Legal Feeds Blog
|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.
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|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."
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Feb. 20-24, 2017
The Supreme Court of Canada will hear four appeals this week: one criminal concerning treatment of evidence in a sexual assault trial and the other three civil, notably Teva Canada’s appeal from the Court of Appeal for Ontario regarding banks’ liability for converting cheques in fraudulent circumstances.
Feb. 21 – Saskatchewan – Olotu v. R.
Criminal law: The appellant was convicted of sexual assault causing bodily harm. At trial, he admitted that he engaged in anal intercourse with the complainant and claimed she had consented. The complainant had no independent memory of the incident, but said she would never have consented to anal intercourse. The trial judge found the complainant did not consent because of the bruising and bodily harm she suffered which, in his view, were inconsistent with consensual sex, and that her account of the incident and what followed was credible and consistent. A majority of the Court of Appeal dismissed the appellant’s appeal.
Read the Saskatchewan appellate court decision here.
Related legal briefs:
Summary of R v Olotu; Law Society of Saskatchewan
Feb. 22 – Quebec – Pellerin Savitz v. Guindon
Civil law: The respondent, Serge Guindon, retained the professional services of the applicant law firm, Pellerin Savitz LLP, to defend him in litigation before the Superior Court. During the performance of the mandate, the applicant sent the respondent five accounts for fees between Oct. 5, 2011 and March 1, 2012. None of the accounts was paid. On March 21, 2012, the respondent informed the applicant that he was withdrawing the mandate. On March 10, 2015, the applicant brought an action against the respondent to recover claims for unpaid fees. The respondent asked that the action be dismissed because the claims arising from the unpaid accounts for professional fees were prescribed.
Read the Quebec appellate court decision here.
Related legal briefs:
Professions in Québec: Fees; Supreme Advocacy LLP
Feb. 23 – Quebec – City of Montréal v. Dorval et al.
Civil liability: The respondents are members of the family of Maria Altagracia Dorval, who was murdered by her former spouse in October 2010. In October 2013, they filed a motion to institute proceedings claiming damages from the City of Montréal based on the inaction of its police force and the police officers of whom it was the principal, which had led to Ms. Dorval’s death. They claimed damages on behalf of the late Ms. Dorval’s succession for suffering, pain and inconvenience due to constant harassment by her former spouse and police inaction, and personally for solatium doloris, funeral expenses and loss of emotional support. The City of Montréal filed a motion to dismiss, alleging that the direct personal action in damages brought by the mediate or indirect victims as a result of the death was prescribed by s. 586 of the Cities and Towns Act, CQLR, c. C 19.
Read the Quebec appellate court decision here.
Related news stories:
Family of stabbing victim Maria Altagracia Dorval fights for compensation; CBC News Montreal
5 officers cleared by ethics committee in case of Maria Altagarcia Dorval's death; Montreal Gazette
Feb. 24 – Ontario – Teva Canada v. TD Canada Trust et al.
Commercial law: Teva, a major manufacturer of generic pharmaceuticals, the respondent banks fell victim to a fraudulent scheme orchestrated by a Teva employee, M, who was responsible for administering Teva’s rebate programme. From 2002 to 2006, M requisitioned 63 cheques totalling $5,483,249.40, payable to six entities to whom Teva owed no monies. M and his accomplices deposited the cheques into small business accounts they had opened at the respondent banks. Teva sued the banks for damages for conversion, and the banks raised defences under the Bills of Exchange Act, and under the Ontario Limitations Act. Each party brought motions for summary judgment. The motion judge granted summary judgment in favour of Teva, which was reversed on appeal.
Read the Ontario appellate court decision here.
Related legal briefs:
Court Rules Banks Not Liable for Converting Cheques to Non-Existing/Fictitious Payees; Borden Ladner Gervais LLP
Supreme Court of Canada to Clarify Banks’ Defences to Cheque Fraud; Aird & Berlis LLP
|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.
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|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.
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