The need to retain top talent and the continued economic recovery mean law firms are predicting a generous year for employees, according to a new survey.

Illustration: Getty Images

The survey by Robert Half Legal shows that 79 per cent of lawyers polled said their firms or corporate legal departments are planning on pay raises and bonuses for their associates. A further 15 per cent don’t expect to boost compensation while seven per cent of respondents didn’t know or didn’t answer.

The poll included responses from more than 150 lawyers at big law firms and corporations in Canada. It comes on a day when new economic data revealed Canada’s gross domestic product grew at a brisk annualized rate of 3.9 per cent during the first quarter of 2011.

As a result, Anne Edmonds, Canadian regional manager of Robert Half Legal, said law firms are increasingly dealing with the need to keep their top talent.

“Although many law firms and legal departments were forced to reduce staff and freeze salaries in the past few years, retention of top performers definitely remains a priority, especially as the economy recovers,” she said. “Employers in the legal field are increasingly strengthening their retention programs, including offering raises and bonuses, before employees consider other opportunities.”

But keeping good staff also involves looking at other ways of making employees happy, Edmonds noted. “For those companies with smaller budgets, other non-monetary incentives such as telecommuting, additional time off, and flexible scheduling remain great options to reward hardworking staff.”

Even with the positive outlook for both the legal field and the economy in general, concerns about Canada’s prospects linger. Economists expect growth to slow from the healthy pace in the first quarter, especially as debt-burdened consumers retrench from the spending levels that largely drove the recovery in the first place.

Canada

Cdn lawsuit against U.S. Steel to proceed, Reuters

SCC rules in sexual consent case, Reuters

Pages missing in Tommy Douglas file, The Canadian Press

United States

Honolulu hotel owners sue Marriott, Reuters

Navy chief facing charges in wife's death, The Washington Post

International

ICC prosecutor accuses Kenya of trying to stop probe, Reuters

Egyptian court bans state bodies from selling land, Reuters

Having sex with someone who is unconscious constitutes sexual assault, even when the victim consents during relations to being choked to the point of blacking out, the Supreme Court of Canada ruled today.

The SCC has clarified the meaning of consent in sex. Photo: Gail J. Cohne

In a 6-3 decision in R. v. J.A., the top court overturned an Ontario Court of Appeal ruling and reinstated a sexual assault conviction on a man who had sex with his partner during an mutually agreed-upon erotic asphyxiation session.

"The definition of consent for sexual assault requires the complainant to provide active actual consent throughout every phase of sexual activity," said Chief Justice Beverley McLachlin, writing for the majority. "It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance."

The case involves an Ottawa couple, referred to as J.A. and K.D. During sex one evening in 2007, J.A. placed his hands around K.D.'s throat and choked her until she was unconscious.

K.D. testified she consented to being asphyxiated and that the couple had experimented with the activity before. She said she was out cold for less than three minutes.

Upon coming to, she realized her hands were tied behind her back and that J.A. was inserting a dildo into her anus.

He removed the implement 10 seconds after she regained consciousness and the couple had vaginal intercourse. J.A. cut her hands loose when they were done, notes the ruling.

K.D. filed a complaint with police two months later, saying she had consented to being asphyxiated but not to the sexual activity. She later recanted the story, saying she made the allegation because J.A. threatened to seek sole custody of their young son.

After a trial, J.A. was found guilty of sexual assault. The Court of Appeal later set aside the conviction and dismissed the charges.

The Women's Legal Education and Action Fund, which intervened in the case, hailed the Supreme Court decision for affirming legal protection for women who are vulnerable to sexual assault by predatory men.

"The decision confirmed what is already clear in the Criminal Code and what is, or should be, common sense.  When a woman is unconscious she is not sexually available," says LEAF legal director Joanna Birenbaum.

A Canadian court has cleared the way for Ottawa to seek penalties of up to $10,000 a day against U.S. Steel for allegedly breaking job-protection promises made when it bought Hamilton, Ont.-based Stelco.

The Federal Court of Appeal struck down U.S. Steel’s efforts to overturn Canadian investment law — the second such court decision to go against the company — after almost two years of procedural and legal challenges by the Pittsburgh-based company.

The Canadian government sued the company in 2009, claiming U.S. Steel’s decision to temporarily shut down two former Stelco plants violated promises it made about maintaining employment levels.

