Legal Feeds Blog
Highway 401 reopens after fatal collision near Prescott, Ont., Canadian Press
- $1.6 million judgment against Thunder Bay Police overturned
The Ontario Court of Appeal has ruled a trial judge should have considered expert evidence in determining standard of care in a negligence claim against the police.
The court overturned a $1.6-million judgment against the Thunder Bay Police Services Board and officer Frank Barclay that had been awarded to Ricardo Mercuri and his business, Central Auto Parts.
|Kirk Boggs said rejection of expert evidence raised the standard of care from reasonable and probable grounds to a requirement to prove guilt.|
Mercuri brought a negligence claim against the police after he and his business were the subject of a 1997 investigation into stolen vehicles and auto parts. Mercuri was charged, but later found not guilty after a number of charges were withdrawn.
The trial judge in Mercuri’s civil lawsuit, Justice Helen Pierce, found the Thunder Bay police did not meet the standard of care in their investigation, but the Court of Appeal ruled Pierce had erred by rejecting expert evidence in her determination.
“This was a technical, complicated investigation, and the reasons the trial judge gave for considering the police conduct to be clearly egregious are flawed,” Justice Russell Juriansz said in the decision.
The trial judge, Justice Helen Pierce, found the police had not met the standard of care in their investigation for a number of reasons, including a determination that they had “failed to understand the purpose or the scope of the Criminal Code or the case law relevant to their investigation.”
Pierce rejected opinion evidence of an expert — a witness called by the plaintiff — who testified the police had reasonable and probable grounds to arrest Mercuri, saying the evidence was unreliable.
Kirk Boggs, a lawyer with Lerners LLP who represented the police on the appeal, says Pierce’s rejection of expert evidence raised the standard of care from reasonable and probable grounds to a requirement to prove guilt.
“When you’re evaluating a case like this, where there’s an allegation of negligent investigation, the court really requires expert evidence to help understand what the standard of care is in the circumstances of this case and whether the police officers met it,” he says.
The Court of Appeal agreed and found Pierce erred in finding the police had not met the standard of care without expert evidence.
“There are two exceptions to the general rule that expert evidence is required,” Juriansz said. “Neither exception applies here.”
The court said Pierce erred by considering whether the police could prove Mercuri knew the auto parts in question were stolen rather than whether they had reasonable and probable grounds.
“This is an important distinction,” Boggs says. “The role of the police is to investigate and assess whether there are reasonable and probable grounds for an arrest based on the information available at the time. They are not required to prove the accused’s guilt in order to be acting reasonable. That is the role of the Crown and judges.”
Joanna Nairn, of Pape Barristers Professional Corporation, who was one of the lawyers representing Mercuri, says that up until this point, it has been up to trial judges to determine whether they thought expert evidence was necessary to establish standard of care.
“In this case, we don’t feel that kind of deference was given,” she says.
“I think it’s difficult going forward for trial counsel and trial judges to know how much leeway trial judges have to make those determinations and how vulnerable they will be on appeal,” she says.
Sean Dewart, of Dewart Gleason LLP, says the case is very disappointing for “anyone who feels that police accountability should be enhanced, as opposed to being reduced further.”
“The obiter concerning the need for experts decreases access to justice without adding any value to the process,” says Dewart, who was not involved in the case, but has been lead counsel in significant cases against police services.
“If the police need expert evidence to establish that they had reasonable grounds for laying charges, they did not have reasonable grounds, in at least 99 per cent of the charges that they bring to court.”
While the court set aside the $1.6 million judgment, it upheld an award of $70,000 for the loss of property improperly stored by the police.
The Supreme Court has clarified when an appeal court should defer to the trier of fact in interpreting standard form contracts, which are commonly used in insurance policies. Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., released today, overturned an Alberta Court of Appeal decision that had found an insurance company was not required to cover the cost of replacing windows that had been scratched by cleaners on a construction site.
|Eugene Meehan represented the construction company that was denied insurance coverage.|
During construction, window cleaners had used improper tools and methods and ultimately the windows had to be replaced. The building’s owner, Station Lands, and the general contractor in charge of the construction project, Ledcor Construction, claimed the cost of replacing the windows against a builders’ risk insurance policy. The insurers denied coverage on the basis of an exclusion contained in the policy for the “cost of making good faulty workmanship.”
The disputed clause in the insurance contract excluded the “cost of making good faulty workmanship” but made an exception to that exclusion for “physical damage” that “results” from the faulty workmanship. Justice Wagner, writing for the majority, found that the exclusion clause should only cover the cost of recleaning the windows, but it did not exclude the scratched windows’ replacement cost. This restored the trial decision’s finding that the replacement was covered. The Alberta Court of Appeal had overturned the trial judge’s decision and declared that the damage to the building’s windows was excluded from coverage, as the damage was “physically or systematically connected” to the work the contractor had performed.
