Legal Feeds Blog
|Fred Headon and Allan Fineblit were in Toronto Tuesday for briefings on the CBA’s Legal Futures Initiative report. (Photo: Gail J. Cohen)|
It warns: “Because of its relative success in the past, the legal profession in Canada is generally conservative. Psychological studies of lawyers have found that they are generally skeptical, autonomous and not resilient.”
They will need to be less “rigid” in future, for example by adopting different billing methods including fixed fees, the report argues.
“Emboldened” clients are increasingly questioning firms’ “basic value proposition”, and also expect to deal with lawyers via quick, electronic communications, it says.
Artificial intelligence will “become much more the norm in the coming years, including in the legal industry,” it adds. This could create time and cost savings for clients.
Alternative business structures already adopted overseas, including non-lawyer ownership, could migrate to Canada as markets grow closer together and competition increases, the publication states.
The document also highlights the problem of excess legal capacity in certain regions, and an undersupply of younger lawyers in other — mainly rural — areas.
It says: “Lawyers, law firms, and the overall legal industry in Canada will be facing a complex and compelling set of challenges over the next decade as they endeavour to remain viable, competitive and relevant in the face of a wave of fundamental change.
“. . . While these decisions may seem daunting to some people, they also present a vast range of opportunities for the profession to reinvent itself and thereby ensure that it remains dynamic and confident.”
CBA vice president Fred Headon said the report was aimed at providing a distinctly Canadian take on the industry and “transforming how legal services are delivered.”
It has been launched as the CBA enters the consultation phase of its Legal Futures Initiative. The initiative, which kicked off last August, is aimed at stimulating discussion and innovation.
Headon chairs the Legal Futures Initiative steering committee and said one of the goals is to “create a framework for ideas and to identify ways to help the legal profession understand the challenges ahead and shape the direction of the future – to the extent that that is possible.”
The initiative has teams examining three key areas of the industry:
2. alternative business structures and innovation; and
3. ethics and professional regulation.
At a briefing on the report’s release, Headon noted, “there are not only better way to serve the client but more clients to be had.”
While change could be very disruptive for lawyers, there is “plenty of opportunity if we come to it with a sense of confidence and not of fear,” he suggested.
Allan Fineblit, CEO of the Law Society of Manitoba and another member of the steering committee, stressed the importance of including all members of the profession — large firms, small firms, in-house counsel, the academy, law societies, and other professional organizations — in order to make change happen because there are “lots of rules regarding law firms that just don’t make any sense today.”
As part of the initiative, the CBA will be seeking input from lawyers, clients and non-legal and paralegal service providers. It is expected to report back in full sometime during 2014.
“Canadians deserve a vibrant legal profession that better responds to client expectation,” said Headon. “That is the purpose of this initiative.”
|Chief Justice of Quebec Nicole Duval Hesler’s name is one considered a strong contender for a spot on the top court.|
Many say it should probably be a woman with a debate over whether the person will come from Montreal or Quebec City.
Front-runners frequently mentioned include justices Marie-France Bich, France Thibault, of the Court of Appeal of Quebec as well as appellate judges and former McGill University law deans Nicholas Kasirer and Yves-Marie Morisette.
Bich is recognized by some for her writing but also her “connection to reality,” as one Quebec commercial litigation lawyer told Legal Feeds. “Some of the other professors on the Court of Appeal bench tend to forget that.” She was one of the top names bandied about to fill last year’s opening after justice Marie Deschamps retired.
Thibault, who is from Quebec City is thought to be a more natural fit when Justice Louis LeBel exits due to mandatory retirement next year.
“People also mention the Chief Justice of Quebec, Nicole Duval Hesler,” says Sébastien Grammond, dean of the civil law section of the University of Ottawa. “There are others such as Justice Francois Doyon. Another question is could they take someone from the Federal Court of Appeal? This is a possibility often overlooked.”
Doyon has significant criminal law experience, as did Fish, and is considered to be “well liked.”
Grammond points out that Justice Marshall Rothstein, who is currently the only Supreme Court judge who also sat in the Federal Court of Appeal, will retire in 2015 so it might be seen as being time to have another judge from the Federal Court of Appeal.
