isaacson was speaking together with Nicholas Bruch, senior analyst also with ALM Intelligence, as part of the opening address to the Legaltech conference in New York City today.
Bruch said the biggest concerns for firms and in-house departments are around things they can’t control and regulations are just one big piece of that puzzle.
“If you look across the world, you see this very clearly if you look at the two biggest markets — the United States and the U.K. — what we see is uncertainty. I think it’s safe to say there is a lot of uncertainty over the new administration,” said Bruch, referring to the Trump presidency in Washington. “In the U.K., it’s Brexit that is driving it. We also see a similar story in the EU, in the Middle East and in future of U.S.-Asia trading.”
The global CEO of Dentons, Elliott Portnoy, who appeared in a video as part of the presentation, agreed that regulatory uncertainty is good for business but comes at a time when firms face many other challenges.
“The most consistent theme I hear from clients is that their greatest concern is regulatory uncertainty in key markets and that does create more work for our firm and others but comes at a tricky time for the industry,” he said.
Given this world of uncertainty is one in which law firms and increasingly many in-house legal departments live and work, and as lawyers are also risk managers, the state of the world should not be viewed as a threat but an opportunity to serve as advisers in difficult times.
“For law firms, it means more questions, more clients, more billable hours. For law departments, it’s an opportunity to showcase your abilities to the broader organization,” said Isaacson.
Portnoy said firms like Dentons need to be “far more nimble, far more agile in adopting the same innovation strategies that our clients are using.”
New competitors providing new services are also a threat — not just other law firms competing with each other but also in-house departments competing with law firms and service providers particularly who are creating something entirely different with artificial intelligence, blockchain and machine learning.
Bruch also noted that the in-house departments are also under pressure and are rapidly changing how they source services. There are companies leveraging non-lawyers, virtual lawyers and contract lawyers. ALM Intelligence data shows 80 per cent of law departments are in-sourcing more and 40 per cent are decreasing their use of law firms, while 70 per cent are increasing their use of alternative service providers.
Isaacson said firms can save millions by moving to shared service centres or from re-engineering staffing.
At an earlier session with ALM editors, top trends discussed included a move at some firms with regulatory practices taking on social media work for clients in a model that doesn’t require the staff involved to bill hours. This signals a move toward firms generating revenue in different ways and having to determine how partners take that revenue home.
Requests for proposals also continue to determine who gets work. Often defined as “Flintstone or Jetson” firms — those who demonstrate they are using technology and better understanding how a company works are winning over the Flintstone firms. In one instance, a firm lost a bid when it proposed addressing certain matters by going to trial even though the company had expressed no interest in arriving at a solution that way.
Analytics were also highlighted as a big driver for law firms this past year. There is also a trend toward consolidation in the e-discovery sector, while cloud technology has seen a slower adoption. It is expected that artificial intelligence will pick up speed in the next year or two.
Legaltech continues tomorrow and Thursday.
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