Eugene Meehan, a lawyer at Supreme Advocacy in Ottawa who represented Ledcor Construction at the Supreme Court, says the decision is a “welcome, positive and necessary clarification to an increasingly complex yet fundamental area of insurance — the interpretation of coverage, exclusion, exception clauses.”
A key legal finding in the decision examined the application of the SCC’s 2014 Sattva decision. In that decision, the top court limited the ability of parties to appeal contractual interpretation by stating that most contractual disputes are questions of mixed fact and law. However, Justice Wagner created an exception to Sattva in today’s decision, stating, “In my view, where an appeal involves the interpretation of a standard form contract, the interpretation at issue is of precedential value, and there is no meaningful factual matrix that is specific to the parties to assist the interpretation process, this interpretation is better characterized as a question of law subject to correctness review.”
Greg Tucker of Owen Bird in Vancouver, who represented the insurance companies, says although he is disappointed with how the court applied the faulty workmanship exclusion to his client’s situation, he agrees with the top court’s creation of an exception to Sattva for standard form contracts.
“In a standard form contract, for purposes of insuring, consistency of interpretation obviously is a key factor, for the benefit of both insurers and insured. It is important that interpretation of standard form language be treated as a question of law and subject to a correctness standard. I think it is a sound decision on that point,” said Tucker.
Nina Bombier, a partner at Lenczner Slaght Royce Smith Griffin LLP in Toronto, said in an e-mail that since the decision widens the scope of which contractual disputes can be appealed, it may result in more insurance litigation in the short term.
“However, as appellate interpretation of standard form contracts will have greater precedential value, this should eventually reduce litigation and limit future contractual disputes around the standard form clauses,” said Bombier.
- E-filing for Small Claims Court is ‘just the beginning,’ says Naqvi
As some of the province’s top judges and lawyers convened in downtown Toronto for the Opening of the Courts ceremony Tuesday, chief justices took the opportunity to call for the modernization of Ontario’s court system.
“We know that the bar would like to increase the efficiency and ease with which you can file materials electronically and to improve the convenience with which you can make remote appearances,” said Strathy, who serves as the Chief Justice of the Court of Appeal.
Chief Justice Heather Forster Smith, of the Ontario Superior Court, said modern court administration and courtrooms are needed in order to make the judicial system more efficient.
“We urgently need the technology that can expedite the administrative and important steps in all areas of the court’s work,” she said.
The provincial government expanded an e-filing pilot in the spring for the Small Claims Court, but critics have said this was a mere baby step in the provincial court’s overly cautious move away from the paper-based system.
Making the court more efficient through digitized systems is all the more pressing after the Supreme Court of Canada’s decision in R. v. Jordan, chief justices said.
The decision set strict timelines on the amount of time a trial could be delayed.
“If judges and registrars could access case management information in the courtroom, if judges could issue signed orders from the courtroom, if judges and the bar could access legal research with Wi-Fi from the courtroom, if reliable teleconferencing and video conferencing were available in at least principal courtrooms, if all of these tools were available to our judges across the province, I’m certain that we could generate efficiencies to consistently meet tighter deadlines,” Smith said.
In his remarks to the chamber, Attorney General Yasir Naqvi reaffirmed the provincial government’s commitment to further digitizing the courts.
E-filing for the Small Claims Court and other technological advances are “just the beginning,” he said.
“Each of these initiatives are working to make our justice system more accessible and user friendly. I’m confident that by continuing to collaborate, to share ideas and information, we will be able to continue modernizing the delivery of justice services in our province.”
The Ministry of the Attorney General has a modernization division, which is spearheading technological court advances, Smith said.
Strathy said the courts are also working in partnership with the Ministry of the Attorney General on reviewing technological innovation.
“I know the Attorney General and his staff at the ministry recognize this need and I express the hope that resources will be provided to address that,” he said.
Strathy also touched upon the urgent need for the province to tackle the disproportionate number of aboriginal people who are incarcerated, as well as expanding the Unified Family Court system.
The appeal court chief justice was optimistic that technological advances would be coming to the courts sooner rather than later.
“We are reviewing our options for technological improvement and we hope to make substantial changes in the coming years and I would say the near future,” Strathy said.
Gun rights activists sue Couric over documentary edits, Canadian Press
Global firm Norton Rose Fulbright LLP has acquired British Columbia regional firm Bull Housser Tupper LLP.
The merger, which was announced yesterday, adds Bull Housser’s 90 lawyers and a Vancouver office to Norton Rose Fulbright’s stable of more than 3,800 lawyers globally, with 575 in Canadian offices including Calgary, Toronto, Ottawa, Montreal and Quebec City.
|Norton Rose Fulbright managing partner Charles Hurdon says the move completes the firm’s coast-to-coast coverage for clients in terms of the major markets in Canada.|
For Dal Bhathal, managing partner at The Counsel Network, this move is a further indication of change in the legal profession and a sign of the importance for firms to focus strategically on their development.
“It’s no longer going off that they’ve been around for hundreds of years and have strong relationships, you really have to ask where is the business going and who do we want to become? For some firms, like Bull Housser, that may be more of an international approach, which is great, and for others it could mean they want to consolidate more at home or streamline the services they’re providing.”