“Then you might think about people like Robert Mainville or Johanne Trudel who are Quebec judges on the Federal Court of Appeal,” he says.
There is also the possibility someone could be appointed directly from practice.
“That’s more difficult to predict because I would say it’s not obvious that the qualities needed to be a quality practitioner are the same skills to be a good Supreme Court judge,” says Grammond. “It’s more difficult to point to a leading lawyer as someone who make a good Supreme Court judge but names like Guy Pratte come up.”
Pratte is now a member of both the Ontario and Quebec bar and is widely known and well respected for his commercial litigation practice as well as his work on a number of public inquiries.
The selection panel announced today includes five MPs:
• Jacques Gourde, Conservative Party of Canada
• Shelley Glover, Conservative Party of Canada
• Robert Goguen, Conservative Party of Canada
• Francoise Boivin, New Democratic Party of Canada
• Dominic LeBlanc, Liberal Party of Canada
The mandate of the selection panel is to review and assess a list of qualified candidates put forward by Nicholson in consultation with the prime minister, the chief justice of Canada, the chief justice of Quebec, the attorney general of Quebec, and prominent legal organizations, including the Barreau du Quebec and Canadian Bar Association.
The Justice minister has also received public input with respect to candidates who merit consideration.
The selection process for the new Supreme Court judges is as follows:
• Members of the selection panel will meet to review the resumes provided by each candidate as well as a number of reported judgments and publications.
• Consult with the chief justice of Canada, the chief justice of Quebec, the attorney general of Quebec, the Barreau du Quebec, the Canadian Bar Association, and any other prominent members or organizations of the legal community the committee thinks would be valuable.
• All deliberations by panel members and consultations with third parties will be confidential.
• The selection panel will provide an unranked list of three qualified candidates to Nicholson and Prime Minister Stephen Harper.
• Harper and Nicholson will select a nominee from that list.
• The nominee will appear at a public hearing of an ad hoc parliamentary committee.
The hearing process — considered by critics as nothing more than window dressing — was first established by Harper for the appointment of Rothstein in 2006 and repeated with the appointments of justices Andromache Karakatsanis and Michael Moldaver in 2011 and Richard Wagner in 2012.
Authority for government to collect info on citizens without court order questioned, Reuters
Mountie pleads not guilty to perjury as Crown alleges he lied about tasering, Chronicle Herald
New law giving Royal baby succession even if female may need constitutional amendment in Canada, The National Post
Lawyers for plaintiffs in Citi case seek $146 million in fees, Reuters
Obama administration withdraws challenge to all-age access to morning-after pill, Reuters
Blast outside Afghanistan's Supreme Court kills 8, Reuters
EU lawmakers 'rattled' by U.S. Prism spying program, Reuters
|Peter Wardle has refused to recuse himself from the panel hearing Joe Groia’s appeal.|
“There is a reasonable apprehension of bias arising from the fact that partners and associates at Mr. Wardle’s firm, Wardle Daley Bernstein LLP, regularly represent the Ontario Securities Commission as prosecutors and are closely involved in proceedings at the OSC and that Wardle LLP also regularly represents the Law Society of Upper Canada as prosecutors in discipline proceedings,” wrote Groia’s counsel, Earl Cherniak, in a June 5 notice of motion.
Groia is gearing up for his appeal of professional misconduct findings against him last year in relation to his courtroom tactics on behalf of John Felderhof on criminal charges stemming from the Bre-X Minerals Ltd. fiasco. The LSUC has been taking Groia to task for courtroom incivility as he aggressively challenged OSC prosecutors during his defence of Felderhof. A hearing panel recently suspended Groia for two months and ordered him to pay costs of $246,960. But Groia is appealing both the merits decision and the penalty with a hearing scheduled for Sept. 9 and 10. The penalty is on hold pending the appeal, and Wardle is one of five LSUC benchers assigned to hear the matter.
In his notice, Groia suggests the LSUC’s “prosecution of the lawyer has been and remains of continued interest to the OSC.” The notice then notes Wardle Daley Bernstein’s work as outside counsel for the OSC, including prosecuting cases on its behalf. In addition, an associate at Wardle’s firm reportedly assisted with the Bre-X prosecution, according to the notice of motion. “Given these circumstances, there can be no doubt that Wardle LLP and its partners and associates have a great deal of knowledge about the parties involved in the proceedings and an ongoing interest in the litigation and the result,” wrote Cherniak.