U.S. Steel bought Stelco in 2007 for US$1.1 billion, and the decision to idle the Ontario facilities affected about 1,500 jobs. The company blamed weak demand for the shutdowns and denies it broke any promises.

All deals over $300 million involving a foreign buyer are required to pass an Industry Canada review to ensure that the takeover provides a “net benefit’’ to Canada. While the government does not detail what “net benefit’’ means, it considers employment, technology development, productivity, competition, and the effect a takeover will have on national policies.

In approving the Stelco takeover, the federal government cited job protection as one of the benefits.

The Investment Canada Act gives the government the authority to ask the courts to fine U.S. Steel up to $10,000 a day until its commitments on job protection are honoured.

“The courts have now made it clear — twice — that the penalties set out in the act are legitimate, as is their purpose to protect Canada’s economy and enforce promises made by foreign investors,’’ said Ken Neumann of the United Steelworkers union of the May 25 ruling.

U.S. Steel declined to comment on the development.

Intellectual property lawyers say the Supreme Court of Canada’s decision yesterday in Masterpiece Inc. v. Alavida Lifestyles Inc. is a victory for those seeking stronger protection of trademark laws.

“The decision affirms that the Canadian trademarks regime is national in scope and upholds the plain language of the Trade-marks Act,” said Daniel Bereskin of Bereskin & Parr LLP, who represented the intervening International Trademark Association at the SCC.

The case holds that a registered trademark is not valid if a confusingly similar trademark had previously been used anywhere in Canada.

The case involved two retirement residence companies, Masterpiece, of Alberta, and Alavida Lifestyles, of Ontario. Alavida applied to resister the trademark “Masterpiece Living” in 2005. Masterpiece, meanwhile, had used several unregistered trademarks — such as “Masterpiece the Art of Living” — since it began operating in 2001.

Soon after Alavida’s application came forward, Masterpiece began using “Masterpiece Living” and applied to register it. Alavida’s application was granted, and Masterpiece’s was denied accordingly.

Masterpiece then applied to have Alavida’s registration quashed, but the trial judge denied that move and determined there was no likelihood of confusion between the marks. The Federal Court of Appeal upheld the trial decision, but the SCC decided to allow Masterpiece’s appeal and expunge Alavida’s registration.

“Consideration of all the circumstances of the case, including the factors set out in s. 6(5) of the Trade-marks Act and particularly that Alavida’s trademark ‘Masterpiece Living’ and Masterpiece Inc.’s ‘Masterpiece the Art of Living’ are very similar, leads to a finding that Masterpiece Inc. has proven that the use of Alavida’s trademark in the same area as those of Masterpiece Inc.’s would be likely to lead to the inference that the services associated with Masterpiece Inc.’s trademarks were being performed by Alavida,” wrote Justice Marshall Rothstein, on behalf of the unanimous court.

The court also ruled that, as Masterpiece’s use of the trademark came before Alavida’s proposed use, the latter company was barred from registering its trademark pursuant to S. 16(3) of the act.

“As a result, Alavida was not ‘the person entitled to secure the registration’ of its trademark under s. 18(1) and this ground of invalidity has been made out,” wrote Rothstein.

"The court’s remarks on survey evidence have a beneficial effect on trademark owners. Although enforcement of marks can still be an expensive proposition, the Supreme Court is clearly trying to cut down on the burden of enforcement costs by eliminating one of the significant expenses associated with taking a trademark case to trial," wrote Ingrid VanderElst and Joanne Nardi in a Torys LLP bulletin on the ruling.

Canada

Alta. man loses bid to stop sour gas project, Calgary Herald

Father convicted of killing daughter's boyfriend, CTV News

SCC to rule on 'erotic asphyxiation' case, The Gazette

United States

Top court supports Ariz. business immigration, Reuters

Lawsuit against Huffington Post to proceed, Reuters

International

British author jailed by Singapore court, Reuters

U.S. man charged with insulting Thai monarchy, Reuters

The new online voting system for the Law Society of Upper Canada bencher election virtually eliminated the old problem of late-arriving votes, says Treasurer Laurie Pawlitza.

Lawyers could still use the traditional paper ballot in this year’s election, but had to request a paper package in order to avoid the online vote this year.