Bhathal adds that if Bull Housser wants to play on a bigger playing field, “then absolutely this was a good move for them.”
Janet Grove, Bull Housser managing partner who will remain managing partner of the Vancouver office, says the move got unanimous support from the partners, and when the staff and associates were notified, they were “very excited, which is not always the reaction you get, but we’re very pleased.
“It’s still important to have strong local, regional industry expertise, but more and more we’re finding that business is going global, business is going borderless,” Grove says. “Our clients are [going global], too, so we want to be able to meet the needs of our clients not just today but over the next decade, and we think the best way to do this is to be able to help them wherever they go.”
She says the two firms have complimentary areas and that they each bring their regional expertise, which is an added benefit for clients. Her firm offers knowledge of the market and industries that are key to the B.C. market, and joining forces with Norton Rose Fulbright “allows us to meet the full needs of the client, however they are moving or growing.
“This is adding an office in a key market, this is not about reducing who we are. In fact, we’re looking at this for growth,” Grove says.
Charles Hurdon, managing partner of Norton Rose Fulbright, says the move completes Norton Rose Fulbright’s coast-to-coast coverage for clients in terms of the major markets in Canada.
Hurdon says his firm has worked with Bull Housser closely over the years and knew they’d get along.
“We’ve got the right partner in a market we really wanted to be in both for our Canadian clients and for our global platform,” he says, noting that Bull Housser is a well-established firm with more than 125 years in the market. “We were very attracted by their history, by their strong ties to the community and by their practice.”
Bhathal says the merger is good news for the Canadian market.
“Canada is now more on an international playing field, so that’s a good thing — Canadian firms are getting more prominence on the world stage,” she says.
The merger will take effect Jan. 1, 2017, and Hurdon says they don’t anticipate any significant changes, and “certainly nothing structural.”
- More than 200 lawyers across Canada participated in survey
|Shelby Austin says legal process 'outsourcing is certainly here.'|
The survey — done by CorbinPartners and Taran Virtual Associates — is based on the opinions of 247 lawyers from across the country, including those who work in firms, corporations or the government.
“It was always the question; we know legal process outsourcing is expanding leaps and bounds internationally, but what’s happening in Canada? And we did find that it is a core strategy for . . . a significant component of the legal industry here,” says Jon Purther, president and chief operating officer of CorbinPartners.
“We found that’s especially true with corporate and government counsel. We learned that those who are using this strategy are quite satisfied with it, they were motivated by the idea of being able to access quality and specialized resources. They wanted to be able to focus their time on their core business, and by outsourcing, would allow them to do so.”
Lawyers did the survey from May to July 2016, and they were invited to participate through legal associations such as the Canadian Bar Association and other provincial law bodies.
Forty per cent of survey respondents indicated they currently use LPO for work in their firms or departments. Of those who use LPO, 51 per cent said they used it for legal consultation or opinions, 37 per cent said they used it for agency work, 37 per cent said they used it for trial/appellate work, 36 per cent used it for legal research, 28 per cent said they use it for clerk/paralegal support and 24 per cent said they use it for document review or e-discovery.
Respondents using LPO also indicated they were pleased with the results, with 41 per cent saying they were “somewhat satisfied” with their most recent provider of LPO services and 45 per cent saying they were “very satisfied.” Nine per cent said they were “neither satisfied or dissatisfied,” with three per cent saying they were somewhat dissatisfied and two per cent saying they were very dissatisfied.
The remaining question, says Purther, relates to non-users of LPO.
For example, the survey indicates that “most of those not using LPO are not considering it for current or future business.”
“The primary obstacles include concerns over the quality of the work and their existing ability to use in-house resources or hire as needed,” according to an executive summary from the report, made available to Legal Feeds.
While 40 per cent of respondents are using LPO, 52 per cent said they were not currently using LPO, and eight per cent didn’t know or couldn’t say if it was in use.
“They were uncertain or firm that they weren’t going to be using this strategy, and when we tried to understand why that was the case for those who weren’t, again, a lot of uncertainty — uncertainty about the quality of the work, concerns about losing control of the business, concerns about confidentiality, having in-house resources that could do it so that they didn’t feel the need to outsource. And I think that for legal process outsourcing to really have the jump, it’s going to need to convert those who are not using it to try to use it,” says Purther.
Shelby Austin, a partner with Deloitte LLP and the national innovation and growth leader for the financial advisory practice, says, “Outsourcing is certainly here.”
She says the survey validates a trend that outsourcing isn’t about cost but about specialized expertise, particularly when it comes to being “conversant in technology.”
“For example, in e-discovery, it’s not just about the people, but it’s also about harnessing predictive analytics and efficient technologies. Similarly, in diligence, again, we’re seeing the use of more advanced technologies, in combination with labour arbitrage, to provide a full set of services to clients,” says Austin.
The full study is not available online, but a news release describing it is available on the CorbinPartners web site.
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