“Whatever Mr. Wardle’s own involvement may have been, a reasonable person properly informed would conclude that his firm’s connection to its client, the OSC, is deep, current, and multilayered. As the Wardle LLP firm owes duties of loyalty to its client, the OSC, this places Mr. Wardle in a clear and compelling conflict of interest.”
Besides the OSC issue, the notice also raises concerns about Wardle’s firm’s representation of the LSUC at tribunal hearings and in court. “A reasonable person would be concerned that the firm’s duty of loyalty to both clients could influence Mr. Wardle’s views on this appeal,” wrote Cherniak.
The LSUC has scheduled a hearing on the recusal motion for July 3. Wardle has refused to recuse himself, the notice of motion notes. Legal Feeds was unable to reach Wardle for comment by press time.
Insurance law: John Acton was seriously injured in a single vehicle rollover accident on a road maintained by the Rural Municipality of Britannia, which had hired Ron Handel Farm Ltd. to do certain work on the road. Action claimed the benefits he received through the Automobile Accident Insurance Act don’t fully cover his rehabilitation costs so he launched a tort action against the Rural Municipality of Britannia and Ron Handel Farm to recover damages. The chambers judge ruled that Acton wasn’t entitled to maintain the tort action. The Court of Appeal allowed his appeal.
Read the Saskatchewan Court of Appeal’s decision.
Other related news articles:
An insured is entitled to pursue a tort claim for his actual loss after deducting no fault benefits, Canadian Insurance Law Blog
June 11 — Alberta — Information and Privacy Commissioner v. United Food and Commercial Workers
Charter of Rights and Freedoms: The United Food and Commercial Workers union recorded a video and took photos of individuals crossing a picket line during a strike. Certain images were published on posters, newsletters, and leaflets. Complaints were subsequently filed with the Information and Privacy Commissioner of Alberta. An adjudicator held that the union was prohibited from collecting, using, and disclosing the video and photos without the individuals’ consent.
Read the Alberta Court of Queen’s Bench decision.
Other related news articles:
Alberta Court of Queen’s Bench finds Personal Information Protection Act, regulations, section 7 unconstitutional, ABlawg
June 12 — Federal Court — Bernard v. Attorney General of Canada
Charter of Rights and Freedoms: Elizabeth Bernard works for the Canada Revenue Agency. She declined to join the union and filed an application for judicial review of a consent order that authorized the disclosure of her home contact information to the union. The Federal Court of Appeal referred the matter to the Public Service Labour Relations Board. The board refused to consider Bernard’s Charter argument and held that disclosure of her information was authorized by the Privacy Act. The Federal Court of Appeal dismissed her application for judicial review.
Read the Federal Court of Appeal’s decision.
Other related news articles:
Karen Selick: Get the picketers off my porch, National Post
June 13 — Ontario — Attorney General of Canada v. Bedford
Charter of Rights and Freedoms: Former and current sex trade workers challenged the constitutional validity of parts of the Criminal Code that relate to prostitution. The trial judge found these provisions breach s. 7 and s. 2(b) of the Charter. The Court of Appeal allowed the appeal in part.
Read the Ontario Court of Appeal’s decision.
Other related news articles:
Sex workers, supporters march in Vancouver ahead of Supreme Court hearing in Ottawa, The Vancouver Sun
Ontario Appeal Court strikes down ban on brothels, CBC News
Update June 11: Bernard v. Attorney General of Canada will not be heard on June 12.
Botched case gives boost to calls for justices of the peace to have legal training, Toronto Star
Ottawa man accused of terrorist ties asks Federal Court for more freedom, The National Post
B.C.'s taser trial set to begin today, The Globe and Mail
Florida court sees beginning of Trayvon Martin murder case, Reuters
LG patent case sent back to ITC, Reuters
China-Smithfield deal could run into problems over decades-old land laws, Reuters
Egyptian court unseals new evidence on demonstrator crackdown, Reuters
|The CBA says there is no evidence to suggest added sanctions included in the government's proposed bill C-54 will make the public safer. (Photo: Shutterstock)|
The bill’s proponents say it would make public safety the “paramount consideration” when courts deal with those found not criminally responsible. But such consideration is already at the heart of review board assessments, according to the CBA, which says research shows that those found not criminally responsible are in fact held longer in hospital than if they had been found guilty and sent to prison.
“There is a delicate balance that must be struck between public safety and individual liberty when determining how best to handle accused persons who have been found not criminally responsible by reason of a mental disorder,” says Parry in a press release. “Substantial portions of bill C-54 threaten this critical balance.”
There is no evidence to suggest the added sanctions included in bill C-54 will make the public safer, the CBA said in its submission to the government, suggesting instead those sanctions could jeopardize the accused’s treatment, putting the public in danger.
“The concern we have with this legislation is that it’s unnecessary,” says Dan MacRury, chair of the CBA’s national criminal justice section. “It equates mental illness with violence.”
People found not criminally responsible due to mental illness “are patients, not prisoners.” MacRury tells Legal Feeds, adding there is also a constitutional overbreadth argument to be made on the bill.
“Bill C-54 sends the message that NCR accused who commit serious offences cannot be efficiently treated and should be afforded fewer procedural protections,” the submission reads. “It sends the message that the societal interest of treatment and reintegration of mentally ill offenders is less important than the needs of victims.”
(l to r) Greg Tucker and Daniel Burnett from Owen Bird Law Corp. join Peter Rubin from Blake Cassels & Graydon LLP.
(l to r) Deanna Ludowicz and Barbara Brink from the Legal Service Society Board join CEO Mark Benton.
B.C. Supreme Court Justice Paul Pearlman (l) chats with Cam Wardell and Lou Poskitt, both from Harris & Co.
(l to r) Provincial court Justice Wendy Young; Supreme Court of Canada Master Ian Caldwell; and Andrea Hayes, an associate at MacAdams Law Firm.
Kristina Koller from Murray Jamieson and Kevin Gourlay from Murphy Battista LLP share a laugh before dinner.
Hundreds of Finch’s colleagues gathered to celebrate his illustrious career at the Bayshore Westin in Vancouver.
Finch prepares to enter the ballroom to the sound of bagpipes.
The Vancouver Police Department and pipe band honour Finch.
Tim Delaney, Andrea Ritchie, and Melissa Bryden from Lindsay Kenney LLP join Julia Hincks from Ng Ariss Fong.
Finch takes a moment during his career celebration.
(l to r) David Hay from Richards Buell Sutton LLP, Martin Taylor from Hunter Litigation Chambers, and provincial court Justice David St. Pierre mingle.
B.C. Court of Appeal Justice Harvey Groberman and his wife Gwen Groberman (l) talk with B.C. Supreme Court Justice Heather Holmes.
Finch spoke to the hundreds of colleagues who came to celebrate his career and retirement.
Quebec professors bring constitutional challenge to Succession to the Throne Act, The Globe and Mail
CBC won't comment on libel notice, Leader Post
Federal judge changes rule to get 10-year-old onto organ transplant list, The National Post
In Teva v. Pfizer, Pfizer sought an order prohibiting the Minister of Health from issuing a notice of compliance to Teva for its generic version of Viagra under the Patented Medicines (Notice of Compliance) Regulations.
On June 4, the Supreme Court confirmed the patent in issue is neither invalid or void, finding instead that Teva had established its allegation and therefore dismissing Pfizer’s application for an order of prohibition.
David Aitken, counsel for Teva Canada, says he was “disappointed in the result” given the finding of the court that the patent had been obtained through “gaming the system.”
“I would have thought this could have provided the rationale for going beyond the recognized limited remedy and finally holding the patent to be invalid but it was not to be,” Aitken tells Legal Feeds. “But Teva has its generic version of Viagra on the market. The only issue outstanding before the Supreme Court was whether Pfizer’s patent covering Viagra would finally be declared invalid or not, but the patent has subsequently been declared invalid by the Federal Court of Canada and so I think it’s still an absolute victory by Teva.”
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Gail J. Cohen