Pawlitza told Convocation today that just 403 out of 15,592 votes were cast by paper, or about 2.6 per cent of the total. That’s even less than the number who tried to vote by paper in 2007, but missed the deadline because they misjudged the post. In the last election, 507 paper ballots arrived at the law society after voting had closed, and couldn’t be counted. It’s now impossible to vote late online, although 79 who rely on Canada Post still managed to miss the deadline in 2011.

Law Society award winners: standing, (l to r), with Law Society Treasurer Laurie H. Pawlitza (middle), Cynthia Petersen, Roderic Ferguson, Ronald Slaght, David Nahwegahbow, Alfred Mamo, and Carol Shamess. Seated: Stanley M. Tick and Fay K. Brunning.

The number of members who voted in this year’s election was still fairly low even though the law society seemed to arrest a declining trend in voter turnout. The rate has been on the plunge since 1987, decreasing at every election until this year. The 1987 peak was 56 per cent, but by 2007 that had fallen to 34.5 per cent. In 2011, 15,592 lawyers cast ballots for a turnout of 37 per cent.

Pawlitza announced she will form a working group to take a closer look at the election process and any improvements that can be made.

“I’ve written to all the candidates thanking them for running in the election and inviting any comments they might have on the process, and those comments are already coming in,” she said.

The law society welcomed 16 new benchers to Convocation for the first time this morning. They are an eager lot.

“I arrived this morning at my usual hour and I wasn’t able to get a chair at the table, so I would observe that this new Convocation is highly competitive,” said Thomas Conway, chairman of the professional development and competence committee.

Also, last night the law society held its annual awards ceremony at Osgoode Hall.  The 2011 Law Society Medal recipients are Cynthia Petersen (Toronto), Roderic Graham Ferguson (Midland), Ronald G. Slaght, (Toronto), David Nahwegahbow, (Whitefish River First Nation), Alfred Mamo (London), and Carol A. Shamess (Sault Ste. Marie).

Hamilton’s Stanley M. Tick, was awarded the Lincoln Alexander Award in recognition of his dedication to the people of Ontario and the legal community. Fay K. Brunning of Ottawa recieved the Laura Legge Award, presented to a woman lawyer in Ontario who has exemplified leadership within the profession.

Canada

B.C. judge orders teen killers into federal system, Victoria Times Colonist

Man's 15-year sentence for sex assault upheld, The Province

Manager sentenced to jail for impregnating teen employee, Toronto Sun

United States

Convicted child murderer executed in Ariz., Reuters

Court raises standard for striking down patents, Reuters

International

Rwanda genocide suspect seized, Reuters

Bosnian Serb war crimes suspect arrested, Reuters

It’s a case that has attracted marginal attention but one that’s being watched by some First Nations lawyers given the far-reaching implications for land development on reserves.

The Okanagan, B.C., case has unfolded and succeeded before the Canadian Human Rights Tribunal that has severely criticized Indian and Northern Affairs Canada officials in their dealings with First Nations. The trickle-down effect of the tribunal’s ruling is expected to place more decision-making power into the hands of private individuals known as locatees who have rights to band lands and want to develop them.

Louie, James, Beattie, Joyce v. Indian and Northern Affairs Canada was heard before the tribunal last year, but a decision wasn’t issued until early 2011. The tribunal essentially ordered the federal body to “cease its discriminatory practices” in its land management practices related to locatees.

The case marks the first time that the Canadian Human Rights Act has been applied to the Indian Act and INAC since it was amended in 2008. Previously, the Indian Act was excluded with no jurisdictional reviews by the Canadian Human Rights Commission or the tribunal.

On June 27, 2007, James Louie entered into a joint venture agreement with Joyce Beattie. Both are Indians as defined by the act. They agreed to a “business association to respectively prepare and submit an application for use of land within an Indian reserve . . . pursuant to s. 58(3) of the act for a long-term and pre-paid residential lease of (certain) lands to the developer (Ms. Beattie).”

Under the deal, Louie would allow a 49-year lease for a nominal rent of $1. The joint-venture agreement had Beattie paying building costs on the land and marketing. Residual proceeds were divided two-thirds to Louie and one-third to Beattie. However, INAC wouldn’t approve the locatee’s application because the rent wasn’t fair-market value and Louie hadn’t sought independent financial and legal advice on the deal that the government body could use to establish a fair price.

Louie responded that he should receive “both an apology and confirmation that you and your officials will from now on respect my right to determine my own interests, and without any more of your so called ‘protection,’ which is entirely self-serving and is a cruel affront to my human dignity.”

The tribunal ordered INAC to “amend its land management manual and other policies to provide that where individual locatees (other than those determined to be mentally incompetent or under the age of majority) have determined for themselves that a transaction is for their individual benefit, INAC will accept that determination and conduct the processing of requested lease on that basis.”

Kelowna, B.C.-based lawyer Andrea East, who practises First Nations and business law but wasn’t involved in hearing, calls the case “significant” as it identifies that a discriminatory practice existed in the way INAC policy was carried out. East wrote a commentary on the case in Native Business Development Magazine in April. According to East, INAC’s role now largely becomes one of “administrative” approval.

The tribunal’s remedy states that INAC “shall cease its discriminatory practices and take measures, in consultation with the Canadian Human Rights Commission, to redress the practices or to prevent the same or similar practices from occurring.”

The Aboriginal Peoples Television Network, which carried extensive coverage of the ruling, said in its news story that the decision “is sure to have wider ramifications over how Indian Affairs interprets the Indian Act in its dealings with First Nations bands and individuals.”

While the B.C. real estate market is sizzling as buyers from mainland China look for high-end homes often located near good schools, this category of offshore buyers is causing some legal glitches.

Notary public Alexander Ning, who deals with mainly mainland Chinese clients, says the major problem that he sees is getting documents processed. He notes that while both spouses often need to sign registered documents, when he asks them to attend at his Richmond, B.C., office, he’s told that the husband has gone back to China. “The wife tells me he will not be back for six months,” Ning says.

It then becomes a challenge to find a way of signing the document overseas in a way that’s acceptable to the Land Title and Survey Authority of British Columbia offices. “It is very difficult,” he says, noting that in China, notaries are mainly government officials who have their own way of signing documents. Unfortunately, their seal or attaching their own documents to the original one isn’t acceptable, according to Ning.

While the documents can be witnessed at the Canadian embassy, there are only a few places in China with a diplomatic outpost. Also, only a few Canadian firms have set up law offices in China. As a result, options are limited and there’s not much wiggle room when the bank approves a mortgage and requests the draft the document only “two weeks before closing,” says Ning.

Another difficult situation occurs when he gets instruction from three different banks to draft the same documents on behalf of a client. “I call Mr. M. and say, ‘I’m confused as to which bank you are using,’” says Ning. “He tells me he has now decided not to use any. He’s going to pay cash.” That situation can compound itself when the client then faces restrictions on cash that can be transferred legally out of China.

The problems aren’t insurmountable. They just add to the normal work required, says Ning, who maintains that as much as two-thirds of the B.C. residential sales market is now served by notary publics. Mainland Chinese “are the fast growing part of the market,” he notes.

Properties in West Vancouver are much sought after by buyers from mainland China. Photo: netsnake

West Vancouver realtor Susie Goodall specializes in selling to offshore Chinese clients and lectures on dealing with them. One problem is the failure to get a deposit cheque in a hot market when offers are being presented to a client.

“If you are dealing with a Chinese realtor or buyer and there is a subject free offer on a property, it’s a done deal and you want to make sure that there is a deposit cheque in hand or they can simply walk away,” she says. In the meantime, buyers can change their mind and leave the property vendor dangling. “The vendor could sue,” Goodall says.

In a hot market, buyers also want to tie the property up or make multiple offers. The focus is on finding the properties that hold value and are close to good schools and ethnic communities. In B.C., areas favoured by buyers from mainland China are Vancouver’s west side, West Vancouver, North Vancouver, Burnaby, Coquitlam, White Rock, and Richmond.

Lawyer Florence Wong, who also hosts a talk show on a Chinese language station and does real estate transactions for clients, notes the story of one person who’s selling after 18 months and is realizing a 30-per-cent increase in price. “I have another client who is negotiating on property he has had for 15 months and he will make a handsome profit as well,” she says.

But, the question that cautious people are asking is how long before the bubble will burst?

Currently, Ning is seeing houses on Vancouver’s west side on modest lots with no view selling for more than $3 million. Speculators are even repeatedly flipping to one another. “It is scary,” says Ning, who maintains that “history always repeats itself” and a crash